Public and Private Law (HSC SSCE Legal Studies): Revision Notes
Public and Private Law
Introduction to classification of law
Law can be classified in many ways. One fundamental classification separates law into two main categories: public law and private law. Understanding this distinction is essential for comprehending how the legal system operates and affects different relationships within society.
Understanding the Key Distinction
The fundamental difference between public and private law lies in the nature of the relationships they govern:
- Public law governs the relationship between individuals and the state, as well as the structure and operation of government itself
- Private law regulates relationships between individuals, companies and organisations
Public law includes criminal, administrative and constitutional law, while private law includes contract law, torts, family law and property law.
Public law
Public law deals with the powers and obligations of government and citizens. It focuses on the relationships between persons and the state. The three main areas of public law are criminal law, administrative law and constitutional law.
Criminal law
Criminal law is the body of rules under which the state punishes certain acts or omissions. Its primary function is to maintain public safety and order for the whole of society.
Why the state prosecutes crime
Why Criminal Prosecution is a State Responsibility
The state has responsibility for prosecuting crimes because an offence is considered to be against the entire community, even when only one individual is directly affected. This is because the offence damages the moral order of society—specifically, the safety of persons and property.
Criminal law in Australia
In Australia, criminal law is the responsibility of each state and territory. Common law plays a significant role in Australian jurisdictions, including NSW and the ACT. However, each state and territory also has its own legislation covering criminal behaviour.
The actions and punishments defined in these laws are the same, or very similar, across all states and territories. This consistency is necessary because it would be too confusing if what constituted a major crime in one state was not considered so in another. The criminal justice systems of the states and territories are also similar.
Key legislation
In New South Wales, the main criminal statute is the Crimes Act 1900 (NSW).
The Australian Capital Territory has both its own Crimes Act 1900 (ACT) and the Criminal Code 2002 (ACT). The Criminal Code resulted from the ACT's adoption of provisions from the Model Criminal Code—a cooperative project between the Commonwealth, state and territory governments to develop more uniform legislation.
Evolution of criminal law
Parts of these Acts have been reviewed and changed to reflect changes in society. For example, the Crimes Acts have been amended to cover:
- Automobile crimes
- Computer crimes
As with all areas of law, sections of Acts will always lag behind changes in society due to the speed of societal change and the slower procedures involved in changing laws.
Administrative law
Administrative law oversees government powers and the decisions made by government organisations. It is based on the English model. The purpose of administrative law is to ensure the accountability of administrative decisions and actions made by the government and its departments.
Limitations of administrative law
Administrative law cannot be used to challenge all government dealings. For example, it cannot challenge:
- Policy decisions
- The giving of advice
- An increase in taxes
However, the actions of departments that administer these policy decisions can be challenged under administrative law.
Practical Example: Tax Assessment Challenge
A taxpayer could challenge their tax assessment under administrative law on certain specific grounds, even though they cannot challenge the tax rate itself. This demonstrates how administrative law focuses on the process and application of decisions, not the policy decisions themselves.
Complexity in Australia
In Australia, administrative law is complicated due to the different levels of government. An individual must be aware of which government body was responsible for the action before they can challenge it.
Three methods of review
There are three ways a person can seek a review of a decision made by a government agency. The avenue taken depends on the nature of the complaint and whether it concerns a federal or state decision:
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Internal review: When a member or officer of an agency has made a decision, that decision can be reviewed by someone else within the agency. Sometimes formal mechanisms establish set procedures for seeking internal review, but if not, a person can simply request reconsideration.
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External review: This is a more formal system where the merits of a decision made by an agency are reviewed by a person or body outside the agency.
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Judicial review: Only courts can provide judicial review of administrative decisions. They can only consider whether the decision was made lawfully, fairly and rationally. The High Court has power under the Australian Constitution to provide specified remedies against unlawful action by federal government officers. Similarly, under section of the Judiciary Act 1903 (Cth), parliament gave the same jurisdiction to the Federal Court.
Administrative tribunals
Government departments provide information about appealing against decisions on their websites. In NSW and the ACT, appeals against government decisions are heard by:
- NSW Civil and Administrative Tribunal (NSW)
- ACT Civil and Administrative Tribunal (ACT)
Constitutional law
Constitutional law is the branch of public law that focuses on the rules governing the executive, legislative and judicial functions of government.
Division of legislative power
In Australia, legislative power is divided between the Commonwealth and the states. The Australian Constitution has given the Commonwealth Parliament power to make laws with respect to particular topics. It also specifies that when there are inconsistencies between state and Commonwealth legislation, the Commonwealth law will prevail.
Role of the High Court
The High Court's Constitutional Role
If a law violates the rules contained in the Australian Constitution, the case must go to the High Court of Australia. The High Court has the role of deciding cases of special federal significance, such as challenges to the constitutional validity of laws.
High Court procedures
Procedures in the High Court are similar to those of other courts in that they are very formal and both sides argue their cases, usually represented by highly respected barristers. However, they differ in the following ways:
- Cases are heard by one or more judges (called Justices). Cases involving interpretation of the Constitution and those of great public importance are heard by all seven Justices.
- Decisions are not given at the end of the hearing; they are only delivered after much deliberation.
- Each Justice makes an independent decision on cases. When a decision is not unanimous, the majority decision will prevail.
- High Court decisions are binding on all courts in Australia.
Case study: Roach v Electoral Commissioner [2007] HCA 43
Case Study: Roach v Electoral Commissioner [2007] HCA 43
This case challenged the constitutionality of a statute. Prior to amendment of the Commonwealth Electoral Act 1918 (Cth) in 2006, prisoners serving a sentence of less than three years were entitled to vote in elections. The 2006 amendments removed the right to vote of any prisoner serving a sentence.
Plaintiff: Vickie Lee Roach, a serving prisoner, took the case to the High Court on the ground that the amended Act was unconstitutional. Her legal team argued that the new law breached her implied constitutional freedoms of political participation and political communication.
Outcome: After hearing the case, the majority of the court found the amended law to be invalid, but accepted the validity of the previous law, which banned prisoners from voting if they were serving a term of three years or more.
Private law
Private law regulates relationships between persons, companies and organisations. Rights are protected by both statute and common law. When seeking to bring court action against an individual for infringement of one's private rights, it must be in a court exercising civil jurisdiction, and the action is known as a civil proceeding.
Definition: Civil Jurisdiction
Civil jurisdiction is the power of a court to hear matters involving disputes between private individuals and to award civil remedies.
Three major areas of civil law are contract law, tort law and property law.
Contract law
A contract is an agreement, or promise, between two or more parties that is recognised by law. Contract law is concerned with the recognition of this agreement and the actions taken to enforce it.
Breach of contract
When one of the parties to a contract believes that all or part of the contract has been breached, they can bring a legal action in a civil court.
Remedies available
Damages are the most common remedy available for breach of contract.
Damages are monetary compensation for harm or loss suffered.
Purpose of Damages
Damages are viewed as a substitute for performance of the contract—that is, for the other party doing what they agreed to do by signing the contract. Thus, they are designed to put the plaintiff (the person who initiates a civil action) in the position they would have been in if the contract had been performed properly. The amount of compensatory damages is intended simply to provide the plaintiff with the benefits they would have had if the defendant had kept the agreement, not to punish the defendant.
The plaintiff may also seek one of the following remedies:
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An injunction: This is a court order requiring an individual or organisation to perform, or (more commonly) not to perform, a particular action. For example, ordering the defendant to cease the conduct breaching the contract. In some cases, an injunction may require a party to do something—for example, requiring a telephone customer to remove wiring they installed that was not authorised by the telephone company.
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Specific performance: This is an order requiring the defendant to perform the acts that the contract obliged them to perform. It will only be ordered if the amount of damages provides insufficient compensation.
Court procedures
In each instance, civil court case procedures are followed, where the offended party must argue that a breach of contract has occurred. The level of court where the case is heard depends on the level of damages sought.
Tort law
Torts are 'civil wrongs'. The word 'tort' comes from the French word meaning 'wrong'. Tort cases deal with situations in which someone has done something to interfere with the rights of someone else. Another way of describing it is that a tort occurs when someone breaches or fails to fulfill a duty that they owe to someone.
Distinction from contract law
Critical Distinction: Tort vs Contract Law
Breach of contract is also a civil wrong, but the difference between tort and contract is significant:
- With contracts, there is already a legal relationship between the parties at the time of the wrong
- With torts, there is no legal relationship prior to the wrong
This timing of the legal relationship is the fundamental distinguishing feature.
Purpose of tort law
The law of torts tries to restore the plaintiff to the position they were in before the wrong was committed. For example, someone slipping on the floor of a supermarket might sue the supermarket for medical costs.
Taking legal action
All torts entitle the alleged victim to take legal action against the alleged perpetrator in a civil court and claim compensation. However, court action can be expensive in terms of both time and money, so it is important that plaintiffs consider this when deciding whether the wrongdoing is worth bringing to court.
Types of torts
There are many different types of torts, all of which are regulated by statute as well as common law. They arise from different types of activity and include:
- Negligence
- Nuisance (public and private)
- Trespass to land
- False imprisonment
- Defamation
Case study: Donoghue v Stevenson (1932) AC 562
Case Study: Donoghue v Stevenson (1932) AC 562
This landmark case established the modern tort of negligence and clearly shows the difference between tort law and contract law.
Facts: May Donoghue's friend bought her some ginger beer in a dark glass bottle, which prevented Mrs Donoghue from seeing the contents. Some ginger beer was poured into a glass for her, which she drank. When the rest was poured into the glass, a decomposing snail came out of the bottle. This made Mrs Donoghue feel quite ill, and later she suffered from severe gastroenteritis. She sued David Stevenson, the manufacturer of the ginger beer.
Mrs Donoghue alleged that Stevenson had failed in his duty of care to provide:
- A system of working his business that would prevent snails from getting into ginger beer bottles
- An efficient system of inspection of the bottles before they were sold to consumers, including clear bottles that would make inspection easier
Legal Issue: As May Donoghue did not actually buy the ginger beer herself, she had no contractual relationship with the manufacturer. Under previous law, she would not have been able to sue.
Decision: The court held that a manufacturer is under a legal duty to the consumer to take reasonable care that the article will not cause injury to health.
Significance: This case became a landmark decision and formed the basis of the tort of negligence worldwide, not only because of the judgment relating to non-contractual duty of care, but also because of Lord Atkin's 'neighbour principle':
"[T]here must be, and is, some general conception of relations giving rise to a duty of care... The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question."
This principle established that a duty of care extends to anyone who might reasonably be affected by one's actions, even without a contractual relationship.
Property law
Property law is a wide area of law that governs relations involving things and interests that can be owned and that have commercial value.
What property law covers
Property law includes:
- Objects capable of being possessed physically
- Less tangible interests such as shares in a company
- Products of creative effort, including text, images, designs, inventions, computer programs and other intangible objects
These creative products are protected by statute and common law governing intellectual property.
Intellectual property is intangible property that has commercial value and can be protected by law, such as text, images, designs, inventions and computer programs.
Real property vs personal property
Important Distinction in Property Law
One of the most important distinctions in property law is between:
- Real property: The actual land and anything attached to that land
- Personal property: Everything else
Property rights
Property rights are legal rights to possess, use or benefit from something. A violation of such rights often involves breaking the terms of a contract.
Legal action for breaches
Legal action for breaches of property law can take place in either criminal court or civil court, depending on the offending action.
Exam guidance
When answering questions about public and private law:
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Analyse: Break down the relationship involved (state-individual = public; individual-individual = private). Identify which specific area of law applies and explain why.
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Evaluate: Consider the effectiveness of the classification system. Assess whether remedies available are appropriate for the type of wrong committed.
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Assess: Make judgments about how well the law serves its purpose. For example, does criminal law effectively maintain public order? Do tort remedies adequately restore victims?
Key Technique
Always distinguish between the parties involved and the nature of the relationship. This is fundamental to correctly classifying a legal issue as public or private law.
Remember!
Key Points to Remember
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Public law governs relationships between individuals and the state (criminal, administrative, constitutional law), while private law governs relationships between individuals (contract, tort, property law).
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Criminal law is the state's responsibility because offences are seen as damaging society's moral order, not just harming individual victims.
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Administrative law ensures government accountability through three review mechanisms: internal review, external review and judicial review (only courts can conduct judicial review).
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The High Court decides constitutional validity cases. Constitutional cases are heard by all seven Justices, each making an independent decision, with the majority decision prevailing.
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In contract law, there is already a legal relationship before the breach occurs. In tort law, there is no prior legal relationship—the tort creates the legal issue.
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Roach v Electoral Commissioner established limits on parliament's power to restrict voting rights of prisoners based on implied constitutional freedoms.
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Donoghue v Stevenson established the modern tort of negligence and the 'neighbour principle'—you must take reasonable care to avoid harming people who are closely and directly affected by your actions.
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Contract remedies include: damages (compensation), injunction (order to stop/do something), and specific performance (order to fulfill the contract).
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Types of torts: negligence, nuisance, trespass to land, false imprisonment, and defamation.