By Nathan Wong | 6 October 2023
Many people base their understanding of the law on American news, movies, and TV shows. Even if the reporters and scriptwriters have got it right, American law is different from Australian law in many ways.
If you compare for example, a copyright violation, it can be a crime in the USA, but it isn’t a crime in Australia. It’s still wrong, but you wont go to jail; you’ll only have to pay damages.
The law says . . .
1. It’s
not an assault if the other person doesn’t touch you
False. Technically speaking, in criminal law an assault is the apprehension of an attack. Battery is the actual touching. This was recently confirmed by the NSW Court of Appeal. There have been plenty of assault cases where touching did not occur; for example, fearing imminent harm, a young woman threw herself from a moving van. This was held to be assault occasioning bodily harm. English Judges have argued that a silent phone call can constitute assault if it creates an apprehension of an immediate attack.
2. You can’t sue lawyers
False. The traditional position of the English common law system was that no one could be sued for what they said in Court. This was extended to ‘advocate’s immunity’ in which lawyers could not be sued for what they did whilst preparing their client’s cases for Court. This has been abolished in all other English common law jurisdictions, but has been upheld by the High Court of Australia and is still in force here.
3. Everyone is presumed
innocent
Misleading. The presumption of innocence only relates to criminal matters. In Civil matters, for example, if you are sued for defamation, the onus of proof is on you to show that what you said is true and is the public interest. A related issue is ‘sub judice contempt’. This prevents the media from running commentary that could prejudice a jury in a Court case. However, this only applies to that particular jurisdiction when the case is running . In other words, the Australian media is not bound to respect the presumption of innocence in reporting trials happening overseas.
4. Possession is nine
tenths of the law
False. Tenants are in possession of rented properties, but do not own them. They can be asked to leave by the landlord when their lease ends, or with sufficient notice if there isn’t a fixed term lease. Similarly, if you hire a car, you acquire possession, but you do not own it. Courier is in possession of your parcel but doesn’t have 90% of the legal right to it. But yes, possession generally equate to ownership if there are no other legal claims to the property.
5.Squatters have rights protected
by law
Not really. Squatters have ‘adverse possession’ of a property against the will of the owners. They can apply to be made owners after 12 years, but up to that point the owner has a right to evict them. In NSW, the law of adverse possession has basically been abolished for government property. The golden age of the ‘squat’ is long gone.
6. Proof beyond
reasonable doubt applies in all cases.
False. This only applies to criminal cases. Civil cases are when someone sues for damages, etc and are decided on the balance of probabilities.
7. An oral
contract isn’t worth the paper it’s written on
False. English law lords have construed contracts based on what might have been said in used car yards. A major exception to this is contracts relating to the sale of land, which have to be on paper.
8. Cyberspace is a
lawless frontier. The law has been outpaced by changes in information
technology.
Not really. Yes, there is always need for new legislation as society changes, but the law of murder doesn’t have to change every time a new weapon is invented. Our old common law system has proved tough and flexible enough to deal with the advent of mail orders and telex machines. It has taken the growth of the internet in its stride. There is no leading case that has found online contracts are not as valid as paper ones.
9. Australian
Courts are the same as what you see on American Television
False. The Australian Court System is substantially different to what you see on American Courtroom dramas you see on Youtube or Netflix. This is not a reflection of how an Australian Courtroom in any State or Territory works. If you go to an Australian Local Court for a day and observe Mentions and Hearings, you will notice a huge difference. Also, in the USA, lawyers are permitted to lie whereas in Australia lawyers are not allowed to make a submission they know to be false.
10. Lawyers get
paid a lot of money
False. Again, you
probably got this assumption from America movies and TV programs over the years
where you’ve seen lawyers quote their clients hundreds of thousand of dollars or
$500 an hour to represent them. Unfortunately, this is not the case in
Australia. Every State and Territory has a heavily regulated costs guidelines for
admitted Solicitors and investigate complaints regarding unscrupulous invoices. In 2022, the average salary for a full time lawyer was $45,000 - $75,000 per year before tax.
Nathan Wong is a 3rd year law student studying a Bachelor of Laws and a Bachelor of Business at the University of New England (UNE).