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AUSTRALIA'S LEGAL SYSTEM - Coggle Diagram
AUSTRALIA'S LEGAL SYSTEM
FEDERATION:
- Australia is a federation, there is no seperation of power.
- States & Territories come together
- Law needs to be understood in the context of being a federation, so there can be conflict sometimes.
- The federal government is allowed to make laws, which go in the constitution, and the State can create other rules if they want.
THE RULE OF LAW:
- Democracy; all people (including the government) should be ruled/bound by the law and obey it.
- The law should be such that people are able to be guided by it.
- Three principles: Certainty (know what the laws are), Generality (able to be applied to everyone), Equality (applied equally to everyone)
RIGHTS AND THE LAW:
Rights can be viewed in different ways...
Legal rights - rights enforceable by law
Human rights - basic rights and freedoms to which all humans are entitled. These rights are socially constructed.
Natural rights - Moral or inalienable rights which are universal, eg. right to life, supposed to be not socially constructed.
Rights are either NEGATIVE or POSITIVE:
Positive - somebody has to do something for you (eg. government giving you centrelink payment)
Negative - nobody can do something to do something to you (right to privacy in home, land lord cant go in without your permission).
All rights have a corresponding responsibility:
- EG you have a right to privacy in your home, your land lord has the responsibility not to infringe on that right.
- EG government has a responsibility to pay the jobseeker payment if you're eligible.
Rights can be individual or collective
Individual (rights to centrelink payment, privacy)
Collective (right to speak, right to self determination)
WAYS OF ORGANISING THE LAW:
- Criminal vs Civil
- Common law vs Statute law
- Public vs Private
- Domestic vs International
- Substantive vs Procedural
- By Topic
CRIMINAL:
- Crimes 'against society'
- State prosecutes and punished an offender
- Person presumed innocent until proved guilty
- Punishment may be imprisonment
- Balance of proof is beyond reasonable doubt.
- Examples: Murder, Rape, Assault, Theft
CIVIL:
- Disputes between persons (government can be a person)
- One person seeking compensation and/or specific action/remedy from the other
- Cannot imprison
- Balance of proof is balance of probabilities
- Examples: contracts, negligence, IVOs
*A case can be both criminal AND Civil all in one
COMMON LAW:
- Made my judges
- Stories and decisions
- Interprets legislation
- Eg. Ryan v R (1967)
STATUTE:
- Rules
- Acts/legislation made by parliament
- Overrules common law
- They can pass legislation that overrules common law
ADMINISTRATIVE LAW:
- Law that controls the power of the government (it is a kind of civil law)
- Most of social work related law is administrative law
- There is administrative law in mental health, child protection, social security and refugee law.
INTERNATIONAL LAW:
- Laws between governments and to control governments
- Difficult to enforce
- Includes human rights laws
SYSTEMS OF LAW:
1. Adversarial - Opposing parties argue against each other and the judge is decision maker or arbitrator
2. Inquisitorial - Judge asks questions and investigates facts.
3. Restorative - Focuses on the rehabilitation of offenders through reconciliation with victims and the community at large, everybody gets to say their part.
IN VICTORIA:
- State Court of Appeal
- State Supreme Court
As well as County Courts, Magistrates Court, Children's Court, Tribunals
INTERDISCIPLINARY PRACTICE:
Lawyers and Social Workers
Lawyers and Doctors etc don't change their thinking when working with other disciplines, its up to US as social workers to.
SOURCES OF LAW:
Primary Sources - Legislation, Case Law, International agreements and sources, Hansard
Secondary Sources - Journal articles, submissions, reports, bench books.
HOW LAWS ARE MADE:
The legal system, a common law system, was inherited from England at the time of colonisation.
The two major sources of Australian law are:
Cases - the decisions made by judges in the courts
Legislation - the legal rules made by parliament and by those to whom parliament has delegated authority.
Australia is a parliamentary democracy:
- The Australian Constitution of 1901 established a federal system of government in Australia.
- Under this system, powers are distributed between a national government (the Commonwealth) and the six States.
The Constitution defines the boundaries of law-making powers between the Commonwealth and the States/Territories.
As well as the six States (New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia) there are three self -governing territories - Australian Capital Territory, Northern Territory, and Norfolk Island.
COURT HIERARCHY:
- In general (although there are exceptions) you can appeal a decision at a lower court to a higher court.
- Also, if a higher court makes a decision, that decision is binding on a lower court. For example, if the Victorian Supreme Court decides that a phrase in a piece of legislation has a certain meaning, the Victorian (but not other states) Magistrates Courts have to use that meaning when reading that legislation.
THE LAW HANDBOOK:
- A great resource for this course and for practice.
- It is exactly the kind of thing you will need to be able to access in order to support people you work with who are in legal trouble.
- It is updated regularly and is written so that most people can understand it.
- You can't give legal advice as a social worker, but you can give legal information. That often means reading the right section of the website to your client, so they understand what is happening to them.
KEY TERMS:
Jurisdiction -
Appeal -
Solicitor-
Barrista -
Counsel -
Prosecutor -
Crown vs Accused or Defendant -
Respondent/Defendant -
Complainant or Victim -
Plaintiff or Applicant -