Areas of Law

1. Areas of Law Commerce Stage 5 Core Part 2.1

2. Syllabus Agenda • Areas of law • classifying laws • how laws are made • common law • statute law • constitutions • the relationship of laws to values, morals and ethics • how laws are changed

4. Lingo list • Civil law • Laws that govern the legal relationship between individuals and organisations. • Codification • Making common law into statute law. common law Also known as judge-made law. These are laws that are established by the decisions of judges. • Concurrent powers • Those constitutional powers that are held by both the state and Commonwealth governments. • Criminal law • Laws to protect the general public from harm. duty of care Responsibility to ensure your actions do not harm other people or their property. • Ethics • Values that relate to doing what is believed to be right. • Exclusive powers • Those constitutional powers that are held by the Commonwealth Government. • Family law • The body of law that deals with family issues, such as marriage, de facto relationships, same-sex relationships and the relationship between parents and their children. • Morality • Values that relate to doing what is believed to be good • Referendum • A vote by the people to change the constitution. • Residual powers • Those constitutional powers that are held by the state governments. • Statute law • Laws made by parliament. • Statutory rights • Those rights that are derived from laws

5. classifying laws Two main types: • PUBLIC LAW • These are laws that deal with the standards of behaviour that society expects from its government and people and those who work within the government. It includes criminal law as well as laws that relate to how governments operate (constitutional and administrative law). • PRIVATE LAW • These are laws that deal with the way individuals interact with each other. It includes laws that regulate the behaviour of people towards each other and the behaviour of businesses. This type of law is commonly referred to as civil law.

6. Criminal Law, Constitutional & Administrative Law Public law

7. criminal law • Criminal law exists to protect the general public from harm. • When a person breaks a criminal law he or she is considered to be harming all members of society. • Therefore, the police, on behalf of society, investigate the matter and bring the case against the accused. • In criminal law the prosecution presents the case on behalf of the Crown (the term used to represent the government). • It is the prosecution’s role to prove beyond reasonable doubt that the accused person committed the offence. • If this is proven then a punishment will be issued on behalf of all of society.

8. six main types of criminal activity

9. Crimes Against persons & property • crimes against persons−These are crimes involving injury caused to another person. Such crimes include • homicide−the intentional killing of another person • manslaughter−the accidental killing of another person or the killing of another with a justifiable reason; for example, when a person kills another but does so in self-defence • assault−causing or threatening to cause injury to another person. • crimes against property−These are crimes that result in property being stolen or damaged. Typical offences in this category include • larceny−removing another person’s property without that person’s consent • break and enter−a person illegally entering a building to commit an offence • robbery−using violence/ the threat of violence to take another person’s property.

10. White collar & crimes against state • white-collar crime−These crimes are usually committed by professional people and are not associated with violence or damage to property. Typical white-collar crimes are tax evasion and computer hacking. • Crimes against the state (country) • sedition−encouraging a hatred of the state • treason−a more serious offence than sedition. It is where a person or organisation actively tries to bring about the collapse of a government or assists the enemies of a country.

11. Public order & traffic offences • Public order offences−These are crimes that disrupt the activities of our society. They include a wide variety of offences, such as swearing in public, and being drunk and disorderly. • traffic offences−These are the most widely committed offences in our society. They involve crimes such as driving without a seatbelt and running a red light. Most of these offences are dealt with by issuing on-the-spot fines but more serious offences, including drink-driving, result in court proceedings.

12. Proving a crime ‘You have the right to remain silent’ • This is one of the best-known rights that Australians enjoy. When someoneis accused of committing a crime the prosecution must prove the person is guilty; the defendant has the right to say nothing. There are two things the prosecution must prove in order to gain a conviction. They are the elements of a crime: • mensrea−This means ‘guilty mind’. It must be proven that the accused person intended to commit the crime and that the actions of the accused were not accidental. The only exception to this is traffic offences, where no mensreaneeds to be proven. • actusreus−This means ‘criminal act’. It must be proven that the accused person actually committed the offence.

13. Your Rights if you are arrested • For a print out from the Law Society See Young Peoples Rights When arrested at the link http://www.studyismybuddy.com/10-comm-law--society.html • International law, common law and statutory rights all provide Australian children with many special rights. • The law recognises that children need special protection to ensure that their rights are not breached.

14. Can I be charged with a criminal offence? • In New South Wales any person over the age of 10 can be charged with a criminal offence. • However, children aged between 10 and 14 are given special protection. • At this age the prosecution has a special responsibility to prove that the children knew that they were committing a crime when they broke the law (mensrea). • Any person under the age of 18 who is charged with an offence will have his or her case heard in the Children’s Court. • This court has specially trained judges and is not open to the public, so that the identity of the child is kept confidential. • These important rights are designed to protect the legal rights of children. It is recognised that children usually have little understanding of the legal process and could, therefore, be easily misled.

15. Can the police interview me? • The police have the right to ask members of the public questions. • In most cases we are all required to give the police our name and address but apart from providing this information we may remain silent. • Like everyone else in Australia, children have the right to seek legal advice before they answer any question or sign any statements. • Before they begin to interview a child, the police must ensure that the child’s parent or a responsible adult (often a Salvation Army representative) is present.

16. Can I be called as a witness? • Children may be asked to give evidence in court. • When doing so they have certain special rights, including the right to have a carer present, and sometimes the right to give their evidence by closed-circuit television from a room away from the courtroom itself.

17. constitutional and administrative law • Constitutions are special documents that are sets of rules outlining how a government is to be run. • A government has a responsibility to follow the rules of the constitution. Failure to do so could result in the government being dismissed from office • The Australian Constitution does not contain any statements on the rights of citizens. • Instead, most of our rights come from statute and common law. • The Australian Constitution is essentially a document outlining the powers of the Commonwealth and state governments

18. Residual powers • At the time of Australia’s Federation in 1901, the state parliaments held considerable powers, which they were reluctant to give up. • Therefore, the constitution grants many powers to the states, particularly in the areas of health, law and order, education and the environment. • These powers are known as residual powers.

19. Exclusive, external & concurrent powers • Those powers that were transferred from the states to the Commonwealth Government are referred to asexclusive powers. • The most important type of exclusive power is external powers which enable the Commonwealth to deal with other nations. • External powers include customs and quarantine laws, foreign relations with other nations, defence and, most importantly, the right to enter into international agreements with other nations, such as the United Nations Convention on the Rights of the Child.. • Some powers are shared between the state and Commonwealth parliaments. These are known as concurrent powers • Where a conflict arises between the powers of the states and the Commonwealth, the Commonwealth’s rights take precedence; that is, they will be considered the most important. • An example of a concurrent power is law enforcement of drug offences. State and federal forces both deal with drug trafficking.

20. Separation of power • One of the most important aspects of our constitution is that it aims to ensure that no one person or group can take control of Australia. • Therefore, the constitution separates powers between the three most important groups in the ruling of Australia: • the executive, • the legislature and • the judiciary. • By splitting the power between these groups, each group can act as a check and balance on the other groups.

21. Administrative law • Deals with the rules regulating the powers of government agencies and departments. • When the government creates a department it is done so through the making of a statute law. • This law will outline the role and powers of the department. • For example, the role and powers of Sydney Water are outlined in the Sydney Water Act 1994 (NSW) and the role and powers of the Department of Education and Training are outlined in the Education Reform Act 1990 (NSW)

22. Private Or Civil Law

23. Civil law • Governs the legal relations between individuals and organisations. • Civil law matters are launched by individuals or organisations who feel that they been wronged by the actions of other individuals or organisations. • There is no criminal activity involved and the police are not involved. • In a civil law matter, the person or organisation bringing the case is referred to as the plaintiff. • They have the responsibility of proving that the defendant (the person or organisation they are accusing) has wronged them in some way. • An example may be a neighbourhood dispute over who is responsible for fixing a broken fence

24. 3 main areas of civil law • contract law−A contract is a legally binding agreement between two parties. The majority of civil law cases involve contracts; that is, where one party claims that the other party has not done what they agreed to in a contract. • property law−Property is anything that can be bought and sold. Laws govern the way goods are to be purchased and the way people or organisations must behave in their property dealings with others. • tort law−Torts are civil wrongs. They involve the actions of people that cause discomfort to others. Civil law exists to help people receive compensation if they have been inconvenienced by the actions of another person. There are four types of torts • negligence−a lack of duty of care • nuisance−when a person interferes with another person’s rights • defamation−when one person’s reputation is damaged by the actions of another • trespass−when property is interfered with.

25. Family law • Is the body of law that regulates marriage and divorce, the relationship of parents with their children, and other family issues, such as adoption. • Family is one area of the law that has been greatly influenced by the moral and ethical values of society. • It is constantly changing as the attitudes and values of society change so does the law. • In Australia, most family law is a federal issue and is dealt with by the Family Court of Australia. • This court is staffed by specially trained judges and deals solely with family law matters. • Couples (including homosexual couples) who are not married but live in de facto relationships are dealt with under state law; although they have similar rights and responsibilities as married couples.

26. The Family court of australia • Deals with many issues including: • parenting orders (determining the rights and responsibilities of parents over children after a divorce) • the division of property as a result of divorce. • Under Australian family law a couple can choose to divorce for any reason. • In the past, in order to obtain a divorce, one partner had to prove that the other had done something wrong. This is no longer the case. • New reproductive technology and the use of in-vitro fertilisation (IVF) and surrogacy (where a woman gives birth to another couple’s baby) has created moral and ethical dilemmas in the courts. • The ability to genetically modify foetuses will pose similar problems in the future.

27. Activity – areas of law worksheet

28. how laws are made • The Australian legal system very closely follows the legal system that developed in Britain. This system of law−known as English Common Law−is based on laws coming from two sources: • statute law−lawsmade by parliaments • common law−lawsthat originate from the decisions of judges.

29. Statute law • The most common form of law- making in Australia. • It involves parliament passing a Bill, which is a proposed law or a change to an existing law. • Each member of parliament (MP) may speak either for or against the Bill before it is voted on. • In the Commonwealth and NSW parliaments, where there are two Houses of Parliament, both the Upper and Lower Houses must agree to the Bill.. • The Bill must also receive royal assent. This means that the Governor-General (in the case of federal laws) or the Governor (in the case of state laws) must approve the Bill. Their role is to ensure that Bills do not breach the constitution−the laws governing the rights and responsibilities of government.

30. The process for passing a Bill in the Australian Parliament

31. Activity – reading a bill in parliament

32. common law • Unique to those legal systems that adopted English Common Law. • Common laws are based on the rulings of judges. • This type of law is used when there is no appropriate statute law. • When the judge makes a decision in relation to the matter, all lower courts must follow the decision. • This is known as following precedent.

33. precedent • Superior courts, known as courts of record, are the only courts that have the power to set precedents and, therefore, make common law. • In Australia, the Supreme Courts of each state, the High Court of Australia and the Federal Court are all superior courts. • Once a precedent is set it must be followed by all lower courts. • Precedents established in other jurisdictions may be followed if the court wishes. • For example, a precedent established by the NSW Supreme Court must be followed by all NSW courts, but Victorian courts may choose whether or not to follow the precedent.

34. Making changes • Common law is more easily changed than statute law. • A decision by a higher court can abolish precedent, and parliament can also pass new statute law to overrule common law. • To ensure important common laws are not lost, parliaments often act to make common law into statute law. • This process is known as codification. • For example, the crime of rape was, until relatively recently, a common law crime. However, because of the serious nature of the offence, the NSW Parliament created the statutory crime of sexual assault.

35. Activity – is the law fit for purpose?

36. Snail in a bottle • The case of Donoghue v. Stevenson (1932) AC 562 is one of the most famous common law cases. • Mrs Donoghue visited a cafe with her friend and ordered a ginger beer. • While she was drinking the ginger beer a semi-decomposed snail floated to the surface. • Mrs Donoghue suffered severe gastroenteritis and she launched legal proceedings against the ginger beer manufacturer. • No one else had ever tried to sue a manufacturer for failing to provide safe goods. • Initially Mrs Donoghue lost the case and several appeals. However, she continued to fight until eventually the House of Lords−the highest court in Britain−agreed to hear her case. • Lord Atkin agreed with Mrs Donoghue, stating that consumers have the right to expect that the goods they use are safe. His decision set an important precedent−that every person and business must ensure that their actions do not cause harm to others; a concept now known as duty of care. • Lord Atkin’s decision has become an important part of common law in Britain, Australia and other nations of the Commonwealth.

37. Itchy underpants

38. constitutions • Constitutions are not made in the same way as other laws. Usually they are not made by parliaments or courts, but rather by committees of notable leaders and often with a great deal of input from citizens. • The Australian Constitution was formally created by an Act of the British Parliament: the Commonwealth of Australia Constitution Act 1900 (UK). • This Act created the Australian Constitution and the High Court of Australia. • The articles (details) of the constitution were prepared by Australians, led by Sir Henry Parkes. Various meetings, public debates and, finally, a special vote were held to allow the people of Australia to have a significant say in the drafting of the constitution.

39. State constitution • Each state also has its own constitution. • Each state’s constitution works in the same way as the Commonwealth (Australian) Constitution in that it regulates the behaviour of the state parliament. • If a state constitution is in conflict with the Commonwealth Constitution on a matter where the Commonwealth has either concurrent or exclusive powers then the Commonwealth Constitution has precedence

40. the relationship of laws to values, morals and ethics • The laws that are made in a society are a very close reflection of that society. • They reflect the moral and ethical values that the society holds and are influenced by the main social, economic, religious and political factors of the time. • This means that laws are sometimes seen as being ‘out of date’ because the values of society have changed but the law has not. • This is made even more complicated in multicultural Australia when we have people from all over the world bringing their own values, ethics and morals with them. • The laws need to reflect society as a whole but it is unrealistic to expect the law to represent everyone’s values.

41. Morality • Can be considered as doing ‘good things’. • There are two types of morality: private and public. • Private morality refers to the values that we each have personally. • For example, one person may consider it immoral to swear while another person may consider this to be acceptable. • Public morality refers to the values that are held by society as a whole. • These will often become laws. • For example, our society considers it immoral to steal from another person and so theft has been made illegal.

42. Society’s changing views • Society’s view of young people has also changed and again this is reflected in our laws. • In the past a person was not considered an adult until they turned 21. • People could not drink alcohol, play a poker machine or even vote before this age. • Now the age of adulthood is 18 years and young people have a great deal more control over their lives. • The way the law views women has also changed as our society has come to recognise that discrimination against women, and stereotypes relating to the role of women were wrong.

43. ethics • Ethics are different from morals because ethics relate to what is ‘right’ rather than what is ‘good’. • Sometimes what is right may not be what is good. • For example, a lawyer has an ethical duty to try to win a legal case for his or her client. This could mean the lawyer has to try to stop the court from punishing the client even though the lawyer knows the client is guilty. It would be considered unethical for lawyers to not try their hardest to win cases for their clients. • As the influences on our society change so do our moral and ethical values. • Religion plays less of an influence in our society than it did in the past and this is now reflected in our laws. In the past, it was quite difficult to obtain a divorce in Australia. • Today, however, our society has a different view towards marriage and divorce. No longer is it considered ‘wrong’ to divorce. Therefore, in 1975 the law was changed so that a divorce could be obtained more easily.

44. how laws are changed Changing the constitution • Constitutions are difficult to change but like all laws they should be updated to reflect the changing society. • To change a constitution a referendum must occur. • A referendum is a specific vote by the people. • To change the Australian Constitution 50 percent of all voters must agree AND at least 50 per cent of the people of at least four States. • Out of forty-two referendums in Australia, only eight have been successful.

45. 1967 referendum

46. Changing statute law • In order to change a statute law, a new Bill must be passed by the relevant parliament. • These Bills are known as amendments and must go through the same process as any other Bill. • In 2000 the NSW government passed The Smoke Free Environment Act 2000 (NSW) in order to prohibit people smoking in certain places, such as restaurants. • In 2004 the government passed an amendment to this act called the NSW Smoke Free Environment Amendment Act 2004 (NSW). • This new amendment to the statute law increased the number of locations where smoking was prohibited, such as in bars

47. changing common law • Changing common law is a relatively easy process. • This is one reason why some people are critical of it. • This process is affected by the hierarchical structure of Australian courts. A lower court judge can make a decision that creates a common law. However, that law can be changed by the decision of a judge in a higher court. • Sometimes parliaments are not pleased with a judge’s decision that has created common law. • Under our legal system, statute law takes precedence over common law. • Consequently, the parliament can pass a statute that changes an aspect of the common law.