8WHAT IS LAW? Rules Rights & responsibilities Reflection of society Our lives are surrounded by rules. These rules may stem from our peer group, our families, religious influences, schools, and the workplace – just to name a few. These are non-legal rules.We are also subject to rules made by parliament and courts. These rules are called laws and are enforced by the State through courts.Purpose of LawEssentially, laws are designed to keep society together and to keep society functioning. They do this by:Protecting the individual.Protecting the society.Ensuring the effective and fair function of the community.What Does Law Do?The law reflects the way we live through the political systems of parliament, our federal constitutional structure and our electoral processes.The law reflects the way we live through the economic systems we have created. We are free to work in areas of our choice and to use, sell and occupy land.The law reflects the way we live through the social systems of marriage and family law, of free speech and the right to trial.The law reduces and resolves disputes by setting boundaries of acceptable behaviour and by setting sanctions to enforce behaviour.The law provides for change through the parliamentary process and the rules of common law.
9External Influences Internal practices and procedures External integrationLegislationCommon law (case law)Judicial practice and procedureInformation sharing
10SOURCES OF LAW Custom Common Law – court decisions Statute Law – parliamentDelegated legislation
11Common LawCommon law is also known as case law and arises from judicial decisionsPrecedent (stare decisis) is a feature of common law systemsPrecedent means that courts must follow decisions of higher courts within the same hierarchyPrecedent is dependant upon case law judgements
12The structure of the Australian court system The Australian Court System is based on a hierarchy of courtBottom level – Magistrate/ Local courts presided over by magistrates; minor matters civil and minor criminalIntermediate level – District Courts – judge; important civil matters; serious crimeSuperior courts – Supreme Courts – judge/s; no limit on civil and criminal jurisdiction; hears appealsHigh Court – pinnacle of Australian legal system; no appeal from its decisions
13LEGISLATION The formal legal rules made by Parliament It is the dominant source of lawA necessary requirement of contemporary societyProactive
14THE LEGISLATIVE PROCESS A set procedure is followed:Commencing in the House of Representatives –1st Reading – proposed Bill presented2nd Reading – speech & debateCommittee Stage3rd Reading – if approved moves to the Senate & same procedure followedRoyal Assent
15Common Law and Legislation Common law principles subordinate to legislationCommon law needs disputes before the courts to develop principles – (Donoghue v Stevenson)Legislation plays a reforming and modernising influenceLegislation is the voice of democracy – judges not accountable
16Delegated Legislation The power to make legislation remains with the Federal ParliamentThis power can be delegated to the StatesIt is primarily in relation to matters that are insignificant to the Federal Government but of importance to the State Government
17Legal Categories Public Law Criminal Law Administrative Law Constitutional LawPrivate LawContract LawTrust LawFamily LawSuccessionTort LawCompany Law
18LEGAL PERSONNEL Judge Associate Jury Solicitor Barrister Depositions ClerkInside a Magistrates Court RoomVirtual TourInside District and Supreme CourtsVirtual Tour
19THE ADVERSARIAL PROCESS CriminalProsecution commences proceedingsAccused/defendant answers the chargePrimarily freedom at riskCivilPlaintiff commences proceedingsRespondent/defendant answers the claimPrimarily money at risk
20STANDARD OF PROOF Civil Criminal On the plaintiff on the balance of probabilitiesOn the prosecution beyond a reasonable doubt
22How to read case law Case law is court judgments Transcript of the proceedings of the matterWritten decision of the presiding decision makerWritten order of the courtCase Law databases
23Case title The prosecuting/complaining party name is first The defending/accused/responding party name is second‘v’ for versus is in between and is pronounced as ‘and’Cases starting with ‘R’ rather than a party name indicate criminal prosecution by the Crown (currently Regina)
25Locating Legislation www.legislation.qld.gov.au On introduction page select HomeThen select Acts SL, as in forceChoose ‘C’ from the alphabetical listing boxScroll down the page until you find the Criminal Code Act 1899 and select
26Legislation Parts Chapters Sections A Section is the main building block of an act. Sections themselves are broken down into smaller parts:Sub SectionParagraphSub Paragraph
2766 Requirements of fine option orders Section and title66 Requirements of fine option orders(1) A fine option order must contain requirements that the offender—(a) must report to an authorised corrective services officer at theplace, and within the time, stated in the order; and(b) must perform in a satisfactory way community service directedby an authorised corrective services officer—(i) for the number of hours stated in the order; and(ii) at the times directed by the officer; andParagraphSub-sectionSub-paragraph
28Alternative location www.austlii.edu.au National website, includes all State and Federal LegislationSelect Queensland under Cases and Legislation on the left hand sideSelect Queensland Consolidated Acts under Queensland LegislationSelect ‘C’ from the alphabet listingLocate and select the Criminal Code Act 1899NOT as user friendly
29Navigating legislation Utilise the find function to locate relevant sections by entering specific offence titlesUtilise the index on the left hand side to scroll through chapters and sections according to chapter and section numbers.
30Finding offencesWhat do you do to locate the penalty for murder in the Criminal Code Act 1899?Enter ‘murder’ into the find boxSelect ‘next’ or ‘previous’ on the find box to locate different uses of the word ‘murder’ in the legislationLocate the relevant section that specifies the penaltyAnswer the question with the set penalty and the section number to form the habit of locating and learning section numbers.
31More offencesWhat do you do to find the elements of the offence of stealing a car?Enter ‘steal’ or ‘steal car’ into the find boxWhat do you do if the find box does not locate the offence?Enter an alternative word, like ‘motor vehicle’
32Types of offences Indictable offences Summary offences Regulatory offencesSimple offences
34Defences Explanation OR excuse? Can you excuse any behaviour that breaks the law?Can you explain why you behaved in a manner that broke the law?Will society accept your explanation?
35PresumptionsPresumption of law is something that is accepted as a fact in the absence of the evidence.Rebuttable presumption is something that is accepted as a fact until evidence proves otherwiseIrrebuttable presumption is something that is accepted as a fact regardless of any evidence that proves otherwise
37Evidence Evidence is provided to prove a fact It can support a contested factIt can disprove an accepted fact
38Rules of evidenceHearsay – evidence must be attested to first hand and not overheardExpert – evidence that is accepted as expert in the area and therefore the knowledge is unquestionableAdmissable – allowed in courtInadmissable – not allowed for various reasons
39How a criminal matter gets to court and what happens there Police investigate matterArrest suspectCharge suspect with commission of crimeBail applied for by person chargedIn summary matter or by election of accused, trial by magistrateIndictable offence requires judge and juryAccused asked to pleadLawyer for prosecution presents caseLawyer for accused presents caseJudge or jury makes finding of factJudge applies lawJudge makes order
40ELEMENTISATION Discuss, select offences from Criminal Code Act and provide examples of how to elementise See page 27 onwards in unit guide