Shows
Law in ContextEpisode 24 - Torts, Snails and Ginger Beer!Send us a text message with feedbackTorts basically are civil wrongs. The law of torts provides remedies for people who have suffered some kind of harm at the hands of another - the tortfeasor. The behaviour might also be a crime or a breach of contract, depending on the circumstances.Torts such as trespass and battery go back centuries, but this area of law really exploded in the 20th century with the classic House of Lords case of Donoghue v Stevenson. That case established a general remedy for negligent acts or omissions where a dut...2025-07-1915 min
Law in ContextEpisode 23 - Should you be able to sue the judge?Send us a text message with feedbackFor centuries there have been restrictions on suing a judge who has heard your case if you think they got it badly wrong. You could appeal against the decision or, in theory, petition the legislature to remove the judge. But you couldn't normally sue the judge for damages. There were some exceptions to this rule but these have been removed in Australia in a recent case that went all the way to the High Court.This episode discusses The State of Queensland v Stradford (2025) and the arguments either way...2025-07-1410 min
Law in ContextEpisode 22 - Miscarriages of JusticeSend us a text message with feedbackNo criminal justice system is perfect. Sometimes it "miscarries" and innocent people are convicted. The consequences can be devastating for those involved, and sometimes for society, leading to unrest or political tensions.In this episode we look at some selected miscarriages of justice from the United States, the United Kingdom and Australia. We discuss a very controversial and live issue at the moment, the Lucy Letby convictions in the United Kingdom, involving the deaths of seven babies, which relied on expert evidence which is now being challenged by oth...2025-07-0115 minLaw in ContextEpisode 21 - VictimsSend us a text message with feedbackBeing 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...2025-04-2213 minLaw in ContextEpisode 20 - PunishmentSend us a text message with feedbackEveryone 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 t...2025-03-1614 min
Law in ContextEpisode 19 - It's a Crime! - Criminal Law in ContextSend us a text message with feedbackMost 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 standar...2025-03-0221 minLaw in ContextEpisode 18 - Federal/State - How It All WorksSend us a text message with feedbackLike 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 hos...2025-01-3110 minLaw in ContextEpisode 17 - Native Title and the Case of Eddie MaboSend us a text message with feedbackAll 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...2025-01-2217 minLaw in ContextEpisode 16 - It's Mine, not Yours! Property Law in ContextSend us a text message with feedbackYou 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 tena...2025-01-0512 minLaw in ContextEpisode 15 - Prove It! How persuaded must we be in law?Send us a text message with feedbackIt'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 th...2024-09-2110 minLaw in ContextEpisode 14 - Who Ya Gonna Trust?Send us a text message with feedbackWho 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 loya...2024-09-1210 minLaw in ContextEpisode 13 - Equity and the Sad Case of Mr StubbingsSend us a text message with feedbackIn 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...2024-08-2810 minLaw in ContextEpisode 12 - What is "The Common Law"?Send us a text message with feedbackWe 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...2024-08-1111 minLaw in ContextEpisode 11 - At last, they ask "What is Law?"Send us a text message with feedbackAny competent lawyer should be able to say what is the law on a given topic in their area of expertise. However, most lawyers find it surprisingly difficult to answer persuasively the general question "what is law?".In this episode we grapple with some debates that go back centuries. We look at the positivist approach: that law is simply whatever is laid down constitutionally (ie "posited"). You might think this is self-evident. It's also convenient, because "law" is kept neatly separate from "morality" and "politics".However, the...2024-07-2908 minLaw in Context10. What is Justice?Send us a text message with feedbackIn this episode, not daunted by their previous challenge to explain basic legal concepts clearly, the Two Steves take on the big one: What is Justice?Most lawyers instinctively take a procedural approach to justice. If the rules have been followed and the judge is impartial, then the outcome is just. And yet every day we hear people say that a particular result is unjust, even though all the rules have been followed and all the boxes ticked. Their sense of justice is more substantive than procedural.2024-07-1210 minLaw in Context9. Why Do People Obey The Law?Send us a text message with feedbackMyths abound about crime rates and law-breaking. In fact, some kinds of crime are going down and others are probably going up. A more interesting question is why so many people obey the law most of the time. In this episode we look at the main theories about legal obedience. There is a legitimacy theory, that if people think their society is fair they are less likely to break its law. Economists, however, argue that it is a cost-benefit equation. If the cost of breaking the law ex...2024-07-0108 minLaw in Context8. CorporationsSend us a text message with feedbackThere is almost nothing we do in our everyday lives that does not involve corporations or companies. From small family companies to global corporations which are larger than the economies of some countries, corporations dominate our lives. In this episode we look at what a corporation is. We focus on a subset of corporations; companies with a share capital which operate a business for profit.In future episodes we will look at some of the issues surrounding "limited liability" and at businesses behaving badly. This episode sets the scen...2024-06-1510 minLaw in Context7. LawyersSend us a text message with feedbackLawyers have a very particular role in the adversarial system, and a corresponding set of ethical requirements. In the 2000s in Victoria, Nicola Gobbo, a criminal defence barrister became a secret, registered informer with the police. She arranged for some clients to give evidence against other clients, arguably framing them. In one case, Faruk Orman served 12 years in prison, 3 of which were in solitary confinement, for a crime which he maintained throughout he did not commit. Eventually, the arrangement came to light, the High Court ordered that Ms Gobbo's identity be d...2024-05-3012 minLaw in Context6. Access to JusticeSend us a text message with feedbackThe Rule of Law may be a great ideal, but does it mean anything if in practical terms many people do not have access to legal advice and adjudication. In this episode we look at the barriers to access to justice and some of the ways in which these barriers are at least partially overcome, including Alternative Dispute Resolution and the emerging Online Dispute Resolution.For more information about your hosts and the Law in Context podcast series visit our website at https://lawincontext.com.au2024-05-2010 minLaw in Context5. The JurySend us a text message with feedbackJuries make for great books and movies, but what really is their role in the adversarial system? Do they lead to fair decisions? Are they too expensive, leading to court backlogs? Have they had their day? In this episode we look at the jury, its history, and why it is mainly a feature of common law systems.For the transcript of this episode and further reading, visit https://lawincontext.com.au/the-jury/For more information about your hosts and the Law in Context podcast series visit our...2024-05-0510 minLaw in Context4. JudgesSend us a text message with feedbackHow can we ensure that those who judge between government, citizens, or businesses are impartial? All Rule of Law systems have protections for judicial independence, to promote impartiality. But there are weak spots, as we explore in this episode.For the transcript of this episode and further reading, visit https://lawincontext.com.au/judges/For more information about your hosts and the Law in Context podcast series visit our website at https://lawincontext.com.au2024-04-2110 minLaw in Context3. Where does law come from?Send us a text message with feedbackParliaments make laws. But so do judges. International treaties may also be a source. And it gets even more complicated.For the transcript of this episode and further reading, visit https://lawincontext.com.au/where-does-law-come-from/For more information about your hosts and the Law in Context podcast series visit our website at https://lawincontext.com.au2024-03-2910 minLaw in Context1. The Rule of LawSend us a text message with feedbackThe Rule of Law is central to understanding legal systems in democracies. It all begins here. For the transcript of this episode and further reading, visit https://lawincontext.com.au/rule-of-law/For more information about your hosts and the Law in Context podcast series visit our website at https://lawincontext.com.au2024-03-2909 minLaw in Context2. The Adversarial SystemSend us a text message with feedbackThe adversarial system of justice came from the English common law and spread. It is contrasted with the inquisitorial system found in non-Anglo democracies.For the transcript of this episode and further reading, visit https://lawincontext.com.au/adversarial-system/For more information about your hosts and the Law in Context podcast series visit our website at https://lawincontext.com.au2024-03-2909 min