Legal studies exam Flashcards
What are community legal centres and describe two of their roles in assisting an accused.
Community legal centres are legal service assistance providers, as independent organisations, that provide free legal services, such as advice, information, and representation to people who cannot access other legal services like VLC.
One role of CLC is to provide an accused with basic legal information. The information can be given for free and can give the accused valuable information regarding their rights and the processes that will be used in their hearing/trial. The information can be sought via their website and an accused can also phone a community legal centre to inquire about information.
What is a victim impact statement?
A victim impact statement is given by a victim of a crime, and outlines particulars of any loss, harm, or injury suffered, as a direct result of the offending.
This can prompt a judge to give a more severe sentence where the impact is substantial. Thus the sentence has to reflect the impact.
What does section 128 of the constitution outline?
Section 128 outlines that in order for a referendum to be successful, more than 50% of Australians must support the proposed change to the Australian constitution, and more than 50% of individuals in 4/6 states must also support the proposed change to the Australian constitution.
Extent to which fines achieve their purposes.
- Fines are more likely to be effective, when the fine is significant and the offender is financially affected. However, if a fine remains unpaid, then it is questionable of how punishment can be achieved.
- Deterrence: the ability of fines to achieve deterrence depends on a range of factors, such as the circumstance of the offender, the amount of fine, and whether the imposition of the fine is publicised or known to the public.
- Rehabilitation: fines are largely ineffective in addressing the underlying causes of offences, but fines could rehabilitate the offender by conditioning them (e.g., a person may modify their behaviour in response to getting a fine).
- Protection: fines do not protect the community, as the offender remains in the community. However, because fines can modify an individuals behaviour, this can assist in achieving protection (e.g., not speeding on the road).
How do judges manage civil disputes through case management?
- Power to order mediation: the judge can refer the parties to mediation at any time of the proceeding, which can include at very early stages or even during the trial. The power to order parties to attend mediation can assist in the prompt and economical resolution of a dispute.
- Power to give directions: judges can give directions before or during the trial, enabling them to actively manage the civil proceeding.
What are some directions before a trial?
- Timetables or timelines for any steps to be taken.
- Participating in any method of dispute resolution such as mediation.
What are some directions during a trial?
- The order in which evidence is to be given.
- Not allowing cross-examination of particular witnesses.
What are express protection of rights?
Express protection of rights are rights that are explicitly stated in the constitution and are entrenched, meaning they cannot be removed, except through a referendum, which provides a check on parliaments law-making.
Give an example of an express right, such as the right to free trade.
An example would be that if the commonwealth was to pass a law that says Victoria cannot trade with Queensland, then this would be unconstitutional, therefore limiting the law-making power of the commonwealth parliament as they cannot legislate in this area.
What are some strengths of royal commissions?
- Royal commissions can expose individual or institutional wrongdoing, which could influence government to strengthen laws about criminal conduct and wrongdoing.
- Commissioners are generally independent from government, commonly judiciary/legal professionals, which can make their recommendations more influential.
What are some weaknesses of royal commissions?
- The commission is limited to its ‘term of reference’, over which the government has influence over.
- Royal commissions can be used to put pressure on political opponents, rather than as a means of law reform.
Discuss some of the roles of parties in a civil case.
- Parties can both cross-examine witnesses, and sum up the facts of their case to court. This ensures that they have the same opportunity to present their case, and can test the other parties evidence through cross-examination.
- However, someone who is financially disadvantaged, may not be able to present their case in the best possible light.
- Parties are able to have full control over their case (party control). They are able to decide what evidence to disclose and what witnesses to call up, ensuring that parties have full agency over their case.
- However, this may mean that parties receive minimal support from the court, which could disadvantage parties who are unrepresented.
Description of factors that should be considered when initiating a civil claim.
- Negotiation options:
- will work for financially disadvantaged party.
- consider party who is at prison.
- can you negotiate directly?
- Limitation of actions:
- if the other party is in prison, because the matter occurred from a criminal matter, then how long would you need to wait until the offender got out of prison, to initiate the civil claim?
- Scope of liability:
- extent to which the person is liable. The other person can argue that they contributed to their injury etc.
- Enforcement issues:
- will the amount be paid?
- does the opposing party even afford it?
- Costs:
- filing a court fee in the magistrates is over $800, and from $1000 to over $4000 in the supreme court.
What is a remedy? + purpose.
A remedy is designed by courts to address a civil wrong or breach.
The general purpose of a remedy is to restore the plaintiff as much possible to the position they in, prior to the breach of their rights.
What are ‘damages’? + purpose.
damages is an amount of money paid by defendant to the plaintiff.
The purpose of damages is to compensate the plaintiff for losses suffered, to return them to the position they were in before the defendant caused harm.
