Law in Context

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Being the victim of a crime can be highly traumatic. Some argue that the criminal justice system can make the victim re-live that trauma all over again.

In this episode we look at how, historically, victims have moved away from being parties in a criminal case, to mere witnesses. This process of sidelining victim may be a necessary consequence of giving the State a monopoly over legitimate punishment but there may still be ways of making the victim's voice heard.

The Victim Impact Statement is one such device. Perhaps restorative justice procedures also help reintegrate the victim as well as the offender back into the community. Perhaps not.

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Everyone agrees that Crime and Punishment go together. But that's where the agreement ends. There are multiple aims of punishment: to inflict retribution (an eye for an eye); to deter others; to incapacitate the offender so the public is protected in the meantime; and to rehabilitate the offender so they do not re-offend after the sentence is over.

Juggling with these aims requires the judge to exercise discretion and to weigh up the aims of sentencing against the circumstances of the exact offence.  

Sometimes, legislatures try to tie the hands of judges with some kind of mandatory sentence, and the whole area becomes politicised.

In this episode we discuss the aims, forms and difficulties of punishing crimes in today's world.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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Most people are fascinated by crime, at least if they are at a safe distance from it.  It is the stuff of popular culture and serious scholarship.  Theories abound.  Might a certain amount of it be good for society if it reminds everyone of how they should behave?  Or is criminalising certain behaviour a way of oppressive governments maintaining control?

In this episode we discuss how criminal law differs from other branches of law.  It is public.  It leads to punishment.  It has separate procedures and a higher standard of proof.

We take two crimes - murder and theft - and discuss each of their elements, as examples of how the prosecution must prove beyond a reasonable doubt the actus reus - the guilty act(s) - and the men rea - the guilty mind.

We look at defences, such as insanity, duress, necessity and automatism.  

If you read, watch or listen to crime dramas, this episode gives you the foundations of the law that applies to them.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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Like many countries in the world, Australia is a federation; it has more than one tier of government.  In this nail-biting episode, the Two Steves explain how our system came about, with the former colonies being given all legislative powers except to the extent that those powers were given and exercised by the Commonwealth.  The territories and local government are further tiers, which seems quite enough for a country of 25 million people.  

What can be a baffling year-long unit in a law degree, is explained succinctly by your hosts in 10 minutes!  We move from the defence of the realm to the collection of our garbage.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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All legal systems of previously colonised countries have grappled with the idea of land rights for the original peoples of those countries and the claims of settlers or conquerors.  Australia was an unusual case.  It wasn't exactly conquered.  Nor did the Indigenous peoples cede the land to the English settlers.  

The only remaining option under international law at the time was for Australia to have been "discovered".  But this meant ignoring the thousands of people who had "discovered" it tens of thousands of years earlier.  Australia was declared "terra nullius" - land belonging to no one.

The consequence was that the British Crown acquired sovereignty and any native land rights were extinguished.

The fiction of terra nullius became more and more repugnant and eventually the High Court of Australia found a way through, in the case of Mabo v Queensland (No 2) in 1992.   The Crown (now the Australian states) had legal title but Indigenous people who could show continuous occupation might have "beneficial" title, unless it had actually been extinguished.

In this extended episode we hear from Professor Kate Galloway, an expert in land law with long experience of native title matters, about the case of Eddie Mabo, one of the most important cases in Australian legal history.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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You might think the idea of property is straightforward.  In a way, it is.  Almost anything tangible and many things intangible are capable of being property, under the common law.  Even one of our jokes is capable of being property, assuming we actually made it up.

But "property" to a lawyer is not so much about the item in question, but the rights associated with it.  

Is the right exclusive, or is it divided up, for example between the landlord who owns the freehold and a tenant who owns a lease?  

Has someone else acquired rights over land by continuous use, through the law of prescription?  

Has the apparent owner actually lost their rights if contested by someone who has been in exclusive possession of the land, without force, secrecy or permission, for a long period - so-called "squatters' rights"?

In this episode we try to unbundle what the law bundles up, and we end by noting the cultural context of property law, which is based around individuals and particular kinds of uses.  This looks ahead to the next episode, on native title, and the question whether and when the common law is capable of recognising the communal use of property by first nations' peoples.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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It's well known that for someone to be found guilty of a crime, the decision-maker must be persuaded "beyond a reasonable doubt".  This is the standard of proof.  In civil claims, the standard is "on the balance of probabilities".

In criminal matters, the onus of proving to this standard is on the prosecution; and in civil claims it is on the plaintiff.

In this episode we discuss what all this means in practice, and note that in the majority of all court matters it doesn't reach this stage because the defendant pleads guilty or the civil claim is settled without trial.

This is said to be different in civil code systems such as France, but although there are major differences in procedure, the required standard actually seems to be similar.

We promise to give listeners our opinion on which system is better - in episode 1000!

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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Who should I trust?  If your answer is no one, the world would be a more difficult and expensive place.  Wherever someone does something on your behalf you might have to employ someone else to watch over them, and then someone else to watch over the someone else etc etc.

Over the centuries, equity law has picked out certain kinds of relationships where there is an imbalance of power or knowledge and called them fiduciary relationships.  The "trust" is a prime example.  A fiduciary has a duty of loyalty, of not taking an undisclosed benefit from the relationship,  and of doing everything they can on the beneficiary's behalf.  

This is quite different from the normal situation in a market, where the rule is "caveat emptor": let the buyer beware.

Fiduciary law versus contract law reflects the balance in life between being fair to others and letting others look after themselves: a balance that is forever changing in the law.

In an exciting climax to the episode, the two Steves debate how you pronounce "fiduciary".

For the transcript of this episode and further reading, visit https://lawincontext.com.au/who-ya-gonna-trust/

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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In this episode we look at the body of judge-made law called Equity, which emerged in England as a separate body of case law from "the common law".  Whereas common law focuses on clear rules and rights, equity focuses on conscience and doing what is fair.  These two conceptual systems were developed in separate courts but are now applied concurrently in the same courts.  If the facts of the case support applying an equitable doctrine or concept, then it prevails over whatever the common law result would be.

We illustrate the two different approaches with a recent case, Stubbings v Jams (No 2) Pty Ltd.  Poor old Mr Stubbings had no income.  He had assets but plenty of debts.  He refinanced his affairs with Jams Pty Ltd, after receiving independent legal and financial advice.  However, according to the initial judge, Mr Stubbings was "completely lost, totally unsophisticated, incompetent and vulnerable".  His financial situation was "bleak".

In the trial court, he succeeded in having his loan agreement set aside.  However, the Court of Appeal overturned that decision, focusing on the fact that he had had independent advice.  The High Court - the final possible court - reinstated the trial judge's decision, and Mr Stubbings therefore ultimately won, although after 7 years of cost and stress.

The contrast between the Court of Appeal and the High Court is a contrast between common law reasoning and equitable principle.

In this episode we ask the listener what they think about this and other examples.

We need rules.  But we also know that they can be used unfairly or don't match every situation.  So we need some kind of corrective.  But have we got it right?

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

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We keep hearing about "the common law", but what exactly is it?  In this episode, we look at three separate meanings.  

First, the common law describes a whole legal system, such as Australia, England, the United States and Canada.  This contrasts those jurisdictions with civil law, religious law and customary law systems.  In practice, there are many countries which are hybrids of two or more systems.

Second, the common law is in contrast to something called Equity.  This is also law built up from cases but has a different internal logic or morality.  So, in common law systems (meaning no 1) we have both the common law (meaning no 2) and Equity (which is the focus of the next episode.

Third, the common law is in contrast to statute law made by parliaments.  Where a constitutionally valid statute conflicts with case law, the statute prevails.

There are arguments either way about the benefits of common law systems over civil law systems.  It is also possible that technologies such as artificial intelligence and expert reasoning systems will pose a challenge to both, and that a new approach to law will emerge based on detailed predictions of the consequences of favouring one rule against an alternative rule.

Technology may yet challenge our notions of Justice.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context