Basic Functions of Law in Australia

Essay by BoO!High School, 12th grade March 2006

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These following notes will cover these topics: (Australian Law System)

The Functions of law, Social Cohesion,Social,Progress,Sources of law,Parliament made law,Judge-made law

Which type of law is sovereign?,Classification of Law,Regulation of human behaviour,Criminal law,Classifications of Crime,Objectives of sanctions,Civil Law,Types of civil wrongs,Civil remedies,Types of civil remedies,Crimes

The Functions of law

The two functions are:

1 Social Cohesion

2 Social Progress

Laws are needed to achieve these dual functions simultaneously.

Social Cohesion

Laws must preserve values and human rights i.e. the right to vote.

Laws set acceptable standards of behaviour

Laws prescribe consequences for breaching standards of behaviour.

Laws create three institutions of government. Parliament, executive and courts.

Social Progress

- Laws must provide a universal education system

- Laws must assist the development of youth into well adjusted adults.

- Faster, good health practises

- Protection of the environment

Sources of law

All laws in Australia originate from two sources:

1. Australian Parliaments

2. Courts

Parliament made law


Parliament makes laws because the constitution prescribes power to it.

Can be made in a broad subject area whenever parliament is summoned to sit and debate laws.

Laws made democratically by elected representatives of the people.

Can be made by any of the six state governments, two territory governments and federal government.

Laws made by parliament are called: Statutes, Legislation, Act of Parliament or Enacted law.

Parliament often delegates law-making power to subordinate institutions which operate in the executive arm of government. This type of law is called delegated or subordinate legislation, regulations, statutory rules or by-laws.

The executive is not a primary source of law and its law-making power is subject to scrutiny by parliament and the courts. Parliament can repeal a delegated authority's law making power or one house of parliament can disallow a regulation which makes it unenforceable.

Judge-made law

Features: Law made by judges when resolving disputes

Can only be made to the extent necessary to resolve the dispute

Judges are not elected, they're appointed, so they are not directly accountable to the people for decisions made.

Case law is made in State and Federal Courts.

Laws made by judges are called common-law, judicial precedent, binding or persuasive precedent, legal principles and un-enacted law. Courts cannot delegate power to anyone else.

Which type of law is sovereign?

The following rules apply:

Codified law prevails over case law when there is a conflict.

Parliament can pass a law to override case law or to pass complimentary legislation to codify a case law rule.

Parliament cannot override case law created by the High Court when interpreting the Constitution.

Case law created by the High Court prevails over case law made in State Courts.

Statute law prevails over regulations when conflicts occur.

Section 109 in the Constitution states that when State and Federal statutes conflict, Federal prevails. This is known as the inconsistency rule.

Classification of Law

Law is classified into:

Public Law

Private Law

Public Law

Relates to:

The rules which govern the operation of government

The standards of behaviour that everyone is expected to conform to

Situations where the state acts as a representative of the people as a whole eg. DPP prosecuting offenders.

The Australian Constitution and administrative laws necessary to make Government function effectively.

Private law

The regulation of relationship between one legal entity and another

Individuals, corporations and Government bodies

Defining unacceptable standards of civil behaviour

The procedures that can be adapted to resolve civil disputes if the parties cannot come to an agreement.

Regulation of human behaviour

Laws prescribe acceptable standards of behaviour and the consequences that will occur if these standards are not upheld (social cohesion)

Human behaviour is divided into two branches:

Criminal law

Civil law

Criminal law

A crime is an unlawful act or omission that is deemed by statute or common law to be a public wrong and which warrants community condemnation in the form of a sanction.

In Australia, all behaviour is legal unless prohibited by law. The power over criminal law is shared between the state and the commonwealth governments; therefore each state defines its own crimes and provides its own courts to resolve these types of disputes.

A person who commits a crime is prosecuted by the Department of Public Prosecutions (DPP) in the district or supreme courts or by Police in the Magistrates Court. A criminal dispute is a dispute between the state, acting on behalf of the community and the defendant who is accused of committing a crime but who remains innocent until proven guilty in a court of law(before the case reaches the courts, the defendant is known as the accused).

To identify a dispute in court, every case is formally cited (named). Criminal cases are cited in the following way:

R v. Smith (defendant's surname)

R represents the prosecution (state). It stands for Regina or Rex (Queen or King). It is always written first to show the prosecution has the burden of proof.

In cases of appeal, the surname of the person appealing is written first. This person is known as the appealant, the other person is known as the respondent.

In criminal cases the standard of proof is beyond reasonable doubt. This means that the prosecution must prove the allegations against the defendant to a point where they remove any doubt from the minds of the judge and jury as to the guilt of the defendant. If any doubt exists, the defendant must be acquitted (not guilty) and cannot ever be re-tried for the same offence (double jeopardy).

Juries are used in SA to determine the guilt of the defendant. The defendant may choose to have a trial by jury or judge alone. Before a person can be convicted, two elements must be proven at a trial. These two elements are:

Actus Reus: The guilty act. Prosecution must prove that the defendant committed the act.

Mens Rea: The guilty mind. Prosecution must prove that the defendant intended to commit the crime.

Categories of Crimes

1. Offences against person; murder, rape, assault ---attracts the harshest penalties

2. Offences against property; larceny, arson, fraud

3. Offences against public order; traffic, morality, drug offences.

Classifications of Crime

Statute law in SA offences into three classes:

1. Summary offences; heard in the lowest court, magistrates court. Maximum penalty - 2 years imprisonment for each offence. No juries. Summary offences Act 1953, Road Traffic Act 1961 prescribe many offences in this class.

2. Minor Indictable Offences: heard in Magistrates or District Court if the accused wishes to have a jury. Max penalty 5 years imprisonment for each offence eg. Stalking, malicious wounding.

3. Indictable offence: heard in District Court. Most serious offences. Max penalty - life imprisonment. Criminal Law Consolidation Act 1935 (SA) prescribes most indictable offences.

Consequences of committing criminal offences

A convicted person is one who has been found guilty of committing a crime. Such people are sanctioned (punished) by a criminal court as a sign of society's condemnation.

Sanctions take away a convicted person's rights and freedoms. Two types of sanctions:

1.) Loss of personal freedom --- prison, home detention

2.) Loss of financial freedom --- fines, seizing assets

Objectives of sanctions

Courts impose sanctions for four reasons:

1 - Protection: to ensure members of society feel safe.

2 - Deterrence: to deter future offending by the offender and others.

3 - Punishment: to penalise offenders by taking away their rights.

4 - Rehabilitation: to ensure that when offenders re-enter society, they are more socially conscious of their responsibilities.

Civil Law

A civil wrong is an act of a failure to act, which subsequently infringes someone's rights. Civil law is applied when an aggrieved party seeks a civil remedy in a civil court because the wrongdoer does not accept liability for the harm caused by his or her unlawful behaviour.

Civil disputes can occur between two or more private individuals or organisations, including businesses and government bodies.

The state provides courts where civil disputes can be resolved and a body of laws to regulate the resolution of these disputes but does not take an active part in these cases.

The power over civil law is shared between the state and the Commonwealth governments; therefore each state defines its own civil law and provides its own courts to resolve these types of disputes. However, the High Court of Australia, which is the highest court of appeal in Australia, has made many aspects of civil law uniform as its decisions are binding on all state courts.

In Australia, civil and criminal cases cannot be heard simultaneously. In the case of an event giving rise to both types of disputes, the criminal one is heard first. The outcome or the issues raised in that trial are part of the inadmissible evidence in civil proceedings (they cannot be used as evidence)

Civil cases are cited in the following manner:

Plaintiff, who is the person instigating the civil action is the person whose surname appears first, followed by the surname of the defendant; Smith (plaintiff) vs. Brown (defendant). The plaintiff's name appears first because he/she has the burden to prove the allegations on the balance of probability. This means that the judge is satisfied that the defendant is probably (51%) liable. This is known as the standard of proof. In the case of an appeal, the titles appellant and respondent are used, same as in criminal appeals.

Types of civil wrongs

- Breach of contract arises when one part to a contract fails to honour a condition of it. Law of contract provides remedies to aggrieved parties to a contract.

- Tort is a private wrong that is not a breach of contract. Torts are designed to protect people's rights and interests such as:

- Reputation - tort of defamation

- Personal freedom - tort of trespass to person

- Enjoyment of property - tort of nuisance

- Personal safety - tort of negligence

Law pf tort provides monetary compensation to aggrieved parties.

Law of negligence:

Negligence is the most common actionable tort in Australia. It offers civil remedies to people who are injured or who have their property damaged by the careless behaviour of others.

The following elements must be proven by the plaintiff in court to be successful in a case of negligence:

- The defendant owed the plaintiff a duty of care as a legal neighbour

- The defendant breached that duty of care, and

- Damages that were foreseeable to a reasonable person occurred as a direct breach of the duty of care.

Civil remedies

A civil remedy is a legal consequence of being found liable by a court of committing a civil wrong.

Types of civil remedies

1. Damages: a sum of money paid to the plaintiff by the defendant. It aims to return the plaintiff to the same position as before the wrong occurred.

Two forms:

- Special damages: Claims for economic loss where dollar amounts can be calculated exactly, eg. Bills.

- General damages: claims for non-economic loss where the dollar amounts cannot be calculated exactly eg. Pain and suffering.

2. Injunction: a court order which either restrains a part from doing something or compels him/her to do something.


1.) A crime is an act which breaches the acceptable standards of behaviour set by society.

2.) Crimes are referred to as public wrongs because they can infringe upon the rights of other members of society.

3.) Crimes are categorised into three categories; offences against people (rape, murder assault), offence against property (arson, larceny, fraud) and offence against public order (traffic, morality, drug offences). Crimes are sorted into three classifications; summary offence(least serious, magistrates court, 2 year penalty), minor indictable offence(more serious, magistrates/district, 5 year penalty) and indictable offence(most serious, district court, up to life imprisonment)

4.) Criminal liability refers to the job of the prosecutor, they must prove the two elements before the defendant can be prosecuted.

5.) Actus Reus: The guilty act. The prosecutor must prove the defendant committed the offence. Mens Rea: The guilty mind. The prosecutor must prove the defendant had intent.

6.) Through Strict liability offences, parliament has enacted laws which require the prosecutor to prove only the first element of law, Actus Reus. They were introduced because it was becoming near impossible for the prosecution to prove the intent on new offences.

7.) Sanctions may take two forms; loss of personal freedom(imprisonment, home detention) or loss of financial freedom(fines, seizing of assets).

8.) Sanctions are imposed for four objectives; punishment(taking away freedoms), deterrence(stop re-offending), protect(society from offenders) and to rehabilitate offenders and reinforce their social responsibilities.

9.) A civil wrong is an act or a failure to act which results in an infringement on the rights of other members in society.

10.) They are referred to as private wrongs because civil disputes occur between individuals or organisations including businesses/government institutions.

11.) The two types of civil wrongs are breach of contract(when a party does not uphold or fails to honour any conditions of a contract) and the law of Tort(designed to protect people's rights and interests such as: reputation, personal freedom, enjoyment of property and personal saftety.)

12.) The prosecution must prove the defendant had a duty of care over the plaintiff, and that this duty of care was breached.

13.) Civil remedies include: damages (special; damages which can be counted exactly in dollar amounts and general damages where dollar amounts cannot be calculated exactly).

14.) Contributory negligence occurs when a court finds that the plaintiff was also party involved in his own negligence. For example, if a court found a plaintiff 25% negligent of a $100,000 sanction, the defendant would only pay $75000. Vicarious liability states that if an agent or an employee commits a breach against the tort of negligence, the employer is liable.

15.) When citing a criminal case, the format is R(state) vs. Defendant whereas in a civil case, the format is Plaintiff vs. Defendant.

16.) Within a criminal case, the burden of proof rests on the state, and it must be proven to beyond reasonable doubt. In a civil case, the burden of proof is on the plaintiff and the standard of proof is probable (51%).