Law in Australian Society

An introduction to principles and process

Keiran Hardy

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367718572
• eBook ISBN: 9781000257717
• Edition: 1
• Topic: Business
• Subtopic: Business General
• Index: Business

What is 'the rule of law'? How do laws get made? Does our legal and political system achieve justice for all Australians equally?Designed for beginners as well as non-law students this text provides a comprehensive and accessible guide to understanding Australia's system of law and government. Dr Keiran Hardy describes how legislation is made, the nature of case law, the hierarchy of courts and the doctrine of precedent. He looks at the role played by politics and the media in shaping law, and he describes founding principles including democracy, liberalism, the separation of powers and federalism. The criminal justice system is explained including criminal offences, police powers, sentencing and punishment, and there is a special emphasis on Indigenous peoples and the law. The book concludes with case studies of cybercrime and counterterrorism legislation to illustrate law reform in action. Each chapter features practical examples, chapter summaries and review questions together with a glossary of key terms.Concise, accessible and up-to-the-minute, this is a vital guide for anyone seeking to understand the complexity of Australian law and government.'This is an excellent book for a wide audience... equally useful for law students, legal studies students in high school and anyone seeking an understanding of how and why the law is as it is. And how things might be improved.' - Nicholas Cowdery, AM, QC, former Director of Public Prosecutions, NSW 'A wonderful text... The overall structure and the inclusion of comprehension questions, glossaries and a curated reference list ensure that students can build on their understanding over the course of the book.' - Jackie Charles, Rule of Law Institute of Australia
'This introduction to Australian law is comprehensive, contemporary and accessible. It is a perfect primer for new students requiring a broad understanding of Australia's legal system. From cybercrime to the workings of Australia's parliament, this book has it all.' - George Williams, AO, Dean, Anthony Mason Professor, Scientia Professor, University of New South Wales
' Law in Australian Society' is an ideal text for first year students in criminology, legal studies, policing and related fields. Its easy-to-read format aids students in understanding the complexities and subtleties of the Australian legal system.' - Emma Colvin, Centre for Law and Justice, Charles Sturt University

Part 1

Law, Politics and the Media

Introduction

Law in society

In this introduction you will learn about:

What law does

What law is

Why learning about the law is important

Rather than beginning with a technical definition of the law, this chapter begins with some practical examples of what law does in society. Following these, the chapter will explain more about what law is and why learning about Australia’s legal system is important for university students across many different disciplines.

I. WHAT DOES LAW DO?

Criminal offence conduct that attracts a penalty under the law

Law does many practical things that help our society to function. One of the most familiar things that law does is to create criminal offences. Criminal offences like murder, rape and armed robbery are all defined by the law. The law sets out a penalty for committing these crimes. Some offences—like a minor assault or dangerous driving—will attract a relatively low penalty compared to murder, armed robbery and other serious crimes, which can put an offender in prison for life.

The law gives police officers powers to investigate these crimes. It allows police to search houses, collect evidence and arrest suspects. Importantly, the law defines when and how these powers can be used, so that the individual rights of suspects and other community members are protected.

The law allows us all to do many common things, even if we don’t normally associate these with the law. For example, law provides the framework for purchasing goods and services. Having agreements with legal backing is particularly important for major purchases such as a car or house. Other common examples relate to families. Marriages are formal agreements recognised by the law. Separated parents can apply for divorce and the courts will help them determine which parent has custody over a child. Other common examples relate to our jobs. For example, the law guides the collection of taxes and the payment of superannuation in addition to our salaries.

The law also protects us when things go wrong. It allows us to seek remedies, such as an amount of money as compensation, when some harm is done to us. A remedy is an order issued by a court which helps to enforce a right or redress a wrong. For example, imagine that shopping centre employees fail to put up a ‘wet floor’ sign and you slip and injure yourself as a result. Laws about negligent behaviour would allow you to seek compensation from shopping centre management so that you could pay your medical bills. Or imagine you pay for online shopping but the company never delivers the product. Laws relating to contracts and consumer protection mean you have a right to have the product delivered or a refund issued.

Compensation the payment of money to repair harm

Remedy a court order that enforces the law by enforcing a right or redressing a wrong

These are just a few examples, but they are enough to show you that law plays a crucial role in Australian society, and that law and society are fundamentally linked.

II. WHAT IS LAW?

As you can see from the examples above, law can do many different things. If the law can do so many things, what is it, exactly?

In essence, law is a body of formalised rules that regulate people’s behaviour. In subsequent chapters, you will learn about where we find these rules—in legislation, case law and the Australian Constitution—but for now this definition is adequate. A rule is a statement, principle or instruction that says what someone can or cannot do, or how it must be done.

Regulate to control, allow, and guide behaviour

Rule a statement, principle or instruction that says what someone can or cannot do, or how it must be done

By ‘regulating’ behaviour, we mean firstly that the law controls people’s behaviour. Criminal offences are the most obvious example, because these rules prohibit us from doing certain things. Criminal laws also deter us from breaking the rules. For example, a teenager may think about stealing an item from a store, but then decide not to because he knows he may be punished for stealing it.

Regulating behaviour can also mean allowing people to do things. Laws can specify what people can do, when they can do it, and how they must do it. For example, the law allows police officers to search a suspect’s house after applying for a warrant from a judge, and it specifies what the officers can do when they enter the house (for more on police powers, see Chapter 8).

Warrant an order issued by a judge that allows police to use a special power

Laws are rules that set out conditions and requirements such as these, but they are not just any rules. For a rule to qualify as a law, it must satisfy certain requirements. A law cannot be invented by anybody on a whim. For example, parents might tell their children that they cannot stay out past midnight, or that they can play computer games only for one hour in the afternoon. These are rules, and they may be strictly enforced with penalties, but they are not laws. Laws are rules that have been validly enacted by a parliament or issued by a court (for more on this, see Chapters 1 and 2).

It is important to understand that laws are not fully static or fixed. Many laws have existed for a long time, but they have not been handed to us like the ten commandments, inscribed in stone for eternity. Rather, laws are dynamic: they change frequently. This happens when laws are changed by parliaments, and when judges interpret those laws and apply them to new cases.

The idea that laws change over time can be difficult to grasp. Students often believe that the law is a body of strict, specified rules, and that the purpose of studying law is to learn what those rules are. Some lawyers might even approach the law in this way, and for good reason. To argue a case effectively in court, lawyers need to know in detail what the rules are at that point in time.

A more holistic approach considers how laws develop over time and how the process of making and changing laws can be influenced by different groups and interests in society. When new laws are proposed in parliament, the process can be influenced heavily by political infighting, public opinion, media coverage, human rights concerns, government inquiries and a range of other groups, agencies and organisations.

It is okay if this idea does not make much sense now, because the process of making laws is explained in detail in the next chapter. For now, the point is that you should understand not only what law is but also how law is made.

III. WHY IS LAW IMPORTANT?

Law is important because it helps our society to function, but it is not just a series of arbitrary, practical rules. Laws are also important because they tell us about the values and morals of the society we live in. For example, we have laws against murder, rape and assault because of the serious harm these acts cause to others. There are offences for stealing because it is dishonest and immoral to take another person’s property without their permission.

Defence an argument that a person is not guilty of a crime

These moral lessons might seem obvious—but it is often what we do not consider to be a crime that tells us more. Defences in the criminal law—like self-defence, provocation or insanity—tell us when somebody should be excused from being held responsible for a crime, or whether a lesser ...

Table of contents

• Cover
• About the author
• Title Page
• Copyright Page
• Contents
• Detailed Contents
• List of figures
• Preface
• Part 1: Law, Politics and the Media
• Part 2: Rights, Theories and History
• Part 3: Criminal Justice
• Part 4: Case Studies
• Acknowledgements
• References
• Glossary
• Index