Making & Breaking the Law - 9th Edition

Chapter 1 Law and society: an introduction 5the development of the legal system through a number of democratic processes. Theseprocesses include the electoral system, the provision of representative and responsiblegovernment, and the use of the jury system.In summary, the basic features of a law are:● the statement of a particular type of behaviour (this usually takes the form of eitherprohibiting or regulating certain types of behaviour)● the provision of a sanction or remedy against anyone who violates the law● the formation of the rule by an authority recognised by the community.For example, the criminal law establishes expected behaviour by prohibiting certainactions. The criminal law is made by parliament, which is recognised by the communityas having the authority to make the law for the community as a whole. If a person doessomething that has been prohibited by the criminal law, they will be punished by eitherhaving their liberty restricted or a fine imposed.Sport—defining legal and non-legal rulesSome actions are only permitted within legally recognised games. For instance, the sportof boxing is strictly regulated and recognised organisations control boxing events. In aboxing match, punches are thrown with the intention of physical contact that may resultin harm. Outside the boxing ring these same actions would come under legal rules, inparticular the law of assault.A boxer who agrees to take part in a legally recognised boxing match consentsto actions that would otherwise be considered assault—provided that the match isconducted according to the rules of the sport of boxing. However, if a boxer wereto continue the fight after the end of the match, then that person would be actingoutside the rules of the sport. In this case, the boxer may be subject to the legalrules of assault.There can sometimes be a fine line between legal and non-legal rules. Forinstance, the AFL requires all players to agree to abide by the AFL rules (non-legalrules). However, the agreements made by professional players to play AFL football arecontractual agreements (legal rules). Sometimes conflicts may arise between how theAFL applies rules and the principles of natural justice. In such cases, the courts may beasked to review decisions made by the AFL Tribunal.

6 Making and Breaking the LawA legal systemLegal rules differ from non-legal rules in that legal rules apply to the community asa whole. The legal system establishes procedures and institutions to make, administer,adjudicate and enforce the law in the community.In our legal system, law-making is primarily the responsibility of the CommonwealthParliament and the state parliaments. Courts (judges and magistrates) are responsible forinterpreting the meaning of the law and resolving disputes when it is claimed that the lawhas been broken (adjudicating).A variety of bodies has been established to enforce the law. For instance, the policehave the power to impose on-the-spot fines and the Department of Justice is a governmentdepartment responsible for the administration of justice. Because our legal system iscomplex, individuals may require assistance. Solicitors and barristers act as legal advisersand representatives for individuals in their dealings with the legal system.Types of lawsThe types of laws that we have in our society can be classified in a number of differentways. Whatever method we use to classify the law it is necessary to remember that, ina developed society such as ours, the law is complex and constantly changing. Newareas of law develop that may not neatly fit into existing categories. No one method ofLaws can be classifiedaccording to the sourceor the type of thebehaviour regulated.classification can cover all aspects of our law.By looking at the different ways of classifying the law we can start to appreciate thecomplexity of our legal system. The methods used to classify our laws include:● statute or common law (sources of law)● criminal or civil law (type of behaviour).The method that we choose to classify the law will reflect the purpose for which theclassification is needed. For example, in Unit 3 we look at the law-making process. For thepurpose of our study in this section we might want to classify the law according to the differentprocesses used to make the law (or sources of law). In Unit 4 we look at dispute settlementprocesses and procedures, and so may want to classify the law according to the differentprocesses used to resolve disputes. The dispute settlement processes and procedures differaccording to whether they are for criminal or civil cases (or according to type of behaviour).In some cases, a wrongful act may involve more than one area of law. It may involveboth the rights of individuals, and the relationship between the individual and the state.This is often the case in car accidents. For instance,a speeding driver who fails to stop at a red light isguilty of a criminal offence. This behaviour constitutesa danger to the community as a whole. While drivingthrough the red light the driver collides with anothercar. As a result of the collision, the second car hasbeen damaged. The rights of the owner of the secondcar have been infringed. The driver of the second carcould recover this loss through the civil law by suingthe other driver.

8 Making and Breaking the Law1.3 Types of tortsTypes of civil lawsCivil law includes both contract law and the law of torts. Contract law is concerned withlegally enforceable agreements made between individuals. Torts are concerned with thewrongful actions of one individual against another individual. Some of the different typesof torts are set out in the following table.NegligenceNuisanceDefamationTrespassWhere the actions of an individual who has failed to exercise reasonable care adversely affectanother individualWhere an individual interferes with another’s enjoyment of their rightsWhere an individual damages the good name or reputation of another through false ormisleading statementsWhere an individual physically interferes with another person, their goods or landCriminal law and civillaw are dealt with usingdifferent procedures.It is important to understand the difference between the two types of behaviour. Criminallaw and civil law are dealt with by different procedures and have different consequencesfor the individuals involved. Criminal law is enforced by the police, the courts and thedepartments of corrective services. An individual who has been charged with a criminaloffence will be prosecuted by the state and, if found guilty of an offence by a court, willbe sanctioned. A sanction may include a fine, a community-based order or imprisonment.Civil law is concerned with the enforcement of an individual’s rights. In civil law, theindividual affected by a breach of their legal rights is responsible for taking the case tocourt. If their case is successful, the court may award monetary compensation or issue acourt order to stop any further infringement.We look in more detail at the difference between criminal and civil law in Unit 4.Tragic drowning: criminal and civilimplicationsON FATHER’S Day 2005 three boys died when RobertFarquharson drove the family car into a farm dam after anaccess visit. He claimed he lost control of the car when hesuffered a coughing fit and blacked out. The deaths of theboys had both criminal and civil implications.Farquharson was charged with murder. The prosecutioncase was that he deliberately drove his car into the dam andleft the boys to drown. In 2007 a jury found Farquharsonguilty of the murder of his three sons. He was sentenced tolife in prison. In April 2008 Farquharson lodged an appealagainst his convictions and sentence.In 2008 Mrs Cindy Gambino sued Farquharson, her formerhusband. She claimed that the deaths of her three childrenwere caused by his negligence in the driving, managementand control of his motor vehicle. She claimed that as a resultshe had suffered post-traumatic stress disorder and depression.Farquharson admitted negligence but argued that his actionsdid not cause Mrs Gambino’s injuries.Victorian Supreme Court judge Philip Cummins orderedFarquharson to pay the mother of his children $225 000 forgrief and suffering.In December 2009 the Court of Appeal quashedFarquharson’s conviction and set aside his life sentence. Hewas granted a retrial and was found guilty again in 2010.Robert Farquharson

Chapter 1 Law and society: an introduction 9Why do we need laws?The main function of law is to enable individuals to live peacefully together. Lawsallow individuals to work cooperatively towards meeting their needs for the benefit ofall members of the community. This is a concept known as social cohesion. The term‘cohesion’ means the act of uniting or sticking together. Laws aim to ‘unite’ or ‘stick’society together.To achieve social cohesion the law needs to be recognised or acknowledged by thecommunity. The community will recognise the authority of the law if it:● sets out the expected behaviour of individual members● provides a means by which disputes can be resolved● reflects the values of the majority of the community● provides a means for changing the law.We need laws toestablish expectedbehaviour.We need laws to resolvedisputes.We need laws that reflectthe shared values of thecommunity.Establishing expected behaviourThe law helps keep society together by prohibiting conduct that is disruptive. Prohibitionsinclude laws about aggressive behaviour, the use of property and the use of roads. Thesematters are all regulated by the criminal law. To ensure that members of society abide byits rules, society imposes punishments (sanctions) on those who violate them. We look atthis in more detail in chapter 10.The rights of individuals are contained in the civil law. For example, the tort ofnegligence protects the rights of individuals to be free from harm that may result from thecareless actions of another. Where the rights of individuals have been violated, the lawprovides for a range of remedies to restore the individual to their original position.There is an array of remedies, because monetary compensation is not appropriatein all circumstances. For example, the law provides for court injunctions or orders thatrequire an individual to behave in a prescribed manner. Remedies provided in civil casesare examined in more detail in chapter 11.By stating the rights and responsibilities of individuals and society, the law makesexplicit the boundaries of behaviour. Therefore, each individual can know what isexpected and how to plan their interactions with other members of society.Resolving disputesThe law is necessary to provide for peaceful dispute resolution. Life in society wouldbe impossible if each individual was free to resolve a dispute by any method. The lawestablishes a range of dispute settlement bodies to deal with the variety of disputes thatmay arise in the community. These dispute settlement bodies include courts and tribunals.We will look at the role and function of courts and tribunals in chapter 6.The law also provides methods that can be used to resolve disputes. They include:● methods of dispute resolution (chapter 7)● the adversary trial (chapter 9)● the jury system (chapter 12).Reflecting valuesOne common element in all legal systems is the reliance of law on a set of values that areshared by that society. These values are a collection of beliefs and attitudes about whatis right or good. The values that are shared by the community form the basis of what isright or good in law.Throughout the world, religious beliefs have strongly influenced the developmentof law. Australia is a diverse community consisting of numerous religious, cultural andethnic groups that uphold a variety of values. However, there are some values that arecommon. For example, the value that we place on human life is upheld by the majorityof people in our community. The law upholds this value by making it an offence to takeanother person’s life (the offence of murder). The law also recognises that there are

10 Making and Breaking the Lawsome circumstances in which it may be excusable to take another’s life. The right of eachindividual to use reasonable force for self-protection is recognised by the laws relating toself-defence.It is difficult for the law to preserve the values of all members of society. In order forus to live together as a group, it is necessary for the law to uphold the values that arepredominant. For example, the rules on marriage may vary from one religion to another.However, the law recognises the prevailing value that marriage should be the union ofone man and one woman. In Australia, only monogamous, heterosexual marriages arelegally binding. This does not necessarily reflect the values of all groups and individualsin society. Same-sex couples may strongly disagree with the idea that marriage can existonly between one man and one woman.The law reflects a variety of values:● the way in which members of society relate to others (social values)● the fundamental beliefs about right and wrong (moral values)● the rights of individuals in the economic system (economic values)● the rights of individuals in the organisation of our legal system (political values).How a country interprets these values will vary according to historical, religious andcultural influences.Aboriginal law and valuesABORIGINAL law forms a part of the complex rules thatgovern the rights and responsibilities of Indigenous peoplein Australia. The Aboriginal system of law—customaryor traditional law—contains some sophisticated elementsthat reflect the cultural tradition of Indigenous people. Forinstance, this system allows informality in dispute settlement,conciliation procedures and participation in the administrationof justice, and stresses the rehabilitation of offenders.Such dispute settlement methods are still evolving in moredeveloped legal systems. Although European contact haslessened their influence in many regions, some Indigenousgroups in isolated areas still follow the traditional way of life.Aboriginal law is both sacred and secular. Sacred lawis considered the more important and involves many secretrites. Sacred law is linked to the Aboriginal concept of theDreamtime, and many aspects of this have not been revealedto non-Aboriginal people. Secular law contains the body ofrules with which members of an Indigenous community areexpected to comply.Traditional Indigenous groups have their lawmen who areresponsible for the interpretation of the sacred law. Sacredlaw also imposes additional sanctions in matters such as theft,assault and adultery. Substantial authority rests with the eldersof the community, and leadership is vested with a council ofelders. The Pitjantjatjara are one such community, consistingof about 4000 people spread over the Northern Territory,Western Australia and South Australia. They believe that thelaw has always existed and will exist until the end of time.The strength of the Aboriginal legal system can be seen bythe fact that it has bound a people together and maintained astable lifestyle for more than 40 000 years.

Chapter 1 Law and society: an introduction 13The price of justiceM & B ReviewHow much does it cost to prosecute shoplifters? Consider the case of a 16-year-old youth whowas on probation when he stole a pack of chocolates worth $1.79.Police investigated the case, prosecution and defence lawyers were employed, youth workerswere appointed and court time set aside to hear the case. The estimated cost to taxpayers—up to$10 000.Does the prosecution of this case justify the costs? Experts claim that we must addressjuvenile crime before it escalates into more serious offences when these children become adults.A successful prosecution results in a sanction being imposed to rehabilitate the offender.31 February 2015M & B Review 31/2/15SourceCostsIssueProsecution of a shoplifter wasestimated to cost up to $10 000SummaryIs it too costly to take cases to court?Legal question●●●●Make a start on your issues folio with the following exercise.Collect two articles illustrating aspects of criminal law.Collect two articles illustrating aspects of civil law.Collect two articles discussing proposed changes to statute law.Collect one article discussing an aspect of judge-made law.Annotate your articles—as illustrated in the example above.