Law AT2

Question 1

Four main roles of laws

Answer 1

Establish boundaries
Protection
Freedom
Resolving Disputes

Question 2

The Doli Incapax principle

Answer 2

‘incapable of wrong’
Under 10- incapable of criminal intent cannot be held criminally responsible for their actions
* Between 10 -14, prosecution must prove mens rea (awareness/intent)

Question 3

Rules of morality and ethics

Answer 3

Morals - standards of behaviour, principles of right and wrong.
Ethics - moral principles that govern a person’s behaviour or the conducting of an activity

Question 4

Types of law

Answer 4

Private (CIVIL) Law- legal relationship between individuals and organisations.
Public Law - Legal relationship between individuals of society and the state

Question 5

Public law types

Answer 5

Criminal Law- laws protecting general public from harm
Administrative Law - decisions and powers of government departments.
Constitutional Law - a legal document outlining the powers and authority of the parliament;

Question 6

Private (Civil) Law types

Answer 6

Tort Law - infringes the rights of another person
Contract Law
Property Law
Family Law
Industrial Law

Question 7

Main parts of Civil Law

Answer 7

The two main areas of civil law are law of tort and contract law.
* The law of tort includes:
* Negligence - fails to take reasonable care and causes injury
* Defamation - injures another person’s reputation
* Nuisance - unreasonable interference with another person’s right to quiet enjoyment of their property
* Trespass - interferes with another person, or their property rights.

Question 8

Plaintiff and Defendant

Answer 8

Plaintiff (accuser) has ability to sue defendant (accused) in civil cases
Civil wrong proven - financial compensation

Question 9

Negligence

Answer 9

When a person or
organisation fails to exercise
reasonable care and causes damage
to another person

Question 10

Criminal law

Answer 10

A crime includes any act which
results in harm to society at large and is punishable by the state, including the court system and state or Commonwealth bodies.
* Crimes are categorised in two ways:

1. Summary Offences
2. Indictable Offences

Question 11

Summary Offences

Answer 11

Tried by a Magistrate only
* Proceed through the courts
much faster than indictable offences (proceedings must start within 6 months)
* Penalties range from a bond or fine to a jail
sentence of up to 2 years (5 if a person is
convicted of more than one offence).

Question 12

Indictable offences

Answer 12

Tried by a Judge and jury
* Extremely serious charges tried in Supreme Court, others in District Court
* Punishment is usually imprisonment or a very large fine.
* There is no time limit for when charges must be laid

Question 13

Actus Reus

Answer 13

‘guilty act’
* Meaning: the physical act of committing the crime
Main features:
* The act, or omission, actually occurred
* It was done by the accused
* It was done voluntarily; that is the accused was not forced.
Note: it can also include an omission, or failure to act, particularly in cases of
negligence.

Question 14

Mens Rea

Answer 14

‘guilty mind’
*Meaning: a person must have
intended to commit the crime.

• Mens rea is the conscious and
  willing mind that was present in
  performing the crime.

Question 15

Age of Criminal Responsibility

Answer 15

The age of criminal liability is 10. No child below the age of 10 can be arrested, summonsed or found guilty
of a criminal offence.
Section 5 of the Children (Criminal Proceedings) Act 1987. Children between the ages of 10 and 18 who are charged with criminal offences are dealt with by the
Children’s Court.

Question 16

Options for dealing with young offenders

Answer 16

Warning - police issue them, not as serious

• Cautions - formal warning. Must plead guilty to crime. Must be issued at a police
  station
• YJC (Youth Justice Conferencing) - less serious offences, offender must plead guilty. Community members,
  police, magistrate and victims involved in deciding a punishment
• Children’s Court - for all serious offences. Formal court procedure. Magistrate

Question 17

Arraigned

Answer 17

When the defendant is called or brought before a court to answer a criminal charge.

Question 18

Common law

Answer 18

Developed by judges through decisions of courts and similar tribunals (also called case law), rather than through laws passed by parliaments known as statute law

Question 19

Precedent

Answer 19

The ‘doctrine of precedent’ - legal principle
established by a superior court should
be followed in future cases regardless of court

The body of precedent is called
“common law” and future decisions
are bound by it.

Question 20

Making Precedent

Answer 20

Two main ways:
1) A precedent is created when a judge arrives at a decision when there is no
existing common or statute law.
2) A precedent can be created by way of a judge interpreting legislation, also
known as ‘statutory interpretation’.

Question 21

Committal Hearing

Answer 21

A hearing in Local Court to ensure that a prima facie (sufficiently strong case) exists before an indictable case comes to trial. A brief of evidence must be served, the prosecution must file a charge certificate.
Prior to a case conference occurring, a magistrate must explain
the committal process to the accused. The magistrate must
also explain the sentencing discount scheme to the accused,
so that they understand the benefits of pleading guilty.

If the accused is unrepresented or pleads guilty to the charges
before a case conference is held, a case conference is not
required.

This process tries to prevent weak cases being brought to the
court and encourages defendants to plead guilty if cases are strong

Question 22

The local court

Answer 22

Features:
- Presiding officer is a magistrate
- No jury
Civil matters:
- 90% of civil cases begin in the Local Court
- Civil cases are dispute about money or property
- The NSW Local Court deals with civil disputes for claims up to
$100,000
Criminal matters:
- Hears summary/minor offences
- Hears bail applications, issues arrest warrants and search warrants, and
applications for Apprehended Violence Orders (AVOs

Question 23

District court

Answer 23

Features:
- Presided over by a judge and in some cases a jury
Civil matters:
- Deal with:
- All motor accident cases
- Other claims from $100,001 to $750,000, may exceed
- Types of matters commonly dealt with:
- Breach of contract, personal injury and defamation
- There may be a jury of 4 people for some matters

Criminal matters:
- Hears indictable offences
- May be a jury of 12 people
- Decisions can be appealed to the NSW Court of Criminal Appeal

Question 24

Supreme court

Answer 24

Features:
- Presided over by a judge
Civil matters:
- A jury of up to 4 people may preside over some civil matters
- The Supreme Court is the highest court in NSW
- It has unlimited civil jurisdiction which means that there is no limit on
the amount that can be claimed

Criminal matters:
- Hears only the most serious criminal matters
- There may be a jury of 12 people
- Appeals may be made to the NSW Court of Criminal Appeal

Question 25

High Court of Australia

Answer 25

Located in Canberra
- Highest court in Australia
- Decisions based on the Constitution and any issues arising between the states and the Commonwealth
- It also hears appeals from the Supreme Courts and Federal Courts around Australia

Question 26

Juries

Answer 26

12 citizens (sometimes 15 are called and
final 12 make deliberations)

Judge decides evidence and instructs
jury on what has to be proved.

Judge will explain to jury the elements of
case that need to be proven and jury
decide whether these are proven

Judge can explain what reasonable
doubt means

Jury then deliberate and decide
innocence or guilt.

Question 27

The Constitution and Powers of Federal Government

Answer 27

-Each parliament has a Constitution, which is a document that
outlines the powers of parliament and any
restrictions to its law-making authority.

• Federal Parliament in Canberra makes
  laws on issues that affect the whole
  country.

Question 28

Statute Law

Answer 28

Laws created by parliament have the highest status and must be obeyed by
all people.
- Parliament makes most of the laws, can change laws and can pass an Act to
overcome the effects of precedent.
- Statute law will always succeed over common law. The only court that can
change this is the High Court- but only if it is unconstitutional.
- Laws made by parliament are also called Acts, statutes and legislation.
- Statute law involves parliament passing a bill, which is a proposed law or a
change to an existing law.

Question 29

How a Bill Becomes a Law

Answer 29

A bill is a draft proposal to introduce a new law or amend an existing law that
is presented to a House of Parliament.
- The bill must pass through both houses, where it is discussed and voted on.
- It must then be approved by the Executive Council and the Governor- General (Federal), or Governor (State) who then signs the bill (Royal Assent).

• The bill then becomes an Act of Parliament (legislation).

Question 30

Standard of proof

Answer 30

To be found guilty in a criminal matter, the prosecution must prove that the accused is guilty beyond reasonable doubt.

Question 31

Judges and Magistrates

Answer 31

Judges and magistrates preside over court cases and are legally qualified professionals

Judges sit in intermediate and superior courts (e.g. District
and Supreme Courts in NSW) and usually decides the outcome (verdict) of cases and may sit without a jury

A magistrate is less formal and sits in the lower courts and their role is to determine cases (reach a verdict).
The magistrate must also issue rulings and sentences.

Question 32

Prosecutor and Defendant in criminal trials

Answer 32

The prosecution represents the community and in trials are referred to as the Crown.
In most criminal trials the Director of Public
Prosecutions (DPP) conducts the prosecution.
When a criminal matter is heard in the Local Court, the prosecution is usually conducted by a specially trained
police officer known as a Police Prosecutor.
The defendant is the accused person; in most trials
they will be represented by their barrister, although
some people may choose to represent themselves.

Question 33

Barrister and Solicitors

Answer 33

Are both lawyers in a courtroom but have different roles.
A solicitor is usually the first person that someone who is seeking
legal advice will approach. Most cases their work is non-litigious (no court).
Barrister approached by solicitor on behalf of a client, represents the client in court.

The barrister has two main functions:
* to provide legal advice to their client (e.g. the likely outcome of a case)
* to present their client’s case in the court (if the barrister has been briefed by a solicitor)

Question 34

Forms of community-based Punishment

Answer 34

Changes to community-based sentencing in NSW took effect in September 2018 and there are now three orders available to the courts. These are:

• Intensive correction orders (ICOs), the most serious conditions after prison.
  Supervision by community corrections officers and compliance with at least one other condition such as electronic monitoring. Available for offenders sentenced to up to two years in prison for a single offence, or up to three years for multiple offences
• Community correction orders (CCOs), which can be imposed for up to three years. The courts can include conditions such as curfews, community service work and drug and alcohol bans
• Conditional release orders (CROs), which can be imposed for up to two years. These are for less serious crimes and can impose them with or without recording a conviction against the offender.
  Conditions can include supervision and restrictions from participating in programs.

Question 35

Forms of severe punishments

Answer 35

Maximum penalties - Most severe punishment for a crime committed possible e.g. for murder it would be life imprisonment
Mandatory sentences - Set sentence by NSW parliament that judges must impose. Two in NSW: Killing a police officer - mandatory life sentence; assault causing death - mandatory minimum sentence of 8 years in prison
Non-parole periods - Minimum prison term an offender will serve before being eligible to be released on parole. Some offence have a set (called a ‘standard’) non-parole period the judge or magistrate has to impose if the offender is found guilty

Question 36

Mediation & Conciliation

Answer 36

Mediation is where the people (parties) involved in a
dispute meet with a neutral third party — a mediator —
who helps them to negotiate an agreement.
● This is normally some form of compromise.
● The main advantage of mediation is that both parties
feel that they have achieved something for themselves.

Conciliation is very similar to mediation except that
the conciliator is usually much more interventionist;
that is, they will offer their opinions and views.
● Conciliation is quite common in industrial disputes

Question 37

Arbitration

Answer 37

Arbitration is a method of resolving disputes whereby an impartial third
party decides on a settlement arrangement that is then binding on the
parties to the dispute.
● However, if the parties cannot reach an agreement, the arbitrator decides
for them.
● The arbitrator’s decision is binding, which means that both parties must
accept the decision and carry out any actions stipulated in that decision.

Question 38

Restorative Justice

Answer 38

Restorative justice allows the victim and the
offender to discuss the situation, usually face
to face.
● Other people who may be asked to attend the
conference include police informants,
community representatives, school teachers
and sport coaches.

Question 39

Warnings, Formal Cautions & Community Conferencing

Answer 39

Warnings are for a person under the age of 18 commits a criminal offence,
such as offensive conduct or carrying an offensive implement, they may be
dealt with by a police officer issuing a warning. (no criminal record)
● Formal Cautions may be given to a child by a senior police officer or a
respected member of the community such as an Aboriginal elder.
● Community conferencing is viewed as being more severe than a caution,
but not as severe as a court appearance. A child must first admit to an
offence before being eligible for conferencing or a caution. (no criminal
record)

Question 40

What is customary law?

Answer 40

Customary law refers to the guidelines for
behaviour that have been developed by
Aboriginal and Torres Strait Islander peoples
which originated in the Dreaming. These laws
are passed on by word of mouth and have not
been written down.
● They believe that they do not own the land —
the land owns them, so it is their responsibility
to take care of it. The stories, songs and dances
told in the Dreaming reveal the many ways in
which First Nations Australians are connected to
the land.

Songs and dances were also used to pass down customary law.

Question 41

Dispute Resolution

Answer 41

ATSI:
● Disputes were resolved by the Elders, agreed on an appropriate solution or consequence.

Question 42

Circle Sentencing

Answer 42

Circle sentencing is a scheme operating in
New South Wales that tries to avoid
imprisonment for Aboriginal offenders

Question 43

CROC laws

Answer 43

UN Convention on the Rights of the Child (1989)
Four key principles:
1. EVERY CHILD, EVERYWHERE: Children should neither benefit nor suffer because of their race, colour, etc.
2. THE BEST INTERESTS OF THE CHILD: Laws and actions should be in best interest of child
3. SURVIVAL, DEVELOPMENT AND PROTECTION: The authorities must protect children and ensure their development
4. A VOICE: Children have a right to have their say in their decisions

Question 44

Bill process

Answer 44

House of reps: Senate:
1st Reading 1st Reading
2nd Reading 2nd Reading
HouseComitee Senatecomitee
Consideration in detail Committee of whole
3rd Reading 3rd Reading
Bill Passed Bill Passed

Royal Assent - The Governor-General signs the bill
Bill becomes an act of Parliament