3. Classification of law Flashcards
PUBLIC LAW (SOCIAL NORMS)
laws that set the general standards of behaviour expected by a society
Criminal law
Usually established by statute, but can also be made through common law. Considered public law because it is said to be harming all members if society.
Seven classifications of criminal law
- Crimes against persons
- crimes against property
- Crimes against the state or sovereign
- Public order offences
- Traffic offences
- White collar crimes
- Drug offences
Administrative law
Laws that relate to the operation of the government and its various departments
Three options to seek a review of a decision made by government.
- Internal review – review conducted by another person in the agency/department
- External review – review made by a person/body outside the agency
- Judicial review – review of decisions made by the court
Administrative Decisions Tribunal
Responsible for reviewing decisions of the government departments, regarding taxation, fraud etc.
Constitutional law
Legal document outlining the powers and operation of the government. In a democratic society, members must abide by the rules in the constitution or they will be dismissed.
Australian constitution primarily deals with
the division of power between the federal and state territories and separation of power between the parliament, High court and commonwealth executive.
Cases under constitutional law compared to other courts
- There can be more than one judge (up to 7 judges in cases that involve interpretation of the Constitution)
- Each justice makes their own decision and when the decision is unanimous, the case prevails
- Decisions in the High court are binding on all courts in Australia
Private law (often referred to as civil law)
deals with the legal relations between individuals and organisations
Difference between criminal and civil law
key difference is the role of the individual. In a criminal matter, it is society that has been wronged. Whereas civil law is it a matter between individuals; plaintiff/defendant.
PRIVATE LAW
Often referred to as Civil law – deals with the legal relations between individuals and organisations
Contract law
A contract is a legally binding agreement between two or more parties. Within civil law, this involves contracts where one party believes that the other party has failed to fulfil the requirements of the contract.
Factors making a contract valid
- An invitation to treat; advertising a product to entice people to buy
- An offer; when a person takes a product and offers to buy it
- Consideration; both parties benefit from the contract – if one party fails to benefit from the contract, it is invalid
- Acceptance; when the offer is accepted, a contract is established
Unconscionable conduct
When a party in a contract acts unfairly/ deceives the other party
CASE STUDY: Contract Law
- Outline: Son convinced parents to become guarantors so he could get a business loan. The bank then manipulated the situation, not taking into account their lack of knowledge on what was happening, and the case was taken to the high court.
- Outcome: Court ruled in favour of the Amadio’s because the commercial bank has acted in unconscionable conduct; this is because the bank failing to explain the consequences of becoming a guarantor for a loan and failing to provide legal advice.
Tort Law
A civil wrong – not criminal matters, but involve the actions of one person inconveniencing another person
4 key areas of Tort law
- Negligence
- Nuisance
- Defamation
- Trespass
Key area of tort: Negligence
revolves around concept of ‘duty of care’; states that every person has the responsibility to ensure that their actions do not cause harm to others or their property, established through common law.
CASE STUDY: TORT/NEGLIGENCE
- Outline: a decomposed snail fell out of her ginger beer bottle, causing her to experience severe stomach pains, gastro and shock. It was argued that there was no contractual obligation, because she didn’t purchase the drink.
- Outcome: Lord Atkins stated individuals should have some remedy against a manufacturer producing a product that is not at the appropriate standard. Stating there was an implied contract, so it was not unreasonable to believe the drink was safe to consume.
Nuisance
one person interfering with another person’s rights; involves many cases heard in community justice centres
CASE STUDY: TORT/NUISANCE
- Outline: Roots from one of the neighbours trees blocked sewer pipes, resulting in expensive plumbing bills
- Outcome: ruled in favour of the people with the sewer pipes, but noted that they should have taken earlier action when addressing the issue
Defamation
damaging another person’s reputation, through misleading information that has been published to damage a person’s reputation. E.g. individuals taking action against websites for providing false information
Trespass
takes place when a person interferes with the property of another person, there is also the tort of trespass against the person e.g. unlawful imprisonment.
Property law
Anything bought or sold is property, insurance is a key aspect of property law– with laws put in place to protect transactions regarding property e.g. Trade practices ACT 1974 (Cwlth) and Fair Trading Act 1987 (NSW).
Standard of proof
beyond reasonable doubt. Meaning the jury must be convinced without doubt that the accused is guilty of a crime they are accused of.
Burden of proof
which side must prove the case
3 legal concepts required to prove guilt in criminal cases
- Mens Rea (‘guilty mind’): intention of the accused to commit the crime.
- Actus reus (‘criminal act’): act that the accused must have committed an offence
- Causation: the persecution must show a link between the act and the crime - cause and effect
CASE STUDY: CAUSATION
- Outline: Blaue charged with manslaughter for stabbing a woman who didn’t want to have sex with him – she was taken to hospital for surgery, but refused due to her religious views as a Jehovah’s witness – resulting in her death.
- Outcome: Appeal court ruled that his actions were a major contribution to the woman’s death, therefore showing causation between his actions and the death of the woman.
Balance of Probability
Standard of proof required in civil matters – who is more likely to be telling the truth
Judge
Preside over courts. Legally qualified professionals with lots of experience in law – they sit in intermediate and superior courts and their role is to adjudicate cases, issuing sentences and rulings.
Magistrate
sits in the inferior courts, and their role is to determine cases – reaching a verdict and also offering rulings/sentencing
Barrister
Almost always receive their work through a solicitor – solicitor approaches barrister on behalf of the court and the barrister represents the person. they predominantly specialise in one particular area of law.
2 main functions of barrister
- To provide legal advice
2. to present the client’s case in court
Solicitor
First person someone seeking legal advice will approach. most of their work is non-litigious (no court appearances). Their role in a legal case is to prepare the case for the barrister.
Common law systems
- First developed in England – sometimes called English Common Law
- Key feature- ability of judges to make laws
Trial system of common law systems
- Adversarial trial system:
- Used in Australia
- Judges can make law
- Judges do not seek evidence- instead they make their decisions based on the evidence presented to them by both sides
Trial systems of Civil law systems
- Inquisitorial trial system
- No room for the development of judge made law
Judges are required to carry out investigations – gather evidence
Civil Law systems
- System of law developed in Ancient Rome
- In times of ancient Rome, most laws were directly made by the roman emperor
- As the Romans conquered Europe they took with them their legal system- much of Europe still uses this civil law system – France + Germany
- It is also used in Latin America, most of Africa and Japan
