legal exam Flashcards
Who enforces criminal law?
Victoria police/Federal police
What does it mean to enforce criminal law?
To enforce criminal law means to actively participate in making sure people obey the legal principles of their region and/or nation
What are sanctions?
Criminal penalties imposed by the courts
5 purposes of sanctions
Punishment Deterrence Denunciation Rehabilitation Protection
Punishment
Purpose is to punish offender – allows victims and families to seek retribution without taking law into their own hands. If they do, crime increases and no social cohesion. So, courts seek revenge on behalf of society by imposing sanction that will punish.
Deterrence
The law aims to deter/discourage the offender AND others in society from committing the same or similar offences in the future – by imposing a penalty severe enough that the offender and others can see serious consequences of committing the crime.
General deterrence = discourages people in general from committing act
Specific deterrence = aimed at stopping the offender who is being sentenced
Denunciation
When deciding on a sanction for a crime, the court can impose a sentence harsh enough to show its disapproval. It is designed to send message that this type of criminal behaviour will not be tolerated by the courts.
Rebailitation
It is in society’s interests to try help offenders change their ways, otherwise criminal rates and prison costs will rise. In giving offenders improved opportunities in education, training, assistance and support, the legal system hopes offenders will change their ways and become law abiding citizens.
Protection
Aims to ensure safety of society by imposing a sanction that prevents offender from harming again. An offender may be required to serve a term of imprisonment to remove the offender from society so they cannot commit any more harmful acts and keeps society safe.
Although imprisonment as a sanction is last resort, some offenders are deemed a danger to society from lack of remorse, offenders’ callous attitude and nature of crime so should be kept in as long as possible.
Types of sanctions
Imprisonment
Drug Treatment order
CCO
Fine
Imprisonment
How?
Purpose?
Record a conviction and order that the offender serve a term of imprisonment.
Is the most serious sanction and removes offender from society and into prison.
Aims to protect community and punish offender.
DTO
How?
Purpose?
Record a conviction and order the offender undertake a judicially supervised drug or alcohol treatment program.
CCO
What?
Purpose?
Sanction that allows offender to be in community while serving sanction. Is seen as a flexible sentencing option that can be given for wide range of crimes. Can be combined.
Without or with recording a conviction, make a CCO in respect to of the offender. The order will be made with conditions attached:
- mandatory condition (apply to every offender like must not commit an offence punishable by imprisonment during the period of the order, must report to CC officer, must comply with rules)
- optional conditions (specific to offender, at least one is given like unpaid community work, treatment and rehabilitation, curfew and supervision)
Fine
With or without recording a conviction, order the offender to pay a fine, which is a sum of money payable to the court.
- Is a monetary penalty paid by offender to State of Victoria. Expressed in penalty units.
- can be imposed in addition to another sentence
Mediation
Mediation is an alternate method to a hearing where both parties can read an agreement themselves with an impartial mediator who guides them through reaching an agreement through negotiation but cannot offer advice or suggestions.
Conciliation
- Conciliation is similar to mediation in that the parties are the ultimate decision makers and the impartial conciliator is just there to guide the dispute.
- Parties can live amiably with each other because of the less formal way of resolution, the outcome and process is likely to be more comfortable and so less tension will arise between parties.
Arbitration
Arbitration is where an independent third-party listens to the disputing parties and helps them reach an agreement through a binding decision. instead of going to court they are choosing a private dispute resolution.
Role of tribunals
Tribunals are dispute resolution bodies that are given power by parliaments to resolve certain types of disputes. Their purpose is to provide people with a lower cost, efficient and quick method of dispute resolution.
tribunal example
VCAT is a tribunal that deals with a range of civil disputes and is made up of four divisions that section those claims such as Human Rights Division (discrimination claims) and Civil division (small civil claims). Its purpose is in line with that of all tribunals: provide a low cost, accessible and efficient method of dispute resolution.
Complaints body example
- The Victorian Equal Opportunity and Human Rights Commission is an independent body that handles complaints about sexual harassment, victimisation, discrimination, etc.
They use conciliation to resolve disputes, and do not have the power to conduct a hearing, award compensation or make binding decisions.
Role of complaint bodies…
Complaint bodies deal with complaints to do with goods, services and industries and the decisions of certain bodies or authorities. They are free and their services are flexible and accessible to everyone.
Civil jurisdiction: Magistrates County Supreme Trial division/court of appeal High court
M:
Original jurisdiction = Claims up to $100 000
Appellate jurisdiction = No
C:
Original jurisdiction=Unlimited
Appellate jurisdiction = No, unless given under specific Act of Parliament
Trial division:
Original jurisdiction = Unlimited
Appellate jurisdiction = Appeals on a question of law from the Magistrates’ Court and VCAT
Appeal:
Original jurisdiction = N/A
Appellate jurisdiction = Appeals from the County Court, Supreme (Trial Division) or VCAT when constituted by the president or a vice president
H:
Original jurisdiction = Cases which involve interpretation of the Constitution
Appellate jurisdiction = Certain appeals against the decisions from other courts (Supreme courts or Federal courts)
What is a right?
A right is a moral or legal entitlement to something.
What people consider their “rights” varies from person to person depending on who they are, what they believe and what their country believes. Although they are hard to define, the common understanding of them is they protect and support respect, dignity, equality, justice. They reference the protection of basic freedoms which include things like: The right to life
How does Australia protect rights?
Australia protects rights through statute law, common law, and the Australian Constitution. (The way Australia protects rights is not the same as other western democracies).
