This page was last updated 23 August 2010.

2 Basic Legal Concepts

2.1 Civil Law
2.2 Criminal Law

Every effort has been made to use plain English throughout this Guide. However, as the subject matter is often legalistic, legal terms are necessarily used on occasion. This Chapter is intended to give you a basic understanding of the key legal terms that are used throughout the Guide and provide an overview of the two key areas of law that will be dealt with - civil law and criminal law.

2.1 Civil Law

Rights and obligations between individuals are governed by the civil law. Two of the main areas of civil law are the law of contract and the law of tort. The law of contract determines the rights and obligations of the parties to a contract and what remedies are available if one of the parties breaches the contract. From the point of view of campaigners, the area of the civil law which is most likely to affect their activities is the law of torts.

2.1.1 Torts

Generally speaking, a tort is an injury other than a breach of contract which the law will compensate by an award of damages (or in limited circumstances an order known as an injunction). 1

In this Guide, we have dealt with two areas of torts law which are most likely to impact on the activities of campaigners. The first area is the law of defamation. Defamation is dealt with in more detail in Chapter 4. The second area is the group of torts known as “economic torts”. Unlike other torts, economic torts have as their primary function the protection of a person's economic interests. 2 These torts, which include conspiracy, inducing breach of contract and intimidation, are dealt with in more detail in Chapter 5.

2.1.2 Statutory Rights

In addition to the law of contract and the law of torts, civil (as opposed to criminal) relations between individuals are also governed by Commonwealth and State statutes (Acts of Parliament). The most obvious statute which anyone planning a protest action should be aware of is the (CTH) Trade Practices Act 1974 and, in particular, Part IV of the Act which deals with boycotts and secondary boycotts. Actions under the Trade Practices Act 1974 are dealt with in more detail in Chapter 5.

2.1.3 Proof in Civil Matters

The burden of proof in civil matters lies with the applicant. The standard of proof is usually the balance of probabilities.

2.1.4 Civil Law Remedies

a) Damages

Where a Court finds that there has been a breach of contract, that a tort has been committed, or there has been a breach of a statute (such as section 52 of the Trade Practices Act 1974 ), the wrongdoer may be ordered to pay damages.

Damages are awarded to compensate the innocent party for the loss or damage that has been suffered. Sometimes, although a person's rights may have been infringed, the Court will only award nominal damages in recognition of the fact that no actual damage has been suffered, for example, if there has been a trespass on a property owner's land but no damage has been caused to the land.

On the other hand, in certain limited situations, a Court can also award what is called exemplary damages. The object of exemplary damages is to punish and to deter the wrongdoer. Exemplary damages can be awarded in actions for defamation, intimidation, conspiracy, deceit and trespass to land. 3

b) Injunctions

An injunction is an order by which a court directs someone to refrain from acting in a particular way, or, less commonly, to perform an act. 4For example, if a person is trespassing on land, a Court may order the person to stop trespassing and to refrain from trespassing for a specified period in the future.

For present purposes, be aware that there are different types of injunctions, including the following:

• Ex parte injunction: This is an injunction granted to a party at a hearing at which the defendant is not present. It is generally granted only where there is some urgency. An ex parte injunction will only be granted for a limited period of time until the defendant can be served with the court papers and can appear in court.

• Interlocutory injunction : This is an injunction which a court grants at some time before the final hearing takes place. It usually does not involve the court making a final determination about the merits of the case (interlocutory injunctions are discussed in more detail in Chapter 5). An interlocutory injunction usually lasts up until the final hearing can take place.

• Mandatory injunction : Generally, most injunctions are granted to restrain a person from doing a particular act. Sometimes, however, a court may order a person do a particular act. This is known as a mandatory injunction. There are strict requirements for the grant of a mandatory injunction and courts will exercise considerable caution before making mandatory orders.

2.2 Criminal Law

The administration of the criminal justice system largely falls within the domain of the States and Territories. It is thus usually State laws that affect campaigners, but it is important to be aware that Commonwealth laws may also be relevant. Commonwealth criminal law will apply in a limited number of situations. For example, Commonwealth law will be the only law applicable when an alleged offence takes place on Commonwealth property, such as a military base or an embassy. Commonwealth law also applies to a limited number of issues on which the Commonwealth government has made laws under its constitutional powers (for example, in relation to customs and quarantine). Otherwise, State law applies.

The criminal law deals with situations where the State (that is, the police or the Director of Public Prosecutions) believes that a person or entity has committed an offence. If the police reasonably suspect that you have committed an offence, you may be arrested or issued with a Court Attendance Notice (CAN) and have to attend Court. The Court – usually the Local Court – then decides whether or not you are guilty of the offence or offences that you have been charged with. This guilt must be proven 'beyond reasonable doubt'. Most criminal offences require that you intended to do the act (called mens rea ) as well as physically doing the act ( actus reus ). You do not need to intend to break the law to commit an offence, so long as you intended to carry out the physical act. Ignorance of the law is no defence. Furthermore, there are an increasing number of “strict liability” offences, where your intention is irrelevant to determining your guilt.

2.2.1 Statutory and common law offences

There are two basic types of offences: (i) statutory offences, and (ii) common law offences. Statutory offences are those enacted by Parliament in legislation. Common law offences are those developed over time by the Courts in deciding cases. If a charge for a statutory offence is not possible because an element of the offence was not committed, it may still be possible for the police to charge a person with a similar common law offence. Nowadays, most offences are found under legislation.

2.2.2 Structure of offences

There are three main categories of offences – summary offences, indictable offences, and indictable offences dealt with summarily. These distinctions reflect the general seriousness of the crime and the procedure that applies to the prosecution. The overwhelming majority of matters through which campaigners come into contact with the law are summary offences and these are the focus of this Guide.

a) Summary offences and regulatory offences

Summary offences are the least serious – in terms of penalties – but may have the same consequences (for example, a criminal record). They generally relate to prohibiting disruptive conduct in public spaces. Because the illegal conduct is often described in vague terms in the legislation (eg. offensive, annoying, distressing), the police can use these laws to engage in “street-sweeping” tactics, removing people who have caused or may cause problems. Many, but not all, summary offences are found under the Summary Offences Act 1988 and form the basis of Chapter 8 of this Guide. Alongside these, there are nowadays a number of “regulatory” offences that are minor in nature. These are usually found under the regulations to an Act (for example, the National Parks and Wildlife Regulation 2002 ) and empower other officers to regulate conduct in specific areas.

These offences are heard in a Local Court before a magistrate. There is no jury. The penalties for summary offences can range from a bond or fine to a gaol sentence of up to two years 5 (or five years if convicted of more than one offence). 6

b) Indictable offences

Indictable offences are more serious crimes such as assault, riot and affray and property damage, and are generally dealt with in the District Court. These matters are dealt with before a Judge and jury, or sometimes before a Judge alone. Before an indictable offence can be tried, a committal hearing is held in the Local Court where a magistrate determines, on the evidence presented by the prosecution, whether the matter should go to trial.

c) Indictable offences dealt with summarily

In NSW, many indictable offences can be dealt with as a summary offence unless the accused or the prosecution chooses for them to be heard on indictment. 7 With other indictable offences it is possible for the prosecution to deal with the matter as a summary offence even without the consent of the accused. 8 If an indictable offence is treated as a summary offence, the Local Court deals with the matter (and the maximum penalty is usually two years gaol).

Under Commonwealth law, indictable offences can be dealt with as summary matters, with the consent of the accused, or if prescribed under a specific Act. 9

If you have the choice, you need to weigh up the (often significantly) lesser penalties and informalities of the Local Court with the possibility of a trial before a jury. Juries may be more inclined to acquit than magistrates, although you obviously cannot rely on this.

2.2.3 Proof in criminal matters

If a matter goes to Court, certain matters need to be proven to the satisfaction of the magistrate or Judge. There are two general issues concerning the issue of proof. These are the burden of proof (who has to prove what) and the standard of proof (the extent to which someone has to prove or show something).

a) Burden of proof

Under traditional criminal law principles, a person is presumed innocent until proven guilty. This means that the prosecution has the burden of proving all the “elements” of the offence. Many offences are technical and have many elements. For example, if you are charged with wilfully obstructing an officer in the execution of their duty 10 the prosecution must prove all four elements as follows:

• that you were actually (not just potentially) obstructing someone
• that you were doing so deliberately
• that the person was an officer
• that the officer was doing something that could reasonably be regarded as part of their duties.

Although the presumption of innocence is something that people readily understand and appreciate, there is no constitutional protection of this right in Australia . Consequently, the presumption of innocence may be, and has been, departed from under legislation. For example, under drugs legislation in NSW, there is a presumption that a person in possession of a certain quantity of prohibited drugs is supplying the drugs. 11 This presumption can be rebutted but the burden is on the defendant to do so. Likewise, for the offence of possessing stolen goods, the defendant must prove that they had no reasonable grounds for suspecting that the goods were stolen. 12

b) Standard of proof

To obtain a conviction, the prosecution needs to prove their case beyond reasonable doubt . In fact, all the elements of an offence need to be proven beyond reasonable doubt. Returning to our previous example, even if the magistrate was absolutely convinced that you were obstructing an officer, you would not be guilty of that offence if the prosecution could not demonstrate that the officer was acting in the execution of his or her duty. Evidence that you sat in front of a stationary police car would not satisfy the standard of proof but if it could be shown that you remained there once the officer attempted to move the vehicle in the course of their duty, the burden would be satisfied.

Sometimes the law only requires that something be proved on the balance of probabilities. This is the standard for civil or non-criminal matters, as well as for some defences (see below).

2.2.4 Defences

The law relating to defences is sometimes technical and complex. If you raise a defence, the onus is usually on you to prove the defence on the balance of probabilities . 13 You may be said to have a defence in two types of circumstances. 14

a) “Excuses”

Many minor offences provide defences of ‘reasonable excuse', ‘lawful excuse' or ‘lawful authority'. For example, federal laws make it an offence to trespass, or refuse to leave Commonwealth land when directed. 15However, all this is subject to whether you had a reasonable excuse. 16 The same applies to offensive conduct and language offences under NSW law. 17 Lawful excuse is a defence to a charge of trespass under the (NSW) Inclosed Lands Protection Act 1901 . 18

It has been said that a very real distinction exists between “reasonable excuse” and “lawful excuse” (and, by extension, lawful authority), 19 although the issues are often conflated by commentators.

The Courts have been reluctant to derive general principles for a reasonable excuse as (they say) it depends on the circumstances of the case and the purpose of the provision. 20 As was said in the leading judgment on the issue:

The reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes a decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. 21

This statement provides little guidance, or comfort, to campaigners in planning protest action. However, some guidance can be found from the cases.

First , the words ‘reasonable excuse' should not be given a narrow meaning, given the criminal penalties involved. 22 Absence of intention, mistake, infancy, or duress would ordinarily fall within the term “reasonable excuse”. 23

Second , the reasonableness of the excuse needs to be determined objectively, based on things such as a person's belief and community standards. 24 This means, subject to the qualification above regarding the circumstances of the case and the purpose of the provision, that “a reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person”. 25

Third , an honest ( bona fide ) mistake of fact based on reasonable grounds can be a reasonable excuse. While ignorance or mistake of law is generally not an excuse, the line between fact and law is often blurry. 26 The Court in R v Keenan 27 held that that the defendant's mistaken belief that a logger's activities were unlawful was an excuse to the crime of intimidation. Keenan was charged with intimidation after protesting against logging in the Badja State Forest . Intimidation is an offence making it illegal to stop someone from doing something they have a right to do. 28 To make out the defence in these circumstances, you would need to demonstrate two things (on the balance of probabilities). First, that you honestly believed an activity – in that case, proposed logging – was illegal. Second, you would need to show that your belief was reasonable. To do this, you would need to present evidence that backed up your belief of illegality – research into the relevant law, evidence from experts and so on.

Fourth , the fact that non-violent action is claimed to be in the “public interest” or based on a right of “peaceful protest”, will not normally be sufficient to raise the defence of reasonable excuse. 29 In limited circumstances, such as where the defendant was trying to stop unlawful behaviour and other practical options (such as seeking an injunction) were impractical, ‘reasonable excuse' may be a defence to obstruction. 30

ii. Lawful excuse

A lawful excuse is similar to reasonable excuse but narrower in scope. To make out this defence, you need to demonstrate that you honestly believed on reasonable grounds certain facts (as above) and if those facts had been true, your conduct would have been lawful. 31

iii. Lawful authority

Lawful authority has been seen as narrower in scope again, being described (somewhat unhelpfully) as “authority supported by law”. 32 Put another way, you can succeed with a defence of lawful excuse, even though no “lawful authority” exists for doing what you did. 33

b) Full defences

The law also allows certain defences that will negative an offence, regardless of whether the prosecution has proven all the elements of the offence. These include self-defence, duress, necessity, intoxication and mistake. 34 You would need to seek specialist legal advice in relation to these defences, which have often been defined narrowly by the courts.

2.2.5 Penalties

a) General

The penalty for offences is usually found in the same section as the offence. It is usually expressed as a maximum but, in any event, the Court has the discretion to impose lesser penalties. 35 Your financial means is a matter the Court must take into account in determining any monetary penalty, 36 and you may seek time to pay. 37

This Guide seeks to give as much information as possible on penalties. However, you should not rely exclusively on the Guide, as penalties frequently change.

b) Penalty units

Penalties may also be expressed as penalty units . Under both Commonwealth and NSW laws, these presently equate to $110 per unit. 38

c) Penalty notices

Many minor offences can now be dealt with by way of penalty notices (sometimes also referred to as penalty infringement notices or “PINs”). Police cannot issue penalty notices for:

• an apparently genuine demonstration or protest, or
• a procession, or
• an organised assembly, or
• an industrial dispute. 39

The police or other officers usually issue penalty notices on-the-spot. 40The amount of a penalty notice may vary widely, even within the same Act. 41If you elect to pay the fine, you do not have to go to Court and you will not get a criminal record .

d) Electing to go to Court

If you go to Court rather than pay the penalty notice, you may well get a criminal record if you are found guilty. 42 This can have serious consequences (see below at 18.7). Potential maximum penalties are usually much higher if you go to Court. However, you are unlikely to receive a fine of more than the penalty notice where a penalty notice was issued and you chose to take the matter to Court. This is because the prosecution has already indicated what they view as an appropriate penalty by seeking to proceed by way of a penalty notice, a factor that will often guide the magistrate.

1. Fleming D (2003) The Law of Torts 8 th Ed, Law Book Company at p 1.
2. Carty, H (2001) An Analysis of the Economic Torts Oxford University Press at p 1.
3. Halsbury's Laws of Australia Law Book Company at [415-215].
4. Burns N (1988) Injunctions: A Practical Handbook The Law Book Company at p 1.
5. (NSW) Criminal Procedure Act 1986 ss 267(2) and 268(2).
6. (NSW) Crimes (Sentencing Procedure) Act 1999 s 58.
7. These are table 1 offences under the (NSW) Criminal Procedure Act 1986 : s 260(1) . The Act contains 2 “tables” of various offences under the (NSW) Crimes Act 1900 which may be heard summarily: see Chapter 5 generally.
8. These offences are table 2 offences under the (NSW) Criminal Procedure Act 1986 : s 260(2).
9. (CTH) Crimes Act 1914 s 4J(1) and (2). Indictable offences are those that impose a gaol sentence of more than 12 months: s 4G.
10. (NSW) Crimes Act 1900 s 58.
11.  (NSW) Drug Misuse and Trafficking Act 1985 s 29.
12. (NSW) Crimes Act 1900 s 527C(2).
13. If the absence of a lawful or reasonable excuse is an element of the offence (for example, “It is an offence to obstruct without reasonable excuse”), the onus is on the prosecution to prove that beyond reasonable doubt: see Henshaw v Mark and Ors (1997) 95 A Crim R 115 (ACT Sup Court per Miles CJ); Connors v Craigie (1994) 76 A Crim R 502 at 506 (NSW Supreme Court per Dunford J). However, a common practice nowadays is to explicitly place the onus on you (on the balance of probabilities) to make out the excuse: see, for example, (NSW) Crimes Act 1900 s 417; (NSW) Inclosed Lands Protection Act 1901 s 4(1); (NSW) Summary Offences Act 1988 ss 4(3) and 4A(2).
14. You should also note that it is always a full answer to a charge that you did not do what is actually prohibited. This is not a “defence”, strictly defined.
15. (CTH) Public Order (Protection of Persons and Property) Act 1971 s 12(1) and 12(2)(c).
16. (CTH) Public Order (Protection of Persons and Property) Act 1971 s 12(5) .
17.  (NSW) Summary Offences Act 1988 ss 4(1) and 4A(1) (the offences) and 4(3) and 4A(2) (the defences).
18.  (NSW) Inclosed Lands Protection Act 1901 s 4.
19.  Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 (Admin Law div) per Hunt J.
20.  Taikato v The Queen (1996) 186 CLR 454; 90 A Crim R 323 at 464; 331 per Brennan CJ, Toohey, McHugh and Gummow JJ.
21.  Taikato v The Queen (1996) 186 CLR 454; 90 A Crim R 323 at 466; 332 per Brennan CJ, Toohey, McHugh and Gummow JJ.
22.  Ganin v NSW Crime Commission (1993) 32 NSWLR 423 at 437 per Kirby P.
23.  R v Tawill [1974] VR 84 at 88; 22 FLR 284 at 289-90 per the Full Court .
24.  Mark and Ors v Henshaw (1998) 101 A Crim R 122 (Fed Court FC). See also Connors v Craigie (1994) 76 A Crim R 502 (NSW Supreme Court per Dunford J).
25.  Taikato v The Queen (1996) 186 CLR 454; 90 A Crim R 323 at 470; 336 per Dawson J.
26. See Brown D, Farrier D, Egger S, McNamara L and Steel A, (4th ed 2006) Criminal Laws Federation Press, Sydney at 405; Fairall P A and Yeo S, (4 th ed 2005) Criminal Defences Butterworths, at 64.
27. (1994) 76 A Crim R 374.
28. (NSW) Crimes Act 1900 s 545B.
29.  See R v Mossop (Unreported, NSWCCA, 19 December 1991), O'Donohue v Wille (NSWSC, Unreported, 6 July 1999) and Willis v Wilkinson (ACT Magistrates' Court, U nreported , 3 March 1994).
30. R v Atkins (Unreported, District Court, Lismore, 27 November 2000).
31. Cambridgeshire & Isle of Ely County Council v Rust [1972] 2 QB 426. See also Broome v Director of Public Prosecutions [1974] AC 587; R v Smith (David Raymond) [1974] QB 354.
32. Crafter v Kelly [1941] SASR 237.
33. Wong Pooh Yin alias Kwang Sin alias Kar Sin v Public Prosecutor [1955] AC 93.
34. For further details see Chapter 6 of Brown D, Farrier D, Egger S, McNamara L and Steel A, (4 th ed 2006) Criminal Laws Federation Press, Sydney.
35. (NSW) Crimes (Sentencing Procedure) Act 1999 s 21.
36. (NSW) Fines Act 1996 s 6(a); (CTH) Crimes Act 1914 s 16C(1).
37. (NSW) Fines Act 1996 ss 10 and 11. A penalty notice sets out the time to pay and there are procedures for reminder notices and enforcement orders: see Divisions 2-5 of the (NSW) Fines Act 1996.
38. (CTH) Crimes Act 1914 s 4AA(1) and (NSW) Crimes (Sentencing Procedure) Act 1999 s 17.
39. (NSW) Criminal Procedure Act 1986 s 339.
40. (NSW) Criminal Procedure Act 1986 s 334(2) (which allows for penalty notices to be served personally or by post).
41. Compare (NSW) Forestry Regulation 2009 cl l 11( 4 ) and 63(1) where the maximum penalty if these matters go to Court is $2200 but the penalty notices may be either $100 or $1000: see ( NSW) Forestry Regulation 2009 cl l 11(4), 63(1), 7 4 and Schedule 3.
42. There is an exception for a section 10 order: see Crimes (Sentencing Procedure) Act 1999 s 10.

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