NATURE OF LAW
DEFINITION OF LAW
Law is a set of rules that are created and are enforceable by social or governmental institutions to
regulate behaviour.
Customs: Traditions or habits
Rules: Set of authoritative instructions
Laws: Enforceable rules within society
Ethics: What society believes to be right or wrong
Values: Beliefs and practices held in society
TYPES OF LAW
Common Law - Laws written by judges; essentially setting precedents
Statute Law - Laws written by parliament
Civil Law - defines the rights and responsibilities of individuals
Precedent- The 'doctrine of precedent' is the rule that a legal principle that has been established by a
superior court should be followed in other similar cases by that court and other courts.
‘Just’ Law - A just law is one that treats every person the same
‘Unjust’ Law - laws that go against a type of higher law or ethical system
Procedural Fairness - procedures involved in applying law → consists of the right to be heard,
the absence of bias and the decision’s basis in fact or reasoning
Rule of Law - means that no one is above the law and must comply with it
Fairness
SOURCES OF AUSTRALIAN LAW
Constitution - a set of rules for governing the country
→ entails the power of governments
→ sets up courts and parliaments
Statute Law - comes from federal parliament for all of Australia, and NSW parliament for NSW,
essentially law written by the parliament. Statute law = legislation
Common Law (judge made law) - judges reference previous cases to inform and justify their
judgements (precedents are integral to common law)
Statute law overrides common law
ATSI Law - legal systems and practices uniquely belonging to Indigenous Aboriginals of Australia
International Law - made by the UN and agreements between countries
5 sources of international law
Treaties - agreements between nations
Custom - unwritten rules/practices that are accepted as legally binding by the international
community
General Principles of Law - legal principles that are recognised by the majority of legal
systems internationally
Judicial Decisions - decisions of international courts and tribunals can help establish legal
principles and standards
Legal Writings - views and opinions expressed in these writings can influence the
development and interpretation of international law
HOW BILLS ARE PASSED
Government staffers write a draft bill of the proposed law and introduce it into either the senate or
house of reps. From there, both houses independently debate the provisions in the bill. Often,
members of parliament will seek to change or add things to the bill. To have those changes accepted
requires a majority vote of both houses.
INVESTIGATIVE BODIES
ICAC (Independent Commission Against Corruption) - investigative body that prevents corruption in
the government. (e.g. Gladys)
LECC (Law Enforcement Conduct Commission) - investigative body that prevents corruption the
NSW Police
COURT HIERARCHY
High
Supreme
District
Local
High Court - role includes; constitutional interpretation, appeals, judicial review, advisory opinions,
original jurisdiction
Supreme Court - role includes; constitutional interpretation, adjudicating appeals from lower courts,
setting legal precedents
District Court - role includes; civil jurisdiction, criminal jurisdiction, appellate jurisdiction, jury
trials
Local Court - role includes; criminal matters, civil matters, family law matters
DIVISION OF POWERS - FEDERAL, STATE, LOCAL
Federal - responsible for the conduct of national affairs
State - responsible for issues that affect their respective citizens
Local - power is divided amongst cities, counties and other local jurisdictions
Upheld by Chapter 1, Part V of the Constitution, sections 51 to 60 to ensure that one level of
government doesn’t have too much power.
Residual Powers - matters in which the state can legislate, as they are not referred to in the Australian
Constitution
Concurrent Powers - existing at the same time; powers held by both state and federal governments
SEPARATION OF POWERS - LEGISLATURE, EXECUTIVE AND JUDICIARY
Legislature - makes laws
Executive - applies laws(governments, cabinets, ministers, prime minister)
Judiciary - courts which interpret and apply the law
NOTE: there is overlap between the executive(cabinet) and legislature(parliament) as the Cabinet is
within the Parliament, thus it is pivotal that we have the judiciary as it is independent from parliament
and ensures the separation of powers.
CUSTOMARY AND ATSI LAW
Customary Law - legal systems and practices uniquely belonging to the Indigenous Australians
E.g. Circle Sentencing - alternative sentencing method for Aboriginal offenders that aims to avoid
gaol time by bringing them together with elders
How have ATSI Laws been incorporated into Australian Law?
1. Native title: The Native Title Act 1993 was passed to recognize and protect the traditional
land rights of Aboriginal and Torres Strait Islander peoples. This law established a legal
framework for the recognition and protection of native title rights, which are rights to land
and waters that have been held under traditional laws and customs.
2. Anti-discriminatory laws: The Racial Discrimination Act 1975 made it illegal to discriminate
against someone on the basis of their race, ethnicity, or national origin.
NATURE OF JUSTICE (PROCEDURAL FAIRNESS)
Requires the person under investigation to be given a reasonable opportunity to present their case
Involves:
- The right to be HEARD
- The ABSENCE OF BIAS
- Decision on basis of FACT and REASON
ADVANTAGES + DISADVANTAGES OF AUSTRALIAN CONSTITUTION
Advantages Disadvantages
- Clear division of powers (between - Difficulty in amending (requires
commonwealth and state) referendums)
- Protection of rights and freedoms - Centralised Commonwealth power
- Democratic principles - Lack of recognition of Indigenous
Australians
REVISION MATERIAL #1 CONDENSED (thanks japneet)
NSW LOCAL, DISTRICT & SUPREME COURT
NSW Local Courts
Can hear civil cases including:
● Loan agreements
● Unpaid bills
● Damages from motor vehicle accidents
● Services paid for and not provided
● Property not returned
NSW Local Court deals with civil disputes for claims up to $100,000. They have 2 divisions:
→ Small claims division hears claims up to $20,000
→ General Division hears claims over $20,000 and up to $100,000
NSW District Court
In its civil jurisdiction, the district court may deal with:
● All motor accident cases, regardless of amount claimed
● Other claims from $100,001 to a max of $750,000
The type of matters commonly dealt with by the court include:
● Breach of contract
● Personal injury
● Defamation
NSW SUPREME COURT
Has jurisdiction over civil cases including:
● Claims for breach of contract
● Claims for negligence
● Property disputes
● Intellectual property disputes
● Estate disputes
NSW Supreme Court has jurisdiction for civil cases with a value of $750,000 or more.
LATIN TERMS
Obiter dicta - a judge's expression of opinion uttered in court or in a written judgement, but not
essential to the decision and therefore not legally binding as a precedent.
Ratio decidendi - rationale for the decision - precedent
Stare decisis - courts and judges should honour “precedent”
CASE STUDIES - THE ROLE OF THE HIGH COURT IN INTERPRETING THE
CONSTITUTION
CASE STUDY #1 - TASMANIAN DAM CASE
- The federal government signed a treaty with the UN to protect national parks in Tasmania.
- Tasmanian State government wanted to build a dam which posed the risks of rising water
levels which could kill wildlife.
- The Federal government took the State government to the High Court to prevent the
construction.
- Under Section 51 of the Constitution - external powers - Federal power takes precedence over
State power
This is an example of the role that the High Court has in interpreting the Constitution → denotes
the division of powers
CASE STUDY #2 - IMPLIED FREEDOM OF POLITICAL COMMUNICATION
(NATIONWIDE NEWS VS COMMONWEALTH)
- The federal government passed a law - in the lead up to election day, there is no more
political advertising
- Nationwide news took them to court and said that since the Constitution said there needs to be
elections, it implies that we must discuss the election
- High Court found that we must have freedom in communications
This case set the High Court up as a powerful body that finds principles of law that are not
specifically stated in the Constitution
Interpretation of Section 51 found that laws that infringe upon implied freedom are invalid
CASE STUDY #3 - LOVE VS COMMONWEALTH
- Love - an Indigenous Australian, living in Papua New Guinea and born in NZ, committed a
number of crimes
- Federal government wanted to deport him
- Matter was taken to High Court where it was found that all Aboriginal Australians could not
be classified as ‘aliens’ under Section 51 of the Australian Constitution
SECTION 51 OF THE CONSTITUTION
- Lists the area in which the Australian Parliament can make laws
- Allows the Commonwealth to legislate on a matter that is usually within the States’
jurisdiction
Summary offence: Less severe crime, max sentencing of 2 years
Indictable offence: Severe crime
TERM 2 + 3
PRIVATE AND PUBLIC LAW
Private Law:
The body of law governing relationships between individuals, including:
● Contract Law - concerned with the recognition of agreements between 2 or more parties.
● Tort Law - a legal wrong which one person commits against another person and for which the
usual remedy is an award of damages.
E.g. Donoghue vs Stevenson (snail in ginger beer) → established the Neighbour Principle - one
must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to
injure one's neighbour.
● Property Law - Law that governs relations involving things and interests that can be owned
and have commercial value
Public Law:
The body of law governing relationships between the individuals and the state, including:
● Criminal Law - a system of law concerned with the punishment of offenders
● Administrative Law - body of law that regulates government decision making
● Constitutional Law - body of law that focuses on the rules governing the executive, legislative
and judicial functions of government
Private or public jurisdiction is the key difference between the two.
CRIMINAL VS CIVIL COURT PROCEDURES
Civil law involves disputes between parties whereas criminal law is where prosecutions are brought
against individuals/companies by or on behalf of the state.
Civil- Only involving judge/ magistrate
LAW REFORM
Law reform is the process of changing the law to make it more current, correct defects, simplify it or
remedy injustices.
Conditions that give rise to law reform:
● Changing social values
○ E.g. same sex marriage and relationships
● New concepts of justice
○ E.g. domestic violence, capital punishment
● Technology - laws must adapt to ever-changing technological advances
○ Cyberbullying, social media, drones
Agencies of reform
● Law reform commissions - provides recommendations for law reform to the government on
issues referred to it by the Attorney-General of Australia.
● Parliamentary committees - made up of members who are not ministers to inquire into
matters and proposed new laws.
● The media - an intermediary between the public and the courts. The media has the ability to
make issues public and influence public opinion which can affect future legislation.
● Non-government organisations (NGOs) - monitors the laws that concern them, research issues
affecting their industry/interest group and work to advocate for them and bring about change.
Mechanisms of reform
● Courts - interprets and applies laws from the parliament
● Parliaments - main law makers (we vote for them and can remove them if we haven’t
approved of the laws passed). They can make amendments to current legislations.
● United Nations - encourages international support for treaties and conventions, as more
countries ratify these conventions, they will also look to reform domestic laws to follow the
agreement they have signed.
● Intergovernmental organisations - organisations that have sovereign states (individual
countries) as members. They are able to:
○ Encourage cooperation between states
○ Provide a forum for countries to resolve disputes without
violence
○ Create consistency across countries in law reform
IMPORTANT STATE SOVERIGNTY EXAMPLES, UN CHARTER:
- Article 42 UN Charter force
- Article 2.7
- R2P
NATIVE TITLE - EDDIE MABO
Terra Nullius
The doctrine of Terra Nullius - meaning land belonging to no one - was used by the British
government to justify the settlement of Australia, despite it being inhabited by the Indigenous people.
Roles of the High Court and Federal parliament
High Court
On 3 June 1992 (Mabo 2), the High Court of Australia recognised that a group of Torres Strait
Islanders led by Eddie Mabo, held ownership of Murray Island.
The Court also held that native title existed for all Indigenous people.
Federal Parliament
Under the Keating government, The Native Title Act 1993 (Cth) was passed, it recognises the rights
and interests of Aboriginal and Torres Strait Islander people in land and waters according to their
traditional laws and customs.
CONTEMPORARY LAW REFORM
THE INDIVIDUAL AND THE LAW
RIGHTS AND RESPONSIBILITIES
Rights are freedoms that are protected by law, while responsibilities are duties or things that we
should do.
Rights include:
- Right to life and freedom of expression
- Right to participate in public life
- Right to equality before the law
Responsibilities include:
- Obeying the laws of Australia
- Voting in federal and state elections, and in a referendum
- Defend Australia if the need arise
- Serve on jury duty if called to do so
Rights and responsibilities are interdependent, with every right there is a corresponding responsibility,
this ensures safety of all individuals. The interdependent relationship is explored with Donoghue vs
Stevenson.
ROLES OF LAW ENFORCEMENT AGENCIES
Australian Border Force Responsible for onshore and offshore border enforcement, investigations,
(ABF) compliance, detention operations and custom services in Australia.
Australian Criminal Protects Australia from serious criminal threats while working with law
Intelligence Commission enforcement partners.
(ACIC) - collecting and analysing criminal intelligence data
- giving advice about National Criminal Intelligence Priorities
- managing criminal intelligence systems such as the Australian Criminal
Intelligence Database
- investigating federally relevant criminal activity and forming task forces
Australian High Tech A national policing body that combats serious crime involving complex
Crime Centre (AHTCC) technology.
Australian Securities Regulates the conduct of Australian companies, financial markets, administers the
Investment Commission Australian Securities and Investment Commission Act 2001
(ASIC)
Federal police Responsible for enforcing federal law and criminal law.
State police law enforcement agencies with state-wide jurisdiction. State police forces are
primarily concerned with enforcing criminal law (e.g. homicide, manslaughter
and sexual assault).
Australian Taxation Investigates tax fraud and enforces compliance with legal regulations.
Office (ATO)
ALTERNATIVE DISPUTE RESOLUTION
Negotiation
Any dialogue intended to
resolve disputes and/or
produce an
agreement/compromise on
further courses of action.
Mediation
2 or more parties in the
presence of an unbiased 3rd
party reach an agreement.
Conciliation
A third party assists in
reaching an agreement
where all concerned parties
are satisfied with the
outcome.
Arbitration
Disputing parties present
their cases before an
arbitrator, who makes a
decision that is binding on
parties.
TRIBUNALS
A tribunal is an institution that has the authority to judge and determine disputes between people.
Administrative tribunals are concerned with executive actions of governments. Civil tribunals are
concerned with resolving private disputes.
Advantages Disadvantages
- Faster than court procedures - Fast process may limit the amount of
- Cheaper than court consideration put into the decision
- Rules of evidence do not have to be
applied
COURTS
If individuals are unable to resolve disputes with alternative resolution methods, they can take the
matter to court, where both parties present their case and a legally binding decision is made.
Advantages Disadvantages
- Legally binding decision - High costs
- Enforcement of laws - Long process
RESOLVING DISPUTES WITH THE STATE - NON-LEGAL METHODS
Media
Aims to resolve disputes with the state by criticising flaws in the legislature, broadcasting unjust legal
outcomes and publicising upcoming cases all to encourage and influence change for a positive
outcome aligning with social values.
Members of Parliament
Aims to resolve disputes by representing the views and perspectives of the people that support their
parliament party.
Trade Unions
Helps negotiate workplace agreements regarding working conditions and pay. They will take action
when an employer proposes to change working conditions in a way that is detrimental to employees.
Interest Groups, including NGOs
Formed to promote the interests and concerns of its members. They are primarily concerned with
influencing public policy.
RESOLVING DISPUTES WITH THE STATE - LEGAL METHODS
Internal Review
Permits government departments to review their own decisions, procedures and behaviours.
External Review
Administrative The process in which a decision made by a government department or
government official is reviewed or possibly reversed.
These reviews include:
- Questioning the policy and procedures made
- Checks the possible misapplication of regulations or
instructions
Judicial(courts) Aims to resolve disputes by hearing both sides of the case and deciding
a fair outcome based on a number of factors such as evidence,
circumstances, and nature of the offence, relevant sentencing
legislations and case law.
Ombudsman The Ombudsman investigates complaints against businesses, financial
institutions, universities and other public entities, and attempts to
resolve the conflict, either by mediation or making recommendations.
Australian Human Aims to resolve disputes through the holding of public inquiries,
Rights Commission advising parliament, conducts research and investigates complaints
(AHRC) regarding discrimination. The AHRC can review laws and make
submissions to parliamentary inquiry.
Independent Aims to resolve disputes within the state, stems from its ability to
Commission Against investigate corruption within the government.
Corruption (ICAC)
Royal Commissions Aims to resolve disputes through investigating an independent
government into a matter of great importance. Royal Commissions
have broad powers to hold public hearings, call witnesses under oath
and compel evidence. Royal Commissions make recommendations to
the government about changes that need to be made.
THE INDIVIDUAL AND TECHNOLOGY (refer to task 2)
Explain the difficulties with enforcing rights in this area
Anonymity is a key difficulty in enforcing rights within technological altercations. Privacy rights
from the Privacy Act 1998 allow for the maintenance of anonymity
LAW IN PRACTICE
JULIAN ASSANGE
Summary:
Assange created a website known as Wikileaks - “an uncensorable system for untraceable mass
document leaking.” In 2010, Assange obtained information from Bradley Manning (now Chelsea
Manning), who was a former US Army soldier, and published confidential footage and information of
the American war crimes committed in Afghanistan during the Gulf Wars, the video is known as
‘Collateral Murder’. The publishing of this information meant that Assange violated America’s
Espionage Act (1917), during this time, Assange was also being charged with sexual assault crimes in
Sweden and thus faced the threat of being extradited to Sweden from England to face the charges,
from Sweden, Assange could subsequently be extradited to America to face the espionage charges. In
response, Assange seeked asylum in the Ecuadorian embassy in London from 2012-2019.
The case is a critical example of international jurisdictions, concerns of national security and freedom
of speech in investigative journalism.
- If convicted can spend up to 175 years in jail
Legal Responses - Governments
Government The Role
Britain Assange turned himself in to the British Police after the Swedish government
issued a European Arrest Warrant over his sexual assault charges.
A UK judge ruled that he can be extradited to Sweden.
He is currently in Belmarsh Prison after jumping bail in 2012.
USA The US government wants to extradite Assange from London to charge him with
the violation of the Espionage Act.
The government believes Assange has threatened the national security of the US.
Australia The Australian government has a passive role in the case, despite Assange being
an Australian citizen. The government does not want to infringe the diplomatic
relations it has with the US and the UK.
Sweden The Swedish government wanted to extradite Assange to Sweden to face 2 rape
charges, however the charges were dropped in 2017.
Ecuador Assange resided in the Ecuadorian Embassy in London and became a citizen of
Ecuador, however Assange allegedly “repeatedly violated” conditions of his
asylum at the embassy, resulting in Ecuador withdrawing his asylum.
Non-Legal Responses
NGOs
The American Civil Liberties Union (ACLU) reported that “prosecuting a foreign publisher for
violating US secrecy laws would set an especially dangerous precedent for US journalists, who
routinely violate foreign secrecy laws to deliver information vital to the public interest.”
International Federation of Justice → ngo, article states that if the prosecution is successful
journalists that have classified documents, it will allow the US to prosecute them and make their
life difficult.
The Media
International media outlets are covering Assange’s case which promotes public interest. Media
coverage has consolidated public views, the left-wing view being the freedom of speech, specifically
within investigative journalism and the right-wing view being the prioritisation of national security.
JOCK PALFREEMAN
Summary:
Jock Palfreeman was convicted of murder by hooliganism in Bulgaria on the 28th of December, 2007.
Jock aiding a Roma man who was being attacked by a Bulgarian youth group, became a part of the
melee(all parties were under the influence of alcohol) and it is disputed that the knife Jock carried for
self-defence inflicted the wound that would ultimately kill Andrei Monov and sustain injury to
Antoan Zahariev. In Palfreeman’s trial, there were numerous disparities in evidence, court
proceedings, the undue influence of political bias and a lack of the protection and enforcement of key
human rights.
Factors that impeded on Jock receiving a fair trial:
● The undue influence of Andrei Monov’s parents who had various political affiliations
● Bulgaria’s post-communist legal structure that is shaped by inquisitorial traditions
● The mishandling of evidence; dismissal of witness statements and autopsy reports
● The influence of alcohol which impedes on the accuracy and reliability of statements
Evidence:
Type of Evidence Detail Support or Impede
Jock’s case?
Traffic Surveillance Camera - Showed the altercation between the Support
Bulgarian group and the Roma man.
- A lone figure (most certainly Jock)
could be seen rushing across the street
to aid the Roma.
Autopsy Support
- Fast thrusting motion causing the
wound
- Showed possibility of Monov falling/
pushing toward the knife
- From the wound it was evident it was
created by a double edged knife
unlike the one Jock acquired
Witness Statements of Impedes
Bulgarian Group - Some members of Andrei Monov’s
group referred to an altercation with
the Roma while others omitted the
altercation.
- However, the statements that
mentioned the altercation with the
Roma were not cited in the
investigator’s or prosecutor’s reports.
Criminal Justice Systems - Bulgaria (Legal Response)
Legal Process Bulgaria
Type of legal system Inquisitorial
Investigation Process There were many anomalies during the investigation process, primarily:
● Charging of - inconsistent witness statements
offence - the quality of forensic evidence
● Collection of - the failure of police to secure critical evidence (CCTV footage, inability to secure
evidence the crime scene, did not search the other boys involved for weapons)
- the role of the media in reporting the crime which pressured for a guilty verdict with
extreme bias towards foreigners
Trial Process Bulgaria’s inquisitorial system allowed civil cases to be heard simultaneously with criminal
● Calling witnesses cases. Monov’s parents and Zahariev seeked damages for the loss of their only child and
● Impartial physical injury, respectively. This feature enabled them to have far more input and control
judgement over the proceedings.
● Admission of They were able to block the admission of conflicting witness statements that were crucial to
evidence supporting Jock.
The inquisitorial nature of Bulgaria’s legal system, places the Judges at the forefront of
questioning witnesses and making a decision on the verdict and sentence.
The entire trial process was enveloped by impartiality that severely impeded on Jock
receiving a fair trial.
Decision Jock was found guilty of murder by hooliganism and attempted murder and sentenced to 20
years in prison. He was ordered to pay $375,000 AUD, in victim compensation as well as
court costs.
Had the case occurred in Australia, Jock would likely have been charged with manslaughter (murder
without malice). The inconsistencies in evidence, witness statements would create a reasonable doubt,
resulting in Jock’s acquittal.
Non-Legal Responses
The Media
Bulgaria’s media response played a prominent role in pressuring the verdict of Jock as ‘guilty’. Bulgaria
holds an inherent bias towards foreigners and the Roma minority group due to its post-Communist political
context. Bulgaria’s coverage of Jock’s case predominantly painted him as a ‘cold-blooded killer’ and
framed him as a sociopath. Bulgarian news channels aired interviews with the victims and their families
during the trial that shaped public opinion of Jock against him. Additionally, Andrei Monovs father, a
well-known psychologist with vast political affiliations, claimed that Jock was a psychopath and a
professional killer. The influence of the media that shaped public opinion, creating mass bias, impeded on
Jock receiving a fair trial.
NGOs
Push the governments to better uphold the rights of Australian citizens
Bulgarian Helsinki Committee → provided legal aid for Jock to secure a prison transfer to Australia +
help him get parole
