1. Outline different types of law
Public Law
Laws in Australia can be classified into either public or private laws. Public laws are referred to as social norms, and are those that set general standards of behavior expected by society. Public laws include: Criminal law, Administrative Law,
Constitutional Law.
Criminal Law
Usually established by statute, although sometimes through common
For e.g. rape crime was originally created through the decision of judges, though eventually, statute laws were made for criminal assault to replace the other rape crime.
Criminal law is public law because when a person breaks a criminal law, the effects are said to harm all members of society
Consequently, the victim of these cases is also society
This can be seen in the way criminal law cases are written – R v. Peterson [1984] WAR 329. The accused is Peterson, but instead the victim’s name is R for Regina (the Queen). Remember, she represents all people!
There are seven classifications of criminal law: Crimes against persons
Crimes against the state or sovereign (damage the country and the people)
Public order offences
Traffic offences
White-collar crimes
Drug offences
Administrative Law
Those that relate to the operation of government and its various departments Whenever a government agency or department forms, it is through the passing
of a law establishing it. E.g. the powers of the NSW Board of Studies are outlined in the Education Act 1990 (NSW).
In addition to creating the government bodies, the act also outlines the powers the body may exercise. This is known as ‘administrative powers’.
Constitutional Law
A constitution is a legal document outlining powers and operation of government
In Australia, it is democratic and the government must abide by the rules established in it.
The Australian Constitution mostly deals with the division of power between the federal, state and territory governments and the separation of power between the parliament, the High Court and the Commonwealth Executive Power
As discussed earlier, the High Court deals with matters relating to constitutional law. The Court hears cases where it is thought that the government has
exceeded its powers as outlined in the Constitution. (a case is mentioned earlier for this)
Private/Civil Law
Private law is often referred to as civil law and deals with the legal relations between individuals and organisations. The key difference between criminal and civil law is the role of the individual. In a criminal matter, society is said to have been wronged and hence society brings the case. Under civil law however, it is a matter between
individuals. The person who brings the actions is the plaintiff and the person the action is against is the defendant. This is also evident in the writing of cases, it always goes plaintiff v. defendant.
Contract Law
A contract is a legally binding agreement between two parties. Many civil law matters deal with contracts where one party believes the other party has failed to fulfil the requirements of the contract.
Contract law stipulates that in order for a contract to be valid and enforceable, then there must be :
An ‘invitation to treat’ – for instance, a shop that advertises a shirt for $45 is
inviting interested people to come and buy it
An offer – In this example, an offer takes place when a person takes the shirt to
the counter to buy it
Consideration - Under contract law, both parties must benefit from it.
Acceptance – when the shop assistant accepts the money, a contract comes into
Property Law
Anything bought or sold is property.
There are numerous laws governing the way property transactions are to take place.
E.g. Fair Trading Act 1987 (NSW) is an example of a statute that ensures businesses act properly when selling property
Insurance is a key aspect of property law Tort Law
The law of torts is very complex area of law that involves civil wrongs. Torts are not criminal matters but involve the actions of one inconveniencing another, or breaching their rights. These torts are divided into four areas:
Negligence – is a very common tort, and revolves around the concept of ‘duty of
care’. This states that every person and organisation has the responsibility of ensuring that their actions do not cause harm to others or their property. The ‘duty of care’ concept was established in this case:
Nuisance – Involves one person interfering with another person’s rights. For
example, a neighbor playing very loud music at night may cause a nuisance to another person. Many cases heard in the community justice centres involve this idea:
Defamation – damaging another person’s reputation. When misleading info
regarding a person is published and it damages their rep, defamation has occurred. It is important to note that if the information is accurate/true, then defamation has not occurred. This is the most common defence to this tort. Trespass – typically takes place when a person interferes with the property of
another person.
2. Compare the purposes of different types of law
As mentioned in the 1st point of this area of the syllabus. 3. Distinguish between civil and criminal court procedures
Criminal Law Procedures
Two parties in a criminal matter are referred to as the prosecution and the
defendant.
The prosecution represents the community and is referred to as ‘the Crown’. In most criminal trials, the Officer of the Director of Public Prosecutions (ODPP)
conducts the prosecution
In a local court, for criminal matters, the prosecution is done by a specially trained police officer known as a Police Prosecutor.
The defendant is the accused person, and is represented by their barrister most
of the time (they can represent themselves)
Criminal trials are heard before a jury of 12 people.
The role of the jury is to determine the case; that is to consider whether there is sufficient evidence to convict the accused.
The role of the judge is to advise the jury and deal with questions of law. There is a standard of ‘beyond reasonable doubt’ to which the jury must be
convinced that the accused is guilty to find them guilty
This burden of proof always lies with ‘the Crown’, and therefore, the defence could in theory say nothing and still be found not guilty if the prosecution’s evidence isn’t sufficient
Civil Law Procedures
Civil law proceedings involve disputes between two parties that do not involve criminal matters
Common civil matters involve breach of contract and property disputes
The proceeding begins when the plaintiff issues a Statement of Claim (legal doc that identifies the parties to the dispute and outlines the circumstances of it) Once it has been issued, the other party (defendant), issues a Statement of
Defence.
This process involving the two statements allows for information to be shared between the two parties, and many disputes are resolved through this
If the dispute remains unresolved, a trial is ordered
Each side in the trial has rights to introduce evidence and call witnesses in accordance with the rules of evidence.
This allows for ‘cross-examination’ by the opposing sides.
At the conclusion of the presentation of evidence, the judge is required to make a ruling based on the evidence given by both sides.
If the ruling is in favour of the plaintiff, the judge will indicate what compensation is required to give to the plaintiff.
The standard of proof in civil cases is determined on the balance of probability. This standard is based on the evidence presented, who is more likely telling the
truth?
The burden of proof with any civil matter lies with the plaintiff. 4. Identify the role of legal personnel involved in the court process
Judges and Magistrates
They preside over the courts
They are legally qualified professionals with considerable experience in the law Most judges and magistrates once served as barristers
Judges sit in intermediate and superior courts, and their role is to adjudicate cases
(‘Adjudicate’ means to decide on points of law and issue instructions to the jury.) The Judge is also required to issue sentences and rulings
In some civil cases, they may sit without the jury, and therefore will also have to determine the case.
A magistrate sits in the inferior courts and their role is to determine cases; that is to
Barristers
Almost always receive their work through a solicitor
Solicitor approaches a barrister on behalf of a client, and barrister represents their client in court.
Most barristers specialize in a particular area of law e.g. criminal law, family law – which allows them to develop considerable expertise
The barrister has two main functions:
1. To provide legal advice, known as an ‘opinion’, on the legal facts presented to them. This usually includes some indication of the likely outcome, which allows the client to decide a best course of action
2. To present their client’s case in court (if the barrister has been briefed by a
solicitor) Solicitors
Usually the person that someone who is seeking legal advice will approach first. They may appear in court, however, in most cases the majority of their work is non-
litigious (involving no court appearances).
Their main duties are: preparation of wills, family law issues, conveyancing, and
drawing up of contracts.
The main role of a solicitor in a legal case is to prepare the case (known as ‘brief’) for a barrister.
5. Compare and contrast common and civil law systems
Common Law Systems:
As discussed earlier, Australia’s first legal system is often referred to as a common- law system.
This system which was first developed in England, is still used in British colonies and in Britain
The key feature of the common-law system is the ability if judges to make laws. This right is limited to where a gap is found in statute law.
It is important to remember that where statute and common law both exist in the same area, statute law prevails. (this is all detailed earlier)
Civil Law Systems
As discussed earlier, civil law refers to legal matters between two or more parties.
However ‘civil law’ as a term has another meaning. It also describes the system of law that developed Ancient Rome.
To avoid confusion, it is referred to as ‘the civil law system’.
Laws in this legal system are almost entirely derived from statute law. Much of Europe uses this system, as Rome conquered Europe.
Countries such as France, Germany, most of Africa and Japan use this system The main difference between the two systems is the role of the courts.
Under a civil law system there is no room for development of judge-made law.
Judges are also required to carry out investigations – that is, to gather evidence. This is known as an ‘inquisitorial system’.
Under a common law system (as used in Australia), judges CAN make laws; they
do not seek evidence, but rather make their decisions based on the evidence presented to them on both sides. This is known as an ‘adversarial system’