Legal Studies Year 11 - Notes 2019 - Emily Tierney

Basic Legal Concepts

Definitions -

Meaning of Law A complex combination of law, values/customs, and rules

LawA set of rules imposed on all members of a community, are officially recognised, binding and enforcing by persons or organisations as the police and/or courts.

ValuesReflect society’s judgement about the importance of different things.

Customs Principles, standards, or qualities considered worthwhile and desirable within a society developed over time.

Rules Regulations or principles governing procedure or controlling conduct, not enforced by an authorising body.

EthicsA set of moral beliefs governing behaviour. They are concerned with choosing between values and what we ought to do and what is right in a particular situation

EqualityEveryone is treated equally, and no one is subject to discrimination, laws are based on and reflect widely-held community values and ethics, the law will support and perpetrate the community as well as promoting the ideas that hold it together.

FairnessA legal system that is free from bias, dishonesty or injustice, concerns with impartiality, therefore authorities such as the judicial system should make decisions that are free from bias and prejudice.

Access All individuals having the ability to access every aspect of the legal system. If law is to protect each citizen only if each citizen has equal access to the law, the right to be heard and to a fair hearing. In reality, equal access to the law doesn't happen.

Procedural FairnessThe function to ensure all people are equal before the law and that a fair process is followed to decide disputes.

The Hearing RuleRequires that the decision maker must afford the affected person to be heard on the matter.

Rule Against BiasEnsures the decision maker must be unbiased

Justice The fair and impartial treatment of all persons, especially under the law. The continued effort to do the right thing for all people.

Rule of LawThat no person is treated above the law as of their socio-economic status, race, occupation, following etc. and that those exercising legal authority (e.g. the Government) do so in accordance with written, publicly disclosed laws that have been adopted and enforced according to due process.

Tyranny Leaders who have unlimited power over the people in a country or state are said to be tyrannical rules. This type of power usually involves severe punishment for any infringements of the law. An example of a recent tyrant was Saddam Hussein.

Anarchy A state of chaos and disorder resulting from the absence of rules and laws.

Cases (examples of definitions)-

Values and Ethics – The practice of polygamy within vast cultural and religious groups, such as Islam. The marriage between multiple partners. The Australian law forbids it under Bigamy in the Marriage Act 1961. The law states under subsection (1) that “a person who is married shall not go through a form or ceremony of marriage with any person” with the penalty being imprisonment of up to 5 years. This law covers forms of polygamy and all forms similar such as Polyamory, Polygyny, and Polyandry. The concept of more than one spouse is seen as Bigamy. The law states the punishment will be prosecuted against the one who was married and the one who participated in the ceremony. It states strict liability will be against;'(a) there are no fault elements for that physical element; and(b) the defence of mistake of fact under section 9.2 is available in relation to that physical element.'However, in the Family Act "A person can only be married to one person but can have as many simultaneous de facto marriages in addition to, or instead of, marriages at the same time" - Family Law Act under section 4AA. Therefore, it is possible to have multiple simultaneous partners recognized under law in Australia. For the purposes of family law, governing property distribution following relationship breakdown and custody of children and so on, there are no differences in the rights and responsibilities between a marriage, and a de facto relationship of more than two years’ duration. The law also states, 'The existence of strict liability does not make any other defence unavailable'.

Procedural FairnessMr Weir’s case which entitled him to procedural fairness as the hearing rule and the rule against bias. The exclusion of his socio-economic status in his industry and the removal of the risk of a bias trial influenced by the media. The Melbourne Cup-winning horse trainer who was being investigated over allegations of animal cruelty after police seized four electric shock devices, known as "jiggers", during early morning twin raids on his stables. The prominent trainer was also arrested along with two other men during the raids on Wednesday morning, with police also seizing an unregistered gun and a substance believed to be cocaine. Mr weir is entitled to procedural fairness in the case where he has been accused of animal cruelty after police seized four electric shock devices, known as "jiggers", during early morning twin raids on his stables, and obtaining an unregistered gun and a substance believed to be cocaine. Mr Weir has a right to be innocent until proven guilty, no special

treatment because of his social status, wealth and have no media influence on the decision. Have his case reviewed equally to everyone else. He is to be treated equally to everyone else in terms of his crime, the hearing rule must apply and he should be put up to procedural fairness, the hearing rule applies and he should be entitled to have his matter put before an unbiased adjudicator, his accusers must not play part in punishment. His evidence for his case must be collected in a fair way so case is launched on fair grounds.

Rule of Law The Marcus Einfeld case which deals with the matter of no one is above the law and everyone is equal before the law irrespective of social, cultural, economic or political status. The overturning of his previous speeding tickets as of his social status of being the judge of the Supreme courts and treated above the law. The false statement he made under oath of his alibi being a woman who had died 3 years prior to the misdemeanour.

The three main the things that the court stated was wrong - They interfered with the course of justice Perjury perverted the course of justice Too much value was placed on his social status that, that was the thing that was used

to determine whether he was lying or not, the fact that he was a judge and a national treasure was the thing to determine whether he should be determined to the same checks as everyone else in the same case.

JusticeThe easy access to the legal system being equal for all social classes. The ability that everyone will be given a chance to achieve the correct outcome within a crime and have a chance to acquire representation. The provision of Legal Aid to low income households to have an ability to bring justice to their situations. The middle-class working people is the most disadvantaged due to inability to afford the extreme rates of legal representation causing them to involuntarily receive injustice in their circumstances. The increasing fees makes this issue develop further. The benefit of upper-class people being able to fund themselves and the lower-class people being able to qualify for legal aid results with the middle-class being seen as not poor enough to acquire funding. A set of criteria:

Cash poor and asset rich means instant rejection. Legal System needs to be accessible to all and use the 3 stakeholders. Cash poor and asset poor, means they look at your case to see if it has enough merit

to qualify, if their substantial evidence that you are guilty, they will not take your case Money is limited and won’t use their funds to fight a battle with expected fail Strong evidence to show you are innocent, they will assist If you seem guilty and plead guilty, they will fund lawyers to fight on your behalf to

change your plead Take the cheapest route Supreme court cases run normally 4 months.

 Tyranny The circumstance in Sierra Leone where their former leader Charles G. Taylor using his power as the nation’s leader to commit in war crimes. The mistreatment of children as young as seven years old being forced into the nations army and commit in acts of mutilation and chopping of opponent’s limbs with axes and machetes. There were various of stories of truckloads of victims who had recently been lacerated being taken to a United Nations compound enduring their severed limbs in hope that they might be saved. The victims who had already lost one limb, told how they beseeched the rebels to cut off another one rather than have the same punishment applied on their own children. The children were press-ganged into the Small Boys Unit and fed a diet of drugs to give them the courage to keep

their positions on the front line. Charles G. Taylor the tyrant behind this behavior was convicted by the verdict passed on by the Special Court for Sierra Leone, Charles Taylor, the former president of Liberia, and was responsible for helping to “design” the plan of the vicious oppression that was portrayed against innocent civilians in Sierra Leone. Taylor was found guilty of “aiding and abetting, as well as planning, some of the most heinous and brutal crimes recorded in human history”. The verdict determined that Taylor will spend the rest of his life within imprisonment.

Sources of Contemporary Australian Law

Lady JusticeThe three stakeholders of the legal system are: Victim Society Offender

Sword represents punishment Blindfold represents fairness

Delegated legislation Delegated legislation is made by authorities other than parliament who are given the authority to do so by an Act of Parliament called and Enabling Act. This process allows particular laws to be created by those who have expertise in the area such as the RMS who makes laws concerning driving and parking in NSW. Delegated legislation also allows Parliament to use its time to deal with more serious issues for example the creation of by-laws by local councils concerning common/ public areas within their jurisdiction which do not need the NSW State Parliament to decide and pass. Finally, the creation of delegated legislation allows for greater flexibility because it is much easier to amend than Acts which have been passed via the parliamentary legislative process.

Type of delegated legislation

Definition and who this authority is delegated too.

By laws Made by a statutory corporation having effect only within the area of responsibility of the authority. Also used for the legislation of some State local government bodies.There is also a range of other delegated legislation which includes: Decisions, Declarations, Determinations, Directions, Orders, etc.

Ordinances Primary legislation of non-self-governing territories made by a federal government department to apply to a particular territory. Also used for the legislation of some State local government bodies

Regulations The most common form of delegated legislation. Used for legislation of general application emanating from a government department. Published in the Statutory Rules series until 2004 and in the Select Legislative Instrument series from 2005.

Rules  Legislation specifying procedural formalities, e.g. court procedures such as the High Court Rules. Published in the Statutory Rules series until 2004.

Statutory rules The acts of sederunt and acts of ad-journal of the Court of Session and subordinate legislation set forth by orders in council and orders and regulations of government agencies and adopted under authority delegated by Parliament

Parliament

Federal Parliament Where does Federal Parliament meet to represent the Australian people? People select members from their state or territory, to represent them in Parliament, meeting in Canberra to represent the people Identify the various offices that represent Parliament. The two houses of parliament - the senate and the house of representatives How and from where is a person selected to gain a seat in Parliament? The Australians vote to send a person from their local region, known as an electorate. How many senators (for the Senate) and members (for the House of Representatives)

are selected? 76 senators are elected to the Senate and 150 members are elected to the House of Representatives. In what way can a political party form government? Parliament represents the people of Australia, and it's the place where government is formed. What is a bill? A proposal to change law or make a new law

The House of Representatives (Lower House) How is a member of the House of Representatives elected to Parliament? At election time, the people of Australia vote in their local regions to elect one person to represent them in the House of Representatives. How many members are elected to the House of Representatives? 150 members are elected into parliament, many of them are representing political parties What part does the House of Representatives play in the formation of government? The House of Representatives is where government is formed How is the Opposition determined? The next largest party voted into parliament is the opposition or 'alternative' government What does the Mace represent? Every day begins with the Speaker entering the chamber preceded by the Serjeant-at-Arms holding the Mace. The Mace is then placed on the central Table, pointing to the government side, with the Mace being an important symbol of the authority of the Speaker and of the House itself. How are the members of the House arranged? The seats are set out in a horse-she shape whit everyone facing the speaker who is sitting at the front. Members who are voted in sit around the speaker which they are representing the people What type of issues do members discuss or debate? The need to change laws and debate implementing new laws such as 'Mr Paul Fletcher MP: I thank you Mr Deputy Speaker. I'd like to thank members who have contributed to the debate on the Enhancing Online Safety for Children Amendment Bill 2017'

The Senate (Upper House) Who do the Senators represent? Government senators sit to the right of the President and Opposition senators sit to the left, the Senators are voted in to represent the Australian states and territories. How many Senators sit in Parliament and how many represent each state and territory? 12 for each state and 2 for each territory, 76 senators all together. How is the seating in the Senate arranged? The seating is arranged in a horse-shoe shape around the speaker, the Government senators sit to the right of the President and Opposition senators sit to the left Why must the Government be prepared to negotiate with all Senators?

The government is being watched by senators to see what they are doing as they are the ones. That implement the laws. What two important roles do Senators have?Senators can question ministers and public servants about their decisions and the spending of public money, and also review the work of the government during Question Time by asking ministers to explain their actions. This helps to keep the government accountable to the Parliament and to the people of Australia.No decision can be made without the senate.

Common LawJudge made law

Common law means 2 things based on context Common law = judge made law (type of law)

Common law system = the (type of legal system that operates in a country) Where the judge is an impartial adjudicator

o Made when no relevant statute law exists, made when laws don’t specifically relate to the case [no law at all, ambiguous law]

EquityRules that were developed to ensure the law was applied fairly and equally to all cases.

Rules include: Each case must be judged on its own merit, based on the present case Equitable remedies must be applied

Doctrine of Precedent

All judges that are on the same level or lower must make a decision the same way as the precedent decision if the cases are similar.

Ratio decidendiThe principle or rule of constituting the basis of a court decision. (The rule of law on which a judicial decision is based.

Obiter dicta An incidental and collateral remark that is uttered or written by a judge but is not binding

Precedent case Sets a standard

Law is never retro-spective

The Hearing LawThe decision maker must afford an opportunity to a person affected by a decision to be heard.

The Rule Against Bias The decision maker must be unbiased in the matter to be decided.

Dietrich v The Queen (1992) HCA57

Didn’t qualify for legal aid as refused to plead guilty and the evidence was too strong to prove otherwise

Represented himself Pleaded guilty Lack of representation lead to him receiving an unfair trial – ignorance and easy target Team of lawyers launched an appeal on committing an injustice to his case Matter needed to be decided again but requiring a lawyer Trial can’t commence until representation Has become a precedent case Established those who are charged with a serious indictable offense cannot proceed to

trial unrepresented because this would be unjust and undermine the legal system (rule)

Passing a Bill

Division of Powers Doctrine

DREC -Division of powers Residual power (state law making power)Exclusive power (commonwealth law making power)Concurrent power (law making power which the commonwealth and states share)

Upon deciding to vote for Federation, the states were most concerned about how power would be divided between them and the new Federal Government. The areas that Commonwealth or Federal Government has the legal authority to make laws about are listed in the Commonwealth of Australia Constitution Act 1900 (UK), specifically Part V, Section 51, these are commonly referred to as exclusive powers and means the state and territory governments are not able to influence or interfere with the Federal Government exercising this power. Any powers not mentioned in Section 51 of the Constitution are known as residual powers which refers to the areas that the states control and can make laws for without the fear of interference from the Federal Government. The Constitution also recognised that there are areas that both the Federal Government and the states need to share power for - these are called concurrent powers. If the Federal and state governments disagree about an issue and each make a different and conflicting law about that issue, the Constitution says the way this inconsistency is to be resolved is by applying s.109 of the Constitution which states: 'When a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be valid'. The Division of Powers is therefore the legal principle which refers to the way the legislative power (the power to make laws) is divided between the Commonwealth Government and the various state governments.

Binding Precedent When a previous decision of a court must be followed by other judges who are at the same level or lower regardless whether they agree with the decision

Persuasive Precedent Where a previous decision of a court may influence a judge’s decision in a case, however they are not bound to do so

Constitutional Law

Section 51

Section 51 of the Australian Constitution refers to the Division of Powers between the states and federal governments. Section 51 in particular lists all the areas for which the federal government has exclusive power over including trade and tax.

It covers: Trade and commerce - with states and other countries Taxation Bounties on the production or export of goods Borrowing money on the public credit of the Commonwealth Postal, telegraphic, telephonic, and other like services The naval and military defense of the Commonwealth and of the several States - making

sure they maintain the laws Lighthouses, lightships, beacons and buoys Astronomical and meteorological observations Quarantine Fisheries in Australian waters beyond territorial limits Census and statistics Currency, coinage, and legal tender Banking, other than State banking Insurance, other than State insurance Weights and measures Bills of exchange and promissory notes Bankruptcy and insolvency

Intellectual property - ©, trademarks etc. Naturalization and aliens Foreign corporations, and trading or financial corporations Marriage Divorce and matrimonial causes; and in relation thereto Invalid and old-age pensions Provision of welfare benefits The service of justice throughout the commonwealth of the civil and criminal process The recognition throughout - Commonwealth of the laws, the public Acts and records,

judicial proceedings of the States The people of any race for whom it is deemed necessary to make special laws Immigration and emigration The influx of criminals External affairs Relations of the Commonwealth with the islands of the Pacific The acquisition of property on just terms which the Parliament has power to make laws The control of railways with respect to transport for the naval and military purposes of the

Commonwealth The acquisition, with the consent of a State, of any railways Railway construction and extension in any State Conciliation and arbitration for the prevention and settlement of industrial disputes Matters in respect of which this Constitution makes provision Matters referred to the Parliament of the Commonwealth by the Parliament or

Parliaments of any State or States The exercise within the Commonwealth, at the request or with the concurrence of the

Parliaments of all the States directly concerned Matters incidental to the execution of any power vested by this Constitution in the

Parliament or in either House thereof

Section 109

Section 109 of the Australian Constitution says that when a state law is in conflict with a federal law, the federal law will prevail. The federal will always overrule a state law.

Commonwealth v Tasmania [1983] HCA 21 (‘Tasmanian Dam case’) Tasmania wanted to build a hydroelectric dam on the Franklin and Gordon river system The Tasmanian Government argued that the building of the dam was a residual power

and the protesters, while entitled to their view, were not going to change Tasmania’s decision.

The federal government recognised the Wild Rivers area as a region of special significance, and it was listed under the World Heritage Convention.

The federal government passed the World Heritage (Property Conservation) Act 1983 (Cth), which specified that such areas of special significance should be protected

There was a state law allowing the construction of the dam and a federal law that demanded that it be stopped

Case went to the high court. The court ruled that the federal government was validly using the external affairs power

of the constitution (s 51(xxix)), which gives it the authority to legislate on any matter of ‘international concern’

Under s109, the federal law would override the state law. Section 109 states that ‘when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’

Roles in court -

Judges and MagistratesJudge will be responsible for directing the jury about the law. ... When you speak to a judge, you should address them as 'Your Honour'. Judge's Associate (Supreme, County and Coroners Courts) Performs various administrative and court duties to assist the judge. A magistrate hears evidence and decides whether a person is guilty or not guilty to an offence as charged. A magistrate imposes a penalty on those who are either found guilty or plead guilty to offences. The magistrate's role in court is to ensure that justice is administered fairly and impartially.

Judge’s AssociatePerforms various duties to assist a specific judge, such as: legal research; proof-reading draft judgments and providing substantive comments to the judge; and administrative duties.

TipstaffOfficer of a court or, in some countries, a law clerk to a judge. The duties of the position vary from country to country. It is also the name of a symbolic rod, which represents the authority of the tipstaff or other officials such as senior police officers.

Barristers and SolicitorsAre not as defined as they once were, there is a significant difference in the roles of a barrister and a solicitor in the Australian legal system. On a basic level, a solicitor is a legal professional that focuses on the day-to-day legal matters of their clients.

Solicitors tend to work in lower courts Barristers tend to be specialists in specific areas, they are independent contractors as

they are more experienced in the area

WitnessesSomeone who has relevant information about a crime. Both the lawyer for the government and the accused can require witnesses to come to court to tell this information to the judge, and sometimes to a jury. Witnesses must make an oath or solemnly state that they will tell the truth in court.

Court OfficerPrimarily responsible for providing security services within their respective courtrooms. ... Court officers enforce the judge's courtroom regulations and ensure that prisoners, jury members and witnesses have their needs taken care of.Court ReporterA critical role in legal proceedings which require an exact record of what was said. They are responsible for producing a complete, accurate, and secure legal transcript of courtroom proceedings, witness testimonies, and depositions.

Corrective Services OfficerResponsible for overseeing individuals who have been arrested and are awaiting trial or who have been sentenced to serve time in jail or prison

JuryListens to the evidence during a trial, decides what facts the evidence has established, and draws inferences from those facts to form the basis for their decision. The jury decides whether a defendant is "guilty" or "not guilty" in criminal cases, and "liable" or "not liable" in civil cases.

Plaintiffs and Defendants

Is the party who initiates a lawsuit (also known as an action) before a court. ... In criminal cases, the prosecutor brings the case against the defendant, but the key complaining party is often called the "complainant".

MediaOffers the community a chance to engage with the court system and improve their understanding.” ... “There clearly is a role for all media to report accurately and fully, in a way that helps increase the public confidence in the justice system,”

Police OfficerIs to protect people and property. Common duties of police include controlling traffic, patrolling neighbourhoods, responding to emergency calls, writing citations, delivering warrants, arresting violators and submitting incident reports in a timely manner.

BailiffAre law enforcement officers who are situated in courtrooms to maintain order and provide security. Along with guarding juries and enforcing rules of the courts, bailiffs open court by announcing the judges' arrival and close court by announcing the judges' departure.

Separation of Powers Doctrine

The Constitution says that this power is divided between three groups of people so they can balance each other. Each group checks the power of the other two. This separation of power stops one person or group of people taking over all the power to govern Australia and is called the Separation of Powers Doctrine.

Legislative power means the power to make laws and is concentrated in the Parliament. Executive power means the power to implement laws and is given to the government. Judicial power gives the High Court power to decide whether laws are legal according to the Constitution.

Separation of powers means that people in one of these three arms should not control the other two arms. The important exception is the Prime Minister and ministers who work in both the executive as well as in the legislature.

The Separation of Powers doctrine refers to the division of the power of government being divided equally amongst the three arms of government: the judiciary, executive and the legislature. This is an important fundamental legal principle that is enshrined in the Commonwealth of Australia Constitution Act 1900 UK which statutorily protects Australians from the situation where an individual or group gains excessive power leading to tyranny, corruption or an abuse of power by the state. The operation of the Separation of Powers provides the arms of government with the ability to check the power of the other two if a breach of the doctrine occurs to ensure the rule of law is upheld within the Australian legal system and each arm is held accountable for their actions. The Separation of Powers doctrine is best demonstrated via the introduction of the mandatory sentencing law Crimes and Other Legislation Amendment (Assault and Intoxication) 2014 (NSW) concerning the crime 'assault causing death' and 'aggravated assault causing death'. This statute was introduced by Premier Barry O'Farrell (Barry O'Farrell announces 'tough' laws to combat alcohol-fuelled violence , Sean Nicholls, SMH, 21/1/2014) because he felt the sentencing discretion (protected by the Separation of Powers doctrine) exercised by the judiciary in such matters was not only inconsistent but also didn't meet the community's expectations. This statute represents an interference by the legislature into an area of responsibility ascribed to the judiciary by Australia's first and most important law and as such undermines the doctrine of the Separation of Powers.

Adversarial System and Inquisitorial System

Feature Adversary System Inquisitorial System

Role of the judge

Ensure a fair and balanced trial, ensure the correct rules of conduct and procedure are implemented. If they ask questions, they are only questions of clarification.

Plays a more active role, controls the evidence, written statements are used more than oral testimony. They determine which evidence and witnesses are to be called to court and they question witnesses, we call the judges here truth finders whereas adversary system judges are known as referees.

Role of Legal Representation

They represent their parties’ interest. They are the ones who prepare and represent the case to the court, and they are the ones

There is very little need for legal representation basically because the judge is doing it all. They can ask questions at the end of the case from

that examines the witness the judge about what they did or what questions they asked.

Collection of evidence

All evidence except witness statements are collected by the parties and the judge will decide who will say something

All evidence and statements are collected by the judge. The accused is generally always questioned by the judge as they decide who gets to speak in the court.

Witnesses They must answer questions put to them by the legal representative. Witnesses are allowed to give a full version of the events as they see it, are allowed to talk freely.

Relies more on written evidence than statements. Witnesses are allowed to give a fill version of events as they see it, they can talk freely. They will not get interrupted.

Prior criminal record

Does not apply when determining the verdict. To decide when guilty or not guilty

Prior records are used to determine whether you are found guilty.

Rules of evidence

There are very strict rules of the case.

There are no specific rules about evidence, it’s based on whatever the judges want.

Role of the parties

The parties and the prosecution are involved on the presentation of the case. They determine the issues that are in dispute.

The role of the parties is basically non-existent as it is the judge that determines the direction of the case.

Adversarial SystemThe adversarial system of trial involves two advocates who represent their client's position before an impartial judge and jury. The legal advocates have party control and the judge/ jury must make a decision based on the evidence presented before them. Witnesses may only answer directly to questions put to them and they may not deviate from this to relate irrelevant information or information based on hearsay. If witness is going to provide opinions, they must be an expert in the field they are giving an opinion in. Alternatively, the civil law system developed from Roman law where the system of trial operates like an inquiry where the judge is actively involved in investigating the facts of the case and questioning the witnesses and as such the lawyers do not have party control over the direction of their case. As the strict rules of evidence used in the common law system does not limit a civil system case, the judge's focus can be on arriving at the truth, this is why witnesses are not restricted to strictly answering the questions to them but they can relate to the court their story concerning the case.

Inquisitorial SystemThe court is actively involved in determining the way in which the competing claims are presented. It is different from the adversarial system, where the court is required to act impartially, like a referee. The inquisitorial system derives from the roman and Napoleonic codes. It is found in Europe, as well as japan and some other countries. In this system, called the civil law system, a judge (or group of judges) has the task of investigating the case before him or her. Indonesia uses an inquisitorial system for criminal trials. This means that the judges will conduct an inquiry into the truth of what occurred; that is, the facts behind the legal issues in dispute. They are able to admit evidence that might not be admitted in an Australian court.

Judges are empowered to decide which witnesses will be called and could even call for outside testimony that had not been requested by either side.

Jurisdiction

Original Jurisdiction Jurisdiction refers to the types of particular legal cases a court can hear determined by the statute that established it, for example the NSW Family Court can only hear matters pertaining to divorce and residence arrangements of children. All courts have original jurisdiction, referring to legal matters for which a court hears the case for the first time. Some courts have appellate jurisdiction which provides them with the authority to hear appeal cases where a decision from a lower court needs to be reviewed.

Appellate v Original Jurisdiction Appellate jurisdiction refers to the power of a court to hear appeals of the decisions of lower courts and be able to affirm, reject or modify these decisions. In the case of Dietrich v The Queen (1982) HCA 57, Dietrich was found guilty and sentenced on drug trafficking charges, as a result of not qualifying for legal representation from Legal Aid of the Victorian Supreme Court, Dietrich appealed his conviction arguing his trial was unfair. The High Court in a majority decision found Dietrich had a right to a fair trial, not possible without legal representation setting aside the original decision and ordering a new trial.  Original Jurisdiction is the power of a court to hear a case in the first instance such as in the case of the R v Loveridge (2013) NSWSC where the three counts of assault, one count of assault occasioning actual bodily harm and one count of manslaughter were heard in the NSW Supreme Court because it has jurisdiction of the most serious indictable offences.

Court Hierarchy Australia has two overlapping jurisdictions of law: state and federal. As a result, there are separate state and federal jurisdictions, each of which has its own court structure. All courts have the power to hear a case for the first time. Some courts can also hear appeals from lower courts. This means they can reconsider the decision of a lower court, where the losing party believes there has been an error in the lower court’s legal reasoning. Figure 2.5 shows the structure of state courts in New South Wales, and federal courts in Australia. The arrows show the specific courts that can hear appeals from each of the lower courts.

The Role of the High Court

The High Court as the highest court in the land has a role as per s.73 of the Constitution to hear appeals against decisions made in federal and state/ territory courts. As part of its original jurisdiction the High Court has a role in determining whether law passed by parliament is valid in terms of the Constitution. The High Court also has a role in any matter where the Constitution may need to be interpreted and as such determining whether it can be used to encompass areas that did not exist when it was originally drawn up as in the case of the Commonwealth v Tasmania (1983) 158 CLR which centred around whether the Commonwealth had the jurisdiction under s.51 of the Constitution to pass the World Heritage Properties Conservation Act (1983) (Cth) which effectively prevented the Tasmanian Government to proceed with activities to build a hydro-electric dam. Another role of the High Court is to interpret the common law for the whole of Australia as it did in Mabo v Queensland No.2 (1992) 175 CLR where it determined that the common law principle of terra nullius did not apply to some areas of Australia where indigenous people could show a continuous connection to the land.

District Court

Types of cases dealt in the district court The District Court of NSW deals with a range of criminal cases that exceed the jurisdiction of the local court and are indicatable in nature such as manslaughter, malicious wounding and dangerous driving. Other cases for which it also has original jurisdiction includes a range of white-collar crimes such as embezzlement, fraud and forgery. The majority of cases relating to the importing, supplying and possessing prohibited drugs are also dealt with by the District Court. In these cases, a judge or judge and twelve-person jury will decide a verdict for these indictable offences but in all cases regarding sentencing a judge will make this determination. The District Court also has appellate jurisdiction to review cases tried in the local court whose verdict and/ or sentence is challenged by the prosecution or defence. The District Court has the jurisdiction to hear civil cases where the value of damages falls between $100,001 and $750,000, in most cases these will be heard by a judge but in rare circumstances where the case centres on the issue of defamation a four-person civil jury will be used. Where cases concern deciding damages for personal injury via a motor vehicle accident the District Court has an unlimited jurisdiction.

ATSI customary law

DefinitionLaw developed over time due to customs and traditions that are observed by different countries. Sometimes called international customary law

or

Law developed over time due to customs and traditions of the ATSI people.

Characteristics of ATSI Customary Law: Diverse in nature die to no one group They have a spiritual basis as based on the Dreaming Close connection with the land and water Based on ritual and oral traditions Largely focused on mediation and sanctions decided by elders

Customary Law Law was part of life – there was no distinction between rules that dealt with religion and

other aspects of life i.e. there was no separation of 'church and state'. Laws were tribal – different tribes had different variations of laws. Despite this all ATSI

customary law had various factors in common Ownership of land – the idea of individual ownership of land was non existent in ATSI

culture. Being a member of a tribe meant that a person was able to live on certain lands belonging to the tribe and use resources contained on that land

Oral tradition – laws were passed on by word of mouth. Different people within a tribe knew about certain types of laws because of the role they occupied in the tribe.

Secrecy – some ATSI law was secret and only known to a small group of specially selected men or women

The Dreaming – much of ATSI law was based on the Dreaming and spirits of the land, animals, plants and sky

Kinship – ATSI people have a complex system of blood ties, which extends beyond one tribe. Kinship governed much of the behaviour of tribal members such as marriage and punishment

Maintenance of order- problems/ disputes were solved by all tribal members or by relatives of the injured parties using mediation and conciliation

Enforcement and sanctions – punishment of a wrong was usually enforced by relatives of the wronged party or by ceremonial leaders

 The Relevance of Customary Law TodayIn the past 20 years, there has been greater legal recognition of Aboriginal and Torres Strait Islanders’ rights as the traditional landholders of Australia. Many aspects of customary law can be seen embodied in Australian law today. The practice of sustainable development, for example, is the basis for current environmental laws. Conciliation and mediation are increasingly used to resolve disputes in criminal, consumer and employment law. Customary laws are also sometimes taken into account when an Aboriginal or Torres Strait Islander is charged with a crime. For example, where an act has been done because Aboriginal customary law requires it, but the act amounts to an offence under Australian law, this may be raised in mitigation of the offence. Evidence that a criminal offence was provoked by the victim’s breaking customary law may also be a mitigating factor, and evidence that an offender is to receive traditional punishment may be submitted in the modifying of a sentence. In some places where there are a large number of people living a traditional lifestyle, elders will be consulted by those involved in maintaining and enforcing the law. However, there is much debate about the role of customary law in prosecuting, defending and punishing offenders, and those in the legal system are always wary of being accused of unfairness if everyone is not treated equally by the law. As a result, legislatures have been reluctant to formally incorporate customary laws into Australian law.

There are no clear links between contemporary and customary law

Relevance to Cont emporary Law The focus of Australian Law Reform Commission (ALRC) 'The Recognition of Aboriginal Customary Laws' Report 31 (tabled 12 June 1986) was whether it would be desirable to apply, either in whole or in part, Aboriginal customary law to Aborigines—generally or in particular areas or to those living in tribal communities only. In addition, the report addressed whether in criminal cases existing courts should be able to apply Aboriginal customary laws to Aborigines and whether Aboriginal communities should have power to apply their customary laws in the punishment and rehabilitation of Aborigines.

The report outlined that, with very limited exceptions, Aboriginal customary laws have never been recognised by general Australian law. It reported that customary laws were a significant influence in the lives of many Aborigines. More importantly however, the report recognised that there was no one 'authentic version' of customary law. Customary law was, and continued to be, a series of dynamic and changing systems applying to different groups of Indigenous Australians. The report highlighted that Aboriginal people must have the final say in the negotiation and consultation surrounding the recognition of customary law.

 

Criminal Law A partial customary law defence, similar to diminished responsibility, should be

introduced that would reduce a charge of murder to manslaughter in those cases where an accused acted in the well-founded belief that the customary laws of his or her Indigenous community required the act constituting the offence.

Aboriginal customary laws and traditions should be taken into account where relevant in determining criminal intent and in establishing whether a defence (for example, provocation or duress) to a criminal charge is made out.

Aboriginal customary laws should be taken into account in the exercise of sentencing discretion.

An Aboriginal defendant should be able to give unsworn evidence unless the court finds that he or she will not be disadvantaged by giving sworn evidence.

Courts should have specific powers to hear evidence in private, to exclude certain persons from the court or to take other steps to protect secret information about Aboriginal customary laws where this is necessary.

 

Criminal Investigation More sensitive policing practices are required in Aboriginal communities. Special rules are required to protect Indigenous suspects under police interrogation and

to help ensure the reliability and voluntariness of any admission or confession. Admissions or confessions obtained in contravention of these rules would not be admissible unless a court was satisfied that, in the particular circumstances, the suspect understood the caution, understood the nature of the questions and did not answer merely out of deference to authority or under the influence of suggestion.

Traditional MarriagesTraditional Aboriginal marriages should not be generally recognised, but instead should be recognised for certain purposes, including:

Legitimacy of children; Adoption, fostering and child welfare laws; Distribution of property on death; Accident compensation, including workers compensation, compensation on death,

criminal injuries compensation and repatriation benefits; Statutory superannuation schemes and private superannuation schemes established in

the future for the purposes of the social security act 1947 (cth) Spousal compellability and marital communications in the law of evidence; Unlawful carnal knowledge charges, provided both consent and traditional marriage are

proved; and The spouse rebate under taxation legislation. 

ChildrenAn Aboriginal child placement principle should be legislatively endorsed. When decisions affecting the care or custody of an Aboriginal child are made, the child placement principle requires that preference be given to placing the child with a parent, a member of the extended family, or a community member who, under the customary laws of that community, has responsibility for the child.

 

Indigenous courtsThe ALRC did not recommend a general scheme of Indigenous courts, but developed criteria to apply to any local justice systems in Aboriginal communities. 

Hunting and fishingThe report set out precise guidelines to ensure traditional hunting and fishing interests are accorded appropriate priority under conservation legislation and under legislation relating to the commercial regulation of fisheries. It recommended that Aboriginal people have access to non-Aboriginal land for the purposes of traditional hunting.

 

Recognition As far as possible, Aboriginal customary laws should be recognised by existing judicial

and administrative authorities, avoiding the creation of new and separate legal structures, unless the need for these is clearly demonstrated.

The recognition of Aboriginal customary laws should be carried out by means of federal legislation applicable in all States and Territories, relying on the full range of the Commonwealth's constitutional powers.

Government and Indigenous groups should work together to decide on the methods by which Indigenous customary laws are recognised.

 

ImplementationAfter initial consideration of the recommendations of ALRC Report 31 in 1988, the Standing Committee of Attorneys-General (SCAG) agreed to make a number of recommendations and refer major policy considerations to the Australian Aboriginal Affairs Advisory Council (now Ministerial Council on Aboriginal and Torres Strait Islander Affairs). Between that time and mid-1994, no significant steps were taken towards implementation despite the report having been strongly supported by Indigenous organisations.

In 1992, however, the Commonwealth government supported recommendation 219 of the Royal Commission into Aboriginal Deaths in Custody, which required a report to be prepared on the progress in dealing with ALRC Report 31. In early 1995 the Office of Indigenous Affairs of the Department of Prime Minister and Cabinet published the report Aboriginal customary laws, a report on Commonwealth implementation of the recommendations of the Australian Law Reform Commission.

In that report, the government indicated that there had been partial implementation of some of the recommendations, notably those relating to criminal investigation procedures involving Aborigines or Torres Strait Islanders in Part 1C of the Crimes Act 1914 (Cth) and fishing, hunting and gathering rights through the provisions of the Native Title Act 1993 (Cth). The Commonwealth also established an interpreter program to train interpreters to assist Aborigines & Torres Strait Islanders in the criminal process.

The government report highlighted that some federal departments, such as the Department of Social Security, had implemented aspects of the recommendations through changes to

their administrative processes. An overwhelming theme of the government's response however is that it perceives many of the recommendations made by the Commission as being more suitable for State and Territory implementation. This view was repeated by the federal Coalition government in 1996.Other Commonwealth legislation that has been amended to introduce principles of customary law include the Evidence Act 1995 (Cth) in relation to interpreters and interrogation and the Safety and Rehabilitation and Compensation Act 1988 (Cth), which recognises customary marriages for the purposes of compensating employees' spouses under the Act.

The States and Territories have addressed some of the recommendations, in particular the child placement principle in relation to children in care; and the recognition of traditional Aboriginal marriages for limited purposes.The common law, largely through the judgments of the High Court, has furthered the recognition of customary law in Australia. The decision of the High Court in Mabo represented a significant watershed in the development of the common law. It recognised the legal force of customary Indigenous rights to land where those rights continue to exist. The courts have been reluctant to confine the principle involved in Mabo and thus the common law has to a greater extent embraced the recognition of customary law. The High Court in The Wik Peoples v Queensland (1996) and in Yanner v Eaton (1999) further developed the principles of native title in relation to the common law and the Native Title Act 1993 (Cth).

At the Federal Centenary Convention, held in April 1997, participants resolved by clear majority that the Australian Constitution recognise the particular rights of Indigenous peoples and give appropriate recognition to their customary law. It was resolved that Indigenous customary law be recognised and taken into account within the rule of law. At the Australian Reconciliation Convention in May 1997 there was strong support among participants for the recognition and application of Aboriginal and Torres Strait Islander customary law and traditions within Australia's written statutes and common law, and in court procedures.In February 1999, the Aboriginal and Torres Strait Islander Commission (ATSIC) submitted a report to the United Nations Committee on the Elimination of Racial Discrimination entitled Aboriginal and Torres Strait Islander Peoples and Australia's Obligations Under the Nations Convention on the Elimination of all Forms of Racial Discrimination. The report outlined the recommendations contained in ALRC Report 31 and the action taken in response to the recommendations and commended the ALRC on its involvement in the matter of recognition of customary law in Australian law.

Statute law, and ATSI customary law can lead to problems when a court case is heard. How should the accused be punished? Which law should be followed, and to which degree?

Aboriginal people still follow and practice customary law, but there is no law that binds lawyers and judges to take traditional law into consideration.

Defence lawyers can specifically ask for their clients to be released on bail to face a tribal punishment. Since 1997 details of such payback are no longer provided as judges might opt to hold the offender for their own protection.In one case a judge was informed how a man, "armed with only a small shield to defend himself, would be speared in both legs, punched in the face and chest, hit on the head with boomerangs and have boomerangs thrown at him". The man was not released. Judges can dismiss requests for reduced sentences for the sake of tribal punishment at their own discretion finding the right balance between statute law and customary law can be a challenge. When a court sentenced a 55-year-old Aboriginal man who had intercourse with his 14-year-old promised bride the initial one-month jail term was revised to 18 months (excluding suspensions) because, in the statute law, the man had still committed a serious sexual offence.

Under conventional law, the widow of Yothu Yindi front man Dr Yunupingu had the right to choose where to bury her husband. But under traditional law, other clan members decided. This led to a dispute which required mediation to reach agreement.  How the Australian legal system incorporates the ATSI customary laws

[essay handwritten in notes]

Eddie Mabo - Overturning the Doctrine of Terra Nulius

Outline the caseThe Meriam people were having a dispute with the Queensland government over the rights to the land as they want to overturn the doctrine of Terra Nulius. The land falls under the jurisdiction of the Queensland government as it is under the geographical area. The loophole within the legal problem was the new implementation of an act which went against the Racial Discrimination/ Landmark Cases under the Racial Discrimination Act 1975.

 Identify the legal issues in the caseThe land falls under the jurisdiction of the government and the aboriginal people were not recognised under the Australian Constitution. After the proceedings commenced the Queensland Government quickly passed the Queensland Coast Islands Declaratory Act in 1985. This Act claimed to extinguish whatever rights and interests the Meriam people might have had under their traditional law and it contradicted the Racial Discrimination/ Landmark Cases under the Racial Discrimination Act 1975 using ethical reasons. Whether the Meriam people had interest and traditional rights to the land, whether Australian law would be protecting those rights and interests in the land, If Australian law would be protecting the rights and interest.

 Identify why Mabo was heard in the High Court.The challenge to this legislation was taken to the High Court and the decision in this case also known as Mabo No. 1, was that the Act was in conflict with the Commonwealth Racial Discrimination Act of 1975 and was thus invalid and as the High Court held that the Queensland Coast Islands Declaratory Act was invalid because it was inconsistent with the RDA. It discriminated against the Meriam people by purporting to extinguish any rights they might have in their land. Eddie Mabo took the case against the Queensland government to the higher court, the supreme court as it is a constitutional matter that conflicts with the anti-discrimination act.

 What type of jurisdiction was the High Court exercising in this case?Appellate jurisdiction, It falls under the geographical area which the Queensland government authorizes in the 1901 federation.

 Outline the High Court decision and the reasons why they decided the way they didDue to anthropological evidence showing that the present inhabitants were descended from the people in occupation at sovereignty, the people who were in occupation of these Islands before first European contact and who have continued to occupy those Islands to the present day are known as the Meriam people. Therefore, the evidence displayed by Eddie Mabo meant that the Mer islands were held subject to the rights and interests of the islanders. The court noted that because of the native title is held in accordance with the local native system, it is only capable of entitlement and enjoyment within that system and hence is not capable of alienation as well as not constituting a legal or beneficial estate or interest in the land. 4 judges were in favour however 3 were not but the use of 7 judges fixed the chance of split decision. The native title can be taken away if done properly, the Queensland government did take it away properly but did it in a discriminatory way. If you as

an individual can prove that you had ownership of a land with an unbroken connection as far back as human history can remember, you can establish that you have ownership of the land and the law can recognize that you’ve had native title. For this reason, the high court recognized that Eddie Mabo was the entitled to Native title ownership of the land.

Circle Sentencing

Great number of Aboriginal and Torres Strait Islander peoples where convicted after release

The change of punishment by implementing the customs and traditions into their punishment as it would provide more results.

The Elders are very important in their customs and play a large role within their lives The establishment of circle sentencing where they can talk about the crime and be

punished through shame and disappointment by the elders. Speaking in regular courts is seen as meaningless and has no impact of the offender Elders deliver sentencing opinions

o Full time imprisonment or other methods Elders not always agree with the sentencing Judge sits within the circle – same with the victim Police sits within the circle to give the elders an understanding on why they responded a

certain way The contemporary legal system lacks care and personal guilt to change attitude and

behaviour Victims opinion in court can prevent misinterpretation of facts Personal history is brought up within sentencing, involuntarily (family, past crimes etc.) Rehabilitation is a part of the process