Liability
A statute can create or affect liability. This liability has several types. First, it
may create civil or criminal liability for wrongs. It can punish behaviour as it
does for criminal rules, or provide compensation for a victim as it does for
torts. (i) It can require a person to do something or to refrain from doing
something under threat of punishment. A Crimes Act or Penal Code, which is
a catalogue of criminal offences, is the most obvious example of these
statutes. But in addition many statutes create criminal offences as part of
another function. They use criminal liability in an incidental way as part of a
larger scheme of regulation. For example, many statutes establishing
institutions or schemes create criminal offences to protect the institution or the
scheme. (ii) A statute can also create or affect liability in tort. Torts, that is,
civil wrongs, are creations of common law. Indeed tort is one of the few areas
of law where common law is the major type of law. Nevertheless statutes have
modified, abolished or altered some common rule torts and created some new
forms of civil liability called statutory torts. Statutory torts create a cause of
action for an injured citizen. Obviously the action is whatever the statute
determines it, but typically it will give the citizen the right to seek a remedy in
damages to compensate them for their injury. It may also have other remedies
as well, for example allowing the court to grant an injunction or make an
ancillary order.
Second, a statute can create or affect liability in contract. Like tort, contract is
a common law creature. However, while common law is the basis of most
contractual liability, many contracts are now heavily regulated by statute. Some
prominent examples are statutes dealing with money lending, consumer
purchases and employment. A common form of statutory intervention is to
insert terms into contracts that protect consumers or others who have
relatively weak bargaining power.
Third, a statute of the legislature can impose a charge, tax or burden on the
citizen. It can do this in a number of ways. (i) A statute can tax the citizen. In
this regard it is worth noting that a basic principle in most constitutions is that
only a statute of the legislature can impose a tax because there is no inherent
executive or prerogative power for the government to do so.
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(ii) A statute
can provide for confiscation, resumption or transfer of property. (Although it
will usually do so only on the basis that there is good cause. For example, the
property consists of dangerous goods, or is needed by the state and just
compensation is provided). (iii) A statute can impose a charge for a
government service. Strictly this does not need a statute of the legislature. A
charge for services is not a tax, but if the service is one that the citizen needs
for any purpose then the effect is the same.
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This is laid down in Magna Carta and the Bill of Rights 1688.
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