Session 2 An Introduction to the Australian Legal System 2

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An Introduction to the Australian Legal System 2:

An I ntroduction to the Australian Legal System 2 Main points: Is the law fair? What is reasonable? Culture and customary law Law and society Law’s function Rules and laws Effective laws

Is the law fair? The law and difference. Justice and law:

Is the law fair? The law and difference. Justice and law What is reasonable? Reasonable expectations Reasonable in the circumstances Beyond reasonable doubt The law of negligence refers to: The need to take reasonable care and The need to think about a case like a reasonable person The word reasonable is very important in the law-but what does it mean?

Interpretation-deciding what words mean:

Interpretation-deciding what words mean The same word can mean different things to different people What the word reasonable means in one country or culture might not be reasonable in another one e.g. capital punishment (killing someone for certain crimes) is legally reasonable in parts of the US, but not in Australia.

Culture and customary law:

Culture and customary law Most countries have a legal system, based on written laws, to regulate society All cultures have other traditions and rules that regulate their society This is called customary law In many countries, like Australia, there are both sorts of law lawshttp :// www.youtube.com/watch?v=3iAHYxnW_8U

Some differences between customary law and written law:

Some differences between customary law and written law Western law Use evidence to try to find out the truth about what happened Customary law The truth is often less important than restoring social stability

Recognition of customary law:

Recognition of customary law Sometimes a custom or practice is recognised by a western court of law. One thing that it must be to be recognised is REASONABLE

So what is the test for reasonableness?:

So what is the test for reasonableness? In the Sudan Over time the courts of Sudan have defined the ‘ resonableness ’ of a custom as its conformity with ‘justice, equity and good conscience’. (From a book by Akechal et al) Some say that the trouble with this definition is that it allows only judges to decide whether a custom is reasonable. In Australia In Australian courts, reasonableness has been historically referred to as what a normal person would consider reasonable. HOWEVER, what is normal for one person might be different to someone else.

Language issue and cultural expectations:

Language issue and cultural expectations Case studies for discussion Go to the Session Two Case studies page

Law and society:

Law and society Law’s function Main aim-to provide a framework in which the community can exist in freedom and harmony. Main function-to resolve disputes Generally, the law defines clearly the kind of community the majority of people want. It aims to protect individual rights and stop behaviour that will affect peace and good order Without laws there would be chaos

Law’s function-some examples:

Law’s function-some examples Laws can promote Expected or appropriate codes of behaviour Efficiency within society Equality for all people regardless of background Laws can educate people

Rules and laws:

Rules and laws Laws All people who live in or visit Australia must observe Australian law. The penalties for breaking the law can serve as a deterrent. They can help prevent future conflict as people are aware of the consequences that will apply if they engage in inacceptable behaviour Rules There are many rules which are not enforceable under the law e.g. school rules, family rules. These rules are generally not enforceable through the legal system. A school, a family and a club will have different ways of punishing a rule breaker such as detention, expulsion, loss of pocket money

Think about this:

Think about this Sportsmen and sportswomen have to follow the rules of sport and the codes of conduct set by the governing body of that sport. If a player commits a serious assault against another player during a match or competition, should the police be involved? Should they be charged with assault as a criminal offence or should the matter be dealt with by the governing body of the sport? Discuss. What reasons can you give to answer these questions?

Effective laws:

Effective laws For laws to be effective they need to be: Clear - people need to be able to understand them Changeable - community views change over time and so laws need to change as well to remain acceptable Consistent – they have to be fair for all and the outcomes should be the same for the same event

Law is ‘dynamic’ (changing):

Law is ‘dynamic’ (changing) Sources of law: Politics, history, religion, economics, literature etc. carry certain values and laws reflect and protect those values Think about this. Using examples, what could happen if our laws did not meet the criteria for effective laws: Known to the public Acceptable to community Able to be changed Stable Able to be enforced Click on the link to discussion forum

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