Introduction to the Australian Legal System Stuff happens – ‘ci mi jiak tok’ (in Nuer as provided by Peter Pal)
Two ways of making law1. Statute Law• Statute law is made by politicians in parliament (government)(Politicians are elected by the people)
Two ways of making law2. Common Law• Common law is made by judges when they make decisions in court cases(also referred to as case law)
Different types of law Criminal and CivilCriminal law• Set out in the Crimes Act and enforced by the police. The government acts for everyone against (versus) a person who breaks the law.Aim• to punish the person who broke the law(called the accused before decision by the court)
Criminal law-examples• Crimes against the person – assault, rape, manslaughter, murder• Crimes against property – theft, vandalism, robbery, fraud• Crimes against morality – illegal drugs, prostitution• Traffic Law – speeding, drink-driving.????
Different types of lawCivil Law (part of Common law)• Used by individuals or companies who have a problem (dispute) with other individuals, companies or governments – often involves moneyAim• to solve the problem by restoring rights to the person who has lost them or who has suffered in some way e.g. negligence by an employer(person who starts the action is called the plaintiff)
Civil law-examples• Negligence- not taking reasonable care to prevent injury or loss to another person e.g. employers• Defamation – attacking someone’s reputation
Different outcomesCriminal law Civil law • Compensation (also called damages) e.g. to pay you back• Prison sentences e.g. for for an injury caused by others murder or major theft or destruction of property• Fines and/loss of licence • Court orders e.g. to make e.g. for driving offences someone do something; remove something from their• Warnings, good behaviour land bonds, community service • Mediation- a trained mediator may help people solve their disputes without going to court
Some more differences - proof (information used to ‘win’ the case)Criminal law Civil lawThe burden of proof is on the The burden of proof is on thepolice/government plaintiff i.e. the plaintiff has toThe standard of proof prove the case• The police have to prove The standard of proof their case 100% i.e. beyond • The plaintiff doesn’t have to reasonable doubt prove their case for sure – they have to prove that it is ‘more likely than not’
State courts Supreme Court Jurisdiction The highest court, hears • Serious criminal cases – murder, attempted murder • Civil cases involving large amounts of moneySupreme Court • Appeals on decisions made in the County Court
State courtsCounty Court Jurisdiction • Less serious criminal cases – drug trafficking, serious assaults, rape • Civil cases which involve substantial amounts of money • Appeals against decisions by the Magistrates’ Court
State courtsMagistrates’ Court Jurisdiction • Less serious criminal cases- robbery, theft • Less serious civil cases – up to $100, 000- negligence, contract disputes, neighbourhood disputes • deals with over 90% of criminal and civil matters. The first stop for most cases and then refers them to higher courts if there is enough evidence • Summary offences – traffic fines, minor assaults, property damage, offensive behaviour • No jury, one judge
State courts Magistrates’ Court Has special courts and tribunals • Children’s Court • Drug Court • Infringements CourtKoori Court • Koori Court • State Coroner’s Office • Family Violence Programs • State Coroner’s Office • Victims of Crime Assistance Tribunal www.austlii.edu.au http://multimedia.justice.vic.gov.au/egov/virtual_tour/ magistrates-court-vic.html
A quick testA criminal case A civil caseScenario ScenarioYou come home and find thatsomeone has stolen $2000 from your You lend someone $200 and theybedroom cupboard say that they do not owe you theQuestions money. Can you get it back?1. Who can help you with your case? Questions2. What do you need to win your 1. Who can help you with your case? What are some examples? case?You can find answers hereRemember, even if you win a 2. What do you need to wincriminal case, you might not get your your case? What could bemoney back! some examples?
Quick test-AnswersCriminal case Civil case1. The police. If the police are 1. You could pay lawyers to involved it is a criminal help you. NOT a civil matter. The 2. You need evidence e.g. police could charge the – A receipt for the money person with theft. The – A signed contract in which the government will provide other person agrees to pay lawyers as well. you back2. You need evidence e.g. a – Witnesses to the loan witness (someone who saw the money taken)
A scenario – is this a civil or a criminal case?You have just returned home after shopping at the localshopping centre. You were walking home but trippedand fell and much of the shopping fell on to the road andhas been spoiled.You have hurt your back. Just before you fell, you weredistracted by a dog that jumped up on you before it wascalled away by its owner (you are frightened of dogs).The footpath where you fell was uneven. You are notsure whether you fell because the footpath was unevenor because of the dog. You were probably carrying toomuch shopping and you already have back problems.
Is this a civil or a criminal case? Answer• It is a civil case – you might be able to sue (make a claim against) either the council for not looking after the footpath OR the dog owner for not controlling their dog
What do you need to sue?Good evidence- for example:• A doctor’s report after the accident• A witness (someone who saw the incident), maybe they saw the dog off the leash?• Did you get the dog owner’s name? (evidence)• A report of the uneven footpath to local government – maybe there had been other complaints?
Deciding to sueQuestions to ask• Why sue? To get a legal outcomeDo you remember the legal outcomes for civil law?• Will I be successful? Do you remember what is needed to win your case?• Is it worth it? Even if you think you might win, it might cost you more money to pay lawyers than you get back in compensation.