Introduction to the Australian Legal System

Stuff happens – ‘ci mi jiak tok’(in Nuer as provided by Peter Pal)

Two ways of making law

1. Statute Law• Statute law is made by politicians in

parliament (government)(Politicians are elected by the people)

Two ways of making law

2. Common Law• Common law is made by judges when they

make decisions in court cases(also referred to as case law)

Different types of lawCriminal and Civil

Criminal 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 money

Aim • 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 outcomes

Criminal law

• Prison sentences e.g. for murder or major theft

• Fines and/loss of licence e.g. for driving offences

• Warnings, good behaviour bonds, community service

Civil law

• Compensation (also called damages) e.g. to pay you back for an injury caused by others or destruction of property

• Court orders e.g. to make someone do something; remove something from their land

• 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

The burden of proof is on the police/governmentThe standard of proof• The police have to prove

their case 100% i.e. beyond reasonable doubt

Civil lawThe burden of proof is on the plaintiff i.e. the plaintiff has to prove the caseThe standard of proof• The plaintiff doesn’t have to

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 money• Appeals on decisions made in

the County Court

Supreme 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 courtsMagistrates’ Court

Has special courts and tribunals• Children’s Court• Drug Court• Infringements 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

Koori Court

A quick test

A criminal caseScenario

You come home and find that someone has stolen $2000 from your bedroom cupboardQuestions1. Who can help you with your case?2. What do you need to win your

case? What are some examples?You can find answers hereRemember, even if you win a criminal case, you might not get your money back!

A civil caseScenarioYou lend someone $200 and they say that they do not owe you the money. Can you get it back?Questions1. Who can help you with your

case?2. What do you need to win

your case? What could be some examples?

Quick test-Answers

Criminal case1. The police. If the police are

involved it is a criminal NOT a civil matter. The police could charge the person with theft. The government will provide lawyers as well.

2. You need evidence e.g. a witness (someone who saw the money taken)

Civil case1. You could pay lawyers to

help you.2. You need evidence e.g.

– A receipt for the money– A signed contract in which

the other person agrees to pay you back

– Witnesses to the loan

A scenario – is this a civil or a criminal case?

You have just returned home after shopping at the local shopping centre. You were walking home but tripped and fell and much of the shopping fell on to the road and has been spoiled. You have hurt your back. Just before you fell, you were distracted by a dog that jumped up on you before it was called away by its owner (you are frightened of dogs). The footpath where you fell was uneven. You are not sure whether you fell because the footpath was uneven or because of the dog. You were probably carrying too much 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 sue

Questions to ask• Why sue? To get a legal outcome Do 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.