Module 1 – The Legal System
Basic Legal Concepts
Term Definition
Anarchy Absence of laws and government
Access The right or opportunity to make use of something
Customary Principles and procedures that have developed according to the customs of a
Law people or nation, or groups of nations, and are treated as obligatory.
Customs Collective habits or traditions that have developed in a society over a long period
of time.
Doli Incapax Latin for: "incapable of wrong"; the presumption that a child under 10 years of
age cannot be held legally responsible for his or her actions and cannot be guilty
of a criminal or civil offence.
Equality The state of being equal, especially in status, rights, and opportunities.
Ethics The rules or standards governing the conduct of a person or group.
Fairness Freedom from bias, dishonesty, or injustice; a concept commonly related to
everyday activities.
Justice The legal principle of upholding generally accepted rights and enforcing
responsibilities, ensuring that equal outcomes are achieved for those involved
Law A set of rules imposed on all members of a community. They are officially
recognised, binding and enforceable by police and/ or courts.
Legal The laws we have, the process for making those laws, and the processes for
System making sure the laws are followed.
Procedural The body of principles used to ensure the fairness and justice of the decision-
Fairness making procedures of courts; in Australia. It generally refers to the right to
present your case, the right to freedom from bias by decision-makers, and the
right to a decision based on logically relevant evidence.
Rule of Law Principle that the law applies to everyone, even those who govern
Rules Are regulations or principles governing procedures or control conduct.
Sanction Penalty on those who break the law eg. fine, punishment
State A politically independent country.
Tyranny Rule by a single leader holding absolute power in a state
Values Are principles, standards or qualities considered worthwhile or desirable within
a society.
,.
Just Laws, Nature of Justice & Procedural
fairness
Just Laws, Nature of Justice & Procedural fairness:
To be valid, law must be just -> where ppl are treated fairly & impartially
o Law: binding rule of conduct enforced by controlling authority
Characteristics of Just Laws
1. Applies equally to all
2. Reflects societal values & ethics
3. Utilitarian
a. Greatest good for greatest amount of people
i. e.g. terrorism laws allowing extended detention without charge
4. Redresses inequalities rather than creating them
5. Must be known
6. Should be retrospective
Nature of Justice:
Access, Fairness & Equality -> combination achieves justice
o Access: need access to legal information & assistance to understand the law (etc
legal aid)
o Fairness: ensure laws don’t impact an individual/group in particularly harsh way
Appeal rights -> important aspect of fairness (bc they correct errors in
process of the law)
o Equality: when laws don't discriminate & apply equally to all
Take into account differences in peoples capacities (etc financial/mental)
Recognise vulnerabilities (etc children)
Variety of anti-discrimination laws in Aust
Example case - access:
Dietrich v the Queen (1992)
Involved in drug case - basis of appeal was that accused didn’t have access to fair trial as he
was forced to represent himself in court after failing the merits test for Legal Aid
o Merits test: test whether applicant has reasonable prospects of success (Dietrich
failed as there was overwhelming evidence against him)
High court agreed that everyone is entitled to fair trial, yet there was no automatic right to a
lawyer
o Changed Legal Aid laws: those facing serious criminal charges need access to lawyer
to ensure fair trial
Procedural fairness:
Procedures that must be followed to ensure fairness & justice occur
o If not followed, then justice not achieved
Example Case - Showing procedural fairness in legal system
R v Bilal Skaf, R v Mohammed Skaf - Gang Rape Case No 2
Jurors conducted site visit at the park where rape had allegedly occurred (outside of trial)
o Talked about it with other jurors
, Caused case to collapse - due to strict procedural rules for trial process
o Jury is only allowed to rely on evidence presented in court (cannot obtain own
evidence)
Hence, case was retried
o Because accused was entitled to justice
Shows legal system has various procedures to ensure equality, access & fairness are
achieved
o If not observed: retiral/appeal to correct miscarriage of justice
Rule of Law, Anarchy & Tyranny:
Characteristics of legal systems with rule of law:
Strong protection of human rights
Govt bound by constitution
Independent judiciary (courts/judges not influenced by parliament)
Criminal laws aren't retrospective
Controls placed one enforcement agencies
o Etc police, to ensure that there's not an abuse of power (etc warrants require
judicial oversight of police decisions)
Key rights for accused in criminal case:
o Right to silence
o Prosecution cannot interfere with accused's legal defence
o Must be informed of allegations made against them
Rule of Law, Anarchy & Tyranny:
Rule of Law:
Everyone is equal before the law, no one is above the law
o Different legal principles uphold rule of law (protect rights, freedom & stability in
legal system) - see pyramid
Importance of Rule of law:
Fundamental in maintaining free, democratic society
Rule of law requires that govt & legal system should ensure:
o Just outcomes for a person brought before court
, o Consistent, fair & impartial decisions on legal issues
o Protection of individual rights & freedoms
o Ways to settle disputes between parties according to law
o Laws that are known & able to be followed
Rule of law in Aust:
Basis of Australian govt system - etc separation of powers
o Unrestrained use of powers is eliminated:
Law applies to ALL
No-one can exercise powers unless granted by law
Example: Roberto Cuti
Brazilian student
Tasered to death by police when they were trying to arrest him
o Certain police held accountable for excessive use of power in trying to arrest him
Shows: NO ONE IS ABOVE LAW (even cops)
Anarchy:
Absence of law, resulting in widespread chaos & criminal activity
Tyranny:
Rule by a single leader holding absolute power in a state
o Power is taken by force rather than democratic allocation
MRJPEARR
M – meets the needs of community standards
R – resource efficiency
J – Justice (fairness, equality, access) (time, cost)
P – Protection of individual and community rights (balancing act)
E – enforceability
A – opportunities for appeals and reviews (miscarriage of justice, mistakes)
R – rule of law
R – responsiveness
Sources of Australian Contemporary Law:
British Origins:
Development of Common Law:
Common law = law that is not in the statutes but accepted as a part of the law.
The Normans invaded England in the 11th century. After this, a system of travelling judges
began.
These judges all applied a common set of laws to all of England.
These judges (known as magistrates) dealt with petitions from people who believed that the
local courts had been unjust.
Basic Legal Concepts
Term Definition
Anarchy Absence of laws and government
Access The right or opportunity to make use of something
Customary Principles and procedures that have developed according to the customs of a
Law people or nation, or groups of nations, and are treated as obligatory.
Customs Collective habits or traditions that have developed in a society over a long period
of time.
Doli Incapax Latin for: "incapable of wrong"; the presumption that a child under 10 years of
age cannot be held legally responsible for his or her actions and cannot be guilty
of a criminal or civil offence.
Equality The state of being equal, especially in status, rights, and opportunities.
Ethics The rules or standards governing the conduct of a person or group.
Fairness Freedom from bias, dishonesty, or injustice; a concept commonly related to
everyday activities.
Justice The legal principle of upholding generally accepted rights and enforcing
responsibilities, ensuring that equal outcomes are achieved for those involved
Law A set of rules imposed on all members of a community. They are officially
recognised, binding and enforceable by police and/ or courts.
Legal The laws we have, the process for making those laws, and the processes for
System making sure the laws are followed.
Procedural The body of principles used to ensure the fairness and justice of the decision-
Fairness making procedures of courts; in Australia. It generally refers to the right to
present your case, the right to freedom from bias by decision-makers, and the
right to a decision based on logically relevant evidence.
Rule of Law Principle that the law applies to everyone, even those who govern
Rules Are regulations or principles governing procedures or control conduct.
Sanction Penalty on those who break the law eg. fine, punishment
State A politically independent country.
Tyranny Rule by a single leader holding absolute power in a state
Values Are principles, standards or qualities considered worthwhile or desirable within
a society.
,.
Just Laws, Nature of Justice & Procedural
fairness
Just Laws, Nature of Justice & Procedural fairness:
To be valid, law must be just -> where ppl are treated fairly & impartially
o Law: binding rule of conduct enforced by controlling authority
Characteristics of Just Laws
1. Applies equally to all
2. Reflects societal values & ethics
3. Utilitarian
a. Greatest good for greatest amount of people
i. e.g. terrorism laws allowing extended detention without charge
4. Redresses inequalities rather than creating them
5. Must be known
6. Should be retrospective
Nature of Justice:
Access, Fairness & Equality -> combination achieves justice
o Access: need access to legal information & assistance to understand the law (etc
legal aid)
o Fairness: ensure laws don’t impact an individual/group in particularly harsh way
Appeal rights -> important aspect of fairness (bc they correct errors in
process of the law)
o Equality: when laws don't discriminate & apply equally to all
Take into account differences in peoples capacities (etc financial/mental)
Recognise vulnerabilities (etc children)
Variety of anti-discrimination laws in Aust
Example case - access:
Dietrich v the Queen (1992)
Involved in drug case - basis of appeal was that accused didn’t have access to fair trial as he
was forced to represent himself in court after failing the merits test for Legal Aid
o Merits test: test whether applicant has reasonable prospects of success (Dietrich
failed as there was overwhelming evidence against him)
High court agreed that everyone is entitled to fair trial, yet there was no automatic right to a
lawyer
o Changed Legal Aid laws: those facing serious criminal charges need access to lawyer
to ensure fair trial
Procedural fairness:
Procedures that must be followed to ensure fairness & justice occur
o If not followed, then justice not achieved
Example Case - Showing procedural fairness in legal system
R v Bilal Skaf, R v Mohammed Skaf - Gang Rape Case No 2
Jurors conducted site visit at the park where rape had allegedly occurred (outside of trial)
o Talked about it with other jurors
, Caused case to collapse - due to strict procedural rules for trial process
o Jury is only allowed to rely on evidence presented in court (cannot obtain own
evidence)
Hence, case was retried
o Because accused was entitled to justice
Shows legal system has various procedures to ensure equality, access & fairness are
achieved
o If not observed: retiral/appeal to correct miscarriage of justice
Rule of Law, Anarchy & Tyranny:
Characteristics of legal systems with rule of law:
Strong protection of human rights
Govt bound by constitution
Independent judiciary (courts/judges not influenced by parliament)
Criminal laws aren't retrospective
Controls placed one enforcement agencies
o Etc police, to ensure that there's not an abuse of power (etc warrants require
judicial oversight of police decisions)
Key rights for accused in criminal case:
o Right to silence
o Prosecution cannot interfere with accused's legal defence
o Must be informed of allegations made against them
Rule of Law, Anarchy & Tyranny:
Rule of Law:
Everyone is equal before the law, no one is above the law
o Different legal principles uphold rule of law (protect rights, freedom & stability in
legal system) - see pyramid
Importance of Rule of law:
Fundamental in maintaining free, democratic society
Rule of law requires that govt & legal system should ensure:
o Just outcomes for a person brought before court
, o Consistent, fair & impartial decisions on legal issues
o Protection of individual rights & freedoms
o Ways to settle disputes between parties according to law
o Laws that are known & able to be followed
Rule of law in Aust:
Basis of Australian govt system - etc separation of powers
o Unrestrained use of powers is eliminated:
Law applies to ALL
No-one can exercise powers unless granted by law
Example: Roberto Cuti
Brazilian student
Tasered to death by police when they were trying to arrest him
o Certain police held accountable for excessive use of power in trying to arrest him
Shows: NO ONE IS ABOVE LAW (even cops)
Anarchy:
Absence of law, resulting in widespread chaos & criminal activity
Tyranny:
Rule by a single leader holding absolute power in a state
o Power is taken by force rather than democratic allocation
MRJPEARR
M – meets the needs of community standards
R – resource efficiency
J – Justice (fairness, equality, access) (time, cost)
P – Protection of individual and community rights (balancing act)
E – enforceability
A – opportunities for appeals and reviews (miscarriage of justice, mistakes)
R – rule of law
R – responsiveness
Sources of Australian Contemporary Law:
British Origins:
Development of Common Law:
Common law = law that is not in the statutes but accepted as a part of the law.
The Normans invaded England in the 11th century. After this, a system of travelling judges
began.
These judges all applied a common set of laws to all of England.
These judges (known as magistrates) dealt with petitions from people who believed that the
local courts had been unjust.
