Week 1 - Introduction To Law

Question 1

Why do we need law? What is the purpose of law

Answer 1

More specifically law serves a number of purposes:

• Social control (what we can do and how we can do it (form contracts, property, pay tax)…as well as what we cannot do…crimes against person or property)…murder, theft, assault etc
• Establishing/reflecting certain moral standards – (eg gay marriage/abortion/alcohol and drug policy, euthanasia)
• Regulating relationships (family – marriage, divorce, adoption, surrogacy; commercial – directors duties)
• Implementing policy (carbon tax, health, education, ‘stop the boats’ etc etc)
• Providing basis for dispute resolution (criminal and civil)
• Law as tradition
• ‘The law embodies the story of a nation’s development through many centuries’: O W Homes

Question 2

Define law

Answer 2

Law is a set of enforceable rules aimed at regulating and ordering the behaviour or relations of people and organisations in society.’

Question 3

What is rule of law?

Answer 3

Basic idea that underpins democratic societies: “no-one is above the law”.
Law applies EQUALLY all citizens irrelevant of wealth, power, religion or ethnicity

Magna Carta 1215: “No free man…delay justice”

Question 4

Key elements/ principles of rule of law

Answer 4

• Law applies equally to all citizens/government regardless of wealth, power, religion, ethnicity
• Independent judiciary under doctrine of separation of powers - courts are independent from legislature (parliament) and executive (cabinet)
• Due process: a person shall be punished only after a fair and open trial conducted according to proper legal process that is not subject to political or other influence

Question 5

Define due process

Answer 5

a person shall be punished only after a fair and open trial conducted according to proper legal process that is not subject to political or other influence

Hear both parties equally
No bias or conflict of interest

Question 6

Classifications of law

Answer 6

Public and private

Civil and criminal

Question 7

Explain public and private law

Answer 7

• Public law is concerned with the organisation of government and with the relationship between the government and the people.
• Private law on the other hand, deals with the relationships between private persons or organisations.

Question 8

Explain civil and criminal law

Answer 8

• The civil law is a body of law that deals with disputes between individuals, business organizations and government. (Corporations, commercial, tax law and contract)
• The criminal law, on the other hand, concerns offences that are committed against the STATE

Question 9

The constitution and three branches of govt

Three arms of government

Answer 9

Legislative power - commonwealth parliament (house of reps / senate)

Executive power- (queen) Governor General - govt departments

Judicial power - high court - other federal courts

Question 10

What is separation of powers (concept)

Answer 10

States that the three institutions arms should be independent of each other, meaning one arm should not interfere with another - independent of each other

Question 11

2 main Sources of law

Answer 11

Statue law - made by parliament

Common law - made by judges

Question 12

Why is parliament statue law supreme

Answer 12

•What is ‘sovereignty’?
People’s power chosen by will of population - judges are selected not elected
•Parliament can make or unmake any law (provided it acts within its Constitutional power. So it can:
•Make new law at any time
•Repeal or amend old laws (current example – repeal carbon tax, repeal mining tax, repeal NBN)
•Codify judge-made law (put ‘common law’ into legislation (eg Native Title Act)
•Proper legislative procedure must be followed (see next slide)

Question 13

Different stages of bill being passed are called

Answer 13

Readings (1,2,3)

‘Royal assent’ sent to govt General then bill becomes a law or an ‘act of parliament’

Question 14

Explain the interpretations of status

Answer 14

• Acts Interpretation Act
• Basic object of the court when interpreting the legislation is to give effect to the intention of the parliament (as expressed in the Act). How is this done?
• A purposive construction
• If there are two or more meanings courts are directed to use a ‘purposive construction’—courts must come to a decision that ‘promotes the purpose’ of the Act: S15AA Acts Interpretation Act (C’th)

Question 15

Define delegated legislation

Answer 15

Parliament may delegate to some other body or person the power to pass regulations or by-laws

Question 16

Reasons for delegated legislation

Answer 16

• Parliament does not have the time or expertise to pass every piece of legislation
• Safeguard
• Regulations must be “tabled” before the Parliament
• Recent example
• In January 2015, to get around the hostile Senate, the Government passed a “regulation” (by Governor in Council) to bring into law its $20 cut to the Medicare rebate to doctors for short visits. Government t later revoked the regulation – but Parliament would have rejected by Senate when the Regulation was tabled.

Question 17

Explain common law

Answer 17

• Common Law
• The meaning of the phrase ‘common law’
• Refers to source (compare parliament)
• Refers to system (compare European or Sharia or Marxist)
• Refers to historical courts (compare equity)

Question 18

Explain doctrine of precedent

Answer 18

Principles of common law are to be found in the cases that have decided by the (higher) courts.

Must apply law on the basis of what has been decided in similar circumstances in supreme courts in past cases