70102: FOUNDATIONS OF LAW 2. Basics: Australian Legal System

Transcription

1 70102: FOUNDATIONS OF LAW 2. Basics: Australian Legal System Categories of Law 1. What are the differences between criminal and civil law? Criminal law establishes criminal offences and their penalties Criminal law = public law = beyond reasonable doubt In a criminal trial, the dispute is between the state (prosecutor) and the individual In a civil trial, the dispute is between two or more individuals > claimant Civil law = private law = on the balance of probabilities 2. Can one incident (e.g.. a physical fight, car accident, theft, contract breach) spark both criminal and civil litigation? Yes, every criminal act can result in a civil action 3. What are the differences between public law and private law? Public law is concerned with the relationship between the individual and the state, establishes the rights and obligations of the individual and the state with dealing with one another Eg. constitutional law, administrative law, criminal law, taxation law Private law is concerned with the relationship between persons within the community, establishes the rights and obligations of individuals when dealing with each other Eg. tort law, contract law, property law, company law 4. What are the differences between substantive and procedural law? Substantive law determines WHAT the law IS- rights and obligations of individual/state Procedural law determines HOW the law WORKS- regulate legal process 5. What are the differences between domestic law and international law? Domestic law (municipal law) regulates persons within a particular jurisdiction e.g.. state/nation Public international law regulates relationships between states e.g. treaties and conventions which are not legally enforceable unless domestic legislation is passed Private international law (conflict of laws) determines which state s laws should be applied to resolve a dispute between people in different states 6. Name some examples of the different ways law can be categorised based on subject matter (eg. family law, tax law) LAW Substantive Procedural Public Private Constitutional, Administrative, Criminal, Taxation Civil, Tort, Contract, Property, Company 1 International Domestic

2 Sources of Law 1. What are primary sources of law? What are secondary sources of law? Primary sources are those that contain the actual rules e.g. Common law, legislation, international law. Legislation is more significant than case law because it s more a reflection of the people s voice Secondary sources are documents or materials that summarise, critique or are otherwise useful for understanding the law contained in these primary sources e.g. textbooks, journal articles, legal dictionaries, government reports, parliamentary speeches 2. Which category do you think international law fits into? Primary sources Public law 3. What is delegated legislation? Name examples of types of delegated legislation. Law made by other bodies delegated law making authority by parliament delegates E.g. laws made by the head of the Health Department (regulations, by laws) who got the power from a minister statutes that authorise another to exercise the law-making power - by-laws - regulations It is authorised under the Constitution Otherwise it would be ineffective for parliament to be making laws for areas they have no expertise in What is Common Law? 1. Common law is a term that means different things in different contexts. When common law is stated- as opposed to legislation- what does it mean? Common law or case law is judge made law, precedents 2. What is the difference between a Common Law legal system and a Civil Law legal system? Common law legal system = Australia (developed by Britain and is the legal system of many countries colonised by the British e.g. Canada, New Zealand Emphasis placed within the system of common law Civil law legal system = Europe, laws are written in the civil law code 3. What is the difference between common law and equity? Prior to Norman Conquest in 1066, England was governed by customary law. King Henry II sent travelling judges which led to precent which became known as common law. Standard writs required to come to the common law courts, preoccupation with bureaucracy and strict requirements= justice denied to many Remedy = equity English citizens sought royal justice directly, the Court of Chancery made decisions based upon equity and good conscience. However, two separate court systems created practical and procedural difficulties which were resolved by the Judicature Acts of 1873 which established the High Court of Justice that could administer both common law and equity. Equity offers alternative discretionary remedies including injunction and specific performance Signing of the Magna Carta? What is IRAC? ISSUES- identify the issue/issues. What legal questions need resolving? 2

3 RULES- identify the relevant laws (i.e. case law/legislation) utilising your research skills. Ensure you understand these laws and what they allow and disallow. APPLICATION- apply the relevant law to the fact. CONCLUSION- conclude on what legally may/must happen to resolve the legal issues/questions the matter raises. What is Law Law is enforced by the courts, rules are not legally enforceable Moral codes shape our laws Rules shaped by family, religion, profession, political, peers 1. Categorical classification under common law Civil Law Area of law providing for actions to be brought by one individual against another Emphasis is on: - resolution and remedial action - compensating for loss Criminal Law Area of law providing for actions brought by the Crown/prosecution/state against an accused individual or individuals Emphasis is on punishment - seeking retribution and deterrence Claimant sues defendant Prosecutor prosecute defendant - e.g. Bloggs v Jamieson - e.g. R v Butterball The standard of proof The standard of proof - on the balance of probabilities - beyond reasonable doubt Outcome - remedies - damages, injunction, specific performance rescission Two primary types of civil action - tort law - contract law Outcome - imprisonment, fine, community service order Various offences can be prosecuted - murder/manslaughter, theft, embezzlement Civil law Same word different meaning meaning depends on the context in which it is being used Civil law as a system Has its origins in Roman law and Napoleonic codes A legal system used in much of Europe, Latin America and parts of Asia Civil law as a common law category A reference to an area of law within the common law system which governs relations between private individuals Emphasis is on remedies rather than punitive measures Less reliance on case law (judge-made law) 3

4 3. Basics: Being a Law Student/Legal Writing DO planning and forethought extensive planning prescribed objectives maximum impact nature and purpose of the task DON T don t start without a plan lose link between task and contents of document describe the case use super long sentences 4

5 Land 4. Case Law: History (The British Origins of the Judiciary) Norman Conquest and Feudalism 1. Explain the Norman Conquest and the feudal structure. William the Conquerer and the Normans defeated the King of England and he was crowned King William, a feudal system existed under his reign. King William commissioned a stocktake of England to assess the amount of tax he could levy Divine right of kings Monarch (owns all land) Barons Knights Loyalty Peasants 2. Can you think of any remnants of the feudal system in Australian society today? The wealthy can afford to buy more property than the less wealthy? The Origins of Common Law 1. How did the judiciary in England (after the Norman Conquest) originate? King Henry II sent judges travelling around the country to administer royal justice At first they based their decisions upon local customary law but to achieve consistency they created the doctrine of precedent 2. Why was this system named common law? Because it was based upon previous decisions (aka precedents) 3. What was/is the importance of precedent to this system of law? ensures consistency when judges make decisions developed into common law courts which allowed people to seek remedies for disputes 4. What are the advantages of a court system reliant on precedent? What are the disadvantages? Advantages Disadvantages Ensures consistency in decisions of similar cases Helpful for situations where there is no clear line of reasoning Too rigid- what if the previous decision was incorrect? It would continue errors Not all cases are similar to each other, there will be new cases that don t fit any precedents 5

6 5. Do you think it is better for law to be made via common law or for law to be made via legislation? Legislation because it reflects the values/expectations of the people The Origins of Equity 1. How and why was equity created? the common law system was too rigid, writs became harder to make because it was considered a form of lawmaking which should be a function of the monarch many people were denied justice as a result so those who failed to obtain a remedy from the common law courts would approach the monarch and seek royal justice directly the monarch delegated this responsibility to the Lord Chancellor which developed in the Court of Chancery, making decisions based on equity and good conscience common law tree- equity is one of its branches 2. Has equity stayed true to its origins? In what way has equity changed since its conception? today common law and equity continue to exist as separate branches of case law but judges can choose to apply the appropriate common law or equitable rule in particular situations 3. Name specific elements of our law that exist due to equity. alternative, discretionary remedies including injunction and specific performance The Court Hierarchy 1. Why is a court s position in the hierarchy important? courts are linked by avenues of appeal allows courts to specialise facilitates the efficient allocation of legal resources facilitates the operation of doctrine of precedent determines its jurisdiction - both original and appellate High Court of Australia (OJ & AJ) Federal Court of Australia, Family Court of Australia, Federal Magistrates Court Court of Appeal (AJ) Supreme Court (OJ) District Court (OJ & AJ) Local/ Magistrates Court (OJ) 2. Breaches of federal legislation are dealt with in federal courts. Breaches of state legislation are dealt with in the state courts. Where are breaches of common law generally dealt with? Why do you think this? State courts- supreme courts, intermediate (district) courts and lower (local/magistrates) court 6