The Legal System

Principal Focus 
➳ Students develop an understanding of the nature and functions of law 
through the examination of the law-making processes and institutions. 
Contents
The Legal System 2 

Syllabus 3 

Meaning of Law 6 

Values and Ethics 7 

Just Laws 7 

Sources of Australian Law 8 

Courts 9 

Court Hierarchy 10 

Statute Law 10 

International Law 11 

State Sovereignty 11 

Sources of International Law 12 

The Treaty Process 12 

The United Nations 13 

The Constitution 13 

Division of Powers 14 

Separation of Powers 14 

Classification of Law 15 

Common Law and Civil Law 16 

Legal Personal 17 

Law Reform 18 

Native Title 19 

Law Reform in Action 20 

Contemporary Issues 22 

Alcohol and Violence 23 

  

Syllabus
Principal Focus 
➳ Students develop an understanding of the nature and functions of law 
through the examination of the law-making processes and institutions. 
 
Students learn about:  Students learn to: 

1. Basic Legal Concepts   

- Meaning of law  ➳ Define law 
- Customs, rules and law  ➳ Distinguish between customs, 
- Values and ethics  rules, laws, values and ethics 
- Characteristics of just laws  ➳ Describe the characteristics of just 
- Nature of justice:  laws and the nature of justice 
- Equality   
- Fairness  ➳ Define and investigate procedural 
- Access  fairness and the rule of law 
- Procedural fairness   
- Rules of law  ➳ Define anarchy and tyranny 
- Anarchy   
- Tyranny   
   
2. Sources of contemporary  ➳ Outline the origin of common law 
Australian law   
Common law -  ➳ Examine the hierarchy and 
○ British origins, including:  jurisdiction of state and federal 
- Development of  courts 
common law   
- Equity, precedent   
- Adversarial system of  ➳ Outline the role and structure of 
trial  parliament and the legislative 
○ Court hierarchy:  process 
- Jurisdiction of state and  ➳ Describe the function of delegated 
federal courts  legislation 
Statute law -   
○ Role and structure of   
parliament  ➳ Explain the difference between 
○ Legislative process  division and separation of powers 
○ Delegated legislation  ➳ Examine the role of the High Court 
  in the interpretation of the 
The Constitution -  constitution 
○ Division of powers   
○ Separation of powers   
○ Role of the High Court  ➳ Examine the characteristics of 
  Aboriginal and Torres Strait 
Aboriginal and Torres Strait Islander  Islander Peoples’ customary law 
Peoples’ customary laws -   
○ Diverse nature of customary  ➳ Outline to the extent to which 
laws  Aboriginal and Torres Strait 
  
○ Spiritual basis, significance of  Islander peoples’ customary laws 
land and water  have been integrated into 
○ Family and kinship  Australian law 
○ Ritual and oral traditions    
○ Mediation and sanctions   
○ Relevance to contemporary  ➳ Distinguish between domestic and 
Australian law  international law and examine the 
  impact of state sovereignty 
International Law -  ➳ Examine the sources of 
○ Differences between  international law 
domestic and international   
law   
○ State sovereignty   
○ Sources, including:   
- International customary   
law   
- Instruments (declarations   
and treaties)  ➳ Describe the role of the various 
- Legal decisions, writings  organisations involved in 
○ Role of:  international law 
- United Nations  ➳ Examine how international law 
- Courts and tribunals  impacts on and is incorporated into 
- Intergovernmental  Australian law 
organisations   
- Non-governmental   
organisations   
○ Relevance to contemporary  ➳ Outline different types of law 
Australian law  ➳ Compare the purpose of different 
  types of law 
3. Classification of law   
○ Public law   
- Criminal law   
- Administrative law   
- Constitutional law  ➳ Distinguish between civil and 
○ Private law (civil law)  criminal court procedures 
- Contract law  ➳ Identify the role of legal personnel 
- Tort law  involved in the court process 
- Property law  ➳ Compare and contrast common 
○ Criminal and civil court  and civil law systems 
procedures including legal    
personnel   
○ Common and civil law  ➳ Examine the conditions that give 
systems  rise to law reform 
   
4. Law Reform   
○ Conditions that give to rise to   
law reform including:  ➳ Describe the role of agencies 
changing social values, new  involved in law reform 
concepts of justice, new   
technology   
  
○ Agencies of reform including   
law reform commissions,   
parliamentary committees,  ➳ Examine the operation of the 
the media,  different mechanisms of reform 
non-governmental   
organisations   
○ Mechanisms of reform  ➳ Explain why terra nullius was an 
including courts, parliaments,  obstacle to achieving native title 
United Nations and  ➳ Examine the roles of the High 
intergovernmental  Court and federal parliament in 
organisations   recognising native title 
5. Law reform in actions  ➳ Examine major Australian native 
Two examples of law reform must be  title decisions 
studied. Law reform in relation to native  ➳ Assess the effectiveness of the law 
title is mandatory.  reform process in achieving just 
A) Native title -  outcomes in regard to native title 
○ Terra nullius   
○ The roles of the High  ➳ Identify and investigate a 
Court and federal  contemporary law reform issue 
parliament  ➳ Examine the conditions that give 
○ Major native title  rise to the need for law reform, the 
decisions  agencies of reform and 
○ Legislation  mechanisms of reform 
B) A contemporary law reform  ➳ Assess the effectiveness of law 
issue -  reform in achieving just outcomes 
○ Young drivers and the  with regard to a contemporary law 
law  reform issue 
○ Sport and the law 
○ Alcohol and violence 
○ Bikie gangs and law 
 
 

Meaning of Law
The law is a set of rules that applies to everyone in a society (universal) that can 
be enforced/punishable by the state.  
○ Laws are fluid ( they can be changed ) 
○ New ones can be created 
○ Can be abolished 
➳ Laws must reflect society and its values 
Purposes of law
➳ Safety to the community (victims, offenders, society) 
➳ To maintain order, set boundaries 
➳ Establishing standards 
➳ To protect human rights
Values
➳ Values are a set of moral standards which are considered desirable in society 
Customs, Rules and Laws
Customs, rules and laws are all interconnected.  
➳ Customs are expected behavioral patterns within a society 
➳ Rules are boundaries placed on specific branches of society, such as in 
schools or workplaces 
➳ Laws, unlike rules, affect all of society equally and are enforced by the legal 
system 
Customs  
➳ Traditional/usual way of behaving 
➳ Develop over a long period of time 
➳ Not enforceable by the law 
Rules  
➳ Clear guidelines on what you can and can’t do 
➳ Only applicable in a certain place or situation 
➳ Not enforceable by the law  
Laws 
➳ Laws are made up by a ‘sovereign power’ 
○ The Queen 
➳ If you break a law you are punishable by the state 
➳ Officially, the ‘rule of law’ applies 
  

Values and Ethics

➳ There are no punishments for not having or following certain values 
➳ Ethics tell people the correct way of behaving in a certain situation 
➳ Values and ethics eventually become customs over time 

Just Laws
Characteristics of Just Laws
➳ Laws apply to all members of society 
➳ Laws are officially recognized and enforced by the legal system 
➳ Laws are accessible by all 
➳ Laws relate to the interests of general society, and reflect the rights and 
responsibilities of those within it 
The Nature of Justice and Procedural Fairness
Justice is the fair and impartial treatment of all individuals under the law. The legal 
system is expected to achieve justice in all circumstances. 
Three elements of justice in legal processes: 
➳ Equality is all people are being treated in the same way 
➳ Fairness is the legal system being free from any bias or dishonesty 
➳ Access is the right or opportunity to make proper use of the legal system 
 
Procedural fairness (natural justice) must have these factors: 
➳ The right to be heard. Anyone involved in any dispute has the right to be 
heard and their opinion taken into account. 
➳ The right to know what you are accused of. 
➳ An unbiased decision maker. Anyone in a position of power during legal 
processes must be unbiased, honest, and fair to all. 
Case Study - Examples
Procedural Fairness was upheld in the case of Kioa v West (1985) - 
The High Court ruled that administrative bodies (in this case, the Immigration 
Department) still had to allow for procedural fairness when making decisions (in 
this case, the decision to deport a family). The people who are being dealt with by 
our legal system need to be able to respond to the allegations being made 
against them. 
Procedural Fairness was denied in the case of Mohamed Haneef (2007) - 
Dr Haneef was held for 12 days without being told what he was being charged 
with or what evidence was being used against him (which is a lack of procedural 
fairness). Soon after he was deported under a section in the Migration Act 1958 
that says that the Minister for Immigration is able to deport someone and 
specifically states that procedural fairness does not apply to that decision (no 
right to appeal or know why they’re getting deported) (which is another example 
of a lack of procedural fairness).
  

Sources of Australian Law

What influences Australian Law? 
➳ English Law 
- Common Law 
- Origins of English law used trial by ordeal 
➳ ATSI Customary Law 
➳ International law, eg United Nations 
➳ Statute Law 
➳ The Constitution 
Common Law
Originated in Britain, based on the idea of travelling judges enforcing precedent  
➳ Equity is a body of law supplementing common law, correcting injustice by 
applying principles of fairness.  
➳ Precedent is a judgement which acts as authority for a later legal decision 
(stare decisis, the decision stands) 
➳ Injunctions are known as equitable solutions to legal disputes 
Rules of precedent
➳ Must be followed in all courts lower in hierarchy (binding precedent) 
➳ Can use international law as basis for decision in any court (persuasive 
precedent) 
➳ When making a decision in a current case, the judge must apply the same 
reasoning and thinking to previous similar cases 
Norman Conquest
➳ William the conqueror sent Justices (Judges) around English to ensure 
disputes were settled the same way everywhere in the country.  
The Doctrine of Precedent
➳ Making sure that the law is known, predictable and applies to everyone. To 
ensure that judges have less decision-making power - their job is not to make 
up entirely new laws off the top of their heads - we do not elect judges, 
therefore it would be wrong for them to be our main law-makers.  
Adversarial System of Trial
Australia uses adversarial system of trial. 
➳ Two party’s prove their case to an impartial third party. 
➳ The burden of proof lies with the prosecution/plaintiff, defense must cast 
elements of doubt. 
➳ Judge acts as impartial mediator, ensuring proper legal procedure is 
followed, determining admissibility of evidence and asking questions of law. 
Case is directed by two parties.  
➳ Each party must be represented equally and controls what they present to 
court. 
 
 
The alternative, an inquisitorial system
➳ Judge directs entire case, and plays active role in investigation 
➳ Judge chooses applicable evidence and witnesses 
➳ Much higher prosecution rate 

Courts
High Court
➳ The functions of the High Court are to interpret and apply the law of Australia; 
to decide cases of special federal significance including challenges to the 
constitutional validity of laws and to hear appeals, by special leave, from 
Federal, State and Territory courts. 
Supreme Court
➳ The supreme court is the highest court within the hierarchy of courts in many 
legal jurisdictions. Other descriptions for such courts include court of last 
resort, apex court, and high court of appeal. 
Criminal Court of Appeal
➳ The New South Wales Court of Criminal Appeal, part of the Supreme Court of 
New South Wales, is the highest court for criminal matters and has appellate 
jurisdiction in the Australian State of New South Wales. 
District Court
➳ The District Court of New South Wales is the intermediate court in the state's 
judicial hierarchy. It is the largest trial court in Australia and has an appellate 
jurisdiction. It hears serious criminal offences, appeals from lower courts and 
civil proceedings. 
Drug Court
➳ Drug courts are judicially supervised court dockets that provide a sentencing 
alternative of treatment combined with supervision for people living with 
serious substance use and mental health disorders. 
Local Court
➳ The Local Court civil jurisdiction deals with civil claims up to $100,000. It deals 
with most criminal matters including summary offences, which are crimes 
such as stealing, assault and possession of drugs. 
Coroners Court
➳ An inquest is a court hearing where the Coroner considers evidence to 
determine the identity of the deceased and the date, place, manner and 
cause of death of the deceased. 
Children’s Court
➳ The Children's Court of New South Wales is a court within the Australian court 
hierarchy established pursuant to the Children's Court Act 1987 (NSW) which 
deals with criminal offences committed by children aged over 10 years and 
 
under 18 years, as well as with proceedings relating to the care and protection 
of children. 
Federal Circuit Court
➳ A court that sits in more than one place in a judicial district as a state court 
usually with original jurisdiction and sometimes with appellate jurisdiction, 
and any of the federal courts of appeals. 
Family Court
➳ A court of law that hears cases involving domestic issues such as divorce and 
child custody. 

Court Hierarchy
Lower Courts
Hear summary offenses, minor civil claims ($60,000) and committal hearings. 
Heard by a magistrate, no jury. Committal hearings established whether there is 
sufficient evidence to trial the case in a higher court (​prima facie case​)
Intermediate Courts:
Hears indictable offenses and civil claims ($750,000) and has an appellate 
jurisdiction. Heard by a judge and in most cases, a jury. 
Supreme Courts:
Hears the most serious indictable offenses and civil claims. Heard by a judge and 
usually a jury. Has appellate jurisdiction. 

Statute Law
➳ Statute law is created in parliament by a group of elected representatives. 
➳ Australian parliament utilises a bicameral system. Law changes must be 
passed in both houses. 
The Legislative Process
➳ Proposed change (bill) introduced in the house of representatives, usually by 
cabinet minister (anyone can introduce a backbenchers bill) 
➳ Bill is read, then discussed and amended if necessary 
➳ Vote is taken after the third and final reading, if it passes it moves to the 
Senate 
➳ Process repeats in upper house 
➳ If passed, moves to governor or governor general for royal assent 
➳ It is now an Act of Parliament 
Delegated Legislation
➳ Made by non-parliamentary bodies 
○ Government agencies/ministers/councils and Government-General 
➳ Given power through an enabling act 
➳ Concerns less important matters 
A Regulation, An ordinance or a By-Law 
 
 

International Law
To be able to distinguish between domestic and international law. 
Sources of Domestic Law
➳ Common Law 
➳ Statute Law 
➳ The Constitution 
➳ ATSI Customary Law 
Domestic Law applies to  
➳ Everyone in the country (the ‘rule of law’ applies); except for ATSI Peoples’ 
Customary Law (which does not apply to many people at all) 
People Follow Domestic Law because - 
➳ We have police who enforce the law (State AND Federal Police, with the 
power to arrest), and courts will make sure that people get punished if the law 
has been broken. 
Sources of International Law
➳ United Nations 
➳ Individual treaties between countries 
International Law applies to  
➳ Applies to everyone (and nobody, there is no international police force)  
People Follow International Law because - 
➳ Countries have the option to follow most international law; they have the 
option to be taken to court; the option to be part of a treaty or not – Countries 
follow it because they want to look good for the rest of the world. 

State Sovereignty
➳ Every nation is equal, in that it has a right to control itself and make its own 
decisions without outside interference.  
➳ No nation can be forced to sign a treaty (even if it’s something like banning 
the use of landmines in areas where kids play, or cluster bombs in residential 
areas). No nation can be forced to join the UN. No nation can be forced to go 
to court (the International Court of Justice). Nations have a choice. 
International law is (mostly) voluntary. 
When state sovereignty doesn’t apply: 
➳ Countries don’t get to choose whether or not they want to be bound by (“have 
to follow”) jus cogens – international customary law that is so common and 
important that it is above all other national and international law 
○ example​ Genocide is never ok, even if a government hasn’t signed any 
international agreements saying they won’t commit genocide. 
➳ Since 2005, under the Responsibility to Protect (R2P), countries are seen to 
give up their right to sovereignty if they are not willing to protect their own 
people. 
 
○ example​ The Libyan government was attacking its own people in 2011. The 
UN Security Council voted that Libya had given up its right to sovereignty and 
allowed for an invasion to save the unarmed citizens from being massacred. 
 

Sources of International Law

Customary international law (jus cogens): Develops from long standing ethics and 
customs which become recognised by the international community. Does not 
become official in a nation state until it is accepted as necessary by said nation 
state (opinio juris sive necessitatis).  
The International Court of Justice (ICJ)
➳ Doesn’t have the same doctrine of precedent in international law. 
➳ The decisions of the Court are not binding on future cases. 
➳ The Court still refers to its past decisions and its past ‘advisory opinions’ to 
support its explanation of a present case. 
Instruments (treaties+declarations)
➳ Treaties are mutual, written bilateral/multilateral agreements, governed by 
international law, which govern interactions within and between nation states. 
Not legally binding until ratified. 
➳ Declarations are written documentation of opinions or facts, not legally 
binding. May develop into treaty later. 
➳ Conventions are a general agreement between nations. 
Legal decisions
➳ Main international court is the International Court of Justice (ICJ), the judicial 
arm of the UN hears treaty disputes, and decisions may be the basis for future 
treaties. It isn’t compulsory to use previous cases.  
➳ Tribunals were used before the formation of the International Criminal Court 
(ICC) in 2002. 

The Treaty Process

Australia implements the process above to enforce treaties it has signed. Often, 
existing domestic laws are sufficient. Treaties also influence the development of 
common law. 
Examples:
➳ Convention on the Rights of a Child (CROC): Family Law Act (1975) 
➳ Convention on Elimination of All Forms of Discrimination Against Women 
(CEDAW) 
➳ Sex Discrimination Act (1984) 
Intergovernmental organisations
Intergovernmental organisations are ​organised groups of nation states which 
work towards a mutual goal. Examples include International Labour Org. (ILO) or 
Interpol. 
 
Examples
➳ The European Union (EU) + Council of Europe (CoE) 
➳ The Organisation of American States (OAS) 
➳ The African Union (AU) 
➳ Arab League 
➳ Association of Southeast Asian Nations (ASEAN) 
➳ NATO (you’ll learn more about this if you do World Order) 
Three Steps for an IGO 
○ Create the IGO 
○ Outline an instrument 
○ A court 
Non-governmental organisations: ​organisations with no government affiliation. 
They lobby and provide information to the public. Examples include St Vincent De 
Paul’s and Amnesty International. NGO’s do not take sides but can only report 
abuse, they can’t deal consequences. They are able to expose issues. NGO’s 
aren’t a source of international law because they have no legal authority.  
Examples
➳ Salvation Army 
➳ Red Cross 
➳ Project Compassion 
➳ Amnesty  

The United Nations

Established in 1945 by ​Charter of the United Nations 193 members, headed by UN 
Secretary General Ban Ki Moon “​To maintain global peace and security, and to 
develop friendly relations among nation states based on respect for equal rights.​” 

The Constitution
Constitution​​ - A set of rules governing the running of a nation state 
Legislation​ - Commonwealth of Australia Constitution Act 1900 (UK) 
The Constitution is not a regular law. It is a special law that defines the power of 
our lawmakers – but that power is limited. A reflection of society's values.  
Chapter I ​- The Parliament  
Chapter II -​ The executive government 
Chapter III ​- The Judicature 
Chapter V​ - The states  
Chapter VI ​- New states 
Chapter VIII​ - Alteration of the constitution  
Section Example -
s 116: The Commonwealth shall not make any law for establishing any religion, or 
for imposing any religious observance, or for prohibiting the free exercise of any 
religion, and no religious test shall be required as a qualification for any office or 
public trust under the Commonwealth. 
  

Division of Powers
Legislative Concurrent Exclusive Residual
Areas in which  Areas in which state  Powers exclusive  Powers maintained 
federal government  may create laws as  to federal  only by the states, 
can create laws.  well as federal, also  parliament,  detailed in state 
Outlines in Section  outlined in Section  outlined in Section  constitutions. 
51  51  52. 
Note​: where conflicting, federal laws always override state law. 
Exclusive Powers
Examples -  
➳ s.90: Customs 
➳ s.114: Military forces 
➳ s.115: Currency 
Residual Powers Concurrent
Examples - Examples - 
- Insurance - Transport  
- Banking - Education 
- s.51 powers - Local Government 
 

Separation of Powers
Separation of powers is essential to an effective democracy - ensures that no 
section of the law is corrupt by maintaining independence between legal areas. 
The three branches of government outlined in the doctrine: 
Legislature​ ​- lawmakers (parliament) 
Executive​ ​- ministers and departments which administer laws (cabinet) 
Judiciary​​ - courts which apply law 
Each branch is supposed to keep the others from abusing power.  
 
Separation of powers is essential to an effective democracy - ensures that no 
section of the law is corrupt by maintaining independence between legal areas.

The ​Division of powers ​shows how power is divided between the State and 
Commonwealth jurisdictions. The Separation of powers shows how we separate 
our legal institutions ensure that nobody has absolute power.  
 
Case Study Example
NBNB v Minister for Immigration 
and Border Protection (2014) 
 
There were 5 asylum seekers who were found to be genuine refugees from 
Afghanistan. They were held in detention, but they were convicted of crimes while 
in detention (e.g. damaging property in the detention centre, so they wouldn’t 
have committed these crimes if they weren’t in detention in the first place). 
 
The previous Labor Immigration Minister used s.501(6)(aa)(i) of the Migration Act to 
deny them protection visas (so, a decision made by the executive branch of the 
government, supported by legislation made by the legislative branch). 
 
Then the Judicial branch of the government (i.e. the Federal Court) overruled that 
decision because they were denied procedural fairness and it went against our 
international obligations to not detain people indefinitely. 
 
Federal Court overturns asylum seeker protection visa decision, ABC News (2014) 

Classification of Law
Public Law
Public law is the branch of law governing the relationships between individuals 
and the state, and the structure and operation of said government. 
 
Criminal Law
➳ The body of law under which acts are ​punishable by state 
➳ Maintains public safety, as criminal acts violate the moral order of society 
➳ Constantly reviewed to reflect modern society 
NSW - Crimes Act 1900 
Administrative Law
➳ Deals with powers and decisions of government bodies 
➳ Individuals can seek review of government divisions: 
Internal​:​ a decision made is reviewed by the same agency 
External​:​ an external party reviews the decision 
Judicial:​ a court hears and reviews the legality of a decision 
 
Constitutional Law
➳ Focuses on rules governing the separation of powers 
➳ Concerns constitutional validity of government actions 
➳ Related to the division of powers 
➳ Also deals with constitutional breaches in the legal system 
Categories of crime
P​reliminary offences, eg. attempted attack 
O​ffence against the person, eg. assault, murder, battery 
O​ffence against the sovereign, eg. treason, overthrowing the government 
P​ublic order offences, eg. swearing, urinating 
E​conomic offences, eg. fraud, white collar, piracy  
  
D​riving offences 
D​rug offences 
Private Law
Private (civil) law is the branch of law governing relationships between individuals 
and organisations. Aims to protect the private rights outlined in statute and 
common law. 
 
Contract Law
➳ Recognition of legally binding agreements 
➳ Aims to compensate the plaintiff through damages paid by the defendant 
➳ Injunctions may also be sought 
➳ Most complex body of civil law 
Tort Law
➳ Civil wrongs, an action which breaches the rights of another 
➳ No prior legal relationship required 
➳ Aim is to compensate the plaintiff 
Examples include negligence and nuisance  
Property Law
➳ Concerns any commercially valuable entity, such as land, stock, goods or 
intellectual property 
➳ Deals with legal rights of possession 
Criminal or civil court 

Common Law and Civil Law

Common Law
➳ Statute law and Common law Judges can create new law if parliament hasn’t 
made a statute law in a certain area 
➳ Precedents (decisions in previous cases) can be binding (the judge has to 
follow them) 
➳ Adversarial system of trial 
 
Advantages - 
➳ Because judges don’t have to win any popularity contests, they can “do the 
right thing” without worrying about not getting re-elected (like the members 
of parliament do). 
➳ This means that judges can decide to create law when parliament didn’t really 
want to. 
Civil Law
➳ Statute law only (which is in their ‘codes’) 
➳ Precedents are not binding 
➳ Inquisitorial system of trial 
Advantages - 
 
➳ They’re more democratic because the parliament is in charge (you don’t just 
have 7 judges making massive changes to the law).
Civil Law System
Canada’s Criminal Code 
The Canadian judge can only make decisions based on what is here in the 
criminal code (statute law only – no looking at previous decisions). The judge’s job 
is to decide if this case fits into this category. 
Common Law System
Crimes Act 1900 (NSW) 
A judge in NSW will look at the Statute Law first. But because we have a common 
law system, the judge can look at previous cases to see if a judge has created a 
precedent that people under duress can use that as a defence.  
For such a threat to be effective it must be continuing and be seen to be 
continuing and such threat will not be continuing and effective if the accused has 
a reasonable opportunity to render the threat ineffective: R v Williamson [1972] 2 
NSWLR 281 at 283, 300. 

Legal Personal
Judge/Magistrate:
➳ Preside over court cases ensuring proper procedure is followed 
➳ Magistrate decides verdict and suitable punishment 
➳ Judges adjudicate, instruct the jury and determine admissible evidence 
➳ Judges decide on punishment, and verdict if no jury 
Judges Associate:
➳ Clerk, assists the judge where appropriate 
Tipstaff:
➳ Assists the judge with organisation and procedural matters 
Barristers/Solicitors:
➳ Solicitor generally do not appear in courts, but assist barristers behind the 
scenes 
➳ Both are specialised in certain areas 
➳ During trials, barristers present their clients case, and advise them on the 
likely outcome of the trial 
Witness:
➳ An individual who gives evidence in a case, who must swear an oath to speak 
truthfully 
Court Officer:
➳ Organises court lists and calls witnesses 
➳ Ensures smooth running of the trial, essentially an ‘errand runner’ 
➳ Looks after the courtroom 
➳ Also assists judge where necessary and answers questions from jurors 
 
Reporter:
➳ All court proceedings are recorded and transcribed 
Corrective Services officer:
➳ Guards and escorts the accused 
Jury:
➳ A panel of randomly selected citizens whom consider evidence and decide a 
verdict 
➳ 12 in criminal cases, jury of 4 in some civil cases  
➳ Chosen from electoral roll 
➳ Can be challenged by either prosecution or defence 

Law Reform
What is law reform?
Law reform is adaptations/modifications made to legislation and laws to reflect 
modern society. The modern, globalised and technologically advanced world 
evolves extremely quickly, and the law occasionally lags behind. Law reform 
should encourage improvements within society, for the majority of society. 
Current law is not working.  
Conditions which give rise to Law Reform -
Changing Social Values -  
Social Values​​ - Ethical standards which guide an individual's view of their society, 
and found beliefs of right and wrong. These change as society evolves over time. 
Heavily influences by individual values, which may be different to those of greater 
society. 
Public Morality​​ - Standards of behaviour generally agreed upon by the 
community. Judicial decisions are used as indicators of shifting social values. 
Case Study Example -
The recognition of same sex relationships 
1999: ​The NSW government passed the Property (Relationships) Legislation 
Amendment Act 1999 so same-sex couples are counted as de facto couples 
2008: ​The Commonwealth government passed the Family Law Amendment (De 
Facto Financial and Other Measures) Act 2008 to allow separating same-sex de 
facto couples the ability to have their case heard in the Family Court. 
2012: ​Two bills (one from Labor, one from the Greens) were introduced into 
Commonwealth parliament. There was an inquiry into whether the bills should be 
passed. Despite strong public support, neither passed due to the Liberal Party. 
2013: ​The A.C.T’s Marriage Equality (Same Sex) Act 2013 was found to be invalid 
by the High Court in Commonwealth v A.C.T. (2013). The High Court says that the 
Commonwealth gov. is the only one able to make same sex marriage legal. 
New Concepts of justice -
➳ As society evolves, its views of justice may change. 
 
➳ A prime example is the abolishment of capital punishment in Australia. 
Australians believed justice constituted rehabilitation rather than pure 
retribution. 
➳ As views of what justice should achieve are changed, legislation is reformed. 
New Technology -
➳ Technological innovations bring with them the requirement for law reforms to 
how the technology is used. 
➳ Reform can be obvious and blatant, such as road laws corresponding with the 
development of the motor vehicle. 
➳ Reform can also be subtle. (EG - the invention of life support technology 
required the reform of the definition of legally dead) 
➳ A prime example is new birthing technologies, which brought new laws 
distinguishing biological versus family obligations and responsibilities 
associated with the donation of genetic material. 
Why is reform necessary?
➳ Law reform is necessary so that laws fulfill their role of providing stability and 
reflecting modern society. 
➳ If law reform was not introduced, laws would become increasingly irrelevant 
in an ever changing world. 
➳ Conducting law reform ensures that it remains enforceable and relevant.

Native Title
Terra Nullius
➳ Captain Cook declared the land terra nullius 
➳ A right given to explorers 
➳ ‘Doctrine of Reception’ 
State legislation​: Aboriginal Land Rights Act (1983) NSW 
➳ Declared on british colonization, legally eliminated any indigenous claims to 
Australian land 
➳ Need for law reform identified in the 20th century 
 
Why was it an obstacle? 
Even Aboriginal people who didn’t run into white people for another hundred 
years had no idea that they were British now, and their land was Crown Land 
(owned by the government). So, terra nullius was an obstacle to Aboriginal land 
ownership, but the fact that Cook didn’t follow the legal requirements of terra 
nullius meant that claiming native title was possible 204 years later! Though it 
would have been better for them to have freehold title.  
Case Study - Key
Mabo (No. 1) (1988) 
The Meriam People (led by Eddie Mabo) wanted to claim ownership of the land 
they already lived on (the Murray Islands). The Queensland government went out 
of its way to stop them. It passed the QLD Coast Islands Declaratory Act 1985 
 
(QLD), which just declared that the islands belonged to the QLD government, so 
Mabo couldn’t claim any type of ownership. 
GOOD: The High Court found in this case that the QLD State government’s law 
was invalid because it went against the Commonwealth government’s Racial 
Discrimination Act 1975 (Cth). So native title could be a possibility! 
BAD: They didn’t decide on whether native title actually existed. 
Mabo II Case (1992)​  
High Court abolished idea of ‘terra nullius’ and recognises native title for the first 
time 
➳ Parliament creates Native Title Act (1993) (Cth.) in response: Federal law 
➳ The 1992 Mabo decision led to the Native Title Act (1993) which created a 
framework that recognises Aboriginal and Torres Strait Islander peoples have 
rights to, and interests in, certain land because of their traditional laws and 
customs. 
The Wik Decision (pastoral leases) and Yorta Yorta decision 
The Wik Peoples v The State of Queensland and Ors; the Thayorre People v The 
State of Queensland and Ors (1996) About ¾ of all the land in Queensland is not 
really owned by farmers and people raising animals like cattle. It is LEASED (like 
renting a house, but from the government). This type of land leasing is called 
pastoral leasing. The land is owned by the Crown (government) but leased by 
farmers, pastoralists and miners Most of it is empty most of the time, so a lot of it 
seems like nobody is there and nobody owns it.  
 

Law Reform in Action

Milperra Massacre Fact File
The Milperra Massacre, Milperra bikie shootout or Father's Day Massacre​ ​was a 
firearm battle between rival motorcycle gang members on 2 September 1984, in 
Milperra, a south-western suburb of Sydney, New South Wales. The shootout had 
its roots in an intense rivalry that developed after a group of Comancheros broke 
away and formed the first Bandidos Motorcycle Club chapter in Australia. Seven 
people were killed and twenty-eight injured when the two groups clashed at 
Milperra. The event was a catalyst for significant changes to gun laws in New 
South Wales. 
Important Legislation:
○ Crimes Legislation Amendment (Gangs) Act 2006 (NSW) Serious and 
Organised Crime (Control) Act 2008 (SA) Criminal Organisation Act 2009 (Qld) 
Crimes (Criminal Organisations Control) Act 2009 (NSW) Crimes Legislation 
Amendment (Serious and Organised Crime) Act (No. 2) 2010 (Cth) Crimes 
(Criminal Organisation Control) Act 2012 (NSW) HCA 24 Crimes Amendment 
(Consorting and Organised Crime) Act 2012 (NSW) Vicious Lawless 
Association Disestablishment Act 2013 (Qld) Tattoo Parlours Act 2013 (Qld) 
Criminal Law (Criminal Organisations Disruption) and Other Legislation 
 
Amendment Act 2013 (Qld) Bail Amendment Act 2014 (NSW) Statutes 
Amendment (Serious and Organised crime) Act 2015 (SA) 
Identify legal issues:
○ In 2009, 29 year old Anthony Zervas was killed at Sydney Airport as a result of 
a brutal bashing. The incident involved an attack by members of the Sydney 
based Comanchero motorcycle club against members of Hells Angels. The 
man was returning from Melbourne before he was brutally bashed with a 
metal bollard and stabbed several times in the chest and abdomen. In 2011, 
Mahmoud 
Key statistics:
○ The ACIC estimates that there are over 40 active OMCGs in Australia, with 
approximately 6000 ‘patched’ members 
Legal and non-legal responses:
○ In 2009, the Australian Crime Commission, a federal statutory body, now 
known as the Australian Criminal Intelligence Commission (ACIC), which 
investigates and combats serious crime, stated that OMCGs represent a ‘real 
and present danger to the Australian community’.  
Elements of bikie gangs:
Organised crime 
Organised crime can be defined as illegal activities organised by groups of 
criminals, most commonly for the purpose of generating financial profit. 
Throughout history, organised crime has been a main focus for criminals as a 
source of profit. Most common these forms of criminal activity are; 
○ Drug manufacture and distributions 
○ Extortion and money laundering 
○ Prostitution 
○ People smuggling 
○ Environmental crimes 
○ Counterfeiting of money 
○ Digital piracy 
○ Illegal book making and gambling 
Identify
Identity is import to OMCGs. Many motorcycle clubs have unique patches on the 
back of their members vests. These patches feature the club’s logo, name and 
often the initials MC, together with the club’s local branch or chapter. These 
patches form the ‘club’s colours.’ Sometimes in order for a member to earn a 
club’s patch, the club might require a vote and swearing of allegiance to the club, 
or the performance of tasks. For a member to lose its colours, for example to the 
police or a rival gang, might result in a penalty.  

Contemporary Issues
Bikie Gangs Bali Laws Provocation
  
Incident:​ Violent murder  New Concepts of Justice:  Incident​: R v Singh (2012) – 
at Sydney airport.  Premier Barry O’Farrell  6 years for killing wife. 
Changing Social Values:  believed that young people  Changing Social Values: 
The public has moved  were being victimised and  The provocation defence 
towards valuing security /  that some people who  reflects OLD social values 
safety over individual  should be getting bail are  (e.g. Women can be 
rights. There has been  being denied it due to the  “asking for it” when it 
growing acceptance of  current Bail Act.  comes to violence; men 
the idea that being part of  Failure of existing law:  can lose control and 
a  The “one shot at bail”  commit “crimes of 
particular group can, in  section (s. 22A) was leading  passion”). 
itself, be unacceptable.  to growing remand  Failure of existing laws: 
Failure of existing laws:  populations. Cases like Ramage, Singh 
The law already banned  and Won highlighted 
murder, but the murder  problems. Victoria already 
was seen as a result of  removed the defence too. 
bikie gang culture (so that   
had to be banned).

Effectiveness of Law Reform in Achieving

Just Outcomes
Parliament:​ NSW  Parliament (past): ​The Bail  Courts​: Verdicts where 
parliament passed the  Act was amended by  juries accepted the 
Crimes (Criminal  parliament 85 times in just  provocation defence 
Organisations Control)  32 years, usually to make it  included R v Ramage (2004), 
Act 2009.  more difficult for people to  R v Singh (2012) and R v 
Courts: ​The High Court  get bail. The most  Won (2012). 
found the NSW law to be  controversial was the  Parliaments - 
unconstitutional in the  inclusion of s. 22A (the “one  VIC: The Victorian 
case of Wainohu v NSW  shot at bail” section). NSW  parliament removed the 
(2011).  ended up with the toughest  defence in 2005.  
Parliament:​ NSW  bail laws in Australia (which  NSW: ​The parliamentary 
parliament then passed  was the opposite of the  committee made their 
the Crimes Amendment  original law).  recommendations to 
(Consorting and  Parliament (present): ​The  parliament in 2013. 
Organised Crime) Act  government passed the Bail  The government used the 
2012.  Act 2013, which ignored  Crimes Amendment 
some of the most serious  (Provocation) Bill 2013 to 
problems with the previous  change the defence to 
law, but did make the  ‘extreme’ provocation (ruling 
process simpler.  out non-violent sexual 
It won’t stop the problems  advances – the deceased’s 
that caused the review in  actions have to be 
the first place (injustice for  indictable offences 
those applying and  themselves). 
overcrowding). 
  

Alcohol and Violence

Liquor Amendment (Kings Cross Plan of Management) Act 2012 (NSW) 
(a) to prescribe additional licence conditions in respect of licensed premises in 
the Kings 
1. Cross precinct (being the area described in Schedule 2 to the Liquor Act 
2007), 
(b) to provide that premises in the Kings Cross precinct are to be regarded as a 
small venue only if the premises are not authorised to trade beyond 2 am on any 
day of the week (small venues have a patron capacity of no more than 60 and are 
exempt from some of the additional licence conditions and from the liquor licence 
and development consent freeze that applies to premises in the Kings Cross 
precinct), 
(c) to require persons who carry out supervisory duties in relation to the 
responsible service of alcohol on licensed premises in the Kings Cross precinct to 
hold a RSA competency card. 
Law Enforcement (Powers and Responsibilities) Amendment (Kings Cross and 
Railway Drug Detection) Act 2012 (NSW) 
LEPRA consolidates and restates the law relating to police and other law 
enforcement officers' powers and responsibilities giving effect to the 
consolidation process envisaged by the Royal Commission into the NSW Police 
Service. 
Liquor Amendment Act 2014 (NSW) 
An Act to amend the Liquor Act 2007 and the Liquor Regulation 2008 to enable 
certain areas to be declared to be prescribed precincts in which licensed 
premises are subject to regulatory conditions; to enable periodic licence fees to 
be levied; and for other purposes. 
Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 
(NSW) 
An Act to amend the Crimes Act 1900, the Law Enforcement (Powers and 
Responsibilities) Act 2002, the Crimes (Sentencing Procedure) Act 1999 and other 
legislation relating to assaults and intoxication and to other matters.