Different Areas of the Law

Australian law can be private (concerning private individuals) and public (concerning our society as a whole) (See, What is Australian Law?, this chapter). This chapter introduces common areas of law.

Criminal law

Criminal law aims to prevent behaviour that our society deems unacceptable. For example, because our society condemns the ending of another person’s life, we classify the act of killing another person as a crime (‘murder’).

Each level of government in Australia is responsible for its own criminal justice system. State and territory criminal laws govern most offences. The Federal Government also has a criminal code to deal with offenders who commit crimes against Australia such as terrorism.

When someone is charged with committing a crime, he or she is referred to as the ‘accused’. This is because our criminal law system presumes that someone is innocent until proven guilty. The prosecutor has the responsibility of proving the charges against the accused. To do this, they must prove the facts which, when put together, prove the criminal responsibility of the accused beyond reasonable doubt. The prosecutor is a public servant employed by the Department of Public Prosecutions (DPP). The prosecutor’s duties include working with the police to help build the case against the accused, assisting the defence by informing it of the evidence against the accused and negotiating the best possible outcome for the case.

The prosecutor ultimately makes the decision to prosecute based on the evidence, the type of offence, the accused’s age and the likelihood of a successful conviction.

People are informed by the police or the DPP that they have been charged with an offence. If they are in custody, they may be required to apply for bail. This means that, for a fee, they can be released from custody, on the understanding that they will later appear in court on a later date to answer the charges. Release on bail can be granted on conditions. For example, registering at a police station once a day or surrendering a passport to police. The Bail Act 1992 (ACT) sets out when someone may or may not be granted bail in the ACT.

If the DPP decides to prosecute, it must do so within six months of a minor offence. For major, or indictable offences, there is no such time limit. If the DPP commences proceedings it must provide the accused with a statement of facts, which details everything the prosecution intends to use against the accused.

The defence is a lawyer (or lawyers), hired by the accused, who disputes the prosecution’s case.

In cases where there is indisputable evidence of the accused’s guilt, the defence will aim to get their client the lowest possible penalty by negotiating with the prosecution. Whilst the prosecutor must prove the accused’s criminal responsibility beyond all reasonable doubt, the defence need only establish reasonable doubt to successfully defend their client. The defence may also attend police interviews with their client before charges are laid.

If the accused decides to dispute the prosecution’s charges, the court may schedule a case management hearing. This is a meeting with the prosecutor, who will explain the charges. The prosecutor will also explain the evidence that he or she plans to use against the accused. If the accused does not decide to plead guilty then the case will be listed for hearing.

Depending on the facts of the case, it will be listed for hearing by a judge alone or by a jury.

(For more information, please see the Arrests Interrogation and Bail, Sentencing and Criminal Law chapters.)

Because criminal law cases pit a well-resourced executive government against an individual, who is not likely to be as well-resourced, there are certain rules which govern criminal prosecution, to ensure that it is fair. These rules are called ‘procedural fairness’. The judge, prosecution and defence must all adhere to the rules of procedural fairness. Rules of procedural fairness include the police allowing the accused to call a lawyer before they are interviewed, the prosecution informing the defence of all the evidence which they intend to use against the accused and the judge not allowing inappropriately obtained evidence to be used in trial. If these rules are ignored, the accused could secure a heavily reduced penalty, or not receive one at all. Procedural fairness rules are in place to maintain the integrity of our criminal justice system.

There are numerous penalties within the criminal law. They range from a gaol term to a fine to community service. The Criminal Code 2002 (ACT) sets out the penalty for each offence.

Aside from the prosecution and the courts, criminal law is also enforced by the police, the media and non-government groups. Police have wide-ranging powers to enforce the law. These powers include carrying out arrests, conducting investigations, protecting evidence, pressing charges and issuing fines. The media can raise public awareness of certain types of offences or allegations. This can create public expectation, which might encourage the DPP and police to commence investigations into particular people or focus on preventing certain types of crime.

Even activist groups, such as the Animal Liberation Front, can sometimes enforce the law, by either releasing evidence of criminal activity to the media or purposely committing an offence in protest of an issue which they believe is criminal. By doing this the activist draws media attention to the cause. Julian Assange is one such activist, who, by allegedly committing treason, exposed war crimes perpetrated by U.S. forces in Iraq and Afghanistan.

Administrative law

Administrative law involves reviewing government decisions to ensure that they are lawful. For example reviewable decisions include:

• to issue or deny your overseas relative an entry visa;
• to issue or deny you a drivers' license;
• to allow or deny an asylum seeker protection in Australia;
• to cancel or not to cancel your passport;
• to pay or withhold your parents' pension;
• to accept or reject your claim for a Medicare rebate;
• to accept or reject your insurer's request for your personal information;
• to penalise or prosecute your business for failing to submit a tax return;
• to remove or not remove your grandmother from the electoral roll; and
• to deport or not deport a person.

The process to follow will depend on the agency and the decision involved. Often strict time limits apply to appealing administrative decisions.

Some agencies provide an option to appeal a decision internally before filing an application for review in a court or tribunal.

Some courts have jurisdiction to hear appeals about administrative decisions. In these judicial review cases the courts are limited to considering whether the decision was lawfully made. They cannot consider whether the decision was wrong. This limits the remedies available to courts. For example, courts can declare that a decision to cancel a drivers’ licence is void but it cannot substitute a decision to grant a new licence in its place. Instead, the decision is remitted to the initial decision maker to re-make the decision according to law.

Apart from tribunals and courts, there are a range of audit and compliance organisations, or ‘watchdogs’ that work to ensure that government departments are acting lawfully. These organisations focus largely on assessing overall compliance and do not action individual complaints.

The ombudsman is an appointed public servant who deals with complaints from the public. It is the Ombudsman’s job to handle grievances with government agencies. The Ombudsman does this by investigating agencies, gathering information, seeking consultations and writing reports. After completing an investigation, the Ombudsman will make a recommendation to an agency. Government agencies usually follow these recommendations.

Journalists, lawyers, non-government groups and politicians can also enforce administrative law by garnering public attention. As seen in the 2017 robo-debt scandal, public outrage can force a government to change a decision.

(See the Admin law or Challenging or Complaining About Government Decisions chapter).

International law

International law is a rules-based system which regulates the behaviour of nations across a broad range of subjects, including trade, climate change, human rights, health and security. The aim of international law is to maintain good international relations and to avoid war. Most countries are members of the United Nations, which grew out of the League of Nations after World War Two.

International law comes from two sources, state practice and treaties signed by states.

International law is created by states conducting themselves in a certain way coupled with a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. (See, State Practice, International Law or another source).

A treaty is a formal agreement between countries about a subject. A treaty is negotiated over years and formulated to promote unity amongst its member countries on important issues. (See, Treaties, International Law or another source).

For international law to become law in Australia, the Commonwealth Parliament must implement the treaty into domestic Australian law. It does this by incorporating the provisions of the treaty into Australian legislation. A treaty is only binding on Australia once domestic laws are passed.

Civil law

Civil law regulates private relations between individuals. The purpose of civil law is to protect private rights and offer remedies to people whose private rights suffer because of the behaviour of another person.

Some examples of civil law actions are:

• a family law dispute;
• proceedings against a doctor for negligence;
• proceedings for defamation; and
• debt proceedings to recover unpaid rent.

Civil law is enforced by people and companies who claim they have been harmed and commence legal action.

Civil cases are commenced in many ways, depending on the type of case and the court or tribunal that will deal with the dispute. Each tribunal has its own forms, rules and procedures. The party bringing civil proceedings is usually called ‘the plaintiff’.

Time limits apply to bringing civil law actions. The Limitation Act 1985 (ACT) regulates time limits for commencing ACT civil law proceedings. For example, the time period in which to bring proceedings for defamation is one year from the date of publication. Time limits can be extended in some circumstances.

If a civil claim is successful, parties may receive damages. A payment of damages is to compensate the plaintiff for the harm suffered and is intended to put the plaintiff in the position they would have been in ‘but for’ the accident.

In civil law claims, generally the losing side pays the winning side's legal costs. This rule aims to dissuade people from bringing futile proceedings. The rule does not usually apply in tribunals. (See, Courts and Tribunals, this chapter).

Because it is a private area of law, government agencies have a limited role in enforcing civil law. There are, however, some agencies, such as the Australian Competition and Consumer Commission, which assist people to recover compensation from businesses that have breached their consumer law obligations. Other agencies, such as the Australian Health Practitioner Regulation Agency, do not award compensation, but will investigate, and possibly suspend, health practitioners who pose a threat to public safety.