classification of law Flashcards
ways to classify laws
public v private, criminal v civil, national v internation, common v statute
piblic law
the body of law governing relationships between individuals and the state, and the structure and operation of government itself, (criminal administrative, constitutional
private law
the body of law governing relationships between individuals (contract, tort, family property)
criminal and civil cases
plaintiff, defendant, burnde of proof, standard of proof.
criminal
Burden of Proof: plaintiff, the prosecution (the state/the crown)
Standard of Proof: beyond reasonable doubt,
civil
Burden of Proof: generally plaintiff
Standard of Proof: balance of probabilities
criminal law (public law)
purpose of criminal law is to prevent activities that cause harm to the public, responsibilty of each state, impose sanction (penalties) crimnes act 1900 (NSW) , (crimes act 1914 (cth) criminal code act 1995 (cth)
summary offences
Trial before magistrate. generlaly defendant to pay an amount of money to make up for the loss or damage suffered (rather than jail), other conditions Apprehended Violence Order (AVO) , oj
3 broad principles
admiistratife justice (decision making interst of individuals), executvive accountabiliyt (poeple who exercise pwoers cna be called on to jsuitfy, good administration (conform to univerally accepted standars, fairness, consistency, transpartency raionality)
administrative law
is the body of law that governs the activities of administrative agencies of government, deciison making of tribunals boards, commiisions
indictable offences
mainly criminal cases, aims for state to punish a person. behalf of the ‘crown’ as prosecutorNSW Director of Public Prosecutions (DPP), Police Prosecutor, LC
Rex
Difficult to appeal criminal law jury trials (as it is a decision by 12 jurors)
private law contract law
ca contract is a legally binding agreement between 2 parties: (verbal or throug act), offer be made, accepted, intention of legal relationship, consideration, when breched, plainfif bring action t ocourt monetar y compensation, carlill v carbolic smoke ball co 1893
private law tort law
‘civil wrongs’ tort law someone has done something to interfere with someone else, nuisacne, negligence, trespass, defamaition fals imrpisonment diff between contaract is not agreement prior to wrong wilson v bauer media pty ltd 2017
constitutional law
the body of law that deals with the distribution and exercise of government power, governs relationship between judiciary legislature adn execcutive, roach v electoral commissioner 2007 hca
administrative law accountabiliyt mechanisms
merit review (by gov agencies and trbunals) invstigations (by commonwealth ombudsmandman adn australian informatino aocmmissioner), internatl actency practices (codes of conduct) judicial reveiw (federal court)
private law
regulates relationships between persons, companies and organisations
criminal proceedings
Police on behalf of state will file a Court Attendance Notice, served on accused, formally charged, Right to silence with police and right to not give evidence when being tried by a court
Prosecution: Police prosecutor (local court), Director of Public Prosecution lawyer, pubic defender w legal aid
civil proceedings
individual /business has to file a ‘statement of claims’, Person must serve a copy to the other party, No right to silence, can be used against them in court
Private lawyers for each party
common law systems
former British colonies or protectorates, created by cases over time, Judges have an active role in shaping the law, Precedent fundamental principle
common law features
Not codified,
Judicial precedents are binding
Judges make rulings, set precedent and moderate between and conflicting parties
Main source is judicial precedents or case law
Adversarial system
civil law systmes
Typically those that were former French, Dutch, German, Spanish or Portugese colonies or protectorates, Civil law is created/relies by legislation/const, Judge merely establishes the facts and applies remedies found in the codified law, lawmaker hold influence
civila law features
Codified set of laws
Judicial precedents are not binding
Judge’s role is to establish the facts of the case and to apply the provisions of the applicable code
Statues and other subsidiary legislations are the main source
Inquisitorial system
