CHAPTER/LECTURE 1: Introducing the Law Law and Life Law and Personal Life - Contract: legal agreement between 2 or more parties - Have a contract with sale of goods from local supermarket, and contract with electricity and phone company - Consumer credit: giving of money/credit to consumer with expectation to be re paid at a later date - Car loans - Tort: a dangerous act that can put someone in harm - Trespass, negligence, nuisance, passing off and defamation - Intellectual property: intangible creation - Listening to music on a device which is protected by intellectual property so that is isn't copied - Litigation: result of someone suing someone else - Prosecution: establishing the guilt of a person by going to court Law and Business Activities - Paying income tax on business earnings to federal government - Payroll tax to state government - Pay rates to local authority - Licensing laws, advertising laws and workplace health and safety Law in the Media - Someone being jailed - Arrests and warrants on houses and businesses - Case law: laws made by courts in relation to doctrine of precedent - News and current affairs Law in Popular Culture - Boston Legal, Law and Order, SVU - Can create fantasy of what law is like The Nature of the Law DeMining Law - Law: set of rules made by state - Are enforceable by prosecution (criminal) or litigation (civil) - Business law: rules regulating business - Law : particular legal rule - The law : legal system A Set of Rules - A rule is expectation of behaviour - Tells people how they should behave Made By The State - Legal rule made by state Enforceable by Prosecution or Litigation - Legal rules backed by consequences - Criminal law: facilitate prosecution of those who have committed a crime - Civil law: facilitate disputes between members of community The Purpose of Law - Resolves disputes - Sustained social order - Reinforces the communities values - Aids the disadvantaged - Keeps economy stable - Prevents misuse of power - Rule of law: government authority must be used in accordance with laws appropriate to citizens - Doctrine of Separation powers: executive, legislature and judiciary should act as one
Categories of Law Substantive and Procedural - Difference between law and how it works - Substantive: sets out right/obligations of individual/state - Procedural: regulates legal process Constitutional: between various arms of government and its citizens, grants human rights and liberty Public Law Administrative: admin government activities such as local governments Criminal: develops criminal offence penalties Law Taxation: regulating admin and collecting tax Tort: solution for harmed persons Contract: agreements and promises Private Law Competition (businesses don t misuse marketing power) and consumer (protects consumers from unfair praises by businesses) Property: personal, land, intellectual and contract law regulation Commercial: agency, franchise, insurance and bankruptcy Employment: relationship between employers and employees and business practises Company and partnership: sustaining corporations and partnerships
Domestic/International Law - Domestic: law for a person within a certain jurisdiction - Public international: rules between states - customs and treaties - Private international: determines which state laws should be applied if someone is in trouble in another country - Three questions have to be asked before applying the laws: - Does course have jurisdiction so that it can hear the case? - Which laws apply? - Is court most convenient way to solve dispute? - Aus court will only have jurisdiction to hear international dispute if: - Defendant it present when statement of claim is presented - Defendant submits to that courts jurisdiction - Court Minds someone to serve statement on defendant who is not in that country s jurisdiction - Which laws are applied depends on the jurisdictions - Aus courts can refuse to hear a case or send it somewhere else The Changing Law Political Change - Law changes because of government changes - Political parties have different policies Solving Problems - Some laws have loopholes and lawmakers can Mix these loopholes therefore changing the law Changing Values - Social and moral values change with time, so the laws must change to keep up with them Lobby Groups - Lobby groups place pressure on government to change or introduce laws - Employers, students, unions etc. Changing Technology - Change in technology means changing laws - When cars were invented trafmic laws changed to suit that Justice Ethics and Politics Law and Justice - Law -> justice, ethics and politics - Some say law and justice may not be necessary but desirable - ReMlection of principles regarding the community and justice DeMining Justice - Underlying aspect: fairness - People want a fair and just law system - Divine command: justice is authoritative command of deity - Natural law: universal concept against which all laws should be judged - Positive law: what the law says/requires - Mutual agreement: what the community agrees that justice is - Consequentialism: decision with the outcome of the best consequence
Justice Distributive justice - Fair distribution of justice in community - Egalitarianism: resources must be distributed equally through everyone - Desert theory: resources distributed according to what each person deserves - Utilitarianism: distribution to all members for maximum benefit Procedural justice - If person receives a trial/ hearing - Safeguard for offender to receive fair hearing - Offender must be informed of all legal matters held against them - Cross examination - Be heard before a jury - Burden of proof of party bringing the action Retributive justice - Proper response to wrongful act - Desert theory: punishment depends on what the person did, most important for effect on offender - Utilitarianism: punishment if justifiable if it benefits the community by deterring the offender Law and Ethics - Ethics: choice recognised as good and right - Ethical standards not forceable by prosecution/litigation - Businesses pressured to be ethical through markets punishing unethical behaviour - Government can develop codes of conduct - Deontologicalism: ethics apply to everyone at all times; they re created by God - Consequentialism: emphasis on consequence of behaviours - Relativism: ethics differ from time to time and place - Virtue ethics: focus on personal characteristics of ethical person Law and Politics - Outcome of historical development mixed with tradition and cultural values - Law is shaped and inmluenced by power of politics - Laws are expression of political ideology Australian Legal System - Government located in Canberra - NSW, QLD, SA, TAS, VIC and WA; ACT and NT Key Characteristics of the Australian System Liberal Democracy - Representative democracy - Executive government consists of elected representatives - Emphasis placed on individuality, freedom and liberal values - Democracy: - Citizens have say in decisions that affect their lives - Participate in voting - Cannot vote if: - In prison 3 years or more - Unsound mind - Convicted of treason/treachery - Representative democracy: - OfMicials voted in by citizens who represent them in the law making process - Can be contrasted with direct democracy; citizens participate directly in government processes - Aus has this where members of State and Federal parliaments are voted in by citizens of different electorates - Aus can also have direct democracy where citizens can vote in referendum - Liberal democracy: - Elected representatives make laws and exercise their power constrained by the law - Citizens determine outcome of election
- Military answers to electives - Citizens have freedom of belief and speech - Executive power constrained by government institutions - Minority groups not oppressed - Constitution used for set of rules determining how the country will be governed and how powers are to be exercised Common Law System - Based on British legal system - Two sources of law: - Case law - Legislation - Law made by judges who were solving disputes and used the outcome to make the law - Called common because laws are consistent across relevant jurisdiction - Civil law system - Based on Roman system - Source of law is legislation - Forms of codes, statutes and constitution - Most countries in Western Europe Constitutional Monarchy - Head of state is King or Queen who holds little to no power - King/Queen represented by crown representatives (Governor General etc.) - Different forms of government include: - Monarchy - Head of state is King or Queen - Absolute monarchy - head of state exercises executive power directly - Brunei, Saudi Arabia - Constitutional monarchy - head of state holds little to no power - New Zealand, Aus and UK - Commonwealth - where head of state is of England - Presidential Systems - Full presidential systems - president is both head of state and head of executive government - USA and Indonesia - Semi- presidential - president only head of state and has some executive power which is also exercised by ministerial council headed by prime minister - Parliamentary Republics - Head of state is president - Executive power exercised only my ministerial council - Italy, Singapore and East Timor - Theocracies - Head of state determined by religion - Vatican City and Iran - One Party States - Power exercised only by one party - China, North Korea and Vietnam Federation - Various state governments - Federal and state are partners - Residual powers remain with State governments - Contrasted with unitary system (single government responsible for the whole system) - New Zealand is unitary Separation of Powers - Doctrine of separation of powers - Distinction between making, administering and interpreting law - Legislative power is to make law - Exercised by legislature - Most parliaments bicameral - two houses - Executive power is to administer law - Exercised by Prime Minister, Premier and other ministers
- Proposes most of legislation that is passed and manages other relationships between states - Judicial power to interpret - Exercised by system of courts - Doctrine of precedent - principle of when deciding a question of law the court must do it with decisions made earlier from higher courts - Important to see difference between separation of powers (separation of legislature, executive and judicial) and division of powers (division of law making powers between Federal and State) Responsible Government - Doctrine of responsible government: executive should be answerable to legislature - Ministers who make up various state and Federal are members of specimic parliament and should answer to that parliament - Executive government answerable to citizens who elected them - Ministers must report to parliament about their decisions and about department performance - Ministers hold position while they have conmidence of lower house - Head of state must act on minister advice The History of the System Law and First Australians - Before British settled in 1700 s Indigenous Australians were here already - Already had a legal system - British said they were uncivilised therefore did not need to be recognised British Settlement - First governor was Arthur Phillip - First settlement in 1788 in NSW - At the time Australia considered terra nullius - no mans land - Indigenous Australians considered not inhabiting because they did not have system of private property or building structures on the land - Deemed to have settled by Britain not conquered - British brought with them doctrine of reception - settlers of new territory to bring their laws with them - 1992 - Mabo vs Queensland (No 2) - High Court of Australia Minally rejected that Aust was terra nulls at time of British settlement Colonial Government - Colonies established in Aus controlled directly by colonial government - Up to governor to decide which British laws to be applied Federation - By 1800 s 6 self governing colonies existed - UniMication of these 6 colonies included: - Need to defend during war time - Trade disputes as a result of custom barriers - Consistent immigration policy - Commonwealth of Australia existed on 1st Jan 1901 - Each colony (state) gave up powers to Federal government - Retained individual identities - today free from British interference Local Government - Established to take control of each are of each state - Have legislature and executive - Responsibilities limited to community facilities and local services Political Parties - Liberal Party - National Party - Greens - Australian Labour Party