Chapter 1

1. The basis of Australian law Chapter 1

2. Chapter overview This chapter looks at the concepts of • Rules (legal and non-legal) • Laws • Statute & common law • Criminal & civil law • Characteristics of effective laws

3. Rules • Two types of rules • legal • non-legal

4. Legal rules or laws • Permit, modify or prohibit people’s activities within society

5. Non-legal rules • State what behaviour is unacceptable in particular institutions • Affects only those associated with that particular institution • Groups often create their own non-legal rules • E.g. schools, universities, sporting clubs, recreation venues

6. Need for laws • Laws assist in regulating human behaviour and promote • expected or appropriate codes of behaviour • rights and responsibilities • the protection of individuals and society as a whole • efficiency within society • human rights and freedoms • equality for all people regardless of their backgrounds • the settings of formal guidelines • social cohesion • education • prevention and deterrence • the resolution of disputes

7. Creation of laws • Three sources of laws

8. Laws • Applies to everyone in society • Enforced by the legal system

9. Statute & Common Law • Statute Law • A collection of all Acts of parliament and delegated legislation • Common Law • Legal principles and precedents established and developed by the decisions of the various courts

10. Commonwealth & state law

11. Commonwealth law • Legislation created by the Parliament of the Commonwealth of Australia is called Commonwealth or federallaw • Applies throughout Australia in all states and territories

12. State law • Legislation created by any state parliament called statelaw • Applies only within the state in which it was created • State parliaments cannot pass legislation that contradicts Commonwealth laws • If inconsistency between state and Commonwealth laws - later applies

13. Commonwealth & state law

14. Classification of laws • Laws can be classified into two areas • Criminal law • Civil law

15. Criminal law • Concerned with criminal behaviour that affects or threatens the whole of society • Commonwealth and state parliaments legislate in this area • Commonwealth criminal lawcovers areas such as smuggling, defrauding social services or taxation office • State criminal lawcovers areas such as murder, kidnapping, theft, fraud, assault, driving offences

16. Categories of crimes • Indictable offences • Summary offences • Indictable offences triable summarily

17. Indictable offences • Serious criminal offences heard by a judge and a jury • Include serious crimes such as rape, robbery and murder

18. Summary offences • Less serious criminal offences • Can be heard in Magistrates’ Court • Include driving through a red light, and supplying persons under the age of 18 with alcoholic or cigarettes

19. Indictable offences triable summarily • Less serious offences • Can be heard before a magistrate in a Magistrates’ Court or before a judge and jury in a District Court • Defendant may make an application to the Magistrates’ Court to have his or her indictable offence as if it was a summary offence • The Magistrates’ Court decides which indictable offences will be heard as summary offences

20. Criminal responsibility • Can be proven when mens rea and actus reus are present • Mens rea - intention to commit a crime, i.e. crime was premeditated • Actus reus- actual act of committing the crime • In strict liability offences, only necessary to prove actus reus

21. Aims of criminal law • Deter • Punish • Control society • Rehabilitate offenders Foundations of Australian Law: Chapter 1

22. Classifications of crimes • Crimes can be against • Person - murder, rape, assault, kidnapping • Property - theft, burglary, robbery, aggravated burglary, arson • State - treason • Legal system - contempt of court, perjury • Morality - incest, bigamy

23. Characteristics of criminal law • Crown or prosecution represents the State (society) and brings legal action against the accused (defendant) • Burden of proof- party with responsibility to make and prove accusations made against defendant • rests with defendant • Standard of proof - types of proof required to win a case • beyond reasonable doubt

24. Sanctions • Judge can impose one or more sanctions when defendant found guilty • Sanctions imposed depend on provisions of legislation

25. Civil law • Concerned with resolving disputes between individuals or groups • Include contracts, torts, wills, real property and intellectual property

26. Aims of civil law • Return the injured party to their original state of affairs • Protect individual’s rights

27. Characteristics of civil law • Plaintiff brings civil action against defendant • Burden of proof rests with the plaintiff • Standard of proof on the balance of probabilities

28. Remedies • Awarded to plaintiff to bring him/her to their position prior to infringement of their rights • Compensation- a monetary payment • Injunction - compelling a party to cease from doing something

29. Effective laws • All these characteristics must be present in society • Knowledge • Clarity • Acceptance • Stability • Flexibility • Enforcement

30. Chapter review In this chapter you have looked at • Rules (legal and non-legal) • Laws • Statute & common law • Criminal & civil law • Characteristics of effective laws