There are two ways of making laws:
- Ones that are written down beforehand are called Statute Law, or Acts of Parliament.
- Ones that are developed piece by piece by judges, this is called Common Law.
Common law and statute law are followed by most nations in the world. In Australia, the law is combination of both.
Common Law
Common Law refers to the decision given by judges. It may occur because a judge has to decide on a case where there is no existing law that regulates it.
It is up to the judge to make a decision. These decisions need to be recorded in law reports so that they can be referred to.
These decisions are referred to as Legal Precedents.
Judges do not deliberately attempt to change or make a law; they are trying to resolve the dispute before them. They will try to make similar decisions in cases that are alike. This can help the legal system to achieve fairness and justice in the system.
Statute Law
In Australia, the laws created in the Federal Parliament have the highest status and must be obeyed by all the people. Parliament makes most of the laws.
Each state and territory has its own parliament as well. The State Parliament delegates some of its law-making power to local councils, looking after areas related to them.
Public law vs Private law
- Private law deals with how individuals interact with other individuals as well as the right duties people have towards each other.
- Public law is concerned with regulating people’s behaviour within society as a whole and protects the freedom of individuals.
Civil law and criminal law
- Civil law is part of private law, which deals with non-criminal matters.
- Civil law gives the person whose rights have been infringed (the plaintiff) the ability to initiate action to sue the wrongdoer (the defendant).
- Where a civil wrong is successfully proven in court, the wronged party will seek remedies.
- Not all civil cases end up in court. Often the parties reach an out-of-court settlement.
Civil cases verdict
- Remedies can include injunction (to stop something) or compensation (usually involves a monetary payment depending on ‘damage’ caused).
- The justification is to bring the person back to the point where they were before the incident occurred.
- The standard of proof required in a legal case is on the balance of probabilities (this is simply a matter of “more probable than not”, or if you prefer figures, say 51% or greater).
Results of the justification:
- Plaintiff is right, such that the defendant has to pay the damages.
- Defendant is right, such that the plaintiff has to play the damages.
- A mix proportion of both sides responsible (eg. 60:40).
Civil law - tort
The two main areas of civil law are the law of tort and contract law. Law of tort includes:
- Negligence - where a person fails to take reasonable care and as a result injures another person.
- Defamation - where a person injures another person’s reputation
- Nuisance - where a person causes unreasonable interference with another person’s right to quiet enjoyment of their property.
- Trespass - where a person interferes with another person, or that person’s property rights.
Three elements to a contract
- Offer: a proposal from one party to another. It states what the proposal party would do and what that party would receive in return.
- Acceptance: all the parties agree to the offer and a deal has been formed. (eg. signing documents, verbal acceptance).
- Consideration: each party has to give up something in order to fulfil the contract.
Contracts - guarantor
- A guarantor is a person that agrees to pay another person’s debts if they are not paying themselves (eg. parents, friends)
- Consider carefully before agreeing to be a guarantor, otherwise you might have financial hardship.
Criminal law
- A crime involves behaviour that is considered by the state to be unacceptable, deserving of prosecution, conviction and punishment.
- Criminal Law deals with what people can and cannot do. these are often called offences.
- Serious crimes, such as armed robbery, homicide, child abuse, murder and sexual assault, are called indictable offences.
- Less serious crimes, such as minor assault, petty theft, vandalism and traffic infringements, are called summary offences.
- The purpose of criminal law is to protect individuals from others doing the wrong thing; to make the community feel safe from harm.
The accused
- The accused is a person charged with committing a criminal offence or offences.
- Once a person is 10 years old they can be accused, that is, changed with an alleged offence.
- Children 10-14 have limited responsibility. It must be proven in court that they knew what they did was seriously wrong.
- People that are under 16 and are found guilty of an offence will have no conviction (unless a serious offence), this can be wiped after 3 years if they have not been in any more trouble.
Criminal law - witness
- A witness is someone who gives evidence in court.
- They must swear either an:
- Oath (a promise to tell the truth or something that is true) whilst holding a religious text.
- Affirmation (if the person is not religious)
- Children can be called as witnesses if they understand the oath.
Domestic vs International Law
- Domestic laws relate to being a law-abiding citizen of one’s country. If you break a domestic law you will be dealt with by the country’s legal system.
- International law is concerned with setting standards of acceptable behaviour for nations and their citizens when dealing with issues that cross borders, or issues of concern to society in general, as a way to foster good relationships and avoid conflict.
International law
- The United Nations is responsible for both establishing international laws as well as enforcing them.
- The Charter of the United Nations is perhaps the most famous international law.
- It was signed on 26 June 1945, in San Francisco, at the conclusion of the United Nations Conference on International Organisation, and came into force on 24 October 1945.
Contact with the law
Adult: a person 18 years old and above Minor: a person under 18 years old
Under arrest
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Police needs to have a warrant (a judge order) or have reasonable cause to suspect you have committed a crime.
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Police must inform that the person is under arrest and the charge associated with the arrest.
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Police have to say “You have the right to remain silent, anything you say from this point can be used as evidence.”
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The suspect has to be handcuffed
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Capsicum spray can be used if the suspect violently resists arrest.
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Suspect has to provide personal details for police records at the police station.
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The suspect has the right to request a lawyer and not to answer the questions by police.
Phone call
- At the police station, the suspect is entitled to call a friend or legal representative (ie. solicitor).
- If a legal representative cannot be afforded, a legal aid (free legal advice service) is available.
Formal interview
- If the suspect is under 18, an adult must be present before the start and during the interview.
- The interview consists of a series of questions which will be recorded.
- If the suspect is uncomfortable in answering, he or she can remain in silence.
- The suspect will be given a copy of the recorded interview at the end.