1. Basic Legal Concepts * Meaning of Law
Law: A set of rules, imposed on all members of a community, which are officially recognised, binding and enforceable by persons or organisations such as the police and court. * Customs, Rules and Law
* Customs: * Established patterns of behaviour among people in a society or group. * Depends on culture, religion and history. * Customary Law: Customs that have become laws. E.g. Australian Torres Strait Islander Laws, English and International Customary Laws. * Sometimes written down. Usually remain oral or in behaviour.
* Rules: * The code of regulations usually observed by a particular group, rules can be institutional, religious etc. * E.g. Wearing a school uniform. Rules are easier to change than laws.
* Laws: * Formal rules of society. * Sometimes customs and rules form the basis of laws. * Laws are binding on the whole community. * Enforced * Made by the government and are officially recognised by governments and courts. * Accessible * Reflect rights and responsibilities. * Expected to be fair, just and equitable.
Legal Examples: * Aboriginal and Torres Strait Islander Customary Relationships * Defacto relationships are now recognised by the law and couples are given the same rights as married couples
* Values And Ethics
Values and Ethics: Moral standards we live by and believe in. However, they are very controversial because different people have different standards. * Often values and ethics are incorporated into laws. However, this can be quite difficult when many people have different values and ethics. E.g. * Same-Sex Marriage * IVF
Legal Examples: * Crimes Act 1900 (NSW) * Protects people from: * Homicide * Values and Ethics
Values and Ethics
Assault
* Sexual Assault * Kidnapping * Prostitution
* Waller v. Dr Christopher James (2012) * Family sued IVF doctor $10 million for ‘wrongful birth’. * Family sued once previously and failed. * Son suffered stroke after inheriting a rare blood condition and as a result the child is unable to walk, talk and go to the toilet. * Dr referred the family to a genetic specialist; however, the family did not see the specialist and the IVF procedure went ahead. * Did the doctor breach his duty of care? * Is it ethically right to sue for ‘wrongful birth’?
* Characteristics of Just Laws
* Laws are equal and treat every person the same. * They are based on widely held values. * It is utilitarian. Utilitarianism is the philosophy of ensuring an action achieves the greatest good for the greatest number of people. * It aims to redress inequalities. * It must minimise delays. * It must not be retrospective. * The law must be known.
* Nature of Justice
Equality: Justice requires laws that do not discriminate and that are applied equally to all people. The enforcement of law must also be equal.
Fairness: Ensuring the law does not have a particularly harsh effect on an individual. The right to appeal a decision. Fairness and equality are not necessarily mutual.
Access: Individuals must have access to the law. People must have access to legal information and assistance and to be able to understand the law. Must have physical access, e.g. courts and legal aid offices.
Legal Examples: * Dietrich v. The Queen (1992) * Dietrich appealed his drug charge case to the High Court. Claiming that since he had to represent himself at court and as a result didn’t have access to a fair trial.
* Procedural Fairness (Principles of Natural Justice)
Refers to natural justice in the legal decision making process. In Australia it refers to the right to: * Be heard. * Have a fair hearing. * Freedom from bias by the decision maker. * Decision based on evidence.
