Legal and judical system

Introduction

The study of law is of great importance, not only for future educational leaders, but for everybody. The law is applicable to all, regardless of gender, race social status or educational attainment, as the legal maxim says ignorantia legis neminem excusat. But for educators and educational leaders, the study of law is a must. At least a basic grasp of knowledge of the existing laws and the legal system should be acquired. This will be applicable for the development and progress of the educational institution, its programs, academic offerings and curriculums, including but not limited its staff, employees and most especially its students. Most importantly, people should understand the necessity of law on upholding social justice, peace, order and the general welfare of the society on all aspects of life.

It can be seen that in Australia, there are two perspectives of law that can looked at. These are Common Law and the Statute Law. The preceding paragraph will briefly discuss on how these two are distinguished from each other. A concise discussion between civil and criminal law will also be discussed.

Common Law

Common law is considered as judge-made, bench-made, unwritten law rather than a fixed body of definite rules such as the modern civil and criminal law codes. Under this system, it is the judge who creates, interprets and modifies the law. On cases that he simply “interprets” law, he may well be creating it. In Roscoe Pound’s words, it is a “mode of judicial and juristic thinking, a mode of treating legal problems.” (1921, p.1)

Moreover, according to Henry J. Abraham:

Utilized by most English-speaking states, common law is variously known also as English, Anglo-Saxon, or Anglo-American law. Despite its conceptualization by Lord Coke as “the perfection of reason,” it is indeed a vast and complex instrument of justice. Although at first glance it may well seem chaotic and abstruse, on closer examination it is readily possible to discern a logic which binds the many diverse components that comprise it into a comprehensive and comprehensible entity.  (Abraham, 1968, p. 9)

The doctrine of precedent is another important characteristic of common law, under which the judges refer to a previous decision or decisions in order to adjudicate the case at issue. Although common law is considered as unwritten law, basis of the judge on the merits of the cases are previous written verdicts of the courts on the same subject, or if it may be applicable to the case at bar. If in any case the precedents are no longer applicable on the modern times, the judge will revise the decision as to its applicability on our times. The court will not be hampered by obsolete decisions on giving fair decisions.

Statute Law

Despite the fact that historically saying, statute law’s principle came from the Roman Period, its application is essentially of our times (Abraham, 1968, p.12). Also known as written law or code law, statute law came from legislative, administrative and executive bodies of the State. Nowadays, this is the most common and applicable system of law in most of the countries.

Civil and Criminal Law

It is also important that we can easily define and differentiate criminal from civil law. A case at civil law is normally one between private persons and/or private organizations, for civil law govern the relations between individuals and define their legal rights. (Abraham, 1968, p. 24)

However, cases considered as criminal are usually in violations or omissions of statutes treating criminal subjects. Acts tried and decided under criminal law are against the public or members of the public, neither on person or property.

Notably, we should remember that cases decided by courts, whether under common or statutory law, criminal or civil law can be appealed to the higher court. Wherein the high court will discuss the merits of the appeal, the decisions and the rules followed by the lower court. However, decisions can only be appealed up to the Supreme Court, for cases decided by the highest court are considered closed and final following the doctrine of stare decisis.

Impacts on the Education Sector

Guiding principles of schools and other educational institutions are governed by existing federal policies and laws. Violations of the law will put the school, including its staff, employees, educators and students into great risks. The legal system of the state have great impacts on the education sector, from protecting the students and employees staff up to determining the responsibilities of teachers and schools to their students.

On the discussion on negligence (Week 2), school administrators and its workforce should be knowledgeable on existing federal and national laws. Their every acts and policies should be in conformity of the laws. On the said discussion, the scope and applicability of the negligence clause of the schools was presented. Simple acts or occurrences on the school can be brought to action by the parents against the school and its administrators. Sometimes, such legal action involves large sum of money for indemnification of the complainant. So it is better to prevent such instances than to suffer legal consequences.

Educational leaders and school administrators are also liable on the unlawful acts of their staff, teachers and employees. It is their responsibility that their workforces are knowledgeable on federal laws and policies. They should conduct seminars and trainings that will discuss pertinent legal issues and regulations. It is also the school’s responsibility to scrutinize applicants’ qualifications and backgrounds before accepting them as part of its workforce. This is to prevent future setbacks involving the school’s workforce.

School staff should also be cautious on dealing with the students’ personal information. They should know the legal boundaries from filing, researching up to distributing personal records. School policies and regulations dealing with various requests on students’ personal data should also conform on existing federal laws and policies.

The issue of piracy should be addressed cautiously by the school, and again it is a responsibility of the school’s administrators. Professors and teachers’ modules, researches, theses and dissertations should not violate laws treating piracy and plagiarism. The school librarian and even the school’s photocopying center attendant should also be informed on the issue of intellectual property rights.

School leaders should also be cautious on dealing cases that involve students either as offender or witness. They ought to know the proper procedures on handling such cases. It is more delicate if the offender is a minor. If the crime happened within the school premises, such as theft, the principal or school administrator should not act as criminal investigator. It is the police authorities’ duty. Any mistake can lead to non-admittance of evidence to be on the court. Thus, the criminal proceedings will no longer prosper. The school principal or administrator should also cooperate on proper state authorities to prevent any mistakes and other legal consequences.

Legal Issues on the Media

There are various incidences and issues happening everyday involving the school, its students and workforces, which can be brought to action on a court. It can be as simple as choices on food on primary school canteens up to maltreatment of the teachers to their students. Two of the issues that made it to the pages of www.news.com.au involve road safety in school zones and a school assistant coach’s pervert acts against the students.

Road Safety on School Zones

According to www.news.com.au report, there was a total of 10,187 motorists caught speeding on school zones from May 1, 2007, to April 30, 2008. The report was based on the newest State Government figures. Among the violators are 24 drivers fined for speeding up to 80km/h or more in the special 40km/h zones.

This is terrifying news for parents of every school children. Road safety within school zone is a major issue. Different sectors should be involved to ensure the safety of the students. The school, state authorities, parents, students and the motoring public should help each other to prevent any road accidents on school zone.

 In any case a legal issue will be brought up on this new, there can be two perspectives. If a student was hit by a speeding car just outside the school, the school administration and the driver are civilly and criminally liable respectively. First, the parents, or its guardians for the absence of the latter, of the victim can file a criminal case against the erring driver. This is in violation of the speed limit on the school zone. The driver will be additionally charged if the victim dies or incurred injuries (reckless imprudence resulting to homicide or serious physical injuries). Secondly, the parents can also file civil case against the school administrators for it is still within their responsibility to safeguard the students within the school zone. They can file a case based on the negligence of the administrators. The latter should have anticipated that because the school is near a major road thoroughfare, safety precautions, enough warnings and reminders, and information dissemination among the students should have been done.

If the criminal and civil case filed by the parents prospered and succeeded, it will be a wake up call for everybody. It will create a major impact on the education sector. The motoring public will now practice road safety especially within school zones. Moreover, the school administrators will now be informed that road safety for their students are still their responsibility.

School Pervert Jailed

The report written by Jim Kelly, first published on The Sunday Times, was republished by news.com.au last August 11, 2008, involves a school assistant coach and the students. The assistant coach has been sentenced for 4 ½ years in prison for taking pictures of students on the toilet cubicle of a private school in Perth. The pictures were taken from November 2006 up to March last year, was discovered by the students when the assistant coach’s iPod was found by the students and brought to the school principal.

Although the case was already final and decided by a judge, there can be various legal perspective and course of action be brought on this case. First, the students, or their parents if they are still minors, can file a criminal case against the assistant coach for his pervert acts. Further, a civil case can also be filed against the school administrators of the school. The appellant can argue that the school administrators are also liable on the acts of their employee. The administration should have checked all the personal and criminal backgrounds of their employee before they accept them on their school. However, the school administrator may dismiss the assistant coach and file a civil case against the latter for breach of trust and privacy.

This case is also a reminder to school administrators and educational leaders of the boundaries of their responsibilities. Course of actions can also be filed against them because of the acts of their teachers or employees.

Ignorantia Legis Neminem Excusat

This legal maxim should always be remembered upon ending this course of study. People should always remember their boundaries and limitations of rights and responsibilities. Knowledge on existing federal laws and policies is of great help especially if it comes with the knowledge of the judicial and legal system. School leaders and education administrators should always remember that no one is above the law, which is why even they can be an appellant on any criminal or civil case, or worse a defendant, and in the end facing legal consequences.

References:

Abraham, H. J. (1968). The Judicial Process. New York: Oxford University Press. Retrieved August 9, 2008, from Questia database: http://www.questia.com/PM.qst?a=o&d=97606192

Kelly, Jim (2008) School Pervert Jailed. Republished from The Sunday Times by www.news.com.au. Retrieved August 12, 2008 from http://www.news.com.au/School pervert jailed  NEWS_com_au.htm.

  Pound, Roscoe (1921). The Spirit of the Common Law. Boston: Little, Brown and Co.,

Rout, Miranda (2006). Junk Food Bans at Schools. Herald Sun. Retrieved August 9, 2008 from Herald Sun Website: http://www.news.com.au/heraldsun/story/0,21985,20587320-661,00.html