Chapter 4: What the law deals with

Law can be divided up in a number of ways. It can be divided into ‘statute law’ and ‘common law’, and can also be divided into ‘public law’ and ‘private law’.

Under this system, public law deals with relations between individuals and the state, and private law deals with relations between individuals (meaning individual people or organisations).

Another way to think about the law and what it does is to look at what sort of behaviour or relationships it deals with. So, we can divide law up into:

  • criminal law;
  • civil law; and
  • administrative law.

Whether a situation involves criminal, civil or administrative law will affect who is involved in dealing with the situation and what the result is of that law being broken. It also affects how and where cases are dealt with in the legal system. For the differences in court process, see this table.

Criminal law

The term ‘crime’ is usually used to refer to acts that involve violence against a person; theft or property damage, but also includes actions such as parking where you are not allowed to park, and ‘white-collar’ crimes such as embezzling, insider trading, etc. Offences are usually divided into summary offences (less serious offences), which can be decided by a magistrate at a local court, and indictable offences (more serious crimes), which are decided by a judge, or judge and jury in the District or Supreme Courts. Usually, in order to decide that a crime has been committed the court has to decide that the person committed an act (‘actus reus’) and intended to commit the act knowing it was wrong (‘mens rea’). However, for some crimes (such as naming a child involved in criminal proceedings) that are ‘strict liability’ crimes, there is no requirement that the person intended to do the act.

Criminal law deals with the regulation of conduct that the government, on behalf of society, considers is against the interests of the community. Because of this, criminal cases always involve the Crown (government) bringing the case to a court to be decided. This is called ‘prosecuting’ the case. Criminal cases are dealt with in courts, rather than in tribunals.

The importance to society of people and organisations obeying criminal laws is also reflected in the fact that government takes responsibility for policing those laws through setting up a permanent police force as part of government (at both the state and federal levels).

The outcome of a criminal case is a decision that the person or organisation that is accused of breaking the law is either ‘guilty’ or ‘not guilty’. If the decision is that they are guilty, this means they have been ‘convicted’ of the criminal offence and the court can (and almost always will) order that the person or organisation be punished by having a ‘penalty’ imposed. The most common penalties ordered by courts when a person or organisation is found guilty of a criminal offence are orders to:

  • pay an amount of money to the government (a ‘fine’); or
  • spend a period of time in gaol (‘imprisonment’) usually full-time but sometimes on a part-time basis, such as weekends only (‘periodic detention’); or
  • do unpaid work that is needed in the community (‘community service’).

A person cannot be found guilty of a crime unless the decision maker is satisfied that the prosecutor has proved ‘beyond reasonable doubt’ that the person committed the crime. This means that the prosecutor bears the ‘burden of proof’ or responsibility for proving their case to the required standard. The standard of proof in criminal cases, ‘beyond reasonable doubt’, is a higher standard of proof than in civil cases.

Hot Tip

The term ‘illegal’ is generally used for behaviour that is contrary to criminal law. An action is described as ‘unlawful’ if it is a breach of civil law.

Civil law

Civil law deals with the regulation of private conduct between individuals, organisations and government agencies. Unlike criminal law, most civil laws are found in common law rather than statute law.

Because civil law deals with relationships, it often involves contracts, which are agreements between participants in society that set out what the legal relationship will be between those participants.[1] This can be in everyday dealings, such as entering into an agreement by taking a ticket in a car park, or clicking on ‘I agree’ to internet terms and conditions.

Civil law is about the relationship between participants in society, so civil law cases are disputes between participants about something to do with their dealings with each other. A person or organisation who believes that another person or organisation has acted in breach of civil law in their dealings can bring a civil claim to court, this is often referred to as ‘suing for damages’, for example, for a personal injury. A person or organisation that makes a civil law claim is called the ‘plaintiff’. The person or organisation against whom they make the claim is called the ‘respondent’.

Civil disputes can be dealt with in courts, or in specialist tribunals set up to deal with specific civil law matters. An example of a tribunal that deals with civil disputes is the NSW Civil and Administrative Tribunal.

The outcome of a civil case is a decision on whether or not the plaintiff has proved ‘on the balance of probabilities’ that the other party failed to fulfil (or ‘breached’) their civil law obligations to the plaintiff. If this has been proved, then the court or tribunal can make an order for damages. This usually means ordering that the respondent pay an amount of money to the plaintiff that reflects the loss suffered by the plaintiff because of the respondent’s breach of the plaintiff’s rights.

A significant area of civil law is family law. As marriage and divorce are areas covered by section 51 of the Constitution, family law is dealt with by federal courts: the Family Court of Australia and the Federal Circuit Court of Australia.

Hot Tip

If a criminal law has been broken, the court can make the person who broke the law ‘pay a penalty’. This is paid (or served if it is a sentence of time in prison) to the state, rather than any person who was affected by the criminal act.

If a civil law or right is broken, the court or tribunal can make the person ‘remedy’ the loss to a person affected by the law being broken. This is usually done by the court deciding on a dollar amount that reflects the loss (‘damages’) and ordering that amount be paid by the person who broke the law to the person affected.

Administrative law

Administrative law deals with the conduct of the executive branch of government in relation to non-government participants in society. Administrative law imposes obligations on the executive branch of government in its dealings with members of the society and in its exercise of executive power.

Administrative law provides for specific ways in which people affected by government action can get information about and challenge that action. So, for example, individuals can make an application under freedom of information law to get access to government records. This may be records that the government holds about the applicant, or records about government actions or decisions that affect the applicant, or it can be records that there is a public interest in the government making available.

There are laws dealing with freedom of information in all states and in the ACT as well as federally. These Acts are generally called the Freedom of Information Act. The Federal Act is the Freedom of Information Act 1982 (Cth) and it was substantially amended by the Freedom of Information Amendment (Reform) Act 2010, to make it easier and cheaper for people to access government information. The Australian Information Commissioner Act 2010 established the new Office of the Australian Information Commissioner which has freedom of information functions, privacy functions and government information policy functions.

The NSW Act is the Government Information (Public Access) Act 2009 (NSW). The NSW Act applies not only to information held by government departments, but also to information held by government agencies and by local government. All government departments, agencies and local government have a process for making an application under freedom of information law. While there is often an application fee, this fee can be waived in certain circumstances, such as if the person making the application can’t afford to pay the fee.

Administrative law cases are often dealt with by specialist tribunals, but the decisions can be reviewed by courts.

Hot Tip

The executive is the branch of government that has responsibility for putting the law into effect – for more detail see The Executive.

1. Not all contracts are written down. A contract can be made simply by one person speaking to another person and offering to pay that person to do some work and the other person saying ‘yes’ to that offer.