Legal unit 2 oat something Flashcards
Equality
All people engaging with the justice system and its processes should be treated in the same way. If the same treatment causes disparity or disadvantage, adequate measures should be implemented to allow all people to engage with the justice system without disparity or disadvantage.
Fairness
All people can participate in the justice system, and its processes should be impartial and open.
Access
All people should be able to engage with the justice system and its processes on an informed basis.
Mediation
An impartial independent third party that allows the parties to talk with one another and come to a resolution among themselves (mutual agreement between parties)
Features of mediation
Not legally binding unless both parties sign the ‘Terms of Settlement’
A mediator helps the parties feel more in control of the situation and also helps them come to a decision
Conciliation
An independent third party that offers suggestions on how to resolve the matter between the two disputing parties (cannot make a decision themselves)
Not legally binding unless both parties sign the ‘Terms of Settlement’
Benefits of conciliation and mediation
Strengths – less formal than courts, less confrontation (less stress), less expensive, nothing can be held against them when discussed privately
Weaknesses of conciliation and mediation
Weaknesses – decisions reached are not legally binding (someone can back out later on), mediators and conciliators have no power to order a decision to be made, or for people to even attend
Arbitration
An independent third party that helps disputing parties try to reach an agreement and makes the final decision themselves. Is legally binding
Strengths of arbitration
Strengths – more formal than others but still not as formal as the courts, confidential and private, legally binding decision, arbitrator is an expert
Weaknesses of arbitration
Weaknesses – can be expensive as legal representation is allowed, can take a long time to reach a decision, parties have no control over the decision made (one may be upset with the decision)
Tribunals
Tribunals – dispute resolution bodies that obtain their power to resolve certain disputes from the Parliament
Develop expertise in particular areas and can make decisions that are binding
Provide individuals with a low-cost, efficient and speedy method of dispute resolution
Increase the community’s access to justice
Cannot hear every type of dispute (can’t hear class actions)
Ombudsmen
Ombudsmen – an official appointed by the government to provide individuals and small businesses with an independent, timely, and accessible dispute resolution service
Not a court of tribunal – independent
Services are free
Try to solve complaints by working with the two parties
Complaint bodies
Complaint bodies – help individuals who have a complaint about goods, services or a particular industry body
Obtain their power through the Parliament
Do not have the power to conduct a hearing or make binding decisions on the parties
Generally, do not have formal procedures to resolve disputes
Allow people to complain online or over the phone
Can take enforcement action against individuals or companies that do not comply with certain laws
Role of Victorian courts
Determine whether the defendant is liable
Whether the plaintiff, on the balance of probabilities has proven that the defendant has caused loss or harm
Judge/magistrate/jury will consider the evidence presented to the court during the trial
Deciding on a remedy
What remedy should be given to who is liable?
Most common remedy is monetary damages
Role of a jury
To consider the facts of the case and decide who is most likely to be in the wrong
Unanimous verdict is when all six jurors agree
Majority verdict is when five out of six jurors agree and will be accepted by the court as a decision
Don’t have to do jury terms
Disqualified – means they cannot serve on a jury because of something they have done
Ineligible – means they cannot serve on a jury because oof a certain characteristic or occupation
Excused – circumstances that make it difficult for them
Difficulties faced by First Nations people
Language difference – convey respect is different ways
Cultural differences – Aboriginal Elders are highly respected, strong family lines, strong connection to land
Distrust in the justice system – previous experiences
Addressing difficulties – dedicated funding for Aboriginal legal aid, cultural competence training
Difficulties faced by low socioeconomic
Inability to access legal services – unable to afford what everyone else uses (inequality)
Lack of understanding – may not speak English, or very good at it, don’t understand what they’re entitled too (can’t achieve justice)
Addressing difficulties – free legal services, assistance for self-represented parties
Difficulties faced by young people
Lack of knowledge about the legal system – inexperienced
Age-related communication barriers – need an adult over the age of 18 represent you, power imbalances, may not have developed the necessary language, stressful or intimidating
Lack of resources – can’t afford, may lack life skills and experience, may have to rely on free legal aid
Addressing difficulties – Victorian legal aid, community legal centres, Limitation of Actions can be changed in certain circumstances for a young person
Difficulties of people in RRR areas
Lack of access to legal services – none around
Lack of access to technology – poor internet access, limited telephone coverage, may not have technology
Lack of access to courts – can’t get there
Addressing difficulties – video conferencing, CLC’s
Purposes of remedies
To restore (as much as possible) the party who has suffered loss or injury to the position they were in before the loss or injury occurred
To stop the harm from happening further
To deter others from committing the same crime
Damages
an amount of money that one party is ordered to pay to another party for loss or harm suffered
Injunction
Injunctions – a remedy in the form of a court order requiring the defendant to do or not to do something
Restrictive – stops someone from doing something
Mandatory – a person wishes to compel someone to do something
