What is Law:

Characterised:
binding on whole community
can be enforced
officially recognised
discoverable
relate to public interest
reflect rights and duties
Why are laws necessary:
every society makes laws
if there are no laws; anarchy
o recognition of values and ethics
o establishes patterns of conduct
o provision of dispute settlement
o adapt to change
Types of law:
numerous laws relating to every aspect of a persons life
common law vs statute law
public law vs private law
o public law: affects everyone powers of the state over citizens
administrative law; how govt dept works
cnsnt law; different levels of govt, jurisdiction etc
criminal law; behaviour damaging to community as a whole
industrial law; relationship between employers / employees
o private law: disputes between private citizens
contract law; agreements between people
torts; deal with behaviour of people re: property
family law; disputes between husband/wife
Laws, Values, and Ethics:
values principles or attitudes held as important
ethics a set of moral beliefs governing behaviour
ethics = choosing between values (morality)
case study; medicine society has developed technology that has the ability to prolong
life, or end it (euthanasia). Laws outlawing euthaniasa reflect the value that human life is
extremely valuable
if values conflict, the law will side with the majority (generally), or dominant culture
Law and justice:
justice equality + fairness values + ethics
a legal system can only be as just as the system from which it stems
law cannot always be just difference in values and ethics
Law, custom, and culture:
custom a type of behaviours that has evolved over time, followed by group under
mutual consent
law grew out of customary behaviour, and often embodies these
culture shared knowledge of thinking and behaving e.g. beliefs, arts, values etc
different cultures have different values law cannot always accommodate all these

Why do people obey the law:

beliefs, values, or customs would dictate they follow the law anyway
reflection of common values
educated to think certain behaviour is taboo
fear of punishment
fear of public shame / condemnation
general desire for protection

ATSI law pre 1788:

law was a part of life lore +law intertwined. Reflected these values ethics etc
laws were tribal different variations on a local level (common factors too)
ownership of land no individual, only communal ownership, spiritual link with land
oral tradition laws passed through word of mouth, majority not written
secrecy some parts of law were secret, and only revealed to specially selected
the dreaming is the basis for law. Encompasses ATSI life (part of beliefs)
kinship complex system of blood ties, governing marriage and punishment
maintenance of order no complex institutions, disputes resolved by elders, or family
members of injured parties (mediation and conciliation)
mediation and conciliation by either tribe as a whole, the tribe elders, or family
members of injured party
enforcement and sanctions punishment enforced by relatives of injured party or
ceremonial leaders; ranged from ridicule, ostracism, spearing, death by sorcery (lol)
Comparison table
Aspect of law
ATSI legal system
Who knows/how?
Different people know
different laws
Many laws secret
Laws passed orally
Who makes it?
Tradition / custom
Ancestors
Spirits (the Dreaming)
Rules of kinship
Judged?
Relatives
Ceremonial leaders
The whole tribe
Enforced?

By different people, often a

relative of injured party

Attitude to land

No concept o individual
ownership
Tribe cares for land

Aust. Legal system

Everyone can know all laws
There are specialists
(lawyers)
Laws are written down
Parliaments
Courts
Delegated legislators

Courts / tribunals
Written law
Evidence revealed in
adversary way
Police
Courts
Prison system
Parole
Idea of individual ownership,
thus theft, buying/selling

Recognition of ATSI law

Australian Law Reform Commission 1986 inquiry;

o Some areas of ATSI law should be recognised and enforced by the courts,
instead of ATSI people.
NSW reform includes:
o Land rights ATSI rights to land and water (statute and common law), for
example, Aboriginal Land Rights Act 1983 (recognises ATSI traditional
ownership, and spiritual relationship between ATSI people and land
o Child custody laws recognising the development of culture and tradition in ATSI
families, and its importance. E.g. Children and Young Persons (Care and
Protection) Act 1988, it is compulsory to place ATSI children in the care of ATSI
people, excepting exceptional circumstance
o Aboriginal marriages treated as de facto relationships

Criminal law disorganised, partial recognition. E.g. punishment by tribal law,

rather than aus. legal system, if it relates to tribal / religious crimes; killing for
tribal reasons may be a partial defence to murder manslaughter

Development of Aus. Legal System

Two types of law in ALS (Aust. Legal system)
o Common law made by judges per stare decisis
o Statute law made by parliaments

FORMATION OF CUSTOM LAW

Based on*roman law
*canon law
(church/eccl
esiastical
law)

English Customary Law each

village had its own laws based on
local customs = customary law.
During Norman conquest
Each village would hold its own
trials if a dispute arose or law was
broken

Crime commited = crime

against the king = trial in Kings
courts

9th
cen
tury

More standardised system of

law applied, representing
national customs

Influences common law

Equity
developed
by court of
chancery to
deal with
injustices in
common law

Post Norman conquest (1066)

central system of govt (feudal
king head of govt).

System of travelling judges

introduced, applying same
laws across country

Mercantile law law

developed by merchants
as they travelled to enable
self dispute resolution

Equity
refers to rules
developed
that look at
what is fair
and just in
individual
cases

13th
and
14th
cen
tury

Formation of common law

Statue law similarly developed - pre parliament, the divine right of kings governed king.
Laws = law of god = cannot be challenged.
1215, barons angry over injustices, forced King to sign the Magna Carta, restricting the
power of the king
first parliaments irregular meetings of barons to discuss laws made by the king
1689, Declaration of Rights, no monarch could make or suspend laws without
parliamentary consent
Parliament made lost of laws over the next centuries. The queens power today is fairly
ceremonial, and to assent to law.

Court systems and common law

A court is an official body that resolves legal disputes, presided over by a judge /
magistrate
Hierarchy of courts in each state and federal arena

Couts have different jurisdictions; geographical, subject determined, original (heard for
first time), appellate (review or appeal from other courts)
Appeal = when a person is dissatisfied with the decision of a lower court takes the
decision to a higher court to have the decision reconsidered
NSW courts people within nsw have access to two types; nsw court system and federal
court system
o Most matters dealt with by the local ct with a magistrate
NSW Court hierarchy:
High Ct (Full Ct)
*appeals from High Ct (Sng Jg) on criminal +civil
matters
High Ct (Sng Jg)
*appeals from NSW CoA on criminal + civil matters

NSW Court of Appeal

*Part of supreme Ct, three judges
Appeals from Supreme Ct (sng Jg), supreme Ct, and
NSW district Ct

NSW supreme Ct (single judge)

*very serious criminal cases, murder, treason
*civil cases $750000+
*civil matters such as wills, injunctions, Admiralty

Land and Environment

Ct
*Environmental matters

NSW District Ct
*serious criminal cases, armed robbery, sexual assault
*civil cases $40000 - $750000
*appeals from lower courts

Coroners court
*investigations on
unexplained deaths + fires

NSW local courts

*minor criminal matters
*committal hearings
*civil disputes <$40000

Childrens court
*cases involving children

Federal Court System

Hich Ct (Full Ct)
*seven judges
*constitutional matters
*appeals from sng jg high ct
High Ct (Partial)
*single judge, or three judges
*cases brought by / against federal govt
*cases between states or residents of different states
*appeals from federal ct, family ct, state ct.

Federal Court (full)

*appeals from single judge

Family Ct (Full)
*appeals from sng jg

Federal Court (Sng)

*industrial matters
*bankruptcycases
Court
*trade matters

Family Ct (Sng)
*cases regarding marriage and divorce

STATE CT SYSTEMS

hierarchy: it is more convenient for the larger number of less serious cases to be
heard by the local courts (spread throughout state, cheaper to run, quick); a system of
appeals is possible; operation of the doctrine of precedent
Common law as a source of law:
o Interprets statutes parliaments laws do not cover every possible situation e.g.
crimes act a person cannot conduct himself or herself in an offensive manner in
a public place. Courts determine the meaning of offensive.
o Interpreting areas of law where there are no statues e.g. tort law

The Doctrine of Precedent

The doctrine of precedent is the basis for common law
It is the process by which courts use decision in earler cases to help decide the outcome
Precedent is a binding decision made in a previous court case with similar facts
Developed in England Australia with colonisation
Two parts:
o Ratio decendi the principle or reason dor the decision (binding)
o Obiter dicta other remarks (non-binding
General rules: lower courts are bound to follow decisions in superior courts. This is called
binding precedent; superior courts do not have to follow decisions in lower courts, though
may use them. this is called persuasive precedent; decisions in other court hierarchies
(e.g England etc) can also be persuasive; most courts are not bound by their own
decisions
Avoiding precedent;
Distinguishing different facts to previous case
Reversing appellate jurisdiction, superior courts can reverse actions of inferior courts
Overruling similar to reversing, however involves two cases A is heard in local court, B
in district court, B rules that As decision is wrong, applies its own decision to case B
Disapproving decision form another court system is being considered
Parliament;
A parliament is a body of elected representatives, which debates proposed legislation,
passes, amends, or rejects legislation, and delegates legislative authority to other bodies.
Features:
o Elected all citizens 18+ must vote
o Parliament is bicameral two houses

Parliaments are composed of all members of both houses

The Government is formed by the political power / party that have majority in
Lower House
o The Opposition is formed by the political party(ies) which have the remaining
seats
o The Queen assents to legislation, usually through representative (the GovernorGeneral)
o Ministers members of the Government who are responsible for certain
departments
o The Cabinet is formed by some / all the ministers. Decides on policy, and what
laws should be debated or considered in parliament
o The shadow ministry, members of the opposition who monitor policies /
proceedings of the ministers
o Executive council is the body which enables legislation to be put into operation.
Governor/ G-G, and some ministers.
Residents of NSW are governed by the NSW Parliament and the Federal Parliament
FEDERAL PARLIAMENT
NSW STATE PARLIAMENT
Lower House = House of Representatives.
Lower House = Legislative Assembly. Members
Each member is elected by people in their
elected in state electorates. 93 members.
electorate (an area of Aus, with a certain
number of people). 148 members total.
Upper house = the senate. All citizens in one
Upper House = Legislative council. All the
state elect twelve representatives, while
citizens of the state vote for representatives on
territories elect two. 76 members
the council. 42 members.
Government Leader = Prime Minister
Government Leader = Premier
Cabinet = composed of senior ministers
Cabinet = all ministers
Queens Rep. = The Governor-General
Queens Rep.. = The Governor
o
o

Common Law: Advantages

*Decisions must be made: judges must make
a decision in a case before them, decision
cannot be avoided. Judges must respond to
every new challenge and situation.
*Impartiality: judges must not respond to
outside pressure when making a decision. The
decision must be unbiased and impartial. If this
is voided, an appeal can take place.
*individual involvement: individuals always
involved in court cases
*consistency: via doctrine of precedent
*scrutiny of existing law: judges can see and
highlight shortcomings of existing laws,
demonstrating where change is needed
Common Law: Disadvantages

Statute Law: Disadvantages

*Decision can be avoided: parliaments may
avoid making laws on sensitive issues
*Lack of impartiality: constant influence by
outside groups.
*Lack of individual involvement: often have
little say in what laws are passed
*Changeability: parliaments may change the
laws as per majority (through repealing act)
*Scrutiny can be lacking: busy with current
affairs :. Not willing to check old laws.

*Need a case: judges need a case to make a

decision
*Large Individual cost: higher courts = higher
cost
*Decision applies to those involved only:
not binding on wider community
*Not democratically elected: nonrepresentative, difficult to remove from office
*Slow to change: judges must follow
precedent, must have a case, only isolated
areas of law change
*No outside help: cannot seek outside
opinions/expertise.

*No case needed: laws can be made/changed

at any time by parliament
*Individuals encounter little personal cost:
vast areas may be changed easily
*Decision applies to everyone
*Democratically elected: representative govt
= represents common views, values etc
*Can adapt to change: can quickly change in
response to values/attitudes (easily)
*Expertise available: may consult others (e.g
research, advice) in formation

Statute Law: Advantages

How Parliaments make statute law

Statute law overrides common law
Aka legislation, statute laws, Acts of Parliament

Process of:
o Initiation begins with an idea. Pressure on govt to legislate; either by opposition
or other lobby groups. May be submitted to Cabinet.
o Cabinet consideration examines proposition. If assent, send to draftsmen, who
phrase the law appropriately. Now termed a Bill.
o The first reading minister responsible introduces it into parliament (lower
house). It is simply the minister reading the bills title. Distributed to members.
o Second reading house debates broad concepts of Bill. Vote is taken. Most bills
pass this stage.
o Committee stage House looks at Bill closely, debates each clause. It may be
sent to specialists with interest / experience. Often amended in this stage.
o Third reading pass committee stage, re-voted by parliament, goes to Upper
House
o The Upper House entire process repeats itself, up to this stage (1 st, 2nd, 3rd
readings)
o Assent passed by upper house, assented by G-G / G. The bill is now law.
Types of legislations:
o Original Acts; areas of law where there are no previous laws
o Amending Acts; change sections of existing legislation

o
o
o

Consolidating Acts; Combine all statues over years into one act. No change to
law itself.
Codifying Acts; combine all existing laws (common and statute) into one Act
Repealing Acts; remove statute laws (partial or total)

Politics and Legislation

A Bill must undergo a lengthy process to become law, however this does not take as long
as it would seem
Parliament (f. or S.) is dominated by two political parties labor or liberal
Party in power will propose most laws. They also hold majority:. Pass most laws (lower
House).
Upper house is often where bills are rejected. Minorities count, as does the opposition.
Therefore, the minorities need to be consulted. They hold the balance of power.
Delegated legislation
Delegate = give someone else a task, while holding overall responsibility
Delegated legislation is law made by subordinate authorities who are given this power by
parliaments (through Enabling Acts)
E.gs include:
o Executive council; pass regulations (e.g administrative details) to laws every
passed to ensure their operation.
o Govt departments, local govt, statutory autorities
Parliamentary control over delegated authorities; many of the rules/regulations must be
tabled in parliament; members of parliament may ask questions about any delegated
legislation; ministerial responsibility; some d/l must be approved by the Executive Council;
courts can disallow d/l if it was for improper purpose (inconsistency between act and d/l, act
will prevail); ombudsmen (state /fed.) and tribunals; regulatory impact statements in NSW
Advantages of Delegated Legislation
Disadvantages of Delegated Legislation

Efficency easily and effectively

Undemocratic not representative,
updated
Lack of consultation

Flexibility respond to community

Lack of parliamentary control
needs best
Lack of publicity hard to find

Expertise more time for expert

Confusion many authorities covering many
opinion / advice
aspects of laws. Conflict or overlap.

Frees parliament more important

matters

Local governments best know the

needs of local areas, and thus can cater to
them
The Nature of International Law:
Intl law is the system of law which governs relationships between sovereign states
(countries)
Domestic law is law that operates within one country
Requirements for a state: a permanent population; defined territory over which it
exercises recognised authority, an effective government, capability of entering into intl
agreements
Sovereignty = authority
Aus = representative govt = sovereignty rests in the people
Private intl law = the rights of individual which cross national borders e.g. citizenship.
Public intl law = relationships between SS (sovereign states)
Sources of International Law:

Treaty = international agreement, concluded between states in written form, governed by

international law
o Bilateral treaty = formal agreement between two states
o Multilateral treaty = formal agreement between 3+ states
Convention is a treaty which is agreed to and proclaimed by a large number of nations
Declaration is similar to a convention, though usually a resolution of the UN
Customary intl law = law making based on the constant and uniform procedure of states.
Accepted as fair and right by community
Jus codgens = principle of intl law that may not be contradicted by any nation, any treaty
which goes against it is invalid
Legal decisions of the UN or ICJ (+ others ) are also sources of law
Legal writings well respected writings intl lawyers, judges etc.
Hard vs soft law;
o Had intl law = written in treaties, established by customs, existence cannot be
disputed
o Soft law = pre law, arises from difficult nature of deciding intl law, not yet fully
established as intl law
International Organisations:

Chief organisation is the UN

Established in 1945, grown in significance since then

51 member nations in 1945 185 member nations in 1995

established to oversee world affairs

Role has changed over time. Policy of non-involvement, merely

mediation, has transformed to both these functions.
o General Assembly; pass resolutions, create organisations, discuss customary intl
law
o Security Council; executive, most powerful. Right of veto. Five permanent, ten
non-permanent members. It has ultimate control over peacekeeping forces
o Secretariat; administrative and co-ordination organ of UN00
o Economic and Social Council; intergovernmental body. Examines intl economic,
social, health and educational issues and other areas of concern, which are
direct to the GA
o Trusteeship council; helps independent nations (PNG 1999)
o International Court of justice judicial organ, intl judicial body. It may only hear
cases between nations, 15 justices, dependent on cooperation (cannot enforce
its decisions
International government organisations subsidiary organs of UN, meet and decide on
specific issues within intl law e.g refugees, tariffs.
Regional organisations APEC (Asia Pacific Economic Co-operation), European Union
(EU), these cover regional agreements in intl law
Non-governmental organisations separate from governments + UN, but have their
support. Work on basis of consensus and cooperation. E.g. the Red Cross.

How International Law is made.

It is formed by the mutual consent of nations, given either by international practice or by treaty
agreement. Such practices and agreements may involve two nations (bilateral agreements) or
they may extend to many nations (multilateral agreements).
The International Court of Justice (ICJ) is located in The Hague, Netherlands, in a building
referred to as the Peace Palace. All UN members (192) are part of the ICJ, and affected by its
rulings. Matters that states (nb only states may bring cases before the icj, aside from the icj

prosecution) bring forth are judged using intl customs, conventions, and the general principle of
law established by civilized nations. The icj is vested with the power to apply its own laws, and is
not bound to stare decisis. No appeal is possible through the ICJ. Some cases that have come
before the ICJ include:
* Pulp Mills on the River Uruguay (Argentina v. Uruguay) - Order - Request for the Indication of
Provisional Measures - 23 January 2007
* Legality of the Threat or Use of Nuclear Weapons - Advisory Opinion - General List No. 95 (8
July 1996)
* Legality of the Use by a State of Nuclear Weapons in Armed Conflict - Advisory Opinion General List No. 93 (8 July 1996)
The International Criminal Court
is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war
crimes, and the crime of aggression. It started on 1 July 2002. The official seat of the court is in
the Hague, Netherlands but its proceedings can take place anywhere.
Enforcement of international law is usually completed by a combination of involvement, both by
state government, and a higher power, such as the UN or ICJ. These set down statutes,
conventions, or declarations which are then enforced through state laws. These are limited by the
overseeing organisations limited jurisdiction, as they cannot impose their will on nations not part
of it. Punishment is also limited, as responsibility of apprehending the criminal is often tasked to
the government [of the country] in which they reside in.
Organisations
IGOs- Inter-governmental organisations. is an organization comprised primarily of sovereign
states (referred to as member states), or of other intergovernmental organization.
-Asian and pacific coconut community (APCC)
Asia-pacific economic cooperation (APEC)
Association of Southeast Asian nations (ASEAN)
Ngos- non governmental organisations-is a term that has become widely accepted for referring
to a legally constituted, non-business organization created by natural or legal persons with no
participation or representation of any government.
Australian Red Cross
CARE Australia
Oxfam Australia (OAus)
Regional GOs- Regional governmental organisations.
Central Coast Regional Organisation of Councils (CCROC)
Central NSW Councils (CENTROC)
New England Local Government Group
The United Nations, founded in 1945, was the successor to the League of Nations. The UN was
seen as a widespread failure as it did not prevent WWII. It began in San Francisco. It officially
came into force on October 24th, 1945 => France, the Republic of China, the Soviet Union, the
United Kingdom and the United States. It is located in International territory in Manhattan, New
York City.
Main aims: facilitate cooperation in international law, international security, economic
development, social progress, human rights and achieving world peace.
Functions:

The General
Assembly

The UN is made up of:

The Security
Economic and
Council:
Social Council

the
Secretariat

Consists of:

All member
nations.
Votes on
important

15 members, 5
permanent
Peace/security
between

Intl civil
servants
Provides
studies/info

Tasks:

54 members
elect by GA
promoting intl
economic/social

International
Court of
Justice
n/a
Judgement
between

Examples:

decisions

countries

coop and devel.

Disarmament
commission
(6 other
commissions)

UN
Resolutions
(binding):

UNESCO,
World Bank
Group

etc for GA
and SC.
N/A

nations
See above

Application of British law in Australia

Aust colonised 1788 English laws valid, through process of the doctrine of terra nullius
(Aust uninhabited pre colonisation). If no law was suitable for the conditions, British
Parliament/Governor of colony made laws for colony
1853 Responsible government +self government. Elected body (manhood suffrage
property owners voted)
1901 Federal Government established gained legislative abilities through the
Australian Constitution.
19th + 20th centuries power to legislate transferred gradually from British parliament to
Australian parliament
o Australian Courts Act (1828) no new law passed by British parliament would
apply to Australia unless specifically stated
o Colonial Law Validity Act (1865) stated colonial governments could amend,
repeal, or make laws repugnant to English laws, excepting those statutes with
exclusive statements
o Statute of Westminster (1931) gave the federal government the power to
amend or repeal any English laws
o Australia Acts (1986) gave state parliaments independence; also abolished
appeals to the Privy Council
The Constitution and separation of powers
Separation of Powers power distributed between three arms of govt
Legislature responsible for passing Acts of Parliament. (representative)
Executive responsible for putting Acts passed into effect. Consists of various govt
departments, responsible for delegated legislation.
Judiciary responsible for applying law in individual cases, settles disputes.
The Constitution and the division of powers
Aust. Cnstn = to establish a federal system of govt
Federal one central govt, as well as state govt; as opposed to,
Unitary one central govt only
Division of power legislative , executive, judicial power divided between state and
federal govts
S.51 of the Aus Cnstn gives power to the Federal Govt, listing areas over which it can
make laws. State Cnstns describe a states law making power:
o Specific Powers belonging to Fed. Govt. S.51, e.g. immigration
o Residual Powers states retained. E.g. crime, law enforcement.
o Concurrent both Fed and state govts can make laws.
S.109 states that if both Fed and State govts make laws on the same
subject, but they are inconsistent, the Fed law will prevail
o Exclusive powers of which fed has exclusive power.
SPECIFIC vs EXCLUSIVE some exclusive powers are specific powers, but not all. If it
is not an exclusive power, then both state and fed govts can make laws on it, making it
concurrent UNLESS it is mentioned in a separate clause that state govts cannot.
Amending the Constitution
S.128: both the following must occur:
a. A bill stating the question to be put in the referendum must pass both houses of
parliament
b. The change is approved by referendum by the majority of people in the majority
of states.
The High Court and the Constitution

Judicial review: the HC is empowered to review Cth legislation. However, it must be

brought before the HC by an individual, organization, or govt
Constitutional interpretation: resolving constitutional disputes
Transfer of power to Fed. parliament: Franklin Dam Case
a. Commonwealth v Tasmania (1983) dispute between federal and state
governments over the construction of a dam. Tasmanian govt claimed it as a
state matter, however, the fed. govt said it could not build the dam as it went
against an intl agreement about world heritage areas
b. S.51 of the Cnstn grants the fed govt the power to make treaties etc: external
affairs power. The federal govt argued that it had made a treaty to protect this
area.
c. HC agreed with fed govt and the dam was not built (under s. 109).
State and federal agreements: state/federal agreements on many issues so that standard
laws apply on a national level.

The Constitution: checks and balances

Checks = restraint on law making bodies, balances = various arms of govt
The executive and the separation of powers: principles of responsible govt require the
executive arm of govt to be chosen from the legislature. However, checks and balances
through the separation of powers occurs in others ways:
o Ministers/PM responsible to parliament committee system ministerial
responsibility
o Supply Acts informed consent on the spending of govt money
o Judiciary review the actions of ministers (judicial review)
The judiciary and the separation of powers: separate from lg/exe, exemplified in the HC
The legislature and the separation of powers: independent judiciary, inalienable + limited
expressed rights through Cnstn, dismissal of govt acting beyond power
Division of powers: balance law making powers of federal and state govts through S.51
Representative government: elected by the people, thus representing their wishes
Protection of states rights: division of power, the provision of the Senate (traditionally the
States house), S.99 Cth may not make laws which discriminate between states.
Power of the Senate: reviewing legislation passed from the HoR, cannot initiate Supply
Bills, balance of power held by minorities ( consultation reqd to pass legislation)
Ability to Change: through referendum by general population
Protection of individual rights: Cnstn directly and indirectly protects individual rights, eg
The right to vote (s.40), The right to freedom of religion (s.116)
Power of the head of state: The Governor-General + standard/reserve powers (Cnstnial
monarchy)
o Standard: eg appoint people to govt bodies, assent to legislation etc
o Reserve: eg appoint/dismiss PM, refuse to dissolve parliament
The Aus. Constitution in the 21st Century
Powers of the head of state reforming the reserve powers, post Whitlam Government
dismissal. The reserve powers are not explicitly defined within the Cnstn.
Power of the Senate legislation can often be caught up in a hostile Senate. Changes
to the powers of the Senate, and reducing the chance of minority party dominance.
Division of powers overlap in power, areas were both sections of power are
unwilling/reluctant to act
Protection of individuals rights very few individual rights protected by Cnstn, introduce a
Bill of Rights

Court Procedures
the system of laws being practised, post-effect
laws applied mainly through the court system
most courts have jurisdiction over both civil and criminal cases
Criminal case
Civil Case
The case prosecution
The case suit or litigation
The party who takes the case to court Crown
The party who takes the case to court the
(State/Crown)
plaintiff
Against defendant
Against defendant
Sentencing sanctions against defendant
Remedy damages, injunction etc
Standard of proof beyond reasonable doubt
Standard of proof balance of probabilities
Burden of proof prosecution prove guilt
Burden of proof plaintiff prove their version
of facts
Standard of proof weight or value given to evidence, how much proof is needed
Burden of proof the party who must prove the case
The Adversary System
both criminal/civil use an adversarial system of trial
Adversary two sides of the case present and prove their version of the facts and
disprove the other side. Impartial judge, sometimes also a jury, listens to the sides, and
makes a decision
inquisitorial magistrate/judge collects evidence for both sides in cooperation with
prosecution, after inquiries have been made
developed from English customary law
rules of evidence justice/equality when in court
o Hearsay evidence evidence given by one person about what he/she heard
another person day. Not admissible (acceptable)
o Opinion evidence a person cannot give his/her opinion about another persons
words/actions, unless that person is an expert in that field
o Relevance only evidence that relates to the matter in dispute can be heard by
the court
Types of Court Hearings
Criminal hearings two broad categories
Summary offences those head and decided by a magistrate/judge.
Offences relatively minor eg motor traffic offences
Indictable offences serious criminal offences, heard by a judge and a jury
eg murder
o Trial by jury a jury is a group of ordinary citizens brought to court to hear evidence
and decide on issues of fact, on the basis of that evidence
Selected from electoral rolls, examined by lawyers from both sides
During trial by jury:
Examination-in-chief prosecution for prosecution witnesses, and
the defence for defence witnesses. This is when the witness tells the
court their evidence
Cross-examination undertaken by the opposing side. This is to test
the witness on accuracy and objectivity off their evidence
Re-examination take place by the same side as the examination-inchief. Clarifies issues arising out of cross-examination
Trial by jury is used in <1% of criminal cases
Juries much reach a unanimous verdict (all agree on the outcome of the
case)
o Summary hearings the case is heard by a magistrate alone

Committal hearings preliminary proceedings for trial by jury. The prosecutor must
convince the judge there is a prima facie case (that there is sufficiently strong
evidence against the accused for the matter to go before a jury.
o Childrens Court hearings charges against people <18 years. Similar to a summary
hearing, except:
Closed court (no public viewing)
Media may attend, but not publish identity of the offender
The magistrate specialises in childrens cases
A conviction is not recorded if the child is <16 years
o Coronial inquiries unnatural death or unexplained fire, a coroner will hold an inquest
into the circumstances. Proceedings more inquisitorial, normal rules of evidence not
followed
Civil hearings similar to criminal in procedure.
Negotiation between parties pre- and during trial, may result in out of court
settlement
Usually decided by a judge/magistrate sitting alone, occasional jury of up to
six people
Decide damages + award costs to the other party (usually loser, must pay
other sides court fees, legal expenses etc)
o

Roles of Participants in Court Process

Jury decides guilt or innocence of accused in serious criminal case
Judge
o Civil conduct case and deciding in favour of plaintiff/defence
o Criminal dependant on whether a summary or indictable offence is being held:
always, ensure the trial is conducted legally and fairly; decide questions which arise
about the law; impose a punishment if the verdict is guilty. In summary hearings, they
judge also decides the guilt or innocence of the accused. In trial by jury, the judge
also explains the law to the jury, and outlines the questions which must be answered
so it can reach a verdict.
Lawyers to represent the view of their clients in court, in the best possible way. Under the
Legal Profession Reform Act 1993 (NSW), there are few differences between barristers and
solicitors.
o Solicitors: qualified, legal practitioners who give general assistance to clients in legal
matters
o Barristers; qualified legal practitioners, specialising in representing clients in court
Other court personnel:
o Clerk of Court: responsible for administrative work in a local court
o Registrar: responsible for administrative work in a higher court
o Tipstaff: maintains order, administers oath to witnesses
Enforcement Agencies
There are several agencies that enforce the law:
o Police: State/Federal ensure criminal law is enforced by investigating
crimes/arresting alleged offenders
o Govt departments/agencies: enforce specific laws, such as taxation, etc
o Other govt agencies: eg the National Crime Authority, Independent Commission
Against Corruption (NSW ICAC)
o Local govt: specific areas of law, eg building standards + restrictions
Access to the Legal System
Ordinary people have access in two ways: involvement in political processes (eg electoral
voting) and involvement in the court system, or other dispute-settling procedures

Political processes: law reflects concerns of individual citizens input into laws
being made:
Voting compulsory voting for >18 (thus, representative govt)
Freedom of speech citizens are free to express their views about matters
pertaining to them (eg writing to a parliamentary representative)
Lobby groups collection of people with specific aims they wish to achieve.
Exerts pressure on Govt to change law
Dispute settlement ADR (alternative dispute resolution) or court system, (the former
arising out of a need for adaptable solutions to the shortcomings of the court system),
are accessible by members of the community.
Limitations to access people with greater power (economic, social etc)
often have greater access to increased legal services:
Cost the cost of legal representation is often very high.
Developments to assist those include legal aid, and ADR schemes
Delays insufficient courts/judges prevent fast (thus effective)
justice. This results in poorer or lost evidence, denial of
compensation etc
Discrimination race, marital status etc can affect
outcome/processes of legal system
Unfamiliarity frightened/intimidated witnesses/defendant

Alternative Dispute Resolution

Arose from restrictions in access to the court system (high cost/delays):
o Specialist tribunals aka tribunals/commissions, adjudicate disputes in specific
areas. Set up by Acts of Parliament:
Differ from court system:
Jurisdiction is limited to one particular area/subject
Tribunals are less formal than courts, not following strict rules of
evidence
Legal representation not required
Often quicker and less expensive
Eg, Fair Trading Tribunal (NSW): deals with disputes about rights of
consumers
Administrative Appeals Tribunal (Cth): deals with complaints about govt
actions
o Other ADR mechanisms:
Negotiation: discussion between parties, with a view to solving the dispute.
Works best in small-scale disputes.
Mediation: the process whereby a third party (mediator) listens to the dispute,
and helps minimise differences to reach agreement. (=conciliation in formal
context).
Community Justice Centres have been set up in NSW to mediate small
disputes. Mediation is often cheaper and more satisfying to parties.
Mediation has become a part of the court system. Courts have established
procedures for mediation and neutral evaluation (a trained assessor
evaluating each sides strengths and weaknesses and presenting likely
findings to the court). This allows for a quicker and more effective dispute
resolution process.
Arbitration: the process whereby a third party listens to both sides and
imposes a decision on the parties in disagreement. It is used by specialist
dispute resolution bodies (eg industrial relations commissions, or in intl law).
Legal Aid

The provision of cheap legal services to people on limited incomes

Aims to reduce inequalities in access to the legal system
Funded in NSW by the legal Aid Commission of NSW
Legal aid provides legal advice (preparation and/or representation)
Receiving legal aid is dependent on a three part test:
o Means test disposable income <certain amount
o Merit test that your case will succeed
o Policy guidelines only available for certain matters (increases if a person is at a
special disadvantage.
Legal aid is not free: co-contribution, or full cost payed after success of case.
Limitations of legal aid:
o It does not reach all needy people: excluded by one of the three tests. Funding cuts
to legal aid further reduced accessibility, and the range of cases available for legal
aid.
Unrepresented cases severely reducing chances of success
Policy restrictions reduced types available for representation
Lack of experienced/competent personnel reduced chances of success due
to low pay
Use of ADR although cheap and appropriate in some situations, in others it
is not

The Doctrine of Terra Nullius

Native title: right to live/use land for traditional purposes ATSI people lost this right in
1788 due to the doctrine of terra nullius (DTN)
Decided on settlement that Australia was a settled colony (uninhabited)
o Cultivate the soil
o Have permanent habitations
o Have a recognisable legal system
Terra nullius: land belonging to no one. Under DTN, all English laws automatically applied
to the settle colony
Implications:
o ATSI law: ATSI people bound by English law, ATSI law not recognised limited
recognition of ATSI rights/freedoms
o Land rights: land is integral to ATSI cultures, denied to them until 1992
Native Title around the world
Indigenous: original inhabitants of a country
Land rights exist where the right to land has been recognised as belonging exclusively to
indigenous peoples. Incl. land, water, subsurface.
Colonisation: establishment of settlements in a new country while been tied
(legal/political) ones original country
Issues of landlessness 700 mn indigenous people worldwide
Recognitions:
o Working Group on Indigenous Populations (WGIP)

Chapter 3
Power
Power is the ability to control/influence people and resources
Authority is the legitimate use of power
Power can be exerted by force, persuasion, or reward
Power can be collective e.g. lobby groups
Sources of power: physical strength/force; knowledge/intellectual ability;
control over resources; custom/position; investiture; fear of reprisal
Types of Power
Social power: informal, e.g. the relationship between adolescents and peer
pressure
Cultural power: dependent on society, e.g. previous treatment of ATSI people
compared to white Australians
Economic power: categorically, resources. E.g. boss of company
Political power: control of govt on society. Can be subject to checks and
balances, e.g. representative govt.
Legal power: control over law making processes/administration of laws.
Relation to political power
Concepts of Authority
Power is derived from many sources should be derived from legitimate
sources tho
Legitimate use of power has limits if people exercising power overstep these
limits, it is no longer perceived as legitimate
o Customary authority: grown over time into legitimate use e.g. family
structures
o Statutory authority: Cwth/Cnstn e.g. statute laws for establishing law
enforcement
o Common law authority: judiciary doctrine of precedent
o Delegate authority: given power by parliament
Power, Authority, and the Individual
Power is not distributed evenly political and legal influence is not available to
everyone equally
o Resolve: collective power
Needs of individual and state can coincide law-making processes are more
likely to favour people with more power
Justice/rule of law: rule of law states that all people and institutions are equal
before the law (not above/below) - however, can exist only on paper,
dependent on society
Institutional power/individual - few individuals have same economic power as
business/govt
Protection of individual rights/freedoms

Types of Duties
A duty is something a person or organisation is obliged to do
Individuals and govts have duties
o Social duties imposed by society in general, e.g. duty to pay taxes
o Cultural duties membership in a particular cultural group
o Moral duties obligations people feel should be upheld because of
beliefs they hold
o Religious duties obligations people owe because of religious beliefs
o Legal duties those that people owe because the law imposes them.
e.g. duty to vote, duty to assist police, duty to care for others
A duty can come under more than one type
Relationship between legal/other types of duties
Law upholds some moral, religious and social duties.
Relationship between moral/legal duties is strong (law + ethics), and also
legal/social
Law reform changes over time
The Nature/Sources of Intl Duties
Legal duties between States: mainly the United Nations, but also
treaties/conventions, customary intl law
Evolving nature duties to other states, AND to the individuals within their
state
Domestic vs intl duties:
o domestic, individuals are obliged to perform legal duties, can face
consequences for failure to do so, can be forced to
o Intl, states responsible for failing to meet duties reparations etc,
difficult to enforce
Moral/ethical intl duties e.g. accepting refugees into country, voluntary
contributions to intl aid organisations
Duties of States
Maintenance of friendly relations with other states settle disputes by
peaceful means, UN
Refraining from use of force except in exceptional circumstances
Payment of contributions to UN cannot be enforced
Promotion of economic/social development ECOSOC
Promotion/encouragement of respect for human rights

The Nature of Rights

A right is something to which you are entitled
For an individual to gain a right, some other individual/organisation must
perform a duty
Moral/customary rights: non-enforceable, morally determinable
Legal rights: a legal right is a right clearly given by the law
Govts owe people some rights, e.g. social security pensions
Discretionary powers govt grants power to take certain action, tho not
obliged
Human rights: entitlements that are fundamental. Every human being is
entitled to them because they are human e.g. Universal Declaration of Human
Rights 1948 (Intl)

International Protection of Rights

UN Charter: promotion of human rights/establishment of conventions etc
o Un Universal Declaration of Human Rights (1948): lists the human rights to which
everyone is entitled
P1 civil/political rights
P2 economic, social, cultural rights
o Intl Covenant on Civil & Political Rights: gives legal force to the first part of the
UDoHR protection of civil/political rights (1966)
o Intl Covenant on Economic, Social and Cultural Rights : gives legal protection to
the latter part of the UDoHR: protection of social, cultural, economic rights (1966)
All of above form Intl Bill of Rights
Some human rights have become jus cogens: e.g. slavery, genocide
Three part enforcement:
o Reporting procedures: self report on status to committee
o State v state complaint
o Individual complaints against state
NGOs: e.g. Amnesty International. Important as they are independent
Limits on the effectiveness of international law protections:
o Not all countries are parties to intl human rights treaties
o Lack of enforcement mechanisms
o Problems with enforcement overall: open to bias (self report), individual acts as
the highest appeal
o Enforcement by consensus
o differing cultural perspectives on human rights
Protection of Rights in Australia
Depends on country
In Au, signing an intl treaty does not create domestic law, must be implemented
Protection of individuals:
o Non-interference law does NOT pass statutes regulating
o Conference by common law
o Conference by statute law
o The Au Cnstn s51 gives the federal govt power to make laws giving domestic
authority to treaties Au has signed
o Common law recognises intl law

Intl enforcement mechanisms Toonan v Aus, complainant to HRC (Human

Rights Committee) about criminalisation of homosexuality
Intl v domestic rights
o Intl rights are more encompassing: cover many rights, more than most countries
(accepted as customary?)
o Not as readily enforceable as domestic rights
o

Challenging govt decisions: informal

Challenged when it interferes with individual rights and freedoms
Access is determining factor
o Lobby/interest groups
o Trade unions
o NGOs (e.g. Greenpeace)
o The media
o Members of parliament
Power exerted by nature of collective/status
Informal means are often highly effective
Parliamentary control of the Executive
Executive considerable influence on the daily lives of individuals
Parliamentary committees: both nsw/fed parliament have formed several committee that
give the public and opportunity to participate in the legislative process. They also
investigate aspects of legislative/governmental processes
o Single house committee: Upper/lower
o Joint comm.: both houses acting together
o Standing comm.: permanent
o Statutory comm.: established by Acts
o Select comm.: perform a particular task, then disband
o Domestic/internal comm.: procedures and administration of parliament
o Legislative/investigative comm.: select/standing, investigates legislation, policy,
public administration
Committees are formed by members from both the Government and Opposition
Two important powers: power to conduct inquiries, summons, evidence etc; protection of
inquiry by parliamentary privilege
Effectiveness of parliamentary committees: very effective in checking the power of the
state, and giving individual voice in parliament (explain and justify actions). However, their
power can be limited by the parliament itself: not obligated to follow findings
Ministerial responsibility: ministers are members of govt who are responsible for govt
depts. responsible to parliament for administration of their depts. Ministers who
knowingly mislead parliament or make serious mistakes are expected to resign. Adding
element of personal responsibility

NSW
COURTS

Challenging govt decisions: courts

Judicial review a court considers whether a decision made by a govt body has been
made correctly
Under NSW law, guidelines that a court must follow (in JR) determined by common law
principles
Under fed law, guidelines a court must follow (in JR) are determined by the AD(JR)T Act
1977.
Locus standi standing having sufficiently been affected by a decision to have a court
review the decision (ie cannot call judicial review on principle)
Grounds for review
o denial of natural justice:
The hearing rule
The rule against bias
o Ultra vires acting outside of jurisdiction
o Error of law on the face of the record application of law wrongfully
o Failure to perform a duty fails to act
Plus, for federal courts

o Fraud involved
o No evidence to justify the decision
o Contrary to the law in any other way
Remedies available under judicial review:
o Declaration statement by court that decision is wrong
o Injunction an order to compel somebody or something to stop doing something
(usually private body)
o Mandamus an order to compel a public body/official to perform a public duty
(public sector)
o Certiorari orders body (who has legal authority) to set aside decision. Used in
conjunction with prohibition
o Prohibition orders a body to stop proceedings because it goes against the rule
of natural justice or at error in law
Class action: several people harmed by activities of someone else take the case to court
jointly
Effectiveness of JR:
o Court cannot remake the decision
o Rules of locus standi
o Slow/expensive
o Grounds for review limited

Challenging government decisions: internal/external administrative review

Internal review; authority itself
External review; separate tribunal set up for reviewing govt decisions
Administrative review: a body set up for that purpose reviews a decision made by a govt
decision, in such a way that they remake the decision if it was wrongly made. (reviewing
decision on its merits)
Internal review:
o Manager/higher position normally reviews decision of lower
o Established by ADT Act 1977 (NSW)
o Often a prerequisite to external review
External review:
o E.g. Administrative Decisions Tribunal (1998, review decisions of govt bodies,
can reverse substitute or order a reconsideration), Housing Appeals Committee;
Land and Environment Court
o In the federal sphere: specialist tribunals (Social Security Appeals Tribunal);
Administrative Appeals Tribunal (can remake decisions, provisioned under act,
appeals from specialist tribunals)
Effectiveness of administrative review:
o Many advantages over JR, quicker, cheaper, decision can be remade, not bound
by as many rules, legal representation not reqd.
o However, not all govt decisions are covered by AR.