LEGAL

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1
What are rules?
Rules are based on established customs that have evolved, morals and ethics reflect the values a society believes in.
2
What is a custom?
A traditional and widely accepted way of behaving or doing something specific to a particular society, place or time.
3
What is a law?
A set of legal rules that everyone in a community is expected to obey, created, changed and interpreted within an official government framework.
*Anarchy would exist if such laws did not exist
4
What does justice mean?
Being treated with the same status, rights or opportunities regardless of age, gender or sexuality
5
What are the four main roles of law?
1. Establish boundaries
2. Protection
3. Freedom
4. Resolving Disputes
6
What are the 3 pillars of justice?
1. Equality (All people being treated the same regardless of age, sex, gender, race)
2. Fairness (Lack of favouritism or bias)
3. Access (The ability to approach or make use of something)
7
What does procedural fairness refer to?
Refers to a collection of principles designed to ensure that the processes by which decisions are made fair
8
What are the 3 rules for procedular fairness?
1. A decision-maker must give the person a fair hearing (HEARING RULE)
2. A decision maker must NOT be bias (BIAS RULE)
3. Only evidence properly gathered can be used (admitted) in court (ADMISSIBILITY/EVIDENCE RULE)
9
What is the CONCEPT of "Rule of Law"
A collection of different principles that have developed over time and are collectively described as ‘the rule of law’ (NO ONE IS BELOW OR ABOVE THE LAW)
10
What is Common Law defined as?
Collection of legal principles and rules that are derived from the decisions of judges in higher courts
11
What is equity defined as?
A body of law that supplements common law by correcting injustices through principles of fairness
12
What is precedent?
A judgment made by a court that establishes a point of law, to ensure that people are treated fairly, law develops in a consistent and coherent way
13
What is Ratio decidendi
A statement by the judge about the reason for their decision
14
What is Obiter dicta
Other statements made by judges, such as their personal opinions
15
What is Binding Precedent?
A court MUST follow the precedent already set, whether it believes the decision is correct or not
16
Whbat is Persuasive Precedent?
Precedent may influence a decision, but a court is not required to follow it
17
What is Statute Law
Laws developed by parliament (legislation, Acts of Parliament)
18
What is Delegated Legislation?
Laws made by authorities other than parliament
19
What are the four types of delegated legislation?
REGULATIONS: Laws made by the government to work alongside acts passed
ORDINANCES: Laws made by Australian territories
RULES: Legislation made for government departments, usually by the department involved
BY-LAWS: Laws made by local councils, which are restricted to the area governed by that council
20
What is jurisdiction?
The official power to make legal decisions and judgments (Powers of a court, the type of matters it can decide and the type of remedy that it can award)
21
What is original jurisdiction?
The ability of a court to hear a matter at first instance or upon its commencement (or origin)
22
What is appellate jurisdiction?
The ability of a court to hear a decision on appeal from lower courts
23
What is a summary offence?
Minor offences, dealt in lower courts e.g. obstructing traffic, loitering
24
What is an indictable offence?
Serious criminal offences, dealt with in higher courts e.g. assault, murder
25
What is a criminal matter?
Where a person is accused of breaking a law created by parliament
26
What is a civil matter?
A legal dispute between two or more parties
27
What is commital hearing?
Inquiry held in local court to determine whether there is enough evidence against defendant to warrant a trial in a higher court
28
What is the Court Hierachy and Jurisdiction? (Highest to Lowest)
High Court of Australia
NSW Court of Appeal OR NSW Court of Criminal Appeal
NSW Supreme Court
District Court
Local Court:
- Children's Court
- Coroner's Court
- Drug Court
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What are the features of The Local Court?
The Local (Magistrates) Court deals with minor criminal offences, civil disputes up to $100,000, and conducts committal hearings for serious crimes.
30
What are the features of The Coroner's Court?
Ensure that unexplained or suspicious deaths, fires and explosions are properly investigated
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What are the features of The Children's Court?
Deals with civil matters concerning the protection and care of children and young people under the age of 18
32
What are the features of The District Court?
The District Court hears serious criminal offences (except murder, treason, and piracy), civil claims up to $750,000, motor accident cases, and has both original and appellate jurisdiction
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What are the features of The Supreme Court?he
The Supreme Court is the highest state court, hearing serious crimes like murder, major civil cases over $750,000, and appeals from lower courts
34
What are the features of the NSW Court of Appeal?
The Court of Appeal is the highest appeal court in NSW, with no jury, cases usually heard by three judges, and further appeals only possible to the High Court with special permission
35
What are the features of The Federal Court of Australia?NEED FOR NEW LAW IS IDENTIFIED
Proposed new law (or changed law) is discussed in cabinet
Discussion is made on what to do
DRAFT BILL
Cabinet approves the drafting of a bill
Timetabled for first reading in House of Representatives
FIRST READING
First ‘formal’ reading of bill takes place
Copies of the bill are given to all members of the house of representatives
SECOND READING
Responsible minister describes main purpose and likely benefits of the bill
Debate/vote occurs
If majority vote in favour, bill moves to next stage
COMMITTEE STAGE
Bill is examined and debated in detail, changes are made if necessary
THIRD READING
Vote is taken on the bill
If the bill passes, passed through to the Senate
UPPER HOUSE
Bill is debated in Senate
If Senate decides to change something, bill is referred back to lower house
If Senate votes to APPROVE bill, it is sent to governor-general for royal assent
ROYAL ASSENT
Governor-General meets with government ministers in a meeting of executive council
If bill is APPROVED and signed, it becomes an ACT OF PARLIAMENT and is now legally binding for all Australian’s

The Federal Court deals with federal civil disputes (not family law), some summary criminal offences, and has both original and appellate jurisdiction; it is equal to the Family Court and above the Federal Circuit Court
36
What are the features of The Family Court of Australia?
The Family Court is a superior federal court that handles complex family law matters such as divorce, parenting, property division, spousal maintenance, and appeals.
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What are the features of The Federal Circuit Court of Australia?
The Federal Circuit Court handles less complex federal cases in areas like family law, migration, bankruptcy, and human rights, but not criminal cases, and it has original jurisdiction
38
What are the features of The High Court of Australia?
The High Court of Australia is the highest court, interprets the Constitution, hears disputes between federal and state parliaments, and has both original and appellate jurisdiction with final decisions.
39
What is the legislative process?
A bill is a proposed law that is scrutinised by parliament and, once passed, signed by the Governor-General to become an Act of Parliament
40
What is the process of passing a bill through Parliament?
1. NEED FOR NEW LAW IS IDENTIFIED: Proposed new law (or changed law) is discussed in cabinet, discussion is made on what to do
2. DRAFT BILL: Cabinet approves the drafting of a bill, timetabled for first reading in House of Representatives
3. FIRST READING: First ‘formal’ reading of bill takes place, copies of the bill are given to all members of the house of representatives
4. SECOND READING: Responsible minister describes main purpose and likely benefits of the bill, debate/vote occurs, if majority vote in favour, bill moves to next stage
5. COMMITTEE STAGE: Bill is examined and debated in detail, changes are made if necessary
6. THIRD READING: Vote is taken on the bill, if the bill passes, passed through to the Senate
7. UPPER HOUSE: Bill is debated in Senate, f Senate decides to change something, bill is referred back to lower house, if Senate votes to APPROVE bill, it is sent to governor-general for royal assent
8. ROYAL ASSENT: Governor-General meets with government ministers in a meeting of executive council, if bill is APPROVED and signed, it becomes an ACT OF PARLIAMENT and is now legally binding for all Australian’s
41
What is the Adversial System?
The adversarial trial system has two opposing sides presenting evidence to an impartial judge or jury, with criminal cases decided beyond reasonable doubt, civil cases by balance of probabilities, and the jury delivering a verdict.
42
What is the Inquisitorial System?
The inquisitorial trial system has the judge actively investigating the case, calling evidence, questioning witnesses, and deciding the verdict; it is used in civil law countries and allows all evidence.
43
What is a Coronial Inquest?
A coronial inquest is a special hearing to investigate the causes of a death, where people can be compelled to appear and answer questions
44
What is the role of the Coroner?
The coroner investigates deaths, determines causes, makes recommendations, confirms if a person is dead, but does not assign guilT
45
What is Commission of Inquiry
Refers to any formal government investigation
46
What is the Royal Commission?
An investigation instigated by the GG under the Royal Commissions Act (on behalf of the Crown)
47
What is The Constiution?
A document that outlines the rules that control the power, authority and operation of the governing nation.
48
What are the roles of The Constitution?
The Australian Constitution (1901) created the Commonwealth, divides powers between levels and branches of government, and gives the High Court original and appellate jurisdiction.
49
What is a Federation?
Process of uniting several states to form a single national government
50
What is a Referendum?
Referral of a particular issue to the electorate for a vote
51
What is Division of Powers?
The allocation of law-making responsibilities for different issues to the Federal and State parliaments
52
What are Exclusive powers?
Powers that can be exercised only by federal parliament
53
What are Concurrent powers?
Existing at same time; powers by both state and federal parliaments
54
What are Legislative powers?
The legal power to make laws
55
What are Residual powers?
Those matters on which the states can legislate, as they are not referred to in the Constitution
56
What is Section 51 of the Division of Powers?
Specifies the legislative powers of the federal government and lists powers the commonwealth shares with the states
57
What is Section 52 of the Division of Powers?
Outlines the exclusive powers of the federal government and lists some executive commonwealth powers e.g. seat of government of commonwealth, matters declared by constitution to be within exclusive powers
58
What is Section 109 of the Division of Powers?
Commonwealth laws will override any state laws if they are inconsistent
59
What is the Seperation of Powers?
Ensures that NO GROUP OR INDIVIDUAL within the federal government has all the power
60
What are the three seperate areas of the Seperation of Powers?
LEGISLATURE: Includes the lawmakers (parliament; house of representatives and the senate)
EXECUTIVE: Includes the ministers and government departments who administer the law (governor-general, prime minister and cabinet)
JUDICIARY: Includes the judges and courts who interpret and apply the law
61
What is Customary Law?
Customary law, established in Dreamtime, sets behavioural rules for tribes, while today conciliation and mediation are used in some areas, though legislatures rarely incorporate it formally
62
What is Circle Sentencing?
Circle sentencing brings Aboriginal offenders before elders and others after a guilty plea to decide punishments, often involving community work, aiming to avoid jail
63
What is Native Title?
Native title is the right of Indigenous people to live on and use their land for traditional purposes, claimed by descendants of the original inhabitants with continuous connection
64
What is the 1967 Referendum?
The 1967 Referendum recognised Indigenous Australians’ rights by removing discriminatory language from Section 51(xxvi) and repealing Section 127
65
What is the Aboriginal Land Rights (NT) Act 1976 (Cth)?
The Aboriginal Land Rights (NT) Act 1976, following Whitlam Government initiatives and a Royal Commission, allowed traditional owners to claim available land
66
What is The Mabo Case?
The Mabo case recognised the Meriam people’s native title, overturned terra nullius, set a legal precedent, and led to the Native Title Act 1993
67
What is Public Law?
Public law governs government powers and citizen obligations, sets societal standards of behaviour, and includes criminal, administrative, and constitutional law enforced by the state
68
What is Private Law?
Private law governs legal relationships between individuals and organisations, including contract, property, and tort law
69
What is Civil Law?
Tort law deals with private disputes like accidents and contract issues, protects individual rights, allows compensation or injunctions, and may follow criminal actions
70
What is Criminal Law?
Criminal law governs relations between the state and individuals, punishes unacceptable conduct, and includes summary and indictable offences
71
What is Constitutional Law?
Laws relating to the founding document of a nation
72
What is Administrative Law?
The body of laws relating to the decision-making of the government and its departments
73
What is Contract Law?
Laws involving legally binding agreements between two or more parties
74
What is Tort Law?
Involve civil wrongs (negligence, trespass, nuisance, defamation) → protect an individual’s reputation, bodily safety, security, tangible and intellectual property
75
What is Property Law
Laws involving the buying and selling of property
76
Who are Legal Personnel?
People who are involved in various capacities within our legal system. Examples: judges, magistrates, prosecutors, barristers, solicitors and other court officials
77
What is Common Law?
A system of law that developed through a system of precedents set in cases which bind or guide future decisions
78
What is the Adversial System?
A system of resolving legal conflict which involves two opposing parties presenting their cases to an impartial decision-maker
79
What is a Plaintiff?
The person who brings a case in a civil matter
80
What is a Defendent?
The person who is accused of committing a wrong in a civil matter (i.e. the person defending the action)
81
What is a Contract?
A legally binding agreement between two or more parties
82
What is Tort?
A civil wrong (e.g. defamation, trespass, negligence)
83
What is On the balance of probabilities?
Standard of proof → civil matters
84
What is Beyond Reasonable Doubt?
Standard of proof → criminal cases (needed by the state for conviction)
85
What is a State?
A nation or territory considered as an organized political community under one government; any part of the government
86
What is Law Reform?
The ongoing and constant process of changing and updating laws, so that reflect the current values and needs of modern society
87
What is Conditions that give rise to law reform?
Reasons or circumstances why laws change
88
What are Agencies of reform?
Who drives/pressures change
89
What are Mechanisms of law reform?
How new law is created
90
What are conditions that give rise to law reform?
Changing social values: Refers to reflecting the changing ethical standards of the community E.g. acceptance of same-sex relationships
New concepts of justice: If law is unable to deliver just outcomes → need for law reform Over time, the way criminal law operates has changed/adapted to societies expectations
These new concepts also reflect moral and practical considerations E.g. youth justice conferencing, circle sentencing or rehabilitation, abolition of Capital Punishment
New technology: New technology always places pressure on the law to stay current E.g. IVF, DNA and stem cell technology are examples where technology continues to present challenges to the law
91
What are Agencies of Reform?
The organisations which drive or pressure change, by investigating, reporting or recommending
92
What are examples of Agencies of Reform?
Australian Law Reform Commission: Independent body that reviews laws to simplify, modernise, harmonise, and improve access to justice.
Law Reform Commission of NSW: Reviews and recommends changes to laws within New South Wales.
Royal Commissions: Investigate specific, important, or controversial legal matters.
Permanent Advisory Bodies: Government-established bodies monitoring laws and proposing reforms, e.g., Bureau of Crime Statistics, Anti-discrimination Board, Youth Advisory Council.
Parliamentary Committees: Committees established by parliament to review issues and recommend changes.
Media: Informs citizens, applies public pressure, and promotes law reform by highlighting injustices.
Non-Government Organisations (NGOs): Independent organisations providing objective information and advocacy for law reform.
Lobby Groups: Organised groups aiming to influence parliament to change, maintain, or introduce laws for social or political agendas.
93
What are Mechanisms of Reform?
Legal bodies that can make changes to the law
94
What are examples of Mechanisms of Reform?
Courts: Courts make law through precedents, clarifying legislation, even though judges do not consciously aim to reform the law
Parliament: Parliament drives most law reform through the passage of bills, often requiring detailed subject knowledge
The United Nations: The United Nations develops international law through treaties, which can influence domestic law reform in Australia
Intergovernmental Organisations: Intergovernmental organisations, as UN subsidiaries, promote and develop multilateral and bilateral treaties, contributing to international law reform
95
What is Native Title?
Right of indigenous people to use their traditional lands, usually for hunting, fishing and ceremonies; can co-exist with other forms of title held by other people, e.g. leases
96
What is Terra Nullius?
Terra nullius is the legal doctrine meaning “land of no one,” applied by Britain to claim Australia as a settled colony
97
What is the Mabo Case?
The Mabo case recognised the Meriam people’s land rights, overturned terra nullius, and led to the Native Title Act 1993
98
What are Rights?
Entitlements that people have to do or possess things as a result of being in a particular class or persons
99
What are Legal Rights?
Entitlements that people have, by legal authority to do or possess things as a result of being in a legal class of persons
100
What are Absolute Rights?
Inviolable → can never be restricted or taken away
101
What are Qualified Rights?
Can be limited or restricted under specific circumstances → usually to protect the rights of others or wider public interest. e.g Limitations, qualifications, exceptions
102
What are Responsibilities?
Obligations or duties that people have to act (or refrain from acting) in certain ways towards certain people or group
103
What is Reciprocal Responsibilities?
When someone has a responsibility to another person, the other person will have the corresponding right to be treated a certain way
104
What is Legal Responsibilities?
Obligations or duties that people have, by legal authority to act (or refrain from acting) in certain ways towards legal classes of people or groups
105
What is the relationship between Rights and Responsibilities?
Rights and Responsibilities are INTERDEPENDENT. When there is a right → often a corresponding responsibility
E.g. Individuals have a right to life: the responsibility not to take the life of another person
106
What is a Negotiation?
Negotiation is the process of resolving conflict by directly talking to the other party, often the least expensive and most satisfying method
107
What is Mediation?
A neutral third party helps disputing parties discuss and reach a settlement
108
What is Concilitation?
An expert third party helps resolve disputes. Both are confidential and non-binding
109
What is Arbitration?
Arbitration is a formal, private dispute resolution where a neutral expert arbitrator hears evidence and imposes a binding decision; parties share costs and can appeal
110
What are advantages and disadvantages of Alternative Dispute Resolution?
Advantages: Generally less expensive, faster, flexible outcomes, private + confidential, less formal, no legal precedent
Disadvantages: No guarantee of resolution, no appeal rights, mediation considered harder to enforce
111
What are advantages and disadvantages of the Court System?
Advantages: Strong legal protections and remedies, enforceable by law, can be appealed, public process, judges have legal expertise
Disadvantages: Expensive, more formal, sets legal precedent for future cases
112
What are Resolving Disputes (with the State)?
Disputes with the state occur when people challenge government actions or decisions, using legal or non-legal methods
113
What are non-legal mechansims for resolving disputes?
Media: Citizens use media to inform the public and highlight unfair decisions; can influence law reform
Members of Parliament: Citizens contact their elected representatives to raise issues; MPs can act to create or change laws
Trade Unions: Workers unite to protect rights and negotiate workplace agreements; advocate for better conditions
Interest Groups/NGOs: Groups share political goals to challenge state decisions; citizens can join or support advocacy efforts
114
What are legal mechansims for resolving disputes?
Internal review: The department reviews its own decision, providing written reasons within 28 days, by someone not involved in the original decision, with the right to further review
Tribunals: Low-cost, quick dispute resolution, informal, narrow jurisdiction
Judicial Review: Courts review government decisions for legality
Australian Human Rights Commission: Ensures a fair, democratic society
United Nations: Sets international human rights standards
Ombudsman: Investigates citizen complaints against government
NSW ICAC: Investigates government corruption, protects public interest
Royal Commission: Investigates issues, calls witnesses, recommends actions
115
What are examples of Law Enforcement Agencies?
NSW Police Force: Prevent and investigate crime, arrest/prosecute offenders; jurisdiction only within NSW
Australian Federal Police: Counter terrorism, major fraud, smuggling; collaborate internationally
Australian Border Force: Manage lawful passage of peopleoods; enforce immigration and customs laws
Australian Crime Commission: Collect/analyse criminal intelligence; investigate federal crimes; manage intelligence systems
Australian High Tech Crime Centre: Investigate serious crimes involving computer technology and online fraud
Australian Security Intelligence Organisation: Gather intelligence to prevent attacks; support law enforcement
Government Departments (ATO): Enforce laws; investigate/prosecute tax offences for societal protection
116
Why are young offenders treated differently?
Children are treated differently in law due to vulnerability, immaturity, and rehab potential, with special legal protections
117
What is Bail?
Conditional release of a person until their case is determined by the courts
118
What is Remand?
A special type of detention where an accused is held in custody until their case is decided
119
What does the Bail Act 2013, Unacceptable Risk Test (s19) highlight?
Bail is granted if risks to the community can be mitigated, with conditions like bond, reporting, restrictions, and rehabilitation
120
What does International Covenant on Civil and Political Rights (1966) → ICCPR highlight?
(1) No one shall be subject to arbitrary arrest or detention
(2) It shall not be the general rule that persons awaiting trial shall be detained in custody
121
What are rights of children when being searched?
Children’s special protections: under 10 cannot be strip-searched; 10–17 require guardian; under 14 cannot be fingerprinted or photographed without court approval; DNA sampling requires court authorization
122
What are rights of children when being arrested?
Children can be arrested like adults, but usually only for indictable, violent offences or if unlikely to comply
123
What are rights of children when being questioned (detained)?
Children can be detained for investigation like adults, but must have a responsible adult, parent notified, and proceedings explained; evidence is inadmissible if safeguards ignored
124
What are Children's Court proceedings and operation?
Hears criminal matters and care/protection for under-18s; single magistrate, no jury, closed court
125
What are sources of International Law?
Treaties, Declarations, Customs, Legal Writings, Legal Decisions
126
What is the Role of International Organisations?
Maintain peace, friendly relations, co-operation, and human rights
127
What are International Courts and Tribunals?
Permanent court to try individuals for genocide, crimes against humanity, and war crimes; based in The Hague; jurisdiction limited to Rome Statute states and UNSC referrals
128
What are Inter-Government Organisations?
International Organisations: Groups of states pursuing shared interests, e.g., UN, EU, ILO, NATO
EU: 27 states; free movement of people, goods, services; protects human rights via ECHR
ILO: 187 states + employers + workers; sets global labour standards; promotes decent work
UN: 193 members; maintains peace, friendly relations, and international cooperation
NATO: 31 states; military alliance; collective security against threats
129
What are examples of NGO's
NGOs: Independent groups promoting peace, human rights, and education
Greenpeace: Campaigns for environmental protection and global peace
ICRC: Neutral group aiding war victims and promoting laws of war
Amnesty International: Investigates human rights abuses and advocates for victims
ICAN: Promotes global ban and elimination of nuclear weapons
130
What is the Relevance of International Law to Contemporary Australian Law?
International law influences Australian law through treaties, which require parliament to pass domestic legislation and guide how existing laws are interpreted
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