The basis of Australian law
Copyright © 2013 Tilde Publishing and Distribution
Foundations of
Australian Law
Fourth Edition

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

• Two types of rules
 legal
 non-legal

• Permit, modify or prohibit people’s activities within society

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

• Laws assist in regulating human behaviour and promote
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 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

• Three sources of laws

• Applies to everyone in society
• Enforced by the legal system

• 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

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

• Legislation created by any state parliament called state law
• 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

• Laws can be classified into two areas
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Criminal law
 Civil law

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

• Indictable offences
• Summary offences
• Indictable offences triable summarily

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

• 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

• 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

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

• Deter
• Punish
• Control society
• Rehabilitate offenders
Foundations of Australian Law: Chapter 1

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

• 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

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

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

• Return the injured party to their original state of affairs
• Protect individual’s rights

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

• 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

• All these characteristics must be present in society
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Knowledge
 Clarity
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Acceptance
 Stability

Flexibility
 Enforcement

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