NSW Legal Studies Draft Syllabus

Comments

Proposed Content Area: ‘Basis of the Law’

This should include: 

Australia’s societal values and legal systems have Judeo-Christian foundations, and this is the basis of our legal philosophy. It is important that this is acknowledged as it has guided the formulation of our legal system and continues to guide our law reform processes.

‘Legal Themes – Development of law as a reflection of values’ 

Teachers need explicit advice to guide the teaching of the term ‘values’ – tradition, morality, standards, principles. Values is a subjective term and clear guidance for teachers here is needed to ensure consistency in the way this is presented and taught.

The document produced by the Australian Government as a guide for the Australian Citizenship Test,  ‘Australian Citizenship: Our Common Bond’ explicitly lists a defined set of values for Australian society in ‘Chapter Four: Australian Values’ (pp33-37) as being Commitment to the Rule of Law, Parliamentary Democracy, Freedom of Speech, Freedom of Association, Freedom of Religion, Equality of all people under the law, Equal Opportunity and a ‘fair go’, Mutual Respect and Tolerance for others, as well as community values. This could perhaps serve as a guide or reference point for a defined set of values that will ensure consistency in the teaching of values that guide law making in Australia?

https://immi.homeaffairs.gov.au/citizenship-subsite/files/our-common-bond-testable.pdf 

In considering ‘justice’ and ‘just outcomes’ students should be enabled to consider the values applied in the decision-making processes, critique those values in consideration of the community and the characteristics of effective or ‘good’ laws. 

“Case studies must not overlap with or duplicate any option to be attempted in the Year 12 course”

Case studies made have many different rule of law applications and considerations. There should be the ability to lay foundational concepts in year 11 that can be revisited and progressed/ developed in year 12.   

“Students also develop their skills in critical thinking as they consider the ways law responds to changing social values alongside principles of justice and the desire for equitable outcomes in the legal system”  

The term equitable is important in understanding the legal system and students should be exploring what the concept of equitable means. Teachers may need further guidance on this so they can consider If it mean that justice is blind, and the rule of law applies to all? What is the intention of the law?

Missing: Explicit Civic aims, such as building confidence in Legal System and becoming active and informed citizens

The aims should explicitly state that that the syllabus aims to ensure that students develop the necessary knowledge and understanding of legal concepts and structures, and the meaning and purpose of justice, building confidence in the legal system. The importance of this cannot be understated. Citizens need to trust the legal system for compliance with the law and a lawful society to be maintained, the foundations of which can be created in a subject like Legal Studies.

The aim implicitly contains reference to the Civics and Citizenship priority. It should explicitly make statements about citizenship and be clear that students are encouraged to be active and informed citizens, not just “contribute to society in an active and informed way.” 

More explicit outcomes are needed.

The drafted outcomes give teachers too broad a scope and could be difficult for inexperienced teachers and teachers not trained in Legal Studies to apply and provide effective assessment of a student’s skills and knowledge in Legal Studies.

To supplement the suggested ‘Basis of the Law’ Focus, the following outcomes should be included to explicitly related to what makes a ‘good law’, understanding of the purpose of law, the legal profession and legal ethics, understanding the rule of law, precedent, legislation, the Constitution, natural law, the origins of the legal system, human rights.  

There should also be an explicit mention of understanding of the democratic process of law making/ reform in Australia. 

Missing theme: The rule of law

The rule of law applies to every aspect of Legal Studies and is a key democratic principle of Australia. It should be an overarching theme for the whole course.

‘Development of law as a reflection of society’s values’ and ‘Capacity to uphold community standards’ 

The theme of ‘Development of law as a reflection of society’s values’ and effectiveness criteria ‘Capacity to meet society’s needs’ are very subjective measures and require additional material and context for teachers. This would include a consideration of Are community standards the same as societal values? Where do these standards come from? and who sets them/ monitors them for change?

Outcomes and Content for year 11

General Comments

Missing content: The origins of law and the Magna Carta

The origins of law and the importance of the Magna Carta is not mentioned in these introductory aspects of the syllabus. It is a foundational document that should be included in consideration of the origins of law in Australia.

There are a very large number of concepts and legal terms without sufficient time to engage in real life application. Based on the time allocations given in the syllabus, this unit would represent about 35 hours teaching time which is insufficient time to explain, for example, the principles of procedural fairness, give examples of case law and how these principles make a difference to outcomes, how it forms part of the law making process, the actions of government agencies and their impact on judicial decision making, and the mechanisms to enforce these principles.  

The volume of information contained in this section as an introduction to the legal system is too large for the time allocated and does not enable deep exploration of the origins of these systems and their purpose – these are key to creating a basis for good civic knowledge. 

A comparison of the origins, beliefs and principles of the two systems of Aboriginal law and Western law would be a beneficial change to draw the students to looking at the foundations for these systems. It is important for students to understand that Aboriginal law and Western law both have spiritual dimensions, were designed to recognise the rights and responsibilities of members of a community etc.

There needs to be greater space for teachers to use real life examples and show how these theories work. There should be less theory and more critical thinking – research and application of the theory learned to real world cases and situations to commit the concepts to long term memory.  

Missing content: The Purpose of the Legal System

Students should know what the purpose of a legal system is in order to create critical thinking about whether that purpose is being achieved by all of the aspects examined throughout the course. The first dot point here should include the purpose of law as well as the meaning and function of law. Students need the why, not just the what and how.

Characteristics of effective law should include phrase ‘in upholding rule of law in a democracy’ to highlight how these principles should be considered when creating and amending law.

The Role of Democracy in our legal foundations needs to be included. An understanding of democracy and democratic process is vital to understanding law making and law reform in Australia. Using the democratic process to change law and to change legal systems is a critical legal foundation.

First laws – Aboriginal and Torres Strait Islander Customary Lore (p20) and

Sources of Law (p20)

This contains Culture of laws for ATSI but not the culture of laws in the English system which is the foundation of our legal system. Understanding the heritage of the system is vital to understanding its contemporary operations.

The syllabus should have information on:

– the Judeo-Christian origins of law in UK;

– the Magna Carta

– the origins of parliament (UK and USA)

There is too much assumed knowledge here for teachers and students. It assumes that students have done Commerce or will recall their learning from Stage 3 and have familiarity with some concepts. There needs to be explicit teaching of the institutions in charge of law making and how they fit together – how the system works and why we have it that way (as a check on power).

This section should explicitly include the Constitution as a source of law.

Should include an explicit requirement to examine the difference between State/ Territory law and Commonwealth law and how to find / interpret legislation by using an example of each with reference to Austlii or similar.

This should appear before Sources of law as the structure of parliament is needed to understand the law-making process for Statute law and how the two houses act as a check on each other’s proposed laws. This will also aid in understanding the nature of binding and persuasive precedent as students need to understand the hierarchical nature of the court system.

Court personnel could also appear here and more detailed information about the legal profession – what is the role of a lawyer, types of lawyers, etc.

Constitutional law is the foundation of our legal systems and should feature more predominantly in the curriculum.

It is essential to have a solid understanding of the operation of the legal system and how the arms of the Separation of Powers create outcomes in the legal system. The rule of law principles need to be related to the Constitution as they underpin this foundational document.

This topic involves a ‘crash course’, in some respects, on constitutional law. It requires students to learn about law-making, the legislative process, delegated legislation, precedent, the common law, the role and structure of Parliament and the role of the High Court, the division and separation of powers. These are fundamental concepts that are the ‘bread and butter’ of the legal system in Australia. There is insufficient time to properly explain these concepts, especially when it is taught together with other broader issues about the global legal system, ethics, principles of justice, Aboriginal and Torres Strait Islander Customary Lore etc.  There is no opposition to teaching these other issues, but philosophical and theoretical concepts should be taught distinct from doctrine. Further, there needs to be an opportunity to explain the differences between local, State and Federal governments

The syllabus needs explicit reference to the arms of each of the Separation of Powers and the Division of Powers, and the roles of each body under the Separation of Powers and the Division of Powers, otherwise teachers may just define these concepts and not give the purpose or framework for them.

This should be balance with legal responsibilities. Aside from the first item, each subsequent point is rights focussed. It should be ‘Legal rights and responsibilities’.

A comparative case study could be included here for the priority Asia and Australia’s engagement with Asia.

This is an opportunity to examine aspects of the NSW justice system in comparison to an Asian system to highlight the effectiveness of Australia’s systems and processes.

Consideration should be given to whether there is a benefit to keeping Crime as one larger topic that encompasses all aspects of the criminal justice system. This enables students to draw connections between the various parts and see the bigger picture of the system at the end. Separating this out could mean students lose the ability to gain understanding of the complete picture.

Missing Content: The Jury System

There needs to be the inclusion of the jury system here – what it is and how it operates, what the purpose of a jury is (in criminal and civil law). This is vital base knowledge as jury service is a part of civic life in Australia and supports the Civics and Citizenship Priority. This knowledge can then be built on in year 12 in the Crime unit when advantages and disadvantages of juries (evaluation of effectiveness of juries) is covered.

Types and aims of punishment

This should be examined in the context of the principles and functions of sentencing (criminal law) and the power of courts to grant relief (civil law). To teach students about the kinds of penalties available without teaching them how and why a court might decide the appropriate sentence and the underlying principles would be incomplete.

Legal personnel

A specific list identifying personnel is needed. Identified aspects of those roles should also be included to guide teachers to examine their impact in supporting fairness, equality before the law and access to law – eg independent prosecutors, defence lawyers – pro bono work, cab rank rule – all support the achievement of just outcomes.

This is a welcome change to see civil law presented in a way that mirrors how criminal law is presented.

This topic should be taught through case studies.

Native title and land rights for Aboriginal and Torres Strait Islanders is better placed in other sections rather than in law reform.

Suggested Law Reform Areas:

Sexual Consent Laws

A more recent, engaging and relevant topic for young people is recent changes to sexual consent laws. They are already learning about this in a general context and the course could examine what the law used to be through the ages, how and why it has changed and the particular cases that led to the change arising. There is also data coming through from BOCSAR specific to this law so it can be assessed for effectiveness over time.

Workplace Rights

Another alternative could be workplace rights. This is a relevant contemporary area for students who are at the start of their working lives.

This topic needs to explicitly include links to the Proposed Content Area: The Basis of law. This will need preparatory work that incorporates legal philosophy and the origins of law as that guides our decision making when it comes to law reform. This again goes back to the reference to values – who determines the values we are applying? How is law reform decided?

Students should be encouraged to consider whether values are the best guide for law and changes to law.

Students examine the way legal systems interact with the experiences of one group. The list of groups should include also People of religious faith and the impact of climate change policies on lower income groups and developing countries.

The groups listed for study are also a narrow section of the community. There needs to be a greater representation of group types.   This list is very ‘city based’ and a higher level of understanding would be needed for many – students would require deep analytical skills to understand the interactions with the law in some of these groups. They also have strong human rights focus. Inclusion of groups like primary producers or tourism operators (for regional students) and employers, business owners for students whose skill base lies in Business Studies would be a welcome change to make the syllabus more accessible to a wider range of students and student interests.

There is also an opportunity to incorporate cross curriculum priorities. For example, an Asian comparison could be included that considers how the justice for these groups would differ to the justice achieved in other nations. For Civics and Citizenship and the development of trust in the legal system, the inclusion of groups that have had a positive outcome from their interaction with the legal system will develop public confidence and provide a balanced analysis of justice in our society.

Access to Justice (p26)

Standards, rights and protections under domestic and international law

This needs greater detail to provide clarity of knowledge expectations. Different groups will have a range of different protections.

The ‘Experiences with the law’ topic takes some of the ‘young offenders’ content from the Crime unit. There do not appear to be any major issues with the two case studies but it should be made clear what students are expected to know. For example, in case study 2, the ‘Standards, rights and protections under domestic and international law’ is unclear. For a case study involving people with disability, the domestic protections and rights can be found in the Disability Discrimination Act 1992 (Cth) and Part 4A of the Anti-Discrimination Act 1977 (NSW). However, it is unclear what provisions would be relevant for ‘People living in rural, regional or remote Australia’ or ‘People experiencing climate injustice’.

Outcomes and Content for year 12

There is a strong recommendation that there should be more teaching time and exam weighting allocated to reflect the scale of this large and important topic. This will enable students time to digest content and have opportunities for deeper learning.

There should be a case study comparison of an Asian nation’s legal system’s operations as well. This is a priority that does not appear anywhere in the syllabus but can be impactful on students to see how the rule of law and its principles are applied using the lens of crime and associated case studies.

This topic should start with the purpose of the criminal justice system to give students context as to what the job of the criminal justice system is. This will develop the civic and citizenship priority as it will help students to have a greater understanding of the purpose of this governance system and their responsibilities as informed and active citizens.

This purpose is reflected in the NSW Sentence Administration Manual Section 1:

“The objectives of the criminal justice system are to provide protection for the rights and freedoms of all people through: the operation of police services that enhance community safety by preventing, detecting and investigating crime the administration of criminal justice that determines guilt and applies appropriate, consistent and fair sanctions to offenders the provision of a safe, secure and humane custodial environment and an effective community corrections environment that provide program interventions to reduce the risk of re-offending.”

In the new sub-heading ‘Pre-trial’, there is an added focus on bail is an improvement. This should ensure a greater focus on bail.

Bail needs more direction so that it is taught with greater depth. This is a pivotal aspect in upholding the presumption of innocence and the rights of accused persons, a key element of judicial discretion.

• “The provision of legal aid to improve access to justice for people with disability or who are from culturally and linguistically diverse backgrounds, and strategies to protect vulnerable witnesses

• Use of support services and advocacy to improve access to justice for Aboriginal and Torres Strait Islander Peoples”

• This should be one point that lists a number of groups to show how accessibility has improved for a number of groups. This will help students understand how fairness is supported.

There have been adjustments across the justice system to improve access to justice for a range of groups. The syllabus should reflect these changes that have been made for a variety of groups. This could be an opportunity to build on the base knowledge of specialist courts from year 11.

Legal Aid could be a separate point and more guidance on teaching this as a concept is needed. It is a very important aspect of protection of individual rights and accessibility and the achievement of justice.

Include independent prosecutors.  This is a critical aspect of the system and acts as a check on police power and holds a considerable power over prosecution decisions.

Understanding equality before the law and what it looks like is vital to understanding individual and collective rights, so there should be some discussion of what equality before the law looks like before this topic starts.

There should be a focus on the positive aspects of the achievements in human rights. The UDHR was the biggest step forward in rights recognition in hundreds of years and the achievement of international support should be celebrated.

A very clear explanation of the relationship between international and domestic law is needed.

Australia’s patchwork protection of human rights includes many ways that rights are protected. There is a direct relationship between the democratic nature of a country, the recognition of human rights and the upholding of the rule of law. As a result, there needs to be a greater recognition in the syllabus of the importance of democratic process in upholding human rights and the rule of law.

In addition, how governments deal with competing rights must be a feature of this topic area, both domestically and internationally. This will include a discussion considering absolute rights, limits on rights, conflicting rights and how laws reflect society’s values in limiting rights and the use of democratic processes to protect rights.

There is also an opportunity to incorporate cross curriculum priorities. For example, a comparative case study could be included  to examine Australia’s efforts in recognising and honouring rights verses another country in Asia. For Civics and Citizenship, rights and responsibilities could be considered with the role of democratic process to protect rights based on societal needs.

Missing content: Discussion on Legal background of Sovereignty.

This would consider the historical legal background of sovereignty and its importance to state identity and stability.

Also include concept of State consent. State Consent is the bedrock of international law, and even if laws are not working across all articles, it is needed before anything can happen with rights recognition and protection.

Further depth is required to assist students  understand Foundational individual rights (those found in the UDHR, such as all human beings being born free and equal in rights and equality before the law).  Only with this basis can student understand third and fourth generation rights (such as the right to economic development and environmental rights) to be able to understand promotion and enforcement.

There is also an opportunity to incorporate cross curriculum priorities. This should include foundational human rights and individual rights and the corresponding responsibilities. It is important that students have an understanding of the responsibilities that accompany rights as citizens.

Missing content: Balancing Rights

There should be a discussion of how competing rights are balanced. This forms a key struggle for states in law making in compliance with international obligations. Students need to understand that there is a balance that needs to be struck, and that not all rights can ‘win’. The content needs to reflect this tension in both domestic and international relationships.

Options could include administrative law and government accountability, and tort law. These two options are covered well in other Commonwealth legal studies curricula abroad.