﹕ⵌ┆civics 𓏵‧₊˚ ┊

What is the aim of Criminal Law?

aims to protect people in the community from harm (crimes - actions that are unlawful and cause harm)

Civil Law aims to …

rights and responsibilities of individuals

Criminal law ….what are the parties involved?

Prosecution v. accused

Civil law …what are the parties involved ?

Plaintiff v. defendant

Criminal law…what is its purpose/goal?

Determine guilt, punish and deter unacceptable behaviour to prevent future crimes.

Civil law…what is its purpose/goal?

Resolve (find a solution) to a private dispute between people. Define the legal rights and responsibilities of people involved.

Criminal law…case origins?

Police charge someone with a crime.

Civil law …case origins?

Plaintiff sues the defendant.

Criminal law ….outcome (verdict)?

Accused is found guilty or not guilty.

Civil law ….outcome (verdict)?

Defendant is liable (to blame) or not liable.

Criminal law….what are the possible consequences?

Sanctions (punish): imprisonment, community correction order (community service), fine

Civil law….what are the possible consequences?

Remedies (restore): damages (compensation), injunction (e.g. restraining order)

Criminal law - For example...

Murder, rape, kidnapping, robbery, drink driving

Civil law - For example...

Contracts, land, discrimination, consumer rights

Statute law

created by parliament, proposed and voted on by politicians

Common law

created by courts through 'doctrine of precedent' (decisions)

Common law is simply law that is made by judges in a courtroom, instead of being made by politicians in parliament.

1. When a new legal problem comes up, the High Court looks at past cases to see if a rule already exists.

2. If the past cases don't cover it (because it's a brand-new situation), the High Court makes a new decision.

3. That new decision becomes a common law, and because of the doctrine of precedent, all lower courts are forced to follow it from that day forward.

Customary law

rules/practices of First nations people pre-colonisation (e.g. Malo's Law)

Common law - doctrine of precedent

In Mabo v. Qld (1992), the High Court determined that terra nullius was invalid and created the concept of 'native title' (First Nations land rights).

This is an example of 'common law', where 'doctrine of precedent' (previous model/example) is required to be followed by all lower courts in VIC and AUS

The doctrine of precedent is literally just the legal system pointing its finger and saying: "You lower courts have to follow what the higher courts did."

1. Court of Appeal

Hears appeals from lower courts (Supreme, County, Magistrates)

2. Supreme Court

Hears serious cases (e.g. murder) and appeals from lower courts

3. County Court

Hears intermediate cases (e.g. drug trafficking) and appeals from Magistrates Court

4. Magistrates Court

Minor cases only (e.g. theft)

High Court

the highest ranking court in the federal (national) hierarchy. Constitutional cases and final appeals from lower courts are heard in this court.

Statutory interpretation

parliament creates laws and the courts interpret their meaning, applying them to individual cases

Codification

if a court creates common law that parliament support, precedent is 'coded' to statute law

Abrogation

if a court creates common law that parliament don't support, create a new law to abolish (cancel) decision

The rule of law'

all citizens are equal under the law (crimes, sanctions)

Independent judiciary

courts and judges are separate, no external influence on decision making (e.g. business, politics, religion)

Fair trial

opportunity to prove innocence (unbiased court)

Presumption of innocence

'innocent until proven guilty' (reasonable doubt)

Public trial

community can view trial ('nothing to hide', no secret police...)

Right to examine witnesses

each side may question witnesses, evidence

Opportunity to prepare

time provided to both parties to prepare for case

Right to an interpreter

e.g. English as second language

Right to a lawyer

provided if you cannot afford a lawyer

Independent court

unbiased judge and jury involved

Constitutional interpretation

the High Court can interpret the Australian Constitution to protect the rights of citizens

These tools allow our legal system to protect our civil rights.

Native Title (1993) - 1. How was the Native title Act created? 2. What does it allow? 3. Examples

The decision by the High Court in Mabo v. Qld (1992) led to the federal parliament creating the Native Title Act (1993). This legislation established a process for First Nations peoples to claim native title to land or water in AUS.

To possess (own) or temporarily occupy land

Maintain and protect sacred sites

Use land for hunting or ceremonies

Consultation of resource use/management

Native Title (1993) - restrictions

To claim native title, individuals must prove their ancestors occupied the land before colonisation and the First Nations people currently living on the land have continued their cultural practices/traditions (e.g. ceremonies).

A claim to native title can be denied (fully or partially) if the land is owned as private property (e.g. housing) or if the govt. is using the land for public (e.g. schools).

Mabo v. Qld - historical significance

Explain overall timeline of events

- Before colonisation, First Nations people held their own system of laws and decision making (e.g. ACL - Aboriginal Customary Law).

- However, after the declaration of 'terra nullius', Australia was considered British land and people were expected to follow British laws.

- In 1992, Eddie Mabo argued the govt. had no legal right to claim their land. This decision would change the past, present, and future of First Nations people.

Mer Island (QLD) - talk about land rights and ownership

- Land rights on Mer Island were governed by a code of ethics and morals referred to as 'Malo's Law' (ACL). According to these rules, Mer Island is owned collectively by all the Meriam people (no idea of private ownership).

- After British settled on the island in 1872 (terra nullius), the local govt. created a law to claim ownership (1879).

Mabo v. Qld (1992) - 1. Explain the High Court decision 2. What happened as a result. 3. Significance

1. After 10 years of legal proceedings, the High Court ruled that terra nullius was invalid, as the First Nations people held ownership of the land beforehand.

2. What happened as a result: As a result of this decision, the High Court created the concept of 'native title' which recognised the land rights of First Nations people.

3. Significance: This act re-wrote the history of colonisation and allowed present (and future) First Nations people to make claims to land ownership around the nation.