The Australian Legal System
1. The Australian Legal System Copyright © 2015 Orren Prunckun. All Rights Reserved
2. What Is A Law?
3. “Law is the focus of Jurisprudence.”
4. Jurisprudence is simply… “The theory (or philosophy) of law.”
5. Is Law Subjective?
6. What Is A Law? • Law depends on the particular jurisprudence. • Social, political > Morality? • Morality is subjective. • There is no universal definition! • Legal rules and “morality” overlap. • A product of social conditions at the time enactment. • Dynamic and respond to the current social and political values of the dominant culture.
7. What Is A Law? Based on: • What society agree to be bound by. • Prevailing moral standards. • Social standards and community wide rules.
8. What Is A Law? • Rules that reflect social norms and morality. • Rules to sanction and regulate behaviour. • Rules that governs our private relationships…
9. …This Topic! • Intellectual Property. • Implications of Privacy. • Space Exploration. • Artificial Intelligence. • Robotics. • ITC Technologies. • Virtual and Augmented Reality. • Etc…
10. Why Do We Have Laws & A Legal System?
11. Laws provides the following functions: • To achieve stability, order and social certainty. • To incentivise people to act ethically and responsibly. • To prevent, detect and control behaviour. • To reflect and introduce change. • To address and resolve conflicts and disputes within society. • To balance individual rights against community and social needs. • To act in good faith, provide fair and equal dealing, consistency of application and accuracy of representation. • Any many, many more…
12. What Is Justice?
13. “Fairness and equality under the law.”
14. What Is Natural Justice?
15. Natural Justice Is: • The right to not imprisoned unfairly. • The right to fair hearing and trial. • The right to sufficient notice. • The right present ones case to an unbiased and disinterested decision maker. • The right for the decision to be non-arbitrary and based on logical, probable evidence. • Etc…
16. What Is The Rule Of Law?
17. “The principle that every person and organization, including government is subject to, bound by and entitled to the benefits of the same laws.”
18. Source: The Rule of Law (2016) Rule of Law Institute of Australia
19. The Magna Carta • Granted by King John of England in 1215 to limit absolute power. Provides the foundation for the Rule of Law: • Clause 17 – Access to justice. • Clause 21 Punishment should fit the crime. • Clause 40 – Due process. • Clause 45 – Qualified and independent judiciary. Source: The Magna Carta (2016) Rule of Law Institute of Australia
20. Questions On Equality: • Do businesses (Corporations and Trusts) have the same rights as individuals? • Do the unborn have the same rights as individuals? • Does Artificial Intelligence have the same rights as individuals? • Do certain circumstances (provocation/self- defence/intellectual disability/age/etc.) give rise to the same rights? • Does law disadvantage some individuals?
21. What Is The Doctrine Of Separation Of Powers?
22. Separation Of Powers • Check and balances on the power government holds. • No absolute power. Government covers 3 areas: • The Executive. • The Legislature. • The Judiciary.
23. Separation Of Powers Continued… • The Legislature (Senate & House of Representatives) makes laws. • The Executive (headed by Ministers appointed by Governor- General) enforces the administration of laws. • The Judiciary (Judges) interprets laws. • Should be independent of each other, however The Legislature and Executive overlap. Senate is the check. • No one is vested with full power – judge, jury and executioner.
24. Division Of Powers • States/Territories were independent. • Federation and The Constitution (s51) gave Commonwealth Heads of Power: • Taxation, Education, Foreign Affairs. • Also power was divided between Commonwealth and States/Territories. • States/Territories can make laws about anything but Commonwealth Heads of Power (s109).
25. Why Is The Rule Of Law & Separation Of Powers Important?
26. Accountability & Transparency!
27. What Are Some Types Or Sources Of Law?
28. Sources Of Law Australian Law is based on: 1. The Australian Constitutional System. 2. Legislation – Federal and States/Territories (AKA Acts). • Made by Legislature. 3. Case Law (AKA Common Law). • Made by Judiciary. 4. Treaties.
29. How Do You Find The Law?
30. There are many reliable sources of free legal resources online…
31. Direct Sources Legislation: • The Australian Constitution – www.aph.gov.au/About_Parliament/Senate/Powers_ practice_n_procedures/Constitution.aspx • Federal Legislation – www.legislation.gov.au • Federal Parliament – www.aph.gov.au • Australian Government www.australia.gov.au • South Australian Legislation – www.legislation.sa.gov.au • South Australian Parliament – www.parliament.sa.gov.au • South Australian Government – www.sa.gov.au • And many, many more…
32. Direct Sources Treaties: • http://www.austlii.edu.au/dfat Case Law: • AustLII Legal Research (Australasian Legal Information Institute) – www.austlii.edu.au • Unreported – many are not reported • And many, many more…
33. Practical Guides Legislation & Case Law: • South Australian Law Handbook – www.lawhandbook.sa.gov.au • And many, many more…
34. What Is International Law?
35. • Laws at an international level that regulate the relationships (international relations) between: • States and Nations. • States/Nations and their citizens and non-citizens. • Expressed as a treaty/convention/protocol/covenant/change of letters. • A Declaration is not a treaty. • In reality there is no body of International law, simply guidelines and desired norms of behaviour etc.
36. What Is A Treaty?
37. “An agreement between States and Nations”
38. • Not between Citizens or between a Nations States and Territories. • They serve as a way to practice stable and organized international relations. • Binding at international law. • A contract (contracts needs intent). • It is consent-based governance. • A State can only abide and enforce a treaty by if they consented. • If they didn’t consent then they can ignore it. • Ratification means confirmation. • This maintains State sovereignty (independence). • No State prosecutes treaties unless it’s after a major war like WWI or WWII. • Reality is national shaming, sections, diplomats etc. • Creates issues for Regulating Technology! Two types: • Bilateral treaty – between two States. • Multilateral treaty – between many States (UN Chatter).
39. Why Are Treaties Important?
40. They help: • Create alliances in an interdependent, globalized, tech enabled work. • With international issues that cannot be solved by States alone. • Maintain State sovereignty (independence). • With Australian national interests. • Middle ranking power with finite negotiating resources. • Military and economical stake so we are not vulnerable. • Geo-isolation and population size means we benefit.
41. What Are Some Areas Regulated By Treaties?
42. Space, post, shipping, defence, nuclear non-proliferation, environment, civil aviation, war, sea and maritime boundaries, human rights, world cultural and natural heritage, terrorism, drug trafficking, border protection, refugees and asylum seekers, international organisations etc..
43. How Are Treaties Are Established?
44. Very simply: 1. Power to enter into treaties is granted under s51 and s61 of The Australian Constitution. 2. In the jurisdiction of Executive not Legislature (Parliament). • Signed then tabled at Parliament to discuss the benefits and effects of and obligations on Australia and required implementation. • Consultation with States and Territories, industry and other interest groups. 3. Ratification makes the treaty binding, but in domestically. 4. New domestic laws are not required. • If current legislation is adequate, then no domestic laws are created. • If current legislation is inadequate, then commonwealth to state laws are created. 5. Implementation through Executive action.
45. How To Read An Act • Short Title. • Long Title. • Contents. • Date of Commencement. • Interpretation and meaning. • Section(s). How to read an Act (2014) Law Handbook
46. Try It Out! 1. Go to www.legislation.gov.au. 2. Find a technology related Act. 3. Locate: • Short Title. • Long Title. • Contents. • Date of Commencement. • Interpretation and meaning. • Section(s).
47. How To Read A Case • The Case Name. • Jurisdiction. • Citation. • Parties. • Judges Name. • Date of Delivery. • Council Representing. How to read a case (2014) Law Handbook
48. Try It Out! 1. Go to www.austlii.edu.au. 2. Find a technology related Case. 3. Locate: • The Case Name. • Jurisdiction. • Citation. • Parties. • Judges Name. • Date of Delivery. • Council Representing.
49. Let’s Apply The Law As Well…
50. How would you interpret the following law as it applies to the facts given below? The Law: “No person shall by speaking, shouting or singing, playing upon, operating or sounding any musical or noisy instrument or doing anything whatsoever attract together number of persons in any street or so as to attract traffic.” The Facts: The accused Mr G had strutted up and down Harrington Street acting like a chicken. Your Task: Apply the law to the facts. Source: Clark, Eugene 2009, ‘Manager and the legal environment’, in Griggs, Lynden, Clark, EE & Iredale, I, Managers and the Law: a Guide for Business Decision Makers, 3rd edn, Thomson Reuters, Pyrmont, NSW, pp. 3-29
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