What is the standard of proof in civil law?

The civil standard is the balance of probabilities, meaning more likely than not, or more than a 50 percent likelihood. It is lower than the criminal standard of beyond reasonable doubt because civil litigation does not engage the loss of personal liberty. The plaintiff bears the legal burden of proving the elements of the cause of action, while the defendant bears the burden of proving any affirmative defence.

What are the three elements of the tort of negligence?

A plaintiff must prove duty of care, breach, and causation on the balance of probabilities. Duty of care derives from the neighbour principle in Donoghue v Stevenson [1932] AC 562. Breach is governed by the Civil Liability Act 2003 (Qld) s 9. Causation is governed by s 11, which requires factual causation (the but for test) and scope of liability. The Act was enacted following the 2002 Ipp Report.

How are human rights protected in Queensland?

Queensland has the Human Rights Act 2019 (Qld), which lists 23 rights (ss 15 to 37), requires public entities to act compatibly with rights (s 58), allows the Supreme Court to make a declaration of incompatibility (s 53), and is enforced through complaints to the Queensland Human Rights Commission. It uses the dialogue model, so courts cannot strike down inconsistent legislation; instead Parliament must respond to a declaration within six months (s 56).

What is the dialogue model of human rights protection?

Under the dialogue model, courts and Parliament share responsibility for rights. The court can declare a law incompatible with a human right under the Human Rights Act 2019 (Qld) s 53, but cannot invalidate the law. The declaration is referred to Parliament, which must respond within six months (s 56). This preserves parliamentary sovereignty and mirrors the Victorian Charter (2006) and the ACT Human Rights Act (2004).

What does the International Criminal Court do?

The International Criminal Court, established by the Rome Statute of the International Criminal Court 1998 (in force 2002), prosecutes individuals for four core crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. It is a court of last resort under the principle of complementarity (article 17), acting only where a state is unwilling or unable to prosecute. Australia implements its obligations through the International Criminal Court Act 2002 (Cth) and Division 268 of the Criminal Code Act 1995 (Cth).

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QLDLegal Studies

QCE Legal Studies civil law and human rights (Units 2 to 4): deep-dive 2026 guide

Deep-dive across QCE Legal Studies Units 2 to 4. Civil liability and the tort of negligence, the balance of probabilities, dispute resolution, law reform and governance, the Human Rights Act 2019 (Qld), and international law including the ICC, with a worked extended response applying justice, equality and fairness.

Generated by Claude Opus 4.719 min readQCAA-LEG-U2Updated 2026-05-24

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What this guide covers
Unit 2: the civil standard and burden of proof
Unit 2: the tort of negligence
Unit 2: resolving civil disputes
Unit 3: governance and the Constitution
Unit 3: influences on law reform
Unit 4: human rights protection in Australia
Unit 4: the development of human rights and international law
Check your knowledge

What this guide covers

This guide carries the QCE Legal Studies course from civil law (Unit 2) through governance and law reform (Unit 3) to human rights and international law (Unit 4). These are the units that dominate the senior assessment: Unit 3 underpins IA1 and IA2, and Unit 4 underpins IA3 and the External Assessment. Every section uses real Queensland and Commonwealth statutes and real authorities, and the closing worked example shows how to weave the QCAA criteria of justice, equality and fairness into an extended response.

Unit 2: the civil standard and burden of proof

Civil law resolves disputes between private parties. The contrast with criminal law is a recurring examiner favourite, so be precise.

The general rule on the burden of proof is that "he who asserts must prove". The plaintiff carries the legal burden of proving the elements of the cause of action; the defendant carries the legal burden of any affirmative defence, such as contributory negligence.

The Briginshaw principle. In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J observed that the cogency of evidence needed to satisfy the balance of probabilities rises with the gravity of the allegation. The standard does not change, but more serious allegations (defamation, professional misconduct, protection orders) require more persuasive evidence in practice. The principle is reflected in the Evidence Act 1977 (Qld) and, in Commonwealth proceedings, the Evidence Act 1995 (Cth) s 140.

Because the standards differ, the same facts can produce different verdicts: an accused acquitted of a crime (the prosecution failing beyond reasonable doubt) can still be found liable in a civil claim arising from the same events (the plaintiff succeeding on the balance of probabilities).

Aspect	Criminal	Civil
Standard	Beyond reasonable doubt	Balance of probabilities
Legal burden	Prosecution	Plaintiff
Outcome	Punishment	Remedy (damages, injunction)
Parties	State v individual	Party v party

Unit 2: the tort of negligence

Negligence is the most heavily examined civil cause of action. A plaintiff must prove three elements on the balance of probabilities.

Duty of care. The defendant owed the plaintiff a duty to take reasonable care. The foundational authority is Donoghue v Stevenson [1932] AC 562, which articulated the neighbour principle: you must take reasonable care to avoid acts or omissions you can reasonably foresee would injure your neighbour. For novel cases the Australian approach is incremental (Sullivan v Moody (2001) 207 CLR 562).
Breach. The defendant failed to take the precautions a reasonable person would have taken. The Civil Liability Act 2003 (Qld) s 9 codifies the test: the risk must be foreseeable, not insignificant, and one a reasonable person in the defendant's position would have guarded against, weighing the probability and seriousness of harm, the burden of precautions and the social utility of the activity (s 9(2)).
Causation. The breach caused the harm. Section 11 of the Civil Liability Act 2003 (Qld) requires factual causation (the but for test) and scope of liability. The harm must also not be too remote.

Defences. Contributory negligence reduces damages in proportion to the plaintiff's own fault (Civil Liability Act 2003 (Qld) Part 1 Division 3; Law Reform Act 1995 (Qld) s 10). Voluntary assumption of an obvious risk (s 13) and inherent risks (s 16) can defeat or reduce a claim.

Illustrative cases include Romeo v Conservation Commission (NT) (1998) 192 CLR 431 (no liability for an obvious cliff-edge risk) and Strong v Woolworths Ltd (2012) 246 CLR 182 (the modern factual causation test applied to a slip and fall).

Unit 2: resolving civil disputes

Civil disputes can be resolved short of, or alongside, a court hearing.

Mediation. A neutral mediator facilitates a settlement but imposes nothing. The Uniform Civil Procedure Rules 1999 (Qld) allow courts to refer matters to mediation, and the Dispute Resolution Centres Act 1990 (Qld) provides free or low-cost services.
Conciliation. Like mediation, but the conciliator may offer a non-binding expert view. The Queensland Human Rights Commission conciliates discrimination complaints.
Arbitration. A binding process; the arbitrator's award is enforceable under the Commercial Arbitration Act 2013 (Qld) s 35, with limited appeal rights (s 34).
Tribunals. The Queensland Civil and Administrative Tribunal (QCAT), established by the Queensland Civil and Administrative Tribunal Act 2009 (Qld), hears minor civil disputes (up to $25,000), residential tenancy, anti-discrimination, guardianship and administrative review matters.
Courts. The Magistrates Court (up to $150,000), District Court ($ 150,000 to $750,000) and Supreme Court (unlimited) of Queensland, with appeals to the Queensland Court of Appeal and the High Court of Australia.

Unit 3: governance and the Constitution

Unit 3 turns to how power is structured and how law changes.

The Constitution: The Constitution of the Commonwealth of Australia is contained in s 9 of the Commonwealth of Australia Constitution Act 1900 (UK) and entered into force on 1 January 1901.
Separation of powers: Chapter I (s 1) vests legislative power in the Parliament; Chapter II (s 61) vests executive power in the Crown, exercisable by the Governor-General; Chapter III (s 71) vests judicial power in the High Court and federal courts. The separation of legislative and executive power is largely formal in Australia because of responsible government, but the separation of judicial power is strict: only Chapter III courts can exercise Commonwealth judicial power (R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254), a principle extended to state courts in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
Division of powers: Power is divided between the Commonwealth (exclusive powers such as customs and excise under s 90) and the states (residual powers such as criminal law, education and health), with most of s 51 being concurrent. The Engineers Case (Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129) reset interpretation in favour of reading Commonwealth heads of power on their natural meaning.
Section 109 inconsistency: Where a state law is inconsistent with a Commonwealth law, s 109 provides that the Commonwealth law prevails and the state law is invalid to the extent of the inconsistency. The three forms are direct (simultaneous obedience impossible), direct (the state law alters, impairs or detracts: Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466), and indirect or cover the field (Ex parte McLean (1930) 43 CLR 472). In Commonwealth v Australian Capital Territory (2013) 250 CLR 441 the High Court struck down the ACT same-sex marriage law because the Marriage Act 1961 (Cth) covered the field.

Unit 3: influences on law reform

Law reform is driven by several institutions, and the strongest IA2 essays weigh their relative influence.

Law Reform Commissions. The Australian Law Reform Commission (Australian Law Reform Commission Act 1996 (Cth)) and the Queensland Law Reform Commission (Law Reform Commission Act 1968 (Qld)) conduct systematic review. The QLRC Report No. 78 (2018) underpinned the Termination of Pregnancy Act 2018 (Qld).
Royal commissions. Established under the Royal Commissions Act 1902 (Cth) or the Commissions of Inquiry Act 1950 (Qld), with coercive powers, usually responding to a crisis. The Royal Commission into Institutional Responses to Child Sexual Abuse (2017) led to the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth). Queensland's Fitzgerald Inquiry (1987 to 1989) led to the body now called the Crime and Corruption Commission (Crime and Corruption Act 2001 (Qld)).
Parliamentary committees, media and individuals. Investigative journalism (the 2016 ABC Four Corners report on Don Dale) and individuals (Eddie Mabo, whose challenge culminated in Mabo v Queensland (No 2) (1992) 175 CLR 1 and the Native Title Act 1993 (Cth)) also drive reform.

Unit 4: human rights protection in Australia

Australia is a dualist common law democracy with no national bill of rights. Rights are protected in patches: a few express constitutional rights (ss 41, 80, 116, 117) and the implied freedom of political communication (Lange v ABC (1997) 189 CLR 520); common law rights (the right to a fair trial recognised in Dietrich v The Queen (1992) 177 CLR 292); Commonwealth anti-discrimination statutes; and state and territory human rights Acts.

The Human Rights Act 2019 (Qld). Commenced 1 January 2020 (in full from 1 July 2020), it was the third such Act in Australia after Victoria (2006) and the ACT (2004). Its key features:

23 listed rights (Part 2, ss 15 to 37) drawn mainly from the ICCPR, plus the right to education (s 36) and the right to health services (s 37) from the ICESCR.
A limitations clause (s 13): a right may be limited only by reasonable limits demonstrably justified in a free and democratic society.
Obligations on public entities (s 58): they must act compatibly with rights and give proper consideration to relevant rights.
Statements of compatibility (s 38) for bills introduced in the Legislative Assembly.
Declarations of incompatibility (s 53) by the Supreme Court, which do not invalidate the law but trigger a parliamentary response within six months (s 56).
Complaints to the Queensland Human Rights Commission (Part 4), which conciliates but cannot make binding determinations.

This is the dialogue model: courts and Parliament share responsibility, and parliamentary sovereignty is preserved. Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 considered solitary confinement and clarified the s 13 proportionality test.

Unit 4: the development of human rights and international law

The modern framework was built on historic milestones (Magna Carta 1215, the US Bill of Rights 1791, the French Declaration of the Rights of Man and of the Citizen 1789) and codified after the Second World War.

The International Bill of Human Rights comprises the Universal Declaration of Human Rights 1948 (a declaration, not a binding treaty), the International Covenant on Civil and Political Rights 1966 (ICCPR), and the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR), both in force from 1976. Australia is dualist, so treaties bind domestically only through implementing legislation: the Racial Discrimination Act 1975 (Cth) implements CERD, and the Sex Discrimination Act 1984 (Cth) implements CEDAW.

The International Criminal Court. Established by the Rome Statute of the International Criminal Court 1998 (in force 1 July 2002), the ICC prosecutes individuals for four core crimes under article 5: genocide (article 6), crimes against humanity (article 7), war crimes (article 8) and the crime of aggression (article 8 bis). Jurisdiction is triggered by a state party referral, a UN Security Council referral, or the prosecutor acting on their own motion (article 13), and the Court applies complementarity (article 17), acting only where a state is unwilling or unable to prosecute. Australia implements its obligations through the International Criminal Court Act 2002 (Cth) and Division 268 of the Criminal Code Act 1995 (Cth).

Worked example: a model extended response on the effectiveness of the Human Rights Act 2019 (Qld)

Prompt (IA3 or EA style): "Evaluate the effectiveness of the Human Rights Act 2019 (Qld) in delivering justice, equality and fairness." (10 marks)

Thesis: The Human Rights Act 2019 (Qld) materially advances justice, equality and fairness by listing 23 rights and binding public entities to consider them, but the dialogue model and the absence of any power to strike down incompatible laws mean its effectiveness is real yet constrained.
Paragraph 1, fairness through obligations on public entities: Section 58 requires public entities, including departments, councils, the Queensland Police Service and Queensland Corrective Services, both to act compatibly with rights and to give proper consideration to relevant rights when making decisions. This embeds fairness in everyday administrative decision-making rather than leaving rights to litigation. Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 shows the courts policing this obligation through the s 13 proportionality test.
Paragraph 2, equality through a comprehensive and accessible scheme: The 23 listed rights (ss 15 to 37) include recognition and equality before the law (s 15) and the cultural rights of Aboriginal peoples and Torres Strait Islander peoples (s 28), and complaints can be brought to the Queensland Human Rights Commission for conciliation (Part 4). This widens access to rights protection beyond those who can afford litigation, advancing substantive equality. The inclusion of education (s 36) and health services (s 37) from the ICESCR extends protection to social rights often left out of older instruments.
Paragraph 3, the justice limit in the dialogue model: The Act preserves parliamentary sovereignty. Under s 53 the Supreme Court can only declare a law incompatible, not invalidate it; Parliament must respond within six months (s 56) but may simply maintain the law, and override declarations are available under s 43. The Commission cannot make binding determinations. Compared with an entrenched constitutional bill of rights, this is a weaker guarantee, and resourcing of the Commission has drawn criticism in successive annual reports.
Judgement: The Human Rights Act 2019 (Qld) is effective in advancing fairness and equality through enforceable obligations on public entities and an accessible complaints process, but its justice ceiling is set by the dialogue model: rights are protected through institutional dialogue rather than judicial supremacy, so the Act is a genuine but limited advance on Queensland's previous patchwork of protections.

Check your knowledge

Explain the civil standard of proof and the Briginshaw principle, and give one type of proceeding where Briginshaw commonly applies. (4 marks)
Set out the three elements of the tort of negligence, naming a leading case for duty of care and the Queensland statutory provisions for breach and causation. (6 marks)
Compare mediation, arbitration and a QCAT determination on the criteria of cost, bindingness and expertise. (6 marks)
Explain the separation of powers and the division of powers, and state why the separation of judicial power is described as strict. (6 marks)
Explain section 109 of the Constitution and its three forms of inconsistency, citing one leading case. (5 marks)
Explain the dialogue model under the Human Rights Act 2019 (Qld), referring to ss 13, 53 and 56. (5 marks)
Explain the four core crimes prosecuted by the International Criminal Court and the principle of complementarity. (5 marks)
Construct a thesis and three paragraph topics for a 10-mark response: "Evaluate the effectiveness of the International Criminal Court in delivering justice." (8 marks)

Solutions

Q1: The civil standard is the balance of probabilities: the plaintiff must prove their case is more likely than not. Under the Briginshaw principle (Briginshaw v Briginshaw (1938) 60 CLR 336), the cogency of evidence required rises with the gravity of the allegation, though the standard itself does not change. It commonly applies in defamation, professional misconduct and protection order proceedings.
Q2: Duty of care: the defendant owed a duty to take reasonable care, derived from the neighbour principle in Donoghue v Stevenson [1932] AC 562. Breach: failure to take reasonable precautions, governed by the Civil Liability Act 2003 (Qld) s 9 (foreseeable, not insignificant risk, reasonable response). Causation: the breach caused the harm, governed by s 11 (factual causation by the but for test, plus scope of liability). All three are proved on the balance of probabilities.
Q3: Mediation is the cheapest and is non-binding unless the parties sign a deed of settlement; the mediator need not have subject expertise. Arbitration is more costly but produces a binding, enforceable award (Commercial Arbitration Act 2013 (Qld) s 35), and parties can choose an arbitrator with relevant expertise. A QCAT determination is cheaper than court, is binding (subject to appeal), and is made by tribunal members with subject-matter expertise; some orders require court registration for enforcement.
Q4: The separation of powers divides the legislative (Chapter I, s 1), executive (Chapter II, s 61) and judicial (Chapter III, s 71) functions. The division of powers divides legislative power between the Commonwealth (exclusive and concurrent) and the states (residual). The separation of judicial power is strict because only Chapter III courts can exercise Commonwealth judicial power and cannot be given incompatible non-judicial functions (R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254), whereas the legislative and executive arms overlap under responsible government.
Q5: Section 109 provides that where a state law is inconsistent with a Commonwealth law, the Commonwealth law prevails and the state law is invalid to the extent of the inconsistency. The three forms are direct inconsistency where simultaneous obedience is impossible; direct inconsistency where the state law alters, impairs or detracts from the Commonwealth law (Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466); and indirect or cover the field inconsistency (Ex parte McLean (1930) 43 CLR 472). Commonwealth v Australian Capital Territory (2013) 250 CLR 441 illustrates cover the field.
Q6: Under the dialogue model, courts and Parliament share responsibility for rights. The Supreme Court can declare a statutory provision incompatible with a human right under s 53 but cannot invalidate it. The declaration is referred to Parliament, which must respond within six months under s 56. Any limit on a right must be reasonable and demonstrably justified under s 13. The model preserves parliamentary sovereignty.
Q7: The four core crimes under Rome Statute article 5 are genocide (article 6), crimes against humanity (article 7), war crimes (article 8) and the crime of aggression (article 8 bis). Complementarity (article 17) makes the ICC a court of last resort: a case is inadmissible if a state with jurisdiction is genuinely investigating or prosecuting, unless that state is unwilling or unable to act.
Q8: Thesis: the ICC advances international justice by establishing a permanent court with jurisdiction over the gravest crimes and securing convictions of senior figures, but its effectiveness is limited by the non-participation of major powers and its dependence on state cooperation. Paragraph topics: (a) achievements (124 states parties, convictions such as Ntaganda and Ongwen, arrest warrants reaching sitting leaders); (b) structural strengths (the four core crimes, complementarity, jurisdictional triggers under article 13); (c) limits (no police force, slow investigations, non-parties including the US, Russia and China, and allegations of selectivity). SME REVIEW NEEDED for the current status of recent warrants and applications.