Key Takeaways

  1. A key difference between civil & criminal law in Australia is the higher onus of proof in a criminal case is ‘beyond reasonable doubt’, in comparison, a civil case has a lower onus of proof of ‘on the balance of probabilities‘.
  2. Differences between civil & criminal law table.
  3. Civil vs Criminal law: Criminal law includes both state and commonwealth as representing the community prosecuting people or corporations involving penalties of imprisonment. Civil law involves disputes and resolutions between people or corporations involving money.
  4. Outline of civil law in Australia.
  5. Outline of criminal law in Australia.
  6. Civil vs Common Law: civil law is based on roman law which has been developed by legislature. The courts then interpret this in cases. Common law is developed and applies by courts in cases.
  7. Outline on the types of civil law in Australia.
  8. Outline on the similarities between civil and criminal law: Each party have a burden of proof with a standard of proof to establish requisite elements; each party have a right to legal representation; each party may negotiate to resolve the dispute; trials and hearings in court run in a similar fashion; common law is used across both types of law to apply in particular cases.


The fundamental difference between civil and criminal law in Australia is that the onus of proof and the standard of proof is generally always on the prosecution who must prove its case against the accused to a high standard of ‘beyond reasonable doubt’ in court. Failing that, the charges will be dismissed. In contrast, a civil law case is required to be proven by the plaintiff to a lower standard of proof of ‘on the balance of probabilities’.

What is the difference between civil and criminal law? The difference between civil and criminal law in Australia is outlined in the difference between civil and criminal law table below.

Difference Between Civil and Criminal Law Table

Differences between civil and criminal law table

Criminal Law Civil Law
Parties involves Criminal law involves the prosecutor on behalf of the NSW Police or DPP who brings charges against an accused person/defendant. Civil law involves disputes between people and/or companies over money/compensation/damages
Purposes & Outcomes Criminal law involves prosecuting individuals or corporations for committing criminal offences. The purposes in criminal justice is to punish, deter, retribution and reform. This is achieved by the court imposing an appropriate penalty on sentence, which may be imprisonment, fine, or even a non-conviction sentence. If a person is found not guilty, then the charges are dismissed. Civil law claims require monetary remedies. Losing party will usually be court ordered to pay money to winning party for compensation. There is no jail time.
Standard of Proof and Burden of Proof The prosecution is required to prove the criminal allegations against the accused in court beyond reasonable doubt. Party making the claim is usually required to prove its allegations against the defendant to the court on the balance of probability.
Court process- giving evidence in court Criminal case hearings in court require the prosecution witnesses to give evidence in order to prove the police case. These witnesses are required to give evidence in chief in the witness box in court without the assistance of their previously written statements. The defence witnesses are not required to give evidence, but can if the defence wishes. Civil case court hearing involves each witness giving evidence in chief via a written statement or affidavit which is read on the record. The witness is not required to give this evidence without the assistance of his/her statement in front of them.
Commencing Proceedings To commence a prosecution against someone, the police on behalf of the State will file a ‘Court Attendance Notice’ at the court registry which must then be served on the accused person by police. Once served, that person is then formally charged. The CAN is normally filed by the police, but can also be done privately by an individual (i.e. private prosecution). To commence a civil claim against a person/business or company must file, at the court, an initiating process called a statement of claims. The person making the civil claims must then serve a copy to the other party.
Types of Cases Criminal law cases include murder, assaults, fraud, white-collar crime, corporate crime, sexual assault, larceny, drink driving, negligent and dangerous driving, drug supply and importation, firearms, domestic violence, break and enter. These cases are heard in the local, district and supreme courts in the courts criminal jurisdiction. Civil law cases include claims of negligence and torts, breaches of contract, breaches of civil rights, family court proceedings including disputes about property, divorce and child custody.
Legal Rights Criminal law cases provide the accused/defendants with many rights, including the right to silence with police and the criminal court process. This includes the right to not give evidence in court without it being used against the accused in court. Civil law cases do not have any right to silence or self-incrimination protections. A parties choice to refuse to talk, disclose or answer questions can be then used against him/her in court.
Legal Representatives Criminal cases involve a criminal defence lawyer for the accused person who represents the accused person in court and advises and guides him/her throughout the criminal justice process. The prosecution will have either a local court prosecutor or Director of Public Prosecution lawyer who will be prosecuting the accused in court. Civil cases involve private lawyers for each side/party in the case, who each have their legal fees.

If the plaintiff in a civil law case fails to prove its case on the balance of probabilities against the defendant, the plaintiff will likely have to pay the other sides legal costs. The civil standard of proof is easier to prove than the criminal standard of proof of beyond reasonable doubt. In criminal law, the losing party normally don’t end up paying the legal costs for the winning party.

The accused person in a criminal law case has the benefit of the doubt. He/she is presumed innocent until/unless proven guilty by the court.


Civil vs Criminal Law

Criminal law is the oldest type of law, which involves the State or Commonwealth as representatives of the community prosecuting a person or corporation for committing a crime which the community has chosen to be against the law to the extent of being a criminal offence warranting serious penalties. For example, it can be accepted that any community in any country prohibit murder, sexual assault offences and theft which ought to be punished to maintain a safe liveable community. In Australia, criminal law is divided amongst the state, territory governments on the one side, and the federal government on the other.

In contrast, civil law are vast set of rules established over time that govern the resolution of disputed between people and/or corporations. The purposes of the civil law is essentially to place the aggrieved person/corporation back into the same position prior to the loss/damage caused by the defendant. This is usually in the form of a monetary sum, also known as compensation.

Civil law disputes between individuals are conducted in court in a different way to that of the criminal law. In civil law claims at court, each party gathers, files and serves their evidence. That evidence is then heard before a Magistrate or Judge in court who ultimately determines the legal issues and makes orders in favour or against a party. Legal costs usually then follow for one party to bear the other parties. Similar to criminal law, if any party to the civil dispute is unhappy with the court’s decision, that decision can be appealed to a higher court. The legal costs can be significant for each party. However, the losing party usually ends up being ordered to pay the winning party’s legal costs, which is not what occurs in criminal law.


What is civil law in Australia?

Civil law is the basis of your rights and responsibilities, the rights and responsibilities of organisations including government, non-government and private entities who each interact with one another.

A civil law case does not involve criminal charges or allegations. Nor does it involve police, unless it is claiming compensation against the police in a civil claim.

A breach of a civil law right or responsibility can lead to monetary penalties to restore the aggrieved party back to the pre-breached condition.

Fundamentally, civil law in Australia provides the foundation in which legal issues are resolved between people and/or organisations that affect people in everyday life, including unpaid debts, fines, discrimination, damages, negligence, divorce, property and child custody disputes amongst parents.

Civil claim disputes are heard either in tribunals or courts, where an independent judicial officer will preside to hear evidence from both sides before making a determination according to the civil laws.


What is criminal law in Australia?

This is an area of law that exclusively deals with crimes and criminal justice for the purposes of keeping people safe in the community and to maintain fundamental rights. It directly relates to our fundamental human and civil rights, including the right to silence, the right to privacy, the right to be able to peacefully and freely walk in public without unlawful interference and the right to liberty.

The criminal law power and jurisdiction is divided between the States and Territory on the one hand, and the federal government in accordance with Australia’s constitutional law on the other.

The Commonwealth/federal government has limited power to make laws on certain aspects. In contrast, the state and territory governments have more power to make laws.

The Commonwealth criminal offences and criminal law is mainly found in the Commonwealth Crimes Act 1914 and the Criminal Code Act 1995. Where there is ever cross over between state and federal laws, the federal law overrides state law.

NSW state criminal laws are mainly found in the Crimes Act 1900 (NSW), Drug Misuse and Trafficking Act 1985, Bail Act 201, Uniform Evidence Act 1995, Law Enforcement (Powers and Responsibilities) Act 2002.

A criminal lawyers role is to advise, guide and legally represent clients in court who’re facing state or federal criminal charges.

A good criminal lawyer with experience will carefully analyse and assess the prosecution’s evidence to determine its credibility while also determining if the evidence has been illegally or improperly obtained by police, and whether it’s enough to prove the prosecution’s case beyond reasonable doubt.


Civil Law vs Common Law

Civil law if based on Roman law and has been developed in Continental Europe and other parts of the world. Civil law is encompassed within civil codes. It’s structured, classified and has a number of rules and principles. They often provide limited detail, and it’s the court’s role to interpret the civil law and apply it to the facts of each case at hand. The civil law is meant to generally apply across all cases, but when some cases aren’t regulated by the civil law, the courts are required to apply general principles of the civil law to cater to those cases.

In contrast, common law has its origins from England since the eleventh century. It has since been applies into Australia, New Zealand and other Commonwealth countries. Unlike civil law, the common law is created by cases over time called case law. The civil law on the other hand is created by legislation. The concept of common law is that earlier decisions in cases by higher courts should be followed in subsequent similar cases before the courts. This is called precedents which the courts show respect by following the wisdom and experience of higher courts. Higher courts can then change established precedent principles by reviewing it in new cases if appropriate.


Civil Law vs Common Law Table

Fundamental differences between civil vs common law is outlined in the below table.

Civil vs common law differences table

Civil Law Common Law
Legislation vs case law Principles and rules are contained in codes and statute/legislation which the courts are required to then apply to each case Principles and rules are contained in past cases called case law or precedent which the courts then apply to each case
Role of Parliament vs Courts Civil law is based on the separation of powers whereby the legislator (Parliament) create legislation which courts are required to follow in each case. The legislator/Parliament can also change these laws. According to common law, the courts create the fundamental principles of law through case law (precedent) that lower courts are required to follow. Higher courts can also change these laws.
Binding authority Civil law legislation is binding across all courts, whether it is a local, district, supreme or high court in Australia. This means all courts must apply this law in cases. Laws created by common law cases are required to be followed by lower courts, not higher courts. Case law has only persuasive authority in the same or higher courts to court in which the case law was created in.
Main tasks of courts differ In applying the civil law, the courts main task if to make decisions on cases by applying and interpreting the civil legislation. In applying the common law, the courts main focus is to decide on and resolve disputes between parties, in addition to provide guidance to help courts settle similar disputes in the future.

The main types of civil law in Australia include:

  1. Torts and Negligence law (civil rights)
  2. Contract law
  3. Property law
  4. Family law
  5. Tax law
  6. Bankruptcy law
  7. Wills and Probate Law

When looking into a civil vs criminal case, it’s important to understand that a civil case will be required to be proven in court on the balance of probabilities (or likely than not). i.e. the plaintiff must prove that the defendant breached the civil law on the balance of probabilities. The court or tribunal will then award damages to the winning party. A criminal case is required to be proven beyond reasonable doubt by the prosecution. The winning party are not normally awarded costs.


Similarities Between Civil and Criminal Law

Some major similarities between civil and criminal law include the following:

  • While the burden of proof is different, a similarity is that at least one party to a civil or criminal case have the burden of proving something to a requisite standard of proof. Sometimes, the burden of proof may shift from one party to the other during the court proceedings.
  • Each party to a criminal or civil law case have the right to get legal advice and to have legal representation. For example, a criminal lawyer in Sydney will usually represent an accused person in court.
  • In a criminal case, the accused has the right to be represented by criminal lawyers
  • Each party in a civil or criminal law case are able to and usually do negotiate with each other in order to resolve the dispute or legal issue. Majority of civil law cases are resolved before they reach a trial or hearing. Resolving via negotiations reduces legal costs and time.
  • A civil law case is commenced in a similar fashion to a criminal law case. An originating process referred to as a ‘statement of claim’ in a civil law case is filled out and filed at the court registry before being served to the relevant parties involved. In a criminal law case, an ‘information’ called a ‘court attendance notice’ is filled out and filed at the court registry before being served to the accused person.
  • Both type of cases are required to be resolved by an independent judicial officer i.e. Magistrate, Judge, Registrar in a court or tribunal.
  • Each party to a civil law case or a criminal law case have certain responsibilities and roles to play during the court process and during the hearing or trial. Failure to comply with important court orders may result in the court ordering costs and dismissing the case in favour of the complying party.
  • A civil law trial in court is run in a similar fashion to a criminal law trial, either before a jury or Judge alone. Each type of case follow and apply the Evidence Act, which is the legislation that governs the rules around evidence. This is a very important piece of legislation to know as lawyers.
  • Civil law and criminal law both use the common law to interpret legislation that allows the law to apply to every single type of case.
  • What criminal and civil law have in common is that the Parliament (legislator) make and change the legislation, while the courts make and change the common law.
  • The rules that the public must follow while inside a court room for a criminal or civil case are much the same. When entering a criminal or civil court room, you must bow towards the seated Judge or Magistrate before proceeding further into the court room. Equally, you must stand up when the Judge or Magistrate stands to leave the court room. In addition, when addressing the Magistrate or Judge in court, you must always address him/her as ‘your honour’.
  • The dress code is the same for criminal and civil law cases in court. At least smart casual, preferably a suit.
Published on 09/04/2021

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AUTHOR Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.

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