Lecture 1 BFA601 Semester 1 2018.pptx

Common law different branches of the law common law

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COMMON LAW Different branches of the law COMMON LAW Different branches of the law
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Criminal law (1.26) may result in a penalty imposed on a wrongdoer Civil law will result in a remedy of some type Criminal law has certain presumptions and procedures. Criminal law can be composed of indictable offences or offences heard summarily Prosecution v Defendant COMMON LAW Different branches of the law COMMON LAW Different branches of the law
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Presumption of innocence Prosecution must prove ‘beyond reasonable doubt’ (unlike civil law ‘on the balance of probabilities’) Prosecution has greatest ‘burden’ of proof Note different procedures, i.e. pre trial evidence required for serious offences (committal hearing) COMMON LAW Criminal law COMMON LAW Criminal law
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Actus reus (wrongful act) Mens rea (wrongful intention) Both must be present to prove a crime, and coexisting Note the move to strict liability (no need for proof of intention) Introduction of civil liability offences: requiring proof on balance of probabilities COMMON LAW Classical elements of criminal law) COMMON LAW Classical elements of criminal law)
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Plaintiff brings the case against the defendant (under civil law) The plaintiff must prove the case on the balance of probabilities Appellant may bring an action against respondent Note the rise of class actions COMMON LAW Civil law COMMON LAW Civil law
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Primary (most important) sources of law are statute and precedent. Secondary (less important) sources of law are commentary, texts and commercial customs that explain the law. Comments made by observers may lead to a change in a precedent or statute. COMMON LAW The sources of Australian law COMMON LAW The sources of Australian law
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Laws made by parliament are called statutory law, legislation and Acts of Parliament. Statute can be created by Commonwealth and State parliament Statute can be changed by parliament as the need arises A statute is indicated by its name, date and origin. Income Tax Assessment Act 1997 (Cth)(ITAA97) STATUTE OR LEGISLATIVE LAW Introduction STATUTE OR LEGISLATIVE LAW Introduction
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An Act is then divided further into divisions, parts, sections and subsections, eg s 15-2 refers to section 15 and subsection 2 of that section An Act may contain marginal notes, diagrams, tables and examples Regulations may be listed at the end of the Act STATUTE OR LEGISLATIVE LAW Introduction cont. STATUTE OR LEGISLATIVE LAW Introduction cont.
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Only parliament can create legislation Legislation comes from public pressure, business pressure or for political reasons The legislation is drafted (by experts) A bill is introduced into either the lower or upper house (money bills must go first to the lower house) The bill is ‘read’ three times STATUTE OR LEGISLATIVE LAW Creating legislation (1.30) STATUTE OR LEGISLATIVE LAW Creating legislation (1.30)
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A bill is presented (announced) Second reading is held and it goes to committee stage
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