3. Classification of Law : 3.1 -3.2 Flashcards
Law Classification in Australia
Public Law and Private Law
* Law is divided into public law and private law.
* Public law deals with the powers and obligations of government and citizens, and the relationships between persons and the state.
* The three main areas of public law are criminal, administrative, and constitutional law.
Criminal Law
* Criminal law is the body of rules under which certain acts or omissions are punished by the state.
* It is responsible for maintaining public safety and order for the whole of society.
* In Australia, criminal law is the responsibility of each state and territory.
* The main criminal statute in New South Wales is the Crimes Act 1900 (NSW).
* The Australian Capital Territory has its own Crimes Act 1900 (ACT) and the Criminal Code 2002 (ACT).
* Changes to these Acts reflect changes in society, such as the amendment of the Crimes Acts to cover automobile and computer crimes.
Administrative Law
* Administrative law looks after government powers and the decisions of government organizations.
* It ensures the accountability of the administrative decisions and actions made by the government and its departments.
* A person can seek a review of a decision made by a government agency in three ways: internal review, external review, and judicial review.
Constitutional Law
* Constitutional law focuses on the rules governing the executive, legislative, and judicial functions of government.
* If a law violates the rules in the Australian Constitution, the case must go to the High Court of Australia.
* The High Court has the role of deciding cases of special federal significance, such as challenges to the constitutional validity of laws.
* High Court decisions are binding on all courts in Australia.
High Court Cases and Private Law in Australia
High Court Cases:
* Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45
* The High Court ruled in 2017 that politicians with dual citizenship should be allowed to remain as parliament members.
* NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor (Case no S28/2023)
* The High Court ruled that indefinite immigration detention is unlawful and unconstitutional in cases where there is no prospect of people being returned to their country of birth.
Private Law:
* Private law regulates relationships between persons, companies, and organizations.
* Rights are protected by both statute and common law.
* When seeking to bring court action against an individual for infringement of one’s private rights, it must be in a court exercising civil jurisdiction.
Contract Law:
* A contract is an agreement or promise between two or more parties that is recognized by law.
* When one party believes that all or part of the contract has been breached, they can bring a legal action in a civil court.
* Damages are most often the common law remedy available for breach of contract.
* The plaintiff may also seek an injunction or specific performance.
Tort Law:
* Torts are ‘civil wrongs’ that occur when someone breaches or fails to fulfil a duty they owe to someone.
* All torts entitle the alleged victim to take legal action against the alleged perpetrator in a civil court and claim compensation.
Media Case:
* A woman who slipped on a grape in a Coles supermarket has been awarded more than $27,000 in compensation.
* The ACT Court of Appeal ordered Coles to pay the Canberra woman $27,309 compensation for expenses she suffered after slipping on a grape in its Woden store.
* The court found that the discarded grape was the result of an inadequate cleaning system.
* The court found that Coles should have a dedicated system to prevent slip and fall hazards around its stores.
Rebel Wilson’s High Court Decision on Torts and Property Law
Types of Torts
* Torts include negligence, nuisance, trespass, false imprisonment, and defamation.
* The’snail in the bottle’ case established the modern tort of negligence.
* The case involved a friend buying ginger beer in a dark glass bottle, which caused May Donoghue to suffer severe gastroenteritis.
Court’s Decision
* The court held that a manufacturer is legally obligated to take reasonable care to prevent health injury to consumers.
* Lord Atkin, a presiding judge, referred to the precedent case of Heaven v Pender (1883) 11 QBD 503, which established that one person may owe a duty to another, even without a contract.
Limitations of the Case
* Prior to Donoghue v Stevenson, individuals had no rights against suppliers with whom they did not have a contract.
* The case became the basis of the tort of negligence worldwide.
Property Law
* Property law governs relations involving things and interests that can be owned and have a commercial value.
* Real property is one of the most important types of property dealt with under property law.
* Violation of property rights often involves breaking the terms of a contract. Legal action for breaches of property law can occur in either the criminal or civil court.
Understanding Criminal and Civil Court Procedures
Key Differences:
* Criminal: Cases are prosecuted by a prosecutor and a defendant, while civil: Cases are brought to court by the state or an individual or organization.
* Onus to prove the case: The prosecutor must prove the case beyond reasonable doubt, while the plaintiff must meet the balance of probabilities.
* Overlap: Victims in criminal cases can also seek compensation for injuries caused by the defendant in a civil court.
* Adversarial system of trial: Both cases use the adversarial system of trial, with representatives of the parties presenting both sides to a judge or magistrate.
Criminal Procedure:
* Criminal law proceedings involve prosecuting a person accused of a crime, usually leading to a conviction and punishment.
* Two main types of hearings: summary hearings and trial by jury.
* Summary offences are minor and are decided by a magistrate or judge without a jury.
* Indictable offences are serious and can be prosecuted summarily in the Local Court (NSW) or Magistrates Court (ACT).
* In New South Wales, the police may prosecute summary matters in the Local Court.
* In the Australian Capital Territory, the Director of Public Prosecutions (DPP) prosecutes all criminal matters in both the Magistrates Court and the Supreme Court.
Criminal Trial Process in Australia
Defendant’s Representation and Defence
* The accused, known as ‘the defendant’, usually employs a lawyer or chooses to represent themselves.
* The case presented by the accused is called ‘the defence’.
Committal Hearing and Trial
* A committal hearing is required before an indictable offence can be tried.
* The prosecutor must convince the magistrate of sufficient evidence to convict the accused.
* Trials take place in the District Court or Supreme Court in New South Wales and the Supreme Court in the Australian Capital Territory.
Jury’s Role
* The jury considers the evidence provided in court and makes decisions on issues of fact based on this evidence.
* The judge presides over the case, advising the jury and dealing with legal questions.
* In both New South Wales and the Australian Capital Territory, the jury must reach a common verdict.
Criminal Trial Process
* The indictment is read to the accused, who may plead guilty or not guilty.
* The prosecution begins with an opening address, setting out the facts of the case and the evidence to prove the defendant’s guilt.
* The prosecution calls witnesses and ‘examines’ them, establishing facts to prove their case.
* The defence disproves the prosecution’s case and provides evidence to show the innocence of their client
Understanding the Standard of Proof in Australia
The Standard of Proof in Criminal Cases
* The standard of proof in a criminal case is ‘beyond reasonable doubt’, requiring no more than one jury member to have any reasonable doubt that the crime was committed by the accused.
Hearings in Different Courts
* Local and Magistrates courts handle most criminal cases, with proceedings being less formal and often involving solicitors rather than barristers.
* Coronial inquests occur when there is an unnatural death or unexplained fire or explosion.
* Children’s Court hearings are held for charges against people under 18 years of age.
Civil Procedure
* Civil proceedings are court actions arising from disputes between individuals, initiated by individuals or organizations, rather than the state.
* The plaintiff initiates proceedings by issuing a statement of claim or a summons to the defendant.
The Process in a Civil Claim
* A statement of claim outlines the facts of a dispute and the parties involved.
* The defendant responds with a statement of defense, which may deny or challenge the plaintiff’s allegations.
* The parties can obtain more information about each other’s arguments through a process called ‘discovery’.
* Interrogatories are written questions submitted to the other party, which must be relevant to a matter in question.
Trial and the Burden of Proof
* If a dispute cannot be settled, the matter is referred to trial.
* Each side has the right to produce evidence, call witnesses, and carry out cross-examinations.
* The judge makes a ruling after both sides present all their evidence.
* If the plaintiff is successful, the judge determines the amount of relief or compensation to be given to the plaintiff by the defendant.
Burden and Standard of Proof in Civil Cases
* The burden of proof is on the injured party (the plaintiff) to prove their allegations.
* The standard of proof is ‘on the balance of probabilities’, meaning the plaintiff must prove that it was more probable than not that they suffered injury or loss because of the defendant’s actions or that their claim is correct in law.
Understanding Criminal and Civil Cases
Tasks to Gain Understanding
* Compiling a media file: Record specific cases reported in the media to build a sound understanding of criminal and civil law.
* Reading about cases online: Access reliable websites like NSW Caselaw and the Australasian Legal Information Institute for information about rulings on various court cases.
* Observing a court case: Visit the NSW Department of Justice website or the ACT Courts and Tribunals website for information about courts in New South Wales and the Australian Capital Territory.
Personnel in Court Cases
* Judges and magistrates: Preside over court cases, ensure rules are followed, and ensure fair trials.
* Judge’s associate: Confidential secretary to the judge, performs clerical duties for the court.
* Tipstaff: Supports the judge in matters of procedure and organization during court sessions.
* Barristers and solicitors: Legal advice providers on a wide range of legal issues.
* Witness: Gives evidence regarding the case in court, both parties can call witnesses to support their claims.
* Court officer: Responsible for the court lists and calls witnesses into the courtroom, administers the oath or affirmation, ensures public seating, and announces the arrival and departure of the judge(s).
* Court reporter: Records all court proceedings, whether written or audio/visual.
* Corrective services officer: Escorts the accused to and from the courtroom and guards the accused in a criminal case.
Jury Overview
* A jury is a panel of citizens who make fact-finding decisions in a case.
* Members are randomly selected from the jury list, compiled from the electoral roll.
* In criminal trials, a jury of 12 people is typically involved.
* In civil cases, a judge may hear a jury of four people.
* Members of the jury are sworn in before a court case begins.
* Both prosecution and defense can challenge the selection of individual jurors or the panel.
* Peremptory challenges are based on juror’s name or appearance.
Plaintiffs and Defendants
* The ‘plaintiff’ brings a civil action against someone else.
* The ‘defendant’ defends their actions.
* In a criminal trial, the defendant is the accused of the crime.
Media
* Journalists often attend high-profile court cases to report on them.
Civil and Common Law Systems Overview
- Civil law, originating from Roman law, is a codified system with a set of rules applied and interpreted by judges.
- Common law, developed by custom, began before written laws and continues to be applied by courts.
- Civil law involves judges applying the rules in the code of law to cases, while common law rules are derived from specific court rulings.
- In countries with a common law system, ‘civil law’ refers to the area of law governing relationships between private individuals.
- ‘Civil law’ can be confusing, with Australia’s legal system referring to private law, while France, Germany, and Italy have systems derived from the Roman law system.
- Civil law countries typically have an inquisitorial system, where the judge actively collects evidence and is involved in fact-finding.
Law Categories and Infringement Processes
Public Law:
* Deals with interactions between people and the state.
* Includes criminal, administrative, and constitutional law.
* The Australian Constitution governs changes to these rules.
Private Law:
* governs relationships between individuals or organizations.
* Includes contract, tort, and property law.
* Court hearing depends on crime severity and damages sought.
Criminal and Civil Court Procedures:
* Criminal trials have prosecution burden of proof, civil matters have plaintiff burden of proof.
* Standard of proof in criminal trials is beyond reasonable doubt, civil hearings on balance of probabilities.
Contemporary Australian Law:
* Based on English common law.
* Similar to civil law systems in other countries.
