TERM 1: THE LEGAL SYSTEM
BASIC LEGAL CONCEPTS
➔ Meaning/Definition of law:
- The law is a set of rules enforced on all members of a community, that are shaped by
culture, tradition, and values. The law acts as a guideline between individuals and
organisations within a society, they are officially recognised, binding and enforceable
by persons and/or organisations such as the police or courts, thereby maintaining
justice and order.
1. The law is binding on the whole community
2. The law can be enforced
3. The law is officially recognised
4. The law relates to public interest
5. The law reflect rights and duties
➔ Customs and Rules:
- Customs are established patterns of behaviour among people in a society or group that
have developed over time.
- Rules are prescribed directions for conduct in certain situations. Rules are generally
made by groups and only affect people within those groups. These rules often vary
between groups and are not enforceable by the state.
➔ Values and Ethics:
- Values are the principles guiding individual behaviour
- Ethics is the study of moral principles and rules that help determine what is right or
wrong
- Laws are based on common ethical values shared by the dominant group in society, as
standards of morality can vary across different groups
➔ Distinguish between customs, rules, laws, values, and ethics:
- As communities formed, they developed rules based on traditions and customs to
regulate behaviour and ensure order, which evolved into formalised law enforced by a
governing body. These laws include penalties for non-compliance to maintain societal
stability.
➔ Characteristics of just laws:
- A just law is fair, equitable, and moral, reflecting the common good while respecting
individual rights and freedoms. It involves fairness in treatment and outcomes, respect
for human rights and is derived from a legitimate authority, with justice being the
annoying effort to do the right thing by everyone.
,➔ Nature of justice:
- Equality: The state of quality of being equal; that is, of having the same rights or
status. Equality means that all people in a society are treated in the same way with
respect to opportunities and political, social and civil rights.
- Fairness: Freedom from bias, dishonesty or injustice; a concept commonly related to
everyday activities
- Access: The right or opportunity to make use of something
➔ Procedural fairness (principles of justice):
- Procedural fairness refers to the idea that there must be fairness in the processes
that resolve disputes. It is closely linked to the concept of natural justice; the two
terms are often used interchangeably. In Australia, it generally refers to the right to
know the case against you to present your case, the right to freedom from bias by
decision-makers and the right to a decision based on relevant evidence.
2 Main principles of justice:
- The right to be heard - this includes the right to be a fair hearing.
- The right to have a decision made by an unbiased decision maker - even an
appearance of bias is enough to constitute the breach of natural justice
➔ Rule of law:
- The rule of law is the principle that nobody is above the law; this can be seen in the
requirement that governmental authority must be used in the line written, publicly
disclosed laws, for which established procedural steps (due process) have been taken
in the adoption and enforcement
➔ Anarchy and Tyranny:
- Anarchy is the absence of laws and government
- Tyranny is being ruled by a single leader holding absolute power in a state.
SOURCES OF CONTEMPORARY AUSTRALIAN COMMON LAW
➔ British origins, including:
1. Development of common law:
- Common law is law made by the courts; historically, law common to England (as
opposed to laws made by parliament or statute law). It is used by judges when
deciding cases.
- They use the premise that similar cases should be treated in similar ways as judges
set the standards and precedent which became the basis of the british legal system
- When no relevant statute law exists a judge will turn to common law principles to
resolve the dispute. Common law may also be used to interpret statute law by a
judge. Statute law takes precedence over common law.
, 2. Equity and Precedent:
- Equity is the body of law that supplements the common law and corrects injustices
by judging each case on its merits and applying principles and fairness.
- Its main purpose is to develop remedies for wrongs that the common law does not
recognise
- Precedent is a judgment that is authority for a legal principle and that serves to
provide guidance for deciding cases that have similar facts.
- This concept is often referred to as the ‘doctrine of precedent’ or ‘stare decisis’ (a
decision that must be followed by all lower courts)
- When there are no previous decisions that provide precedence, a court must use
existing principles (common law and statute law) to make a decision. This new
decision creates precedence.
- Precedence does not have to be followed if the facts or relevant points of the law are
significantly different from a previous case.
3. Adversarial system of trial:
- A system of resolving legal conflicts (used in common law countries such as the UK
and AUS) that relies on the skill of representatives for each side (e.g defence and the
prosecution) who present their cases to an impartial decision-maker
- In trial the two sides involved in the case try to prove their version of the facts and
disprove the other side's version.
➔ Court hierarchy:
- Jurisdiction of state and federal courts:
- State and Territory Courts:
1. Local/Magistrates' Courts: Deal with minor offenses and civil disputes.
2. District/Supreme Courts: Handle serious criminal cases and larger civil matters.
3. Supreme Courts: Highest court in each state/territory; hears appeals and significant
cases.
- Federal Courts:
1. Federal Circuit Court: Deals with less complex federal matters, including family law.
2. Federal Court of Australia: Handles major federal issues and appeals from the
Federal Circuit Court.
3. High Court of Australia: The highest court; hears constitutional and significant
appellate matters.
- Jurisdiction:
- State Courts: Have jurisdiction over state laws and local matters.
- Federal Courts: Handle matters under federal law, including issues across state lines
and constitutional questions.
➔ Statute law:
- Statute law refers to laws made by parliament. It is also known as ‘legislation’ or
‘acts of parliament’.
- The Australian constitution allows state, territory, and federal governments all the
rights to make new laws.
, - Statute law will always take precedence over common law as it has been approved
by the government of Australia.
- Common law will be called upon when there are no statute laws that apply to the
case or crime in question.
- Apart from QLD, all state parliaments are bicameral (containing two
chambers/houses of parliament)
➔ Legislative process:
1. Introduction of Bill:
- A bill can be introduced by a government minister (government bill) or by a member
of parliament (private member’s bill).
2. First Reading:
- Bill is introduced; title read out, and copies made available. No debate occurs.
3. Second Reading:
- General debate on the bill’s principles and purpose. Members discuss the content.
4. Committee Stage:
- Detailed examination of the bill; amendments can be proposed and debated. This
can occur in a committee or the whole chamber.
5. Report Stage:
- Review of any amendments made during the committee stage and further potential
amendments.
6. Third Reading:
- Final opportunity for debate; focuses on the final form of the bill. Voting occurs.
7. House Approval:
- If passed, the bill moves to the other house (House of Representatives or Senate) to
repeat the above stages.
8. Royal Assent:
- Once both houses pass the bill, it is sent to the Governor-General for royal assent,
after which it becomes law.
9. Commencement:
- The new law comes into effect either immediately, on a fixed date, or via
proclamation.
➔ Role and structure of parliament:
.
BASIC LEGAL CONCEPTS
➔ Meaning/Definition of law:
- The law is a set of rules enforced on all members of a community, that are shaped by
culture, tradition, and values. The law acts as a guideline between individuals and
organisations within a society, they are officially recognised, binding and enforceable
by persons and/or organisations such as the police or courts, thereby maintaining
justice and order.
1. The law is binding on the whole community
2. The law can be enforced
3. The law is officially recognised
4. The law relates to public interest
5. The law reflect rights and duties
➔ Customs and Rules:
- Customs are established patterns of behaviour among people in a society or group that
have developed over time.
- Rules are prescribed directions for conduct in certain situations. Rules are generally
made by groups and only affect people within those groups. These rules often vary
between groups and are not enforceable by the state.
➔ Values and Ethics:
- Values are the principles guiding individual behaviour
- Ethics is the study of moral principles and rules that help determine what is right or
wrong
- Laws are based on common ethical values shared by the dominant group in society, as
standards of morality can vary across different groups
➔ Distinguish between customs, rules, laws, values, and ethics:
- As communities formed, they developed rules based on traditions and customs to
regulate behaviour and ensure order, which evolved into formalised law enforced by a
governing body. These laws include penalties for non-compliance to maintain societal
stability.
➔ Characteristics of just laws:
- A just law is fair, equitable, and moral, reflecting the common good while respecting
individual rights and freedoms. It involves fairness in treatment and outcomes, respect
for human rights and is derived from a legitimate authority, with justice being the
annoying effort to do the right thing by everyone.
,➔ Nature of justice:
- Equality: The state of quality of being equal; that is, of having the same rights or
status. Equality means that all people in a society are treated in the same way with
respect to opportunities and political, social and civil rights.
- Fairness: Freedom from bias, dishonesty or injustice; a concept commonly related to
everyday activities
- Access: The right or opportunity to make use of something
➔ Procedural fairness (principles of justice):
- Procedural fairness refers to the idea that there must be fairness in the processes
that resolve disputes. It is closely linked to the concept of natural justice; the two
terms are often used interchangeably. In Australia, it generally refers to the right to
know the case against you to present your case, the right to freedom from bias by
decision-makers and the right to a decision based on relevant evidence.
2 Main principles of justice:
- The right to be heard - this includes the right to be a fair hearing.
- The right to have a decision made by an unbiased decision maker - even an
appearance of bias is enough to constitute the breach of natural justice
➔ Rule of law:
- The rule of law is the principle that nobody is above the law; this can be seen in the
requirement that governmental authority must be used in the line written, publicly
disclosed laws, for which established procedural steps (due process) have been taken
in the adoption and enforcement
➔ Anarchy and Tyranny:
- Anarchy is the absence of laws and government
- Tyranny is being ruled by a single leader holding absolute power in a state.
SOURCES OF CONTEMPORARY AUSTRALIAN COMMON LAW
➔ British origins, including:
1. Development of common law:
- Common law is law made by the courts; historically, law common to England (as
opposed to laws made by parliament or statute law). It is used by judges when
deciding cases.
- They use the premise that similar cases should be treated in similar ways as judges
set the standards and precedent which became the basis of the british legal system
- When no relevant statute law exists a judge will turn to common law principles to
resolve the dispute. Common law may also be used to interpret statute law by a
judge. Statute law takes precedence over common law.
, 2. Equity and Precedent:
- Equity is the body of law that supplements the common law and corrects injustices
by judging each case on its merits and applying principles and fairness.
- Its main purpose is to develop remedies for wrongs that the common law does not
recognise
- Precedent is a judgment that is authority for a legal principle and that serves to
provide guidance for deciding cases that have similar facts.
- This concept is often referred to as the ‘doctrine of precedent’ or ‘stare decisis’ (a
decision that must be followed by all lower courts)
- When there are no previous decisions that provide precedence, a court must use
existing principles (common law and statute law) to make a decision. This new
decision creates precedence.
- Precedence does not have to be followed if the facts or relevant points of the law are
significantly different from a previous case.
3. Adversarial system of trial:
- A system of resolving legal conflicts (used in common law countries such as the UK
and AUS) that relies on the skill of representatives for each side (e.g defence and the
prosecution) who present their cases to an impartial decision-maker
- In trial the two sides involved in the case try to prove their version of the facts and
disprove the other side's version.
➔ Court hierarchy:
- Jurisdiction of state and federal courts:
- State and Territory Courts:
1. Local/Magistrates' Courts: Deal with minor offenses and civil disputes.
2. District/Supreme Courts: Handle serious criminal cases and larger civil matters.
3. Supreme Courts: Highest court in each state/territory; hears appeals and significant
cases.
- Federal Courts:
1. Federal Circuit Court: Deals with less complex federal matters, including family law.
2. Federal Court of Australia: Handles major federal issues and appeals from the
Federal Circuit Court.
3. High Court of Australia: The highest court; hears constitutional and significant
appellate matters.
- Jurisdiction:
- State Courts: Have jurisdiction over state laws and local matters.
- Federal Courts: Handle matters under federal law, including issues across state lines
and constitutional questions.
➔ Statute law:
- Statute law refers to laws made by parliament. It is also known as ‘legislation’ or
‘acts of parliament’.
- The Australian constitution allows state, territory, and federal governments all the
rights to make new laws.
, - Statute law will always take precedence over common law as it has been approved
by the government of Australia.
- Common law will be called upon when there are no statute laws that apply to the
case or crime in question.
- Apart from QLD, all state parliaments are bicameral (containing two
chambers/houses of parliament)
➔ Legislative process:
1. Introduction of Bill:
- A bill can be introduced by a government minister (government bill) or by a member
of parliament (private member’s bill).
2. First Reading:
- Bill is introduced; title read out, and copies made available. No debate occurs.
3. Second Reading:
- General debate on the bill’s principles and purpose. Members discuss the content.
4. Committee Stage:
- Detailed examination of the bill; amendments can be proposed and debated. This
can occur in a committee or the whole chamber.
5. Report Stage:
- Review of any amendments made during the committee stage and further potential
amendments.
6. Third Reading:
- Final opportunity for debate; focuses on the final form of the bill. Voting occurs.
7. House Approval:
- If passed, the bill moves to the other house (House of Representatives or Senate) to
repeat the above stages.
8. Royal Assent:
- Once both houses pass the bill, it is sent to the Governor-General for royal assent,
after which it becomes law.
9. Commencement:
- The new law comes into effect either immediately, on a fixed date, or via
proclamation.
➔ Role and structure of parliament:
.
