Exam Revision Flashcards
The role of individuals in achieving social cohesion and protecting the rights of individuals
Social cohesion is achieved when individuals act morally and respectfully towards others by ensuring they are aware of laws and abide by them
When individuals successfully achieve social cohesion the rights of individuals are more often protected because individuals will respect human rights and report crime and dangerous behavior to law enforcement agencies
Choose to follow laws to avoid consequence, moral compass
The role of laws in achieving social cohesion and protecting the rights of individuals
Laws exist to promote community safety and protect individual rights
Laws achieve social cohesion by being made by a democratically elected parliament to represent community views and values
Individuals are more inclined to abide to laws they believe in
Laws discourage dangerous behaviour and promote positive behaviour
The role of the legal system in achieving social cohesion and protecting the rights of individuals
Made up of institutions, organizations, rules, procedures and people responsible with maintaining order in society. Achieves social cohesion by creating, applying and enforcing laws in our community. Parliament makes laws to regulate behaviour and foster social cohesion. Parliament must produce a statement of compatibility for every law it creates to ensure it is compatible with the seven international human rights and freedoms treaty. Democratically elected parliament- laws mu reflect the views and values of the community. Judges interpret and apply laws in a way that is fair and equitable to resolve disputes. Promotes social cohesion by ensuring disputes are resolved in a way that if transparent, consistent, fair, just and reliable. Police and law enforcement agencies enforce law to ensure individuals are held accountable for behaviour that is not socially cohesive.
How is fairness upheld in the legal system?
The right to a fair trial or hearing is a right protected by the Charter of Human Rights and Responsibilities Act 2006
-Presumption of innocence
-All individuals and businesses to a dispute are entitled to a hearing from an impartial third party
-In some criminal trials the accused as the right to have their case determined by a jury of their peers.
How is fairness not upheld in the legal system?
-delays= limited reliability of evidence
-Financially disadvantaged accused may be unable to present their case to the same extent as the prosecution, limiting the achievement of fairness
-They have communication difficulties such as the inability to speak or understand English, or experience other cultural barriers which mean they are misunderstood, for example a culture where direct eye contact is offensive may lead a party to avoid eye contact which may be misinterpreted as guilt
How does the legal system uphold equality?
-In a criminal trial, equality is achieved when an individual defendant is granted rights such as the rights to silence and the burden of proof resting on the prosecution, to balance out the State (prosecutor) is more powerful in terms of money, resources and expertise.
-Sentencing guidelines, including max and min sentences, ensuring courts impose similar sanctions for similar offences, meaning offenders who commit the same, or similar crimes are treated alike.
-healthy discrimination may be necessary as some people need to be treated differently. Specialist courts such as the Children’s Court and Koori Court allow groups in society to have their case presented in a court which meets those needs.
How is equality not achieved in the legal system?
(strengths are not upheld)
-appeals are not equally accessible to the prosecution and accused due to their high cost. This can cause socioeconomic discrimination if the accused cannot appeal an unjust decision due to their financial position.
How is access upheld in the legal system?
-Court services Victoria provides translators and other support for individuals attending courts
-Government advertising campaigns, government departments and the courts provide information across many platforms about legal rights, responsibilities and how legal disputes are resolved
-Specialized knowledge and expertise of court judges and magistrates enhance access to justice as it allows cases to be resolved in a more efficient, consistent way.
How is access not upheld in the legal system?
-accused may struggle to understand the criminal processes and procedures of the courts if they have no prior knowledge, therefore limiting their access to justice
-13% of Australians live below the poverty line, but Legal Aid is only available for 8% of Australians
List characteristics of an effective law
-Reflective of society views and values
-Enforceable
-Clear
-Known
-Stable
Effective law- R
A law reflecting society’s values is one that reflects what the majority of society accepts and believes in. This is important because members of society are more inclined to follow a law they believe in, rather than disregard it. This means laws need to be changed and amended regularly to reflect shifting values.
Effective law- E
The characteristic of enforceability means it must be possible to monitor whether people follow the law and provide consequences for people who do not. If a law cannot be enforced people are less likely to abide by it. Law enforcement agencies can utilise up-to-date technology to improve enforcement. For example, police using new technology to detect drivers not wearing a seatbelt or using their mobile phones while driving.
Effective law- C
Laws must be clear and understood by the community.
Simple, clear language should be used when writing laws. If the law is ambiguous, unclear or written in language/jargon that people don’t understand, it is possible people won’t follow it and the law will be ineffective.
Effective law- K
A law is known if changes are clearly communicated, and people are given time to become familiar with the new law. However, ignorance of the law is not a defence.
Knowledge of the law means that members of society are less likely to break the law.
New laws are usually reported in the media, often following a great deal of discussion before changes are made.
Effective law- S
Effective laws should be stable, meaning they should not change so frequently that they are difficult to keep up with. Effective laws should be implemented for a reasonable period of time, so the community can become familiar with them and clarify expected behaviors.
Role of parliament
-The term Parliamentary supremacy means Parliament is the supreme law-making body. Parliament can make laws on any issue within its constitutional power.
Main role of the Commonwealth Parliament:
-Make laws for the peace, order and good government of Australia- laws called legislation or statute
-to represent the people of Australia in the laws that it makes, ensuring that laws passed reflect the social, moral, political and economic values of society.
-to check the laws made by bodies to which they have delegated law-making powers
Vic court hierarchy
High Court
Supreme Court of Appeal
Supreme Court
County Court
Magistrates Court
Role of the courts
-judges cannot make law as an immediate response to a community demand. Courts can act only to declare that legal principles apply to the facts of a case that is brought before them. Sometimes when courts do this, they create law, which is known as common law, or precedent
-TheCourts’main role is toapply legislation to resolve disputes before them.
-Each court was created by an Act of Parliament
Relationship between parliament and courts
-Act-
- Parliament establishes courts by passing a law and setting out its jurisdiction. Parliament can change these Acts at any time, and add to or take away from a particular court’s jurisdiction. Eg. The County Court in Victoria was established by the County Court Act 1958
Relationship between courts and parliament
-statutory interpretation-
Statutory interpretation is the courts interpreting and giving meaning to the words in legislation when resolving disputes. Courts may need to do this because:
Sections of a statute are drafted in broad terms and need to be applied to a specific fact scenario
The meaning of some words may change over time
As Parliament makes law ‘in future’ they may be unable to forsee a situation arising so the court must clarify the law to apply it to a case before them
When interpreting statute, courts must uphold the intentions of Parliament at the time of creating it.
-broadening or narrowing the operation of statute
Relationship between courts and parliament
-codification-
Codification of common law occurs where Parliament agrees with a principle of common law established by judges from a particular case and creates legislation to ‘confirm’ it. It is therefore ‘codified’ – which means it is written into law to protect the legal principle established.
Codification clarifies the operation of the law for future. It enables Parliament, as the sovereign, to ensure that the new law will extend beyond the parties to the dispute in which the common law principle was established.
eg. Mabo vs Queensland
The Commonwealth Parliament codified this decision by passing the Native Title Act 1993
Relationship between courts and parliament
-abrogation-
Abrogation of common law occurs when Parliament disagrees with a legal principle(s) established by a Court and ‘abolishes’ or ‘overrides’ the common law principle(s) by writing new law (legislation).
To ‘abrogate’ is to cancel or abolish a court made law, by passing a new Parliament Act.
Parliament may decide to abrogate common law for a number of reasons:
the courts may interpret the meaning of the words in a statute in a way that was not the intention of parliament, or
in a way that does not reflect the current meaning of the act, or
courts may develop precedent in a way that the parliament does not agree with.
Relationship between courts and parliament
-courts influence-
Through statutory interpretation judges may comment on whether particular legislation is appropriate to the cases being presented in the courts, or difficult to apply.
A court may remark that a legal principle is confusing when interpreting or applying a statute. It may also remark a common law principle needs to be changed but leave it to Parliament to do it.
Relationship between courts and parliament
-invalidation of statute-
Courts enforce the division of law-making powers between the State and the Commonwealth Parliament.
The High Court can hear applications where a party is claiming that a parliament has made a law that it is not in their power to make
SOURCES of law
Statute law:
Parliament drafts a Bill to be passed through parliament. Bill will become a law when it’s passed through both houses of Parliament and has been given Royal Assent by the Crown
Common Law:
-Courts have to wait for a case to be presented before them
Unlike Parliament, judges cannot make law as an immediate response to a community demand. Courts can act only to interpret legislation and declare that legal principles apply to the facts of a case before them.
Reasons for Vic Court Hierarchy (List)
Appeal: Parties to a court case apply to have a higher court review a decision made by a lower court
Specialization: Courts develop experience and expertise with the types of cases they deal with
Administrative convenience: enables minor matters to be dealt with relatively quick and inexpensive- reduce delays
Precedent- decisions in higher courts are binding on lower courts where material facts are similar
Justify the existence of the Victorian Court Hierarchy
The Vic Court system is a structured hierarchy where each court has the power to hear matters within its jurisdiction. It supports appeal as it allows superior courts to review and alter previous decisions made by lower courts. Appeals wouldn’t be possible if court hierarchy didn’t exist as there would be no superior court to review and correct mistakes. Allows dissatisfied parties to have their case reheard in a higher court with specialization, promoting fairness and reducing unjust decisions. Court hierarchy in Victoria allow court staff to gain expertise in particular services or hearing cases through specialization. It assigns each court a defined jurisdiction, and the skills developed allows for more just and accurate outcomes. An example of specialisation is that the Supreme Court can specialise in hearing serious indictable offences such as murder, while the Mag court can specialise in hearing minor offences such as minor civil disputes. Furthermore, the Vic court hierarchy assists in administrative convenience, by separating minor offences and disputes such as traffic offences into lower courts, and more serious cases like terrorism into higher courts. This organises cases and distributes resources effectively, resulting in a more efficient and effective legal system. It also allows superior courts to spend more time on complex cases, and lower courts to quickly resolve minor disputes to minimise delays and provide better access to the legal system. The Vic Court Hierarchy also supports the doctrine of precedent, in which decisions made in higher courts are followed in similar future cases in lower courts. Courts must be ranked in order to uphold this principle. This promotes fairness in the justice system by ensuring ‘like cases are decided in a like way’ and provides certainty and predictability for parties in civil and criminal cases. It also ensures consistency in judges’ decisions.
TYPES of law
Criminal law: Body of law relating to acts or omissions against society. It aims to deter people from committing crimes and help people feel safe in their communities.
Civil law: governs disputes relating to the rights of two parties (which can be individuals, or organisations), and aims to restore parties to the position they were in before their rights were infringed and they suffered injury or loss.
Distinguish between criminal and civil law
Criminal law is a body of law relating to acts or omissions committed against society, whereas civil law relates to a dispute between two private individuals or parties. In a criminal trial, the burden of proof rests with the state/prosecution to prove the accused is guilty beyond reasonable doubt. In a civil trial the burden of proof lies with the plaintiff to prove the parties/individuals liability. In a crim trial if the accused if found guilty they receive a sanction such as imprisonment or community correction order, whereas in a civil trial of the accused is found liable they must provide a remedy, usually a payment to the individual/party whose rights were infringed. In a criminal trial the standard of proof is beyond reasonable doubt which the prosecution has to prove the accused guilt, whereas in a civil trial the burden of proof is much lower and rests on the balance of probabilities.
Relationship between criminal and civil law
In some cases, a fact scenario or actions/omissions by an individual or organization can lead to both criminal and civil action.
-Victim can initiate a civil case as commission of a crime may infringe upon the rights of the victim protected under civil law, in addition to the criminal proceeding prosecuted by the State.
-The two cases will be heard separately, and may be heard in different courts. Outcome of one does not affect outcome of the other. Guilty verdict in criminal case may provide a stronger basis for the plaintiff in civil action
-standard of proof much higher in crim case than civil
Purposes of criminal law
Protecting Individuals:
Criminal law establishes crimes and processes to deal with people who commit them. For example, murder laws protect individuals by holding offenders accountable by removing them from society (imprisonment).
Protecting property:
Criminal law aims to protect private and public property (including land and the environment). For example, it is an offence to trespass on, or steal someone else’s property.
Deterrence of crime:
Criminal law aims to deter offenders and other individuals in society from committing the same or similar crimes in the future by imposing a penalty
Protecting society:
Criminal law aims to protect the community as a whole by setting minimum behaviour standards that maintain public order/ community safety. For example, laws prohibiting drug, or terrorism offences.
Protecting Justice:
Criminal law promotes justice for ALL parties by providing processes to deal with offenders and enforce the law. This prevents victims and their families from taking the law into their own hands to punish an offender (retribution).
How does criminal law achieve its purposes?
-establishes the law through statutes made by parliament and through court decisions
-enforces the law through law enforcement agencies, such as the Victoria Police
-determines guilt and innocence through the courts
-imposes sanctions on offenders which aim, among other things, to punish offenders and deter others from committing crime
What is the presumption of innocence?
The presumption of innocence refers to the legal principle that a person accused of committing a crime is presumed innocent until proven guilty. Justice prioritises protecting the innocent, rather than punishing the guilty at all costs.
The resource imbalance between the individual defendant and the more powerful state (Prosecution)
Respect for the importance of preserving individual liberty, dignity and autonomy.
-The presumption of innocence is enshrined in both legislation and common law.
Beyond reasonable doubt is the standard of proof to which the defendant’s guilt must be proved in a criminal case. The prosecution must prove the accused is guilty beyond reasonable doubt, rather than the accused having to prove their innocence.
Elements of a crime
Actus reus: The guilty act or inaction- physical element
Mens rea- the guilty mind - mental element
Strict liability
Strict Liability: a type of criminal responsibility that does not require the mens rea element of a crime to be proven for the offender to be found guilty. Strict liability offences are generally summary offences, which are less serious in nature and include not wearing a seatbelt and public transport fare evasion.
Age of criminal responsibility
Age of criminal responsibility: the age at which the law considers a child capable of understanding their wrongful actions and therefore the age at which a child can face criminal charges. Children under the age of 10 cannot be arrested, charged, or found guilty of a crime because they are considered doli incapax meaning ‘incapable of evil’ because they are too young to understand the criminal nature of their actions such that the mens rea element of a crime cannot be satisfied.
Burden of proof
Burden of proof: is the responsibility of a party to prove the facts of a case. In a criminal case, the prosecution has the burden of proving that the defendant is guilty of a crime to the criminal standard of proof, ‘beyond reasonable doubt’.
