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Law

Teacher notes

Law is fundamental to civic life. It is one means by which our responsibilities are established and the major way in which our rights are protected. Thus it is important to explore the evolution and character of law-making and systems of justice, especially those that have influenced our own way of life.

About the unit | Indicators of student achievement | Background notes | Discovering Democracy resources | Links to other units | Notes

About the unit

Contexts: Ancient law, Saxon law, Aboriginal customary law (case study), club and national constitutions, court operation

Indicators of student achievement

The student can:

Background notes

All societies need and have laws. The bases of these laws may lie in morality, religion, ethics, social cohesion, or in the protection of individuals, community or powerful elites. Laws from ancient Babylon, ancient Israel, medieval England and modern Australia are used to explore these notions.

Australia's legal system, made up of common and statute law, was inherited from British laws which in turn developed from a number of sources. For instance, in Saxon England laws were made in local courts and were only locally applicable. The Normans, after their invasion of England in 1066, began a system of travelling judges who brought common laws to all areas of England. Common laws, made by the courts, provided precedents for later cases.

Laws made by the King were gradually influenced by groups of powerful landowners whose financial support was needed by the King. This process developed into today's parliamentary system of statute law.

The common law process, whereby most of our laws are derived from individual court decisions, contrasts with the European civil law system in which judges apply set principles to individual cases.

Common law is of two types: criminal and civil. In each, judges apply (or do not apply) previous court decisions and statute laws to a case. Under criminal law, the State protects society from crimes such as robbery and murder. Civil law is used to resolve non-criminal disputes between individual parties. The extent of proof required in a criminal case (proof beyond reasonable doubt) is greater than that in a civil case (proof on the balance of probabilities).

The legal framework of common law and statute law was brought to Australia with the First Fleet in 1788. Aboriginal laws and customs of the time were not recognised by the British settlers, and British laws were applied to the whole country. The Mabo decision of 1992, however, re-established Aboriginal and Torres Strait Islander ownership of land under certain conditions. There is also debate about whether Aboriginal law should be acknowledged in some other circumstances.

Gradually Australia has developed its own common and statute law, so that we are no longer bound by any British court or statute decisions. However, we have maintained many British legal principles, for example presumption of innocence, the right to trial by jury in serious cases, the right to legal representation, the right to remain silent, the right of all people to be treated equally before the law; the obligations of governments to act within the law and judges to be independent of governments; and the overriding principle of due process of law - an entitlement to standard processes of law designed to produce just results. We have also maintained important British statutes such as Magna Carta.

Until 1901 the Australian colonial parliaments made their own laws for their own territories. In 1901 the Commonwealth Constitution transferred to the Commonwealth Parliament some specified areas of colonial jurisdiction. Although some areas were exclusive to the Commonwealth, most areas listed in the Constitution provide both the Commonwealth and the States with law-making powers. Where Commonwealth laws made in accordance with the Constitution clash with State laws in any shared jurisdiction area, the Commonwealth law prevails. In categories in which the Commonwealth is not given law-making power, the States have exclusive powers.

The Commonwealth has the executive power to make treaties with other countries and with the United Nations. If the Commonwealth Government ratifies an international document, it is binding. Under the external affairs power the Commonwealth Parliament can then make laws to implement the treaty. So, while the Constitution says the Commonwealth cannot make a law which gives people the right to, for example, a fair trial in a State, it does actually have that power and responsibility by having accepted the Universal Declaration of Human Rights as law for Australia. Many people argue that the Commonwealth should not be able to use the Constitution in this way; others argue that it is appropriate and proper for the Commonwealth to have the power in such an area.

Various Australian courts apply our laws in cases of dispute brought before them. Many cases require the law to be interpreted to decide whether it applies to the particular case. Final authority is with the High Court, the ultimate court of appeal. Only the High Court has the power to deal with interpretations of the Constitution. It can extend or limit the effective meaning and applicability of Commonwealth powers and the Australian Constitution.

Discovering Democracy resources

Stories of Democracy CD ROM - interactive and sources on the Mabo decision

Parliament at Work CD ROM - 'Pass the Bill' interactive

Discovering Democracy - A Guide to Government and Law in Australia

Discovering Democracy website

Further teacher reference material can be found in Discovering Democracy Lower Secondary Units, pages 136-138.

The 'Commonwealth Government' poster and 'Levels of Government' poster.

Links to other units

  • 'Human Rights' (middle secondary) - considers the ways human rights are protected through the Constitution, Acts of Parliament and through the courts and whether Australia should have a Bill of Rights.
  • 'Making a Nation' (middle secondary) - examines the features of the federal political system, the ways the High Court's interpretation of the Constitution has increased the power of the Commonwealth over time and whether Australia should continue to have States and Territories.
  • 'Getting Things Done' (middle secondary) - considers federal-state relations, the Constitution and the High Court in the context of the Franklin dam dispute.

Notes

In several exercises, students are asked to explore aspects of the theme by taking on roles or preparing a case for a particular point of view (see, for example, Focus question 4, Activity 1). Such classroom activities can run the risk of encouraging students to become committed to the role they undertake and so narrow their focus rather than expand it. An effective strategy for overcoming this problem is to have students prepare the set of arguments for a point of view, but then be responsible for opposing that viewpoint in the actual debate that ensues.

Teachers keen to provide supplementary literary extracts could use William Golding's Lord of the Flies (book or film). The key scene in chapter 2 of the book, from 'By the time Ralph ...' to 'wiped them on his shirt', provides a good basis for a discussion of what happens to that society of young people when laws break down. Mark Twain's Huckleberry Finn, chapter 18, has a section on the nature of 'feuds' which could also provoke lively discussion.

Teachers could ask students to take minutes of the meeting in Focus question 4, Activity 2, as a basis for discussing the nature of decision making. In some of the activities presented within this unit students are asked to consider moral issues and controversial ones. Issues likely to be very contentious on religious, cultural or moral grounds (such as abortion or euthanasia) have been avoided. Teachers are best able to determine the particular examples that are appropriate for discussion within their own classes.

Teachers will be conscious of sensitive cultural issues likely to arise in student discussion of the proper basis of Australian law. For example, some students may want to stress the religious basis of law, while others would give it lower priority.

Answer for case study, Focus question 5, Activity 5

In the actual trial, after hearing all the evidence the jury decided beyond reasonable doubt that 'Dominic' had broken into the house, but they were not convinced that he had taken the jewels. Dominic was therefore found guilty of burglary, but not guilty of theft of the jewels. The prosecution then revealed that Dominic had prior convictions for robbery and theft. The judge then sentenced Dominic to twelve months' imprisonment.

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