1 What is law?

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11 LEGAL STUDIES - TERM 1: THE LEGAL SYSTEM [email protected]

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More than just lawyers From studying law:

◦ Solicitor◦ Teacher◦ Counsellor◦ Mediator◦ Politician◦ Police Officer◦ Judge◦ Magistrate◦ Electoral Commission Officer

◦ Investigator◦ Clerk of the Court◦ Sheriff◦ Bailiff◦ Court Reporter◦ Police Prosecutor◦ Legal Secretary◦ Law Clerk◦ Journalist


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We’ve advance Now, courts are fairly uniform

In the past, trials were decided in various ways, eg:◦ Trial by ordeal◦ Trial by combat


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Key Terms/Vocabulary Adversarial system

Alternative dispute resolution

Bill

Common law

Democracy

Inquisitorial system

Judge

Jury

Magistrate

Obiter dicta

Ombudsman

Ratio decidendi

Rule of law

Separation of powers

Statute law

Statutory interpretation

Tribunals

Ultra vires


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Why have laws? This section of the topic will look at:

◦ Democracy◦ Rules and Laws◦ The Rule of Law◦ Influence on our Laws◦ Development of our Legal System

These headings can be found on pages 2-11 of your textbook (Investigating Legal Studies for Queensland).

Other sources have been used to add extra information.


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Democracy ‘Let us never forget that

government is ourselves and not an alien power over us. The ultimate

rulers of our democracy are not a President and

senators and congressmen and government officials,

but the voters of this country.’

Franklin D. Roosevelt

32nd President of the United States of America


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Australia is a democratic country – we are a representative democracy

We have politicians representing us in government

We vote these people in and they decide on laws

In a direct democracy (like Ancient Athens), everyone voted on every law to be passed

This is not practical in modern society◦ We have 22 million people, Athens had 250,000◦ We are a large country, Athens was not◦ We pass many complex laws and changes to laws each year, Athens did not


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Which would you prefer now? A direct democracy, or a representative democracy?

What are the pros and cons of each?

Pros Cons Pros ConsDirect Democracy Representative Democracy


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The quote from Roosevelt is why every one in Australia needs to understand the importance of democracy

In other countries people are killed because they fight for their right to vote

Here, we often take it for granted, and even complain about having to vote

Some people do not take it seriously and cast meaningless votes

Activities on Moodle


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Rules and Laws Society has customs (or norms), rules and laws

Norms and rules are behavioural controls, but do not have the status or force of a law

When society becomes concerned that norms that are in place for the good of the community are not being upheld, then it can become a law


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Norms: socially acceptable habits; no dictated consequence.

Eg. RSVPing by the due date, waiting in queues, taking a gift to a birthday party, don’t pick your nose in public…

What others can you think of?

Rules: regulate our lives in a more formal manner; specifically stated, often in written form; have a pre-determined consequence.

Eg. Don’t be late to school, don’t put your foot over the line when bowling a bowling ball, household chores.

List 3 norms and 3 rules and indicate what the possible consequence could be.


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Laws:

Three features that distinguish a law from a rule or norm:◦ Authority

◦ We cannot decree that a rule is a law◦ In Australia, authority to make laws rests with parliaments and courts

◦ Consequences◦ More serious than not following a norm or rule◦ Enforced by courts/tribunals and police◦ Punishment can include fines, jail terms or community service – these do not happen if you

break a norm or a rule◦ Regulation

◦ Laws regulate the behaviour of members of society◦ Also regulate how to settle a dispute, such as going to court


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Example Norm:

Used to be customary (normal practice) to ask for a non-smoking table at a restaurant

If they had none available, you either dealt with the smokers, or went elsewhere

Rule:

We realised smoking is harmful to everyone, and instituted rules whereby managers of restaurants could refuse entry to smokers

Smokers were either not allowed to light up, or had to stay in smoking areas


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Law:

In 2005, Qld passed anti-smoking laws

Amended the Tobacco and Other Smoking Products Act 1998

Gradually increased the level of anti-smoking over 18 months

There are many regulations as to where people can and cannot smoke, including how far from doors and playgrounds, and not being able to smoke where food is provided

As of December 2010, 219 people had been at a restaurant or café for breaking these laws


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1. What are the three features of a law that distinguish it from a rule or norm?

2. Identify specific examples of these three features in the new Queensland laws that apply to patrons who smoke in restaurants.

3. Do you believe it is fair for patrons to be fined for smoking in restaurants or should only the restaurant’s owners be penalised if they fail to stop patrons from lighting up?


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The Rule of Law The principle that all people are subject to the law and are equal before the law.

Every democratic society has the rule of law to ensure citizens respect the laws of that country

Also makes sure the government and those making laws abide by the law

No individual or group is ‘untouchable’ or beyond the law

No one can be convicted of a crime without a proper trial using pre-existing laws


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Taken and adapted from: http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/PolicyStatementRuleofLaw.pdf

There are a number of key principles relating to the rule of law

These key principles include:1. The law must be both readily known and available, and certain and clear2. The law should be applied to all people equally and should not discriminate

between people on arbitrary or irrational grounds3. All people are entitled to the presumption of innocence and to a fair and public trial4. Everyone should have access to competent and independent legal advice5. The Judiciary should be independent of the Executive and Legislature6. The Executive should be subject to the law and any action undertaken by the

Executive should be authorised by law7. No person should be subject to treatment or punishment which is inconsistent with

respect for the inherent dignity of every human being8. States must comply with their international legal obligations whether created by

treaty or arising under customary international lawTaken and adapted from: http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/PolicyStatementRuleofLaw.pdf

http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/PolicyStatementRuleofLaw.pdf






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1. The law must be both readily known and available, and certain and clear

People must be able to know in advance whether their conduct might attract criminal sanction or a civil penalty





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2. The law should be applied to all people equally and should not discriminate between people on arbitrary or irrational grounds

In particular, no one should be regarded as above the law

All people should be held to account for a breach of law, regardless of rank or station.





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3. All people are entitled to the presumption of innocence and to a fair and public trial

No one should be subject to punitive action by the state ◦ Unless he or she has first been found guilty of an offence by an independent,

impartial and competent tribunal

Inherent in this is a prohibition on indefinite detention without trial.





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4. Everyone should have access to competent and independent legal advice

Everyone should have access to a competent and independent lawyer of their choice in order to establish and defend their rights.





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5. The Judiciary should be independent of the Executive and Legislature

The existence of an independent, impartial and competent judiciary is an essential component of the rule of law

(This has to do with the separation of powers, which we will look at another time)





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6. The Executive should be subject to the law and any action undertaken by the Executive should be authorised by law

Executive powers should be carefully defined by law

It should not be left to the Executive to determine for itself what powers it has and when and how they may be used





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7. No person should be subject to treatment or punishment which is inconsistent with respect for the inherent dignity of every human being

No person should be subject to torture

No person should be subject to cruel, inhuman or degrading treatment or punishment

No person should be subject to the death penalty





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8. States must comply with their international legal obligations whether created by treaty or arising under customary international law

Both states and individuals are entitled to expect that other states will comply with and honour their international legal obligations

◦ Including obligations relating to the promotion and protection of human rights

States must avoid inconsistencies between their international legal obligations and their domestic laws and policies.




1 What is law?

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