The public/private distinction and the role of public policy

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This article is a topic within the subject Introducing Law & Justice.

Contents

Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 272-278 (Chapter 11).

Introduction

This chapter deals with the classification of Australian law, whether it be public or private law, and then whether it be common law or equity. The importance of deciding which category or classification it falls into is important for legal procedures or different reasoning that can be used.

  • Within public law, it branches out again to include constitutional law, administrative law and criminal law.
  • Private law divides into common law and equity.
    • There also exists private international law when individual parties conflict with one another across international boundaries.


The Public/Private Law Distinction

[1] There is a need to distinguish between private law and public law in order to determine both the procedure and the substance of the case.

  • In public law, at least one of the legal entities will be the state, covering constitutional law, administrative law, taxation law, criminal law and industrial law. It also includes relationships between governments.
  • Even though public law may involve individuals, it is considered within the broader public interest - hence, there are different remedies in private and public law.
  • Private law is where one individual citizen has a dispute with another individual citizen, and they use the courts or the law as a way to manage the dispute. Typical areas include torts, contract and property law.
    • However, the separation between public and private law is not clear cut. A person may sue the government (a public entity) for negligence (a private tort).
  • This distinction emerges when considering criminal law, as similar facts can prompt civil action or criminal action. The most common of these is death due to negligent driving: there may be tortious negligence, but there may also be criminal negligence. Ths is discussed in R v Wright [2]. It was also considered in the UK case of R v Wacker [3].

References

Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook pp272-278
  2. [1999] VSCA 145
  3. [2003] QB 1207
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