M3 - Learner Manual

2.8. Types of Law: Public and Private Law

Law can be divided up in a number of ways. We have already seen that we have ‘statute law’ and ‘common law’. We can also divide it into:

• Public law; and

• Private law

• constitutional law

• administrative law

• international law

• taxation law

• criminal law

• industrial law

• contract law

• the law of torts

• property law

• succession and family law

• preservation of natural heritage

• the interaction between the environment and economy

• pollution caused by industry and individuals

• planning and development control of governments and government agencies

• use of resources

Reforms have been introduced in all states which allow a new trial to be ordered where there is compelling new evidence that a person previously acquitted of a serious crime was in fact guilty. The new laws apply in cases such as where there is fresh and compelling DNA evidence, where the person acquitted subsequently admits to the crime, or where it becomes clear that key witnesses have given false evidence.

Under this system, public law deals with relations between individuals and the state. For example: A member of the public who challenges the government in relation to a right to vote.

Private law deals with relations between individuals (meaning individual people or organisations). For example: a contract between a business for the supply of services or the sale of a residential home between two families.

 

Areas of law classified as public include:

 

Areas of law classified as private/civil include:

 

Note: Broadly speaking, civil law is all law that is not criminal law. Administrative law is typically classified under Public law but there is some opinion that it is Private law.

 

Taxation law

The right to levy taxes against its citizens is regarded as one of the basic political powers of an independent state. Taxation is concerned with the interrelationship of the citizen and the State.

 

Administrative law

This area of law deals with regulation of relationships between the citizen and public officials, especially the bureaucracy.

Administrative law provides for specific ways in which people affected by government action can get information about and challenge that action. 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.

The Commonwealth, States and the ACT have laws dealing with freedom of information.  These Acts are all called the Freedom of Information Acts. The Federal Act is the Freedom of Information Act 1982 (Cth).  The NSW Act is the Freedom of Information Act 1989 (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 usually 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.

 

International law

International law is an area of public law because it involves interaction between the principles of different legal systems or between the citizens of different legal systems.  These can only be settled at the public level of the legal system.

 

Environmental law

Environmental law is primarily public law in that it is, for the most part, a regulatory regime with respect to a number of issues such as those relating to:

It also includes an element of private law in that a number of common law actions, such as nuisance, may be an environmental concern.

Environment Protection Agencies exist at the federal and state level.

 

Commercial law

Commercial law is also known as business law which covers also corporate law. It is a body of law that governs business and commercial transactions. It is often considered to be a branch of civil law and deals with issues of both private law and public law.

Commercial law includes regulation of corporate contracts, hiring practices, and the manufacture and sales of consumer goods.

 

Criminal law

A crime, or offence, is an action that is against criminal laws that reflect society’s expectations of personal conduct, such as stealing, assault, fraud, failing to lodge tax returns, and polluting.

The government has the role of prosecuting or enforcing the criminal law against a person or company, usually through the police, the Director of Public Prosecutions or some other government body, such as the NSW Environmental Protection Authority.

A person who is being prosecuted in criminal law is called the defendant or the accused.

Offences can be divided into:

1.     Indictable – offences which are serious and normally heard before a judge, or judge and jury in the District or Supreme Courts.

2.     Summary – offences which are less serious and be decided by a Magistrate or local court.

Usually in order to decide that a crime has been committed, the court has to decide that the person has committed an act (‘actus reus’) and intended to commit the act knowing that it was wrong (‘mens rea’). However, for some crimes, there is no requirement that the person intended to do the act. These are known as ‘strict liability’ crimes.

The accused is innocent until proven guilty by a court. This is known as the ‘presumption of innocence’, so in the media the accused is referred to the alleged offender.

In criminal law, the burden of proof (or onus) of proof is on the prosecution. This means that the onus on proving guilt rests with the prosecution. 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.

The defendant or accused does not have to say anything – right to silence. That is, the defendant cannot be compelled to give evidence. No conclusion can be drawn from the silence of the accused, although the defendant can be compelled to give their name and address to the police officer when arrested.

Until relatively recently an accused could not be tried for the same offence twice - this principle is referred to as double jeopardy - however this is no longer the case.

Reforms have been introduced in all states which allow a new trial to be ordered where there is compelling new evidence that a person previously acquitted of a serious crime was in fact guilty. The new laws apply in cases such as where there is fresh and compelling DNA evidence, where the person acquitted subsequently admits to the crime, or where it becomes clear that key witnesses have given false evidence.

While the above legal principles apply to all people, some rules for certain Indigenous people have been developed to apply to criminal investigation by the police. 

The most common penalties ordered by courts when a person or organisation is found to be guilty of a criminal offence are orders to:

• Pay an amount of money to the government (e.g. a fine); or
• Spend a period of time in prison; or
• Do unpaid work that is needed in the community.

 

Civil law

Civil law deals with the regulation of private conduct between individuals, organisation and government agencies. Everyday dealings such as entering into an agreement by taking a ticket in a carpark, or clicking on “I agree” to internet terms and conditions.

Unlike criminal law, most civil laws are found in common law rather than statute law.

Most civil law cases deal with individuals or companies, often for doing something that is alleged to be unfair, harmful, or against an agreement.

A person bringing a case is called a plaintiff or, sometimes, an applicant or complainant. A person against whom an action is taken is called a defendant or respondent.

The standard of proof to which a person must prove their allegations is ‘on the balance of probabilities’, meaning it must be proved that something is more likely than not to have happened.

In a civil case, the plaintiff or applicant can seek an order for damages or compensation from the defendant, or an order that some conduct of the defendant be required, stopped, or altered. For example, an injunction to prevent the defendant from selling a house.

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 Consumer, Trader and Tenancy Tribunal.

 

Contract law

Contract law encompasses any laws or regulations directed toward enforcing certain promises. In Australia contract law is primarily regulated by the 'common law', but increasingly statutes are supplementing the common law of contract - particularly in relation to consumer protection.

 

Family law

The Australian family law system is made up of a number of different elements with different areas of responsibility. It is much broader than the courts. It also embraces the many service providers and individuals who help families to resolve legal, financial and emotional problems and is centred around family members themselves.

As well as the Family Courts of Australia and Western Australia, the Federal Magistrates Court and State Magistrates courts, they include Centrelink, the Child Support Agency and other government agencies at national and State and local levels, community based organisations, private practitioners, advocacy groups and volunteers.

The Australian Government Attorney-General's Department administers policy regarding family law through the Family Law Branch and Marriage and Inter-country Adoption Branches. This Branch provides information on specific aspects of the family.