Legal Studies Law & Justice Common law refers to the law that comes from the decisions of the courts as opposed to the law that originates in parliament. Equity became a body of laws that formed an addition to common law. Equity will develop remedies for wrongs that the common law doesn’t recognise. It will depart from the law to find a remedy where the common law is deficient. In order to gain an equitable remedy the person seeking relief must not have breached any laws along the way. Equity paved the way for parliament to modify common law. The Contracts Review Act 1980 (NSW) is formal recognition of the fact that not all parties to a contract have the same knowledge of the law. Sources of international law include customary international law, treaties, conventions, agreements between nations, UN resolutions and international courts and tribunals. Sources of Australian law include common law, precedents, statute law and delegated legislation, the constitution and criminal and civil law. Customary law comes from the customs, beliefs and cultures that have been developed over man generations. Statute law is the law made by parliament and is otherwise known as legislation. Statute law is the more powerful law in the land. International law is the law that governs the interactions between nations. The Australian legal system developed from the English common law system The rule of law is a doctrine which ensures that law is properly created and applied. Influences on the law include social, cultural, moral, political and economical. Just laws are enforceable, acceptable and discoverable. Laws develop from the interactions of many people who have a set of common understanding about what is right to do in a particular situation. Natural law is the principles of behaviour which come from a higher authority or set of principles such as religious beliefs. In order for the law to cover a wide range of areas there must be different types of law such as domestic and international law; public and private law, civil and criminal law, contract law, tort law, property law and Aboriginal and Torres Strait Islander customary law. Public law is the law relating to public bodies and public matters. The major areas are constitutional law, administrative law and criminal law. Private law is connected to the relationship between private citizens such as laws relating to contract disputes. Contract laws are laws relating to legally binding agreements. Tort law is the law relating to non-criminal wrongs committed such as trespassing. Access refers to how accessible a particular law is to society. Equality is treating everybody the same. Human rights are those universally recognised rights aimed at the protection of human dignity and freedom. The doctrine of natural justice is founded in the notion that logical reasoning may allow the determination of just or fair processes in legal proceedings. Natural justice includes the notion of procedural fairness. Crime Offences against persons includes assault. Economic offences include white collar crimes such as tax evasion. Offences against the state are more serious crimes. Public order offences involve behaviour that occurs in public and disrupts the order to society for example indecent exposure. Drug offences and traffic offences. Victimless crimes include illegal gambling. Preliminary offences are when you attempt to commit a crime for example attempted murder. Sources Sources of criminal law are split into common law, statute law and constitutional separation of powers. Common law is used when no appropriate statute law exists. Statute law for most criminal offences are found in the Crimes Act 1900. The constitutional separation of powers defines which powers remain with the states (residual power) and which are held by the commonwealth (exclusive power). When there is a conflict the rights of the Commonwealth take precedence. The Court Structure Local court- Jurisdiction to hear summary offences with no jury, will hear less serious indictable offences, they have committal hearings which is where a person goes before they go to a judge and jury. The local court magistrate will determine if prima facie exists. District Court- Presided over by a judge, jurisdiction over all indictable offences except serious ones. Cases are heard by a judge and jury. They also hear appeals from the local court. Supreme Court- Chief justice and senior judges, they hear the most serious indictable offences and hear appeals from the district court. High Court- Highest court of Australia since 1956, to appeal to the high court you must first seek leave. For leave to be granted you must show that it relates to a matter of public importance. It is required in order to achieve justice and it is required because of confusion between earlier rulings. Factors affecting definition of crime Social and economic- People who are disadvantaged perceive fewer reasons to obey the law Genetic- Some scientists claim that genetic differences may result in criminality. Extra Y chromosomes are to blame but other factors are more important. Political- Groups in any society will challenge the authority of the government. This challenge may result in violence. Self interest- Many criminals are motivated by greed as some people take things just because they desire them. The majority of white-collar crimes are motivated by greed. Elements of a crime Mens rea- means “guilty mine” and it must be proven that the accused person intended to commit the crim and that it wasn’t an accident except in traffic offences. Actus reus- mean “criminal act” and must be proven that the accused person actually committed the offence. Causation- The act that was performed must have caused the crime that took place. Parties Principal in the first degree- the person who committed the main offence Principal in the second degree- present, or assisted in committing the crime Accessory before the fact- helped plan but wasn’t present Accessory after the fact- helped out after or found out but weren’t present Defences Complete defences include mental illness, self defence, necessity, duress and consent Partial defences to murder include provocation and substantial impairment of responsibility which will reduce a murder charge to manslaughter. Criminal process Reporting the crime, investigation, arrest, charges, bail, plea, hearing, appeals and personnel who are the various players in the criminal justice system. Discretion is the choice to do/not do something and is held by the police and the judiciary. Legal Aid Legal aid is the assistance given to those who come into contact with the legal system who would be unable to assert their legal rights without this assistance. Their role is to help prevent unfair trials due to lack of resources for the defendant. Creating social order Education- campaigns are conducted to create public awareness of what police are targeting Regulation- There are many areas of law where rules set out what a person may or may not do. Breaking such laws does not automatically give you the label of a criminal. Coercion- There is crimes that, because of their seriousness, have to be coercively enforced if the law is to succeed in social control. Crime prevention Situation crime prevention- The situational approach aims to make crime more difficulty to carry out by increasing the visibility of police and increasing the risks and decreasing the rewards of crime. Social crime prevention- can be applied to almost any program which attempts to change social conditions, patterns of behaviour, and values of self-discipline. Enforcing the law through punishment Purpose of punishment- the over-arching aim of punishment must be to protect society. Retribution- a form of vengeance Rehabilitation- The punishment aims to assist in providing a remedy Deterrence- to deter others from committing crime by ensuring they know the punishment that they will suffer if they commit a crime Incapacitation- A sentence that aims to ensure that an offender cannot re-offend by keeping the offender detained. Re-integrative shaming- When a criminal does wrong, society will express it’s resent toward the criminal behaviour. This may be either a mild rebuke or a degradation ceremony. The sentencing process The hearing- judges must only consider the evidence that is placed before them. The role of the prosecutor is to ensure that the court has all the relevant information. The role of the defence counsel is to put a case for the most appropriate sentence to be had. The victim has a voice at the time of the sentencing as they are able to make a statement. Factors affecting the decision Purpose of punishment, circumstances of the offence, circumstances of the offender, aggravating and mitigating factors (way the crime was carried out) and judicial discretion and limits on discretion (judicial guidelines, mandatory sentencing and maximum penalties). Types of penalties Fines- sums of money ordered by the court to be paid by the offender to the state Bond- the offender must follow certain conditions set out by the judge Probation order- the offenders do not go to jail but are placed under the supervision of a probationary officer Community service order- where a convicted offender performs some form of work in the community that is beneficial to society Home detention- involves the close monitoring of an offender within their own home or a restricted area Periodic detention- allows the offender to serve their sentence on a periodic basis Imprisonment- became the most sever punishment imposed by our legal system Types of international crime War crimes, apartheid, crimes against humanity, crimes against people, crimes of aggression, genocide, hijacking, hostage taking, piracy, slavery, torture and transnational crime. Sources of international crime Covenants, treaties, conventions, declarations, charters, statutes, customary law, judicial decisions and agreements. Human Rights The Nature and Development of Concepts of Human Rights Human rights are the universally recognisable interests, powers, liberties, and entitlements associated with respect for human dignity and freedom. State sovereignty- Refers to the power of a state to have control over its territory and its subjects Natural Law Doctrine- the law that has been created by higher powers. Natural law is compared to positive law which is the law made or developed by humans and their legal systems. Historical Constitutional Documents- In the course of the development of human rights there have been several documents of great significance. Magna Carta 1215 (limited the kings power), English Bill of Rights 1688, USE Bill of Rights and the Un Declaration of Human Rights 1948. Movement for the abolition of slavery Trade unionism- The collective organisation of workers formed to protect the rights of individuals from the power exerted by employees. Universal suffrage and Education-Universal suffrage is the right of all persons within a state to vote in a political election Distinguishing between rights Moral rights- Rights that are based on the moral values of society. They are not covered by the law. Customary rights- Rights that have developed over time and have as their basis the accepted way of doing things within a community. Legal Rights- Frequently developed from a combination of moral and customary rights. You can defend legal rights in court. Domestic rights- those that have been identified and developed in the domestic jurisdiction International community- those that have been identified and developed in the international community Identifying the types of international rights Civil and political rights- for example freedom of speech, freedom from torture etc Economic, social and cultural rights- for example the right to work, the right to an education, the right to health etc Environmental and peace rights- refer to the right to a clean and safe environment Collective right to self-determination- refers to the rights of indigenous peoples where they make decisions about their own welfare. The recognition of human rights under Australian law Common and Statute law- freedoms that exist under the Commonwealth Constitution are religious freedom, the right to vote, right to property, right to due process in courts, right to a jury trial and freedom of movement. Under common law administrative decisions must take into account international conventions to which Australia is a signatory. Evolving Human rights- A bill of rights is a legal document that contains a list of human rights (civil, political and cultural). Because the Bill of Rights is initiated by a parliament, and would usually have some legal effect. It is a document that would be relied upon to protect those rights that were previously unwritten but assumed to exist. Contemporary struggles for human rights On a domestic level the lack of genuine reconciliation with the indigenous people, health issues, economic and political disadvantages that indigenous people generally suffer. The difficulties which continue to face the homeless, disabled and unemployed people ensure that the Australian government have more work to do. Internationally the needs of refugees, political prisoners, women and children and many indigenous groups show that there is much work to be done in order to provide equality with respect to people’s rights. The changing Understanding of Human Rights Universal human rights reflect the dynamic, coordinated efforts of the international community to achieve and advance a common standard and international system of law to protect human dignity. The effectiveness of legal measures both domestically and internationally in addressing human rights issues Moral, ethical, religious, and natural law rights- any government can choose to ignore it International law- Particular governments can ignore it but they may be condemned internationally Domestic law- your government cannot ignore it, however they can change it, through the passing of bills in parliament. Bill of rights- Government cannot ignore it, can change it but will be under more scrutiny Constitution (Enshrined bill of rights) - Government cannot ignore it and can only change it with a public vote or referendum. Family Functions of a family Parents act as role models for their children teaching them socially acceptable behaviour. Stability and security are provided for all members. The emotional needs of parents and children are fulfilled by the family Parents have certain responsibilities and obligations towards their children to ensure that their basic rights are maintained. Legal consequences and responsibilities Mutual duties- Living together in a sexual relationship, providing emotional support, sharing housework and supporting any children. Until recently an individual had the right to have sexual intercourse with their spouse regardless of consent. The Crimes Amendment Act 1981 changed this. Maintenance- the Family Law Act 1975 states that a spouse is entitled upon marriage to financial support from the other spouse if he or she is unable to support themselves. Property Rights- Property owned by a married couple may be owned as joint tenants (property owned together) or tenants in common (property shared equally or unequally). Agency- This is the legal relationship which exists between a married couples. Wills- under the Wills Probate and Administration Act 1898, any wills made prior to a marriage becomes invalid. Since 1988, wills are revoked upon divorce. If a married person dies without leaving a will, the spouse will generally inherit all property and money. Family Provisions Legislation- the Family Provisions Act 1982 protects family members who are dependant on someone who dies without leaving a will. Legal Rights and Obligation between Parents and Children Care and Control- Parents have a duty to care for their children and also to control them and stop them from harming others. Parents can be held accountable for damage caused by their child. Education- the Education Reform Act 1990 states that parents must ensure their children attend school between the ages of 6 and 15. Discipline- The law permits discipline provided it is moderate and reasonable. Physical force may not be to the head or neck and must not cause serious or long term injury. Medical treatment- Autonomy of children- Inheritance- Alternative family arrangements Aboriginal and Torres Strait Islander customary law- Most of these marriages are not recognised under Australian law as many do not meet the requirements of the Marriage Act 1961. As girls may marry at 12 or 13, duress may be involved, no written element, marriages may be polygamous and they may occur between close family members. The Australian law reform commission favours the half way approach, recognising traditional marriages for specific purposes such as adoption, custody etc. Single Parent Families- The legal issues here include access to welfare payments, rights to maintenance for non residential parents and the right not to be discriminated against based on marital status. Blended Families- The main issue here includes the social and emotional issues of establishing a strong family after the break up. Many couples choose cohabitation rather than remarriage as this may be seen as less commitment. Issues involve the rights that step parents have in disciplining their step children, step parents are not legally responsible for child support and that step children cannot claim their step parents estate if that step parent dies. Same Sex Relationships- They have not been given the same legal recognition as heterosexual relationships, however the law is slowly changing. Hope and Brown v NIB Health Fund Ltd (1995) ruled that refusal to grant the family a health policy was discriminatory based on their sexual orientation. Parents & Children Rights of Children- In 1989 the National convention on the rights of the child was adopted and became the first piece of international legislation specifically intended for children. Australia was a signatory nation and ratified the agreement in 1990. There are still issues of paedophiles in Australia. Although legislation has recently been enacted allowing for the prosecution of Australian citizens who have sex with child sex workers in other countries. New birth technology- Artificial conception includes artificial insemination whereby the sperm donated is medically implanted into a woman’s reproductive system. The Children Act 1996 (NSW) states that if a husband consents to the use of the donor sperm, then he-not the donor- is the legal father of the resulting child. With IVF it requires the ovum and the sperm to be placed together in a test tube. Adoption- A couple wishing to adopt a child must have medical evidence to show the couple cannot have children, the must express willingness by one of the adoptive parents to five up work, they must demonstrate that the couple are fit and proper persons and that there is no existence of no more than one child already in the family. If the child is 12 or over they must consent to the adoption. Dissolution of marriage The Family Law Act 1975 (Commonwealth) was a revolutionary piece of legislation as it removed the previous ground for divorce. It made it easier to get a divorce as couples only needed to state there was an irretrievable breakdown in the divorce. This legislation intended to introduce divorce a fairer, more dignified and less expensive process. Family Court The family court of Australia was established under the Family Law Act 1975. A separate court was thought necessary for many reasons, and special trained judges are appointed to hear cases. Counselling- Since the passing of the Family Law Reform Act 1995, the focus of the court has moved away from litigation towards counselling and mediation. Under this legislation, couples seeking divorce must attend mediation services. The court will not make parenting order unless couples have seen counsellors. Anything said to counsellors cannot be used in court. Limitations- The family court can only deal with problems that were created by marriage. This includes divorce, residence and contact orders for kids, division of property and maintenance. De facto couples cannot be dealt with by the family court and must rely on state courts. Parental responsibility and parenting orders- After separation the court can impose parenting orders these orders can include residence orders which takes care of the child’s place of residence during the week and weekends, contact orders (who can have contact with the child and at what times), child maintenance orders (what kind of financial support will be provided to the child) and specific orders (deals with a range of other matters). Property allocation- When a court is deciding how to allocate property it will take into account the contributions of the parties. Spousal maintenance- may be awarded when the claimant is unable to support themselves. Agreements The Family Law Reform Act 1995 and the Family Law Act 2000 rely on the parties to a divorce reaching an agreement without the involvement of the court. Firstly the family Law Reform Act 1995 encourages parents to agree on a parenting rather than seeking a court order. Secondly the Family Law Act 2000 recognises cohabitation agreement and pre-nuptial agreements regarding the division of property.