INTRODUCTION TO LAW Overview

1. INTRODUCTION TO LAWOverview

2. Introduction to Law • The three powers of government are • The Legislation (also called Parliament) which makes the law • The Administration also called the Executive) which carries out the law • The Judiciary (also called the Courts) which enforces the law • The workings of Government have a long, complex history. At the time that the US gained its independence from Britain in 1787, it chose as the model for its government the post 1688 British system of separation of the Powers LEGISLATION ADMINISTRATION JUDICIARY

3. Introduction to Law • The US Construction imposes strict separation of the 3 Powers of government. • The President is Head of the Administration, but is not a member of the Legislation • The President is the Chief of the armed forces, but the Legislation pays the armed forces • The President appoints the Chief Justice of the US Supreme Court but one arm of the Legislation (the Senate) must approve the appointment • When the US was choosing this model, Britain had begun to move away from the separation of the legislation and administrative powers • this led to the Cabinet government and the emergence of the office of Prime Minister

4. Introduction to Law • The Prime Minister and other Ministers were members of the Legislature, but were also Heads of Departments of the Administration • This became known as the “Westminster System”of government • Advantage is that Ministers are personally responsible to Parliament for their administration • Disadvantage • The possibility of autocratic government by a powerful Prime Minister (or Premier) dominating both Cabinet and his/her party in Parliament • Government by the Public Service, when senior officials influence Ministers to introduce laws which suit the interest of the Administration rather than the interests of the people

5. Introduction to Law • The Westminster System operates in the Australian States • The Australian Federal system is a mixture of the Westminster and US models • Like the Westminster system, there is no separation of the Legislation and the Administration • Like the US, there is a strict separation of the Judiciary, imposed in a written Constitution • The UK, the Commonwealth of Australia and the State of Western Australia all have a two-system of Parliament • The nature and powers of the various Houses of Review differ considerably. (See Handout 3)

6. Introduction to Law • Legislation is introduced into the Parliament in the form of a Bill. An Act (or Statute) is the name given to legislation once it has been passed by both Houses of Parliament. The Act requires the Royal Assent (from the Queen, Governor General or Governor (Queen’s representatives) depending on which Parliament is passing the law, in order for the bill to become law.

7. Introduction to Law • Activity - Example of a Statute (Act) (See Handout 4) - Note the following • The number of the Act (number and year) • The long title - may be used to find the scope and intent of the statute • Date assented to - when the statute became operative • The enacting words (“Be it enacted” etc) The words contained in the enacting words do not affect the meaning of the Act. • The short title - the name by which the Act is known • Sections of the Statute - the body of the Statute • Schedule - there may be certain matters which may be more conveniently set out at the end of the Statute, than within the body of the statute

8. Introduction to Law • Statutes can be located in a print form from a publisher of government materials or in a library that subscribes to legislation • Alternatively, legislation is often available through the internet. Western Australian legislation on occupational safety and health is available at the Worksafe Western Australian internet site http://www.safetyline.gov.wa.au • An important judicial function is the interpretation of statutes • Statutes are drafted (ie expressed in English!) by lawyers called Parliamentary Draftsmen, so as to reflect the will of the Parliament

9. Introduction to Law • Since statutes are general rules designed to cover a whole range of activities, it is inevitable that situations arise when the exact meaning will fail to be determined • The task of the judges in interpreting statutes is a significant function • There are principles governing the judicial interpretation of legislation, which guide the judiciary in this function

10. Introduction to Law • The structure of the Australian Government (also called the Commonwealth Government) • Three tiers of government administration (also called the executive) • FEDERAL - Governor General (Queen’s representative), Prime Minister and Federal Ministers of the Crown, Federal Government Departments e.g.. Defence, Foreign Affairs • STATE - Governor (Queen’s representative), State Premier and State Ministers of the Crown, State Ministers of the Crown, State Government Departments e.g. Agriculture, Police • LOCAL - (Cities, Towns, Shires) Lord Mayor, Mayors, Shire Presidents, Local Government Departments e.g.. Health, Roads

11. Introduction to Law • FEDERAL GOVERNMENT • The formal executive power of the Commonwealth resides in the Crown and is exercised by the Governor General as the Queen’s representative • The Governor General is advised by the Federal Executive, consisting of the Prime Minister and several other Ministers, who are heads of the various Federal Government Departments • The Constitution of Australia does not require a Cabinet or a Prime Minister. Their existence is historical, based on British convention

12. Introduction to Law • The Federal Central Administration are Government Departments established since Federation • Are under the control of Ministers • Each department also has a permanent Head, who is a member of the Commonwealth Public Service • Federal Statutory Corporation • Large number, variously called commissions (e.g. Occupational Health, Safety and Welfare Commission), corporation, boards, authorities, etc. • Carry out a wide variety of semi-government functions and are subject to overall control by Ministers

13. Introduction to Law • W.A GOVERNMENT • The formal executive power of the State of Western Australia resides in the Crown and is exercised by the State Governor as the Queen’s representative • The State Governor is advised by the State Executive Council, consisting of the Premier and several other State Ministers • State Cabinet consists of the Premier and other Ministers who are heads of various State Government Departments • WA CENTRAL ADMINISTRATION is a permanent public service operation, similar to that for the Federal Government • some examples of State Government Departments include Agriculture, Education, Community Welfare and Worksafe Western Australia

14. Introduction to Law • WA Local Government - The Local Government Act 1961 (WA) provides for the establishment of Local Authorities • These differ in name generally according to the number of persons in the particular district E.g. Towns, Shires, Cities • Administered by a Council, consisting of elected Chairperson • Also a permanent administrative head called a “Clerk” • Local authorities deal with roads, drainage, public health, parks and dog control

15. Introduction to Law • There are generally only 2 systems of law recognized internationally • Roman (civil) law • English (common) law • The system in force in Australia is Common Law, which occurs in most of the English-speaking world, including almost all of the USA, Hong Kong, India, Malaysia and Singapore • Mainland Europe and its former colonies are basically Civil Law countries • Some countries such as Scotland and South Africa were influenced by both England and Europe and have developed mixed systems

16. Introduction to Law • Common Law and Statutory Law • The distinction between these is that common law is judge made law arising from cases • Statutory law is written law resulting from Acts of Parliament and delegated legislation • Common law is further divided into Common Law and Equity • Common law of England was the basis for law in Australia. It is still in force, except where Australian courts and statutes have altered it

17. Introduction to Law • The practice of judge-made law is to decide the particular set of facts before it • That decision then becomes the general rule (usually referred to as a precedent), to be applied to similar facts in the future • The doctrine of precedent has tended to result in rigidity, although the High Court in Australia can overrule its previous decisions • State Supreme Court are bound by decisions of the Australian High Courts (although they may be influenced by them).

18. Introduction to Law • Statutory law encompasses Acts of Parliament and also Regulations • It may reproduce part of or amend or replace the common law or a previous Act of Parliament or Regulation • E.g. at common law there was no compulsory attendance at school but s.13 of the Education Act has replaced the common law with a requirement that parents must cause children of school age to attend school

19. Introduction to Law - Statutory Law • Where a statute completely replaces the common law in a particular area, that statute is called a Code (codifying statute). An example is the Criminal Code of Western Australia • This should not be confused with the use of the word ‘Code’ in the Civil (Roman) System. An example in this context is a ‘Code of Practice’. • It is then not necessary to look behind the Code to see what the common law is in order to interpret the Code.

20. Introduction to Law • Civil and Criminal Jurisdiction • The Australian Legal System can be divided into two major areas • Criminal Law • Civil Law • Criminal Law deals with disputes between the State and the individual and its purpose is punishment • An example of criminal law is the Occupational Safety and Health Act 1984 WA • Civil Law deals with disputes between individuals and its purpose is compensation • Examples of civil law are worker’s compensation and negligence actions

21. Introduction to Law • The hierarchy of the Australian court system is related to the “doctrine of precedent” because decisions of “higher courts” in the hierarchy are binding on those “lower down” in the system. (See Handout 2) • Small debts division of the local court • The plaintiff to an action which is within the jurisdiction of the Local Court may elect to have the matter heard in the Small Debts Division of the Local Court where the debt claimed is less than AU$3000 • One function of the Small Debts Court is to attempt to bring about a settlement acceptable to both parties to the action

22. Introduction to Law • Legal representative is not generally permitted • Local Court - Civil actions up to AU$25 000 • District Court • Civil actions up to AU$250 000 except that death or personal injury claims arising out of the use of a motor vehicle not limited to AU$250 000. • Criminal cases where it is an indictable offence for which the maximum penalty is less than imprisonment for life

23. Introduction to Law • Supreme Court • Civil actions beyond AU$250 000 • Criminal cases where it is an indictable offence for which the maximum penalty is imprisonment for life or strict security life imprisonment • High Court • Civil actions between a person and a State • Civil actions between residents of different States • Civil actions between States • appeal Court from State Supreme Courts • Privy Council - Appeals to the Privy Council from Australian Courts are now abolished

24. Introduction to Law • Federal Court - Civil actions involving laws made by the Federal Government, which includes such matters as bankruptcy, industrial relations and trade practices • Court of Petty Sessions - Most criminal cases except the most serious cases heard before a judge and jury

25. Introduction to Law - Rules of Evidence • Justice depends on determining the truth • The truth in a particular situation may be known to only 1 or 2 people • People may be unwilling to speak the truth • What is believed to be the truth by one person may be different to what is believed by another person to be the truth • A court of law aims to establish the truth as best it can • Rules have been laid down (statutes and common law) to guide the courts’ attempts to arrive at the best • The rules of evidence attempt to strike a balance between the interests of the parties so that neither is unduly prejudiced

26. Introduction to Law -Rules of Evidence • Not all testimony carries the same weight • The character and demeanor of a witness (especially under cross-examination) provide evidence of the credibility of that witness • If the witness’ creditability is high, greater weight will be attached to his/her evidence • The task of a judge or magistrate is to decide “To what degree is the witness telling the truth?” and where evidence differs “Which witness (if any) shall I believe?”

27. Introduction to Law -Rules of Evidence • Burden of Proof • Who bears the burden of bringing evidence forward in proof of a particular matter? • Generally, the burden of proof lies on the party bringing the action, however there is a difference between civil and criminal cases. • Criminal cases - common law countries require a pearson charged with a crime to plead “guilty” or “not guilty” • A plea of “guilty” means that the accused admits he/she committed the crime and that the whole of the prosecution evidence against him/her is true

28. Introduction to Law -Rules of Evidence • A plea of “not guilty” is not denial of the charge • it is an invitation to the prosecution to prove the case, because the basic premise of common law is that a person is innocent until proven guilty beyond a reasonable doubt. • Generally, the prosecution bears the burden of proof throughout a criminal case • The exception is where the accused raises the defence of insanity . The accused then bears the burden of proving that he/she is insane • This is also the burden of proof used in prosecutions under occupational safety and health legislation

29. Introduction to Law -Rules of Evidence • Civil cases - there is no question of guilt or innocence • The Plaintiff bears the initial burden of proving that he/she has in fact got a case against the defendant • Once this has been done, the burden of proof shifts to the defendant. If the defendant produces no evidence, the plaintiff wins. • If the defendant does produce evidence, his/her task is to rebut the plaintiff’s case. So, the burden of proof may shift back and forth during the trial. • In the end, the side with the greater weight of evidence wins.

30. Introduction to Law -Rules of Evidence • Standard of Proof - to what degree must a party prove its case? There is a difference between criminal and civil cases. • Criminal Cases. The prosecution must prove the accused guilty beyond reasonable doubt. • It is a high standard of proof, but does not mean 100% proof is required. This is why “beyond reasonable doubt” is stated • Remember that three must be a reasonable doubt as to the accused’s guilt for him to be acquitted, because the accused is considered innocent until proven guilty beyond reasonable doubt

31. Introduction to Law -Rules of Evidence • Civil cases. The standard of proof is lower and is called “proof on the balance of probabilities”. • Whichever side produces the greater weight of evidence will tip the scales of justice in its favour. • It may be that even a small piece of evidence produced by one side over and above that produced by the other can win a civil case. • Opinion evidence. Evidence of the opinion of a witness on a certain matter is not generally relevant. • The exception is where special matters requiring skill or knowledge are concerned. In this situation, the court may not be as competent as an expert to form an opinion about the presented facts. These are called “expert witnesses”.

32. Introduction to Law -Rules of Evidence • Hearsay. This type of evidence is generally inadmissible. • Hearsay is the type of statement where a witness is giving evidence and states what another person has said to him/her, without that person being able to also be called as a witness • This ensures that only first-hand evidence is given in court and guards against the danger of gossip and statements made by persons not involved in the trial.

33. Introduction to Law - Referencing • Referring to legislation throughout the assignments / reports e.g. Occupational Health & Safety Act 1984 When assignments / reports are typed or prepared in word processing software, type as Occupational Safety and Health Act 1984 (use Italics) When assignments / reports are hand written, use underlining and write as Occupational Safety and Health Act 1984

34. Introduction to Law -Referencing • Abbreviating reference to legislation throughout the assignments / reports As is normal, abbreviations may be used throughout the assignments / reports. However, they may only be used once the full term has been stated and immediately followed by the abbreviation to be used e.g. The manager stated that he was aware of the requirements of the Occupational Safety and Health Act 1984 (OSH Act 1984) The term ‘OSH Act 1984’ may now be used when referring to the Act throughout the remainder of the assignment / report.

35. Introduction to Law -Referencing • Referencing in a Reference List e.g. Occupational Safety and Health Act 1984. Perth: W.A. Government Printer Mines Safety and Inspection Act 1994. Perth: W.A. Government Printer