Legal YR 11 PRELIM SHORT ANSWER Flashcards
1
Q
Law
A
Set of enforceable rules imposed on all members of a society which are officially recognized and enforced by the official legal system
2
Q
Distinguish between customs, rules, laws, values and ethics
A
Law is generally understood to be a mirror of society — a reflection of its customs, rules, values and ethics — that functions to maintain social order.
3
Q
Customs
A
established patterns of behaviour (habits or traditions) developed among people in a society or group over a long period of time
4
Q
Rules
A
Where people live together or gather in numbers they usually agree on rules about conduct and procedures –> so that the group may better achieve its objectives and to ensure the rights of its individual members are respected and protected.
eg. school
5
Q
Values
A
are a set of moral standards which are
considered desirable in society
6
Q
Morals
A
personal beliefs or understandings of right and wrong
7
Q
Ethics
A
The execution of moral beliefs in real life.
8
Q
Justice
A
The concept of justice involves the fair and impartial treatment of all people, especially under the law. It also requires that all people have access to the law. In order to achieve justice in the legal system, laws must first be ‘just’ to ensure they operate fairly and equally. Justice is underpinned by notions of equality, access and fairness.
9
Q
JUST LAWS
A
C- current
A- acceptable
K- known
E- enforced
S- same
10
Q
Just law - CURRENT
A
laws must not be retrospective but aim to be proactive for the benefit of society.
11
Q
Just law - ACCEPTABLE
A
just laws are acceptable (reflect society’s values and ethics).
12
Q
Just law - KNOWN
A
discoverable (known) to all citizens, the law is written down and recorded in Acts of Parliament or decisions in cases in court are publically available.
13
Q
Just law - ENFORCEABLE
A
enforceable against all citizens in society (for example, the police can and will bring charges against people who commit a crime, irrespective of the position they hold in society)
14
Q
Just laws - SAME
A
apply equally to all persons (no-one is above the law - discussed further with the Rule of Law)
15
Q
The nature of justice
A
Equality, fairness and access are central concepts which allow us to distinguish good law from bad law. This requires that all citizens have full and equal access to the legal system.
16
Q
Equality
A
treating people with the same rights or status
17
Q
Fairness
A
freedom from bias, dishonesty or injustice
18
Q
Access
A
the right or opportunity to make use of something, in our case the legal system
19
Q
Procedural fairness
A
to ensure a fair decision is reached by an objective decision maker.
- Procedural fairness means fairness in the procedures followed when arriving at an administrative decision.
The two essential features of a fair and just process are:
- the right to be heard
- the right to have a decision made by an unbiased decision-maker
20
Q
Why is procedural fairness important? justice…
A
- necessary for justice to be achieved.
- Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. It is fundamental to the administration of justice and a person can file an appeal and have a decision overturned on the basis that procedural fairness was not observed.
21
Q
Anarchy
A
the state of chaos, disorder and lawlessness resulting from an absence of government and an effective legal system.
- following natural disaster/war - law and order breaks down, widespread crime
22
Q
Tyranny
A
- no check on the power of those that make the law and/or those that enforce the law.
- where a ruler (or small group of people) has absolute or unlimited power over the people in their country or state and use it unfairly and cruelly.
Constitutions are disregarded and there is no rule of law - eg North Korea,
- Sometimes when tyranny becomes so extreme the population will rise up in opposition and civil unrest and anarchy can result.
23
Q
Sources of Contemporary Australian law
A
- Common law (Judge-made law from England and Australian courts)
- Statute law (Parliament made law)
- The Constitution (1901)
- Aboriginal and Torres Strait Islander customary law
- International law
24
Q
Australia’s legal heritage
A
- evolved from both Common law and Statute law.
- developed its own system of courts and law as it became independent from Britain.
- Other countries using this system include: Great Britain, Canada, New Zealand and the USA
25
Common law
- a collection of legal principles and rules derived from the decisions of judges in higher courts.
- make laws on a new issue that arises in a case before them, on which there is not previous statute or common law, or the current common law requires expansion.
26
The Ability of Judges and Courts to make Laws
- A Judges’ primary role is to adjudicate cases and settle disputes - making law is considered to be their secondary role (ancillary).
There are TWO situations in which the courts make laws:
- common law
- Statutory interpretation
27
Relationship between Common Law and Statute Law
- Judges are required to obey statute law (law made in parliament)
- If no statute law exists, judges use common law principles to resolve the dispute.
- A judge can use common law to interpret statute law.
- If both common law and statute law exist, the statute law must be followed.
28
Common Law Precedent and The Doctrine of Precedent
The Common Law relies on the principle of precedent, also known as the Doctrine of Precedent.
29
Doctrine of Reception
When first fleet arrived in 1788 - declared terra nullius, was regarded as a ‘settled colony’. Upon ‘settlement’ by the colonists, Australia automatically ‘received’ all laws of England.
English law became Australia’s law. This is known as the doctrine of reception.
30
Precedent
a judgment (decision) that is authority for a legal principle and that provides guidance for Courts deciding cases that have similar facts.
eg. diectrich v R case
31
‘Doctrine of Precedent’
refers to the process by which judges follow the reasons for the decision given by courts higher in the court hierarchy when deciding similar cases.
- This means that courts are to be guided by previous decisions of courts, particularly courts that have higher authority.
32
‘Stare decisis’
the requirement of courts to be bound by precedent set in higher courts. 'Stare decisis' literally means ‘to stand by what has been decided’ (or ‘the decision stands’).
33
'ratio decidendi'
When a judge (or Court) decides a case, they must give a reason for their decision.
reason for the decision, which becomes a statement of court-made law and precedent for future cases
34
‘obiter dictum’
‘things said in passing’ ie comments made by a Judge that are NOT part of the decision
35
Binding precedent
Precedent that MUST be followed by a court when making a decision on a similar case. It is the 'ratio decidendi' that forms the binding part of the precedent.
- The decisions of a higher court in the same hierarchy
- Eg. decisions of the High Court of Australia (HCA) are binding on all courts in each Australian jurisdiction
36
Persuasive precedent
Precedent that courts do NOT have to follow, but they may choose to do so for consistency. It is often highly influential in a court’s decision.
- The decision of lower court in the same court hierarchy or different court hierarchy, such as another state or country
- The decision of the same court if it is not one that is bound to follow its own decisions
- ‘Obiter dictum’ statements
37
Justifications for courts following precedents
- Like cases should be treated alike (consistency)
- Need for certainty in the law
- Need for predictability
- People should know what the law is in order to obey it.
This means that:
- Lower courts simply apply relevant precedents
- Consistency ensures equality
- Legal representation can advise clients of probable outcomes
38
Equity
developed in bodies known as the Court of Chancery - looked at the features of each case to decide what was just or fair.
- not bound by precedent.
- moral principles - the rules of equity.
39
Main principles of equity
- To modify a remedy in common law that is deficient, or to create a new remedy
- To develop remedies for wrongs that the common law doesn’t recognise
40
Remedies in Equity
Injunctions – a court order requiring someone not to do something eg. Gina Rinehart sought an injunction against Channel 9 to prevent them airing “House of Hancock”.
Specific Performance – a court order requiring a person to fulfil an obligation they undertook as part of a contract eg. to complete a contract
41
Merge of common law and equity
- Equity and common law co-existed for several hundred years, though not always peacefully.
- In 1873, the two legal systems were combined, creating the Supreme Court of Judicature.
Courts were instructed to consider equity when considering common law.
- In Australia, the Courts can apply Common Law and/or Equity as necessary
42
Adverserial system
- The adversarial system is used as part of both criminal and civil court proceedings.
- ‘adversary’ = opponent.
- 2 sides, the prosecution and the defence, each trying to prove their version of the facts (by presenting evidence and disprove the other side (by cross-examination of witnesses presented by the other side).
- An impartial judge (and often a jury) listens to the evidence and decides which side has proved its case. They can only consider evidence in Court.
- used in Aus, england, NZ &USA
- Robert Xie
43
Inquisitorial system
- used in countries such as France, Bulgaria and Italy.
- used as part of both criminal and civil court proceedings.
- The judge conducts an inquiry to discover the truth of what occurred.
- The inquisitorial system does not have the same rules about admissibility of evidence that apply in Australia.
- Amanda Knox
44
Court Hierarchy
- Australia has two overlapping jurisdictions of law: state (or territory) and federal.
Local court (no appellate, magistrate, no jury)
Children's Court (no appellate, specialised magistrate)
Coroner's court (no appellate, inquisitorial, coroner)
Drug court (no appeal against drug court decision, judge)
Land & Environment court (Yes against local, commissioner/judge)
District Court (yes appeal, judge/sometimes jury.)
Supreme (Highest in state/territory, appeals from lower, judge and jury, indictable)
Court of Criminal Appeal - (appeals from supreme/district, judge 3-5)
High Court (interpretation of Australian Constitution, appeals from lower, up to 7 judges/ justices)
45
Role/structure of parliament
- federal and state jurisdictions over certain matters, 2 levels of government and 2 sets of laws apply to everyone in Australia (eg. Federal and NSW)
- bi cameral parliament - House of Representative (lower house)
Senate (upper house)
- Legislative Assembly (lower house)
Legislative Council (upper house)
46
Delegated legislation
legislation made under the authority of an Act of Parliament.
For example, State parliaments delegate limited power to Local governments (Councils) to make regulation, orders or by-laws.
47
House of Reps & senate
reps - Pass legislation and form a government from the party who holds the majority of seats in this house.
senate - allow for the equal representation of the states of Australia and acts as a House of Review. Most laws are introduced in the lower house and the Senate’s role is to review the laws being proposed.
48
Governor General/Governor at state and federal
- represent the King/Queen. - Australia is a Constitutional Monarchy and the Queen/ King is the Head of State.
- mainly ceremonial but includes appointing ministers, judges, and ambassadors; giving royal assent to legislation passed by parliament; issuing writs for election; and bestowing Australian honours.
49
How are laws made in parliament?
A Bill must be drafted to create a new law or amend an existing law - usually introduced by the responsible Minister
- First reading of the Bill in the house in which the Bill was introduced
- Second reading - a speech about the Bill given by the Responsible Minister.
- The Bill is debated and then a vote is taken on the Bill.
majority = Bill is passed and it goes to the other house (eg House of Representative to the Senate), where it goes through a similar process.
- Once the Bill is passed in both houses of parliament it must receive Royal Assent from the Governor-General (Commonwealth) or the Governor (State) before it becomes an Act of parliament.
The Act is given a commencement date
50
Federation
1 January 1901.
The colonies became Australian states and the new Australian Parliament was formed.
51
Constitution effects
describes the composition, role and powers of the Australian Parliament.
- sets out how the Australian and state parliaments share the power to make laws.
- details the roles of the executive government and the High Court of Australia, and some of the rights of Australian citizens - right to religious freedom.
Each state has its own Constitution - 1902 NSW
52
Divison and separation of powers
Constitution divides the power to make laws between the Commonwealth and the states AND separates power between the three (3) arms of government (the parliament, executive government and judiciary).
53
Division of powers
The Constitution gives the federal government specific, exclusive powers to make laws about certain matters such as: defence; immigration; marriage and divorce. set out mainly under section 51
The states cannot make laws in these areas.
54
Concurrent powers
There are some areas of overlap. On non-exclusive matters the Commonwealth and the states have what are called concurrent powers — that is, both the Commonwealth and the states may make laws.
Examples include: education, taxation and health.
55
Residual powers
The states retain legislative powers over matters not specifically listed in the Constitution.
- states make laws about: law and order, social welfare, roads and transport, public education (K - 12), building regulations etc.
56
Separation of powers
three arms of govt held by separate bodies:
- prevent oppressive government and abuse of power.
- Parliament has legislative power to make laws;
- Executive government - carry out and enforce the laws; and
- Judiciary has the judicial power to interpret laws and to judge when they apply in individual cases.
Each arm of government can act as a check and balance on each other
57
High court
- interpret and apply the law of Australia
- decide cases of special federal significance, including ‘constitutional challenges’ to the validity of laws
- act the final court of appeal, hearing appeals from Federal, State and Territory courts.
58
Commonwealth OR State/Territory powers
High Court is asked to decide whether the Commonwealth or state/territory government has the authority to deal with a particular matter.
An example is the decision of the High Court of Australia in relation to the ACT’s attempt to legalise same sex marriage. The Constitution gives the federal government power over marriage.
59
Aboriginal and Torres Strait Islander Customary Law
- There was no single system of law between the groups, but there were many common aspects and many groups shared alliances
- based on tradition, ritual and socially accepted conduct
- known as ‘customary law’
60
Ownership of land
- possession of land was a key principle in British law
- Indigenous cultures considered the land as sacred that could not be owned by any one person
61
Terra nullius
When the British settled Australia they made a legal claim under international law that the land was terra nullius, meaning land belonging to no one.
62
Customary law
- can sometimes be taken into account when an Indigenous Australian is charged with a crime
- Indigenous elders can sometimes be consulted by those maintaining or enforcing the law
63
Circle sentencing
- alternative to formal court sentencing.
- Circle Sentencing is an alternative sentencing court for adult Aboriginal offenders. It directly involves a magistrate, police, the victim and local Aboriginal people in the process of sentencing offenders, with the aims of making it more meaningful and improving confidence in the criminal justice system.
64
Native title
- right of Indigenous peoples to own their traditional lands and waters, as recognized by common law.
- The source of native title in Australia was the recognition of "pre-existing rights and interests of Aboriginal and Torres Strait Islander peoples” under Common Law by the High Court of Australia in Mabo (No 2) (1992).
65
Native title and international law
introduced by the UN General Assembly by adopting the Declaration on the Rights of Indigenous Peoples in 2007.
Australia initially voted against the Declaration but has since endorsed the Declaration.
Native title is a collective right to protect a group of people and it includes a right to self-determination.
66
Native title problems
- the extent and proof of native title
- how and why native title is extinguished, and
- what compensation is available of this occurs.
67
Implication of terra nullius
Britain acted as it were settling an empty land. Captain Cook’s failure to even attempt to gain the consent of the natives began the legal fiction that Australia was waste and unoccupied.
As a result the Doctrine of Reception applied and English law applied automatically in Australia, therefore, Aboriginal people had no rights to their land and could not achieve Native Title.
68
Law reform for Native title - MABO
Mabo --> Wik --> Yorta Yorta
1982 - Mabo and co began legal claim for ownership of trad lands. After 10 years, the Meriam people won case.
significance = recognition, overturned terra nullius, common law concept of native title & legislation introduced, guidelines for future claims, Native title act
69
Native title Act
Limitations of the Act: It failed to define NT.
Effectiveness: the new law created the National Native Title Tribunal (NNTT) to determine the validity on NT claims.
- aims to balance Indigenous and non-Indigenous peoples’ rights to land, and sets out how native title rights and interests fit within Australian law.
70
WIK Case
claiming native title rights to land being used by pastoralists (farmers), under pastoral leases
The Federal Court ruled that the existence of pastoral leases extinguished the right to native title
- In response to the concerns of rural Australia following the decision in Wik, govt proposed a 10 Point Plan and enacted the Native Title Amendment Act 1998 (Cth) to amend the Native Title Act 1993 (Cth).
- to broaden the power of the federal and state governments to extinguish Native Title, introduced measures to make the initiation of claims more difficult, removed all right to claim NT over urban areas.
- must prove continuous link.
-
71
YORTA YORTA case
The claim was dismissed by the Federal Court as the court held that the claim was not supported by evidence as the Yorta Yorta people had stopped occupying the land in the 19th Century - no continuous connection.
must establish that there has been an observance of customs and laws on an uninterrupted basis since British sovereignty.
72
Law reform
Make it MORE CURRENT;
CORRECT defects in the law;
SIMPLIFY the law; and/or
FIX an INJUSTICE.
73
Conditions of law reform
WHY does the law need to change?
Changing Social Values
New Concepts of Justice
New Technology
74
Agencies of Law reform
Law Reform Commissions
Parliamentary Committees
The Media
Non-Government Organisations
75
Mechanisms of Law reform
changes by:
Courts (Common law)
Parliaments (Legislation)
United Nations (International Law)
Intergovernmental Organisations (International Agreements)
76
Elements of crime
Mens rea = mental element or intent
Actus reus = act or action - stabbing, shooting, punching
Causation = death caused by the action of the accused, there must be a direct link
77
Public law
- Criminal law
- Administrative law
- Constitutional law
78
Criminal law
Laws (usually statute-based) restrict behaviours which “harm” all members of society
EXAMPLES:
- Crimes against the state
- Crimes against persons
- Economic crimes (“white collar”)
- Drug offences
- Driving offences
- Public order offences
- Crimes against property
EITHER summary or indictable offences
79
Administrative Law
Relates to the operation of the government and its different departments
Eg: Education Act 1990 (NSW)
- Sets out the structure of the Board of Studies and establishes the Board’s powers
80
Constitutional law
Relating to:
- Division of Powers (Federal / State laws)
- Separation of Powers (Parliament, Executive, Judicature)
- High Court hears challenges to law making power
- ACT marriage equality
- Cases must be brought to the High Court’s attention (High Court cannot decide to investigate)
81
Private law
legal relations between individuals and/or organisations
AKA “civil law”
- Property, Contract and Tort law
82
Property law
Regulates the processes involved in buying or selling any items
Eg: Australian Competition and Consumer Law 2010 (Cth)
Fair Trading Act 1987 (NSW)
Both laws govern the behaviour of businesses involved in property transactions
83
Contract law
- Controls behaviour and protects individuals who have created a legally binding agreement with one another
- Contracts can be written, verbal or implied, but valid contracts must have:
An “invitation to treat”
An “offer”
Consideration (i.e. benefit to both parties)
Acceptance
- Both parties must enter a contract “in good faith” (i.e. with the intention to act fairly)
84
Tort law (Civil wrongs)
- NOT criminal matters
- Involve incidents where one person has inconvenienced or breached the rights of another.
- Negligence, Nuisance, Trespass, Defamation
85
Negligence
Common tort
Key concept is of ‘duty of care’
Everyone has some legal responsibility to ensure that they do not cause harm to others or their property
- Established through the case Donoghue v Stevenson (1932) [the snail in the bottle]
86
Nuisance
Involves one person interfering with the rights of another
Eg: a neighbour playing very loud music late at night (causing a nuisance)
Often heard in Community Justice Centres (not courts)
87
Trespass
Involves on person interfering with the property of another
Usually involves entering someone’s land without permission
Can also involve trespass against the person (but this will usually fall under Criminal Law)
88
Defamation
Involves damaging another person’s reputation
Eg: publishing or broadcasting misleading information about a person AND this information damaging the reputation of that person
It is NOT defamation if:
- The information is true
- The person’s reputation is unharmed (i.e. people don’t think less of them because of the statement)
89
Criminal trial (parties involved)
- Prosecution (represents society)
(Usually a representative of the Office of the Director of Public Prosecutions or Police Prosecutor (in Local Court)
- Defendant (the accused/ offender) - Usually represented by a barrister
90
Civil trial (parties involved)
Plaintiff (the person who has suffered some injury brings the case to court)
Defendant (the accused/ wrong-doer)
91
STANDARD OF PROOF
Criminal:
- “Beyond a reasonable doubt”
- The judge or jury must be convinced by the Prosecution that the accused was guilty – and they can have no questions/doubts about this
- The criminal standard of proof is very high because the sanctions can be very serious
Civil:
- “On the balance of probabilities”
- The judge (or very occasionally a jury) only needs to determine which side is more likely to be telling the truth:
- This makes it easier for a Plaintiff to “win” a civil case than a Prosecutor criminal case.
92
Burden of proof
Criminal:
- The prosecution has the burden of proof
- A guilty verdict can only be made if the Prosecution proves:
- mens rea
- actus reus
- causation
Civil:
- The Plaintiff has the burden of proof in civil trials
- The Plaintiff must prove that the Defendant caused the ‘injury’ (‘injury’ can be physical, mental, emotional damage or financial loss)
93
Sentencing
Criminal:
- Judge will hold a sentencing hearing if the Defendant is found guilty
- Will consider previous crimes and Victim Impact Statements, as well as mitigating circumstances
Will result in ‘sanctions’ (punishments):
- Jail time
- Community service
- A fine
Civil:
- If the judge finds in order of the Plaintiff, they will state what compensation needs to be made by the Defendant
- Will usually take the form of damages (payment) or injunctions (orders restricting behaviour)
- If the judge finds that the Plaintiff’s claim was time-wasting, the Plaintiff may be ordered to pay all court costs.
94
Personnel involved in Civil and Criminal courts
- Judges/Magistrates
- Barristers
- Solicitors
95
Judges
- Preside over immediate (District) and Superior (Supreme) courts
- Legally qualified and experienced professionals (usually worked as barristers)
- adjudicate (decide) cases with a jury (or decide verdict if there is no jury); decides on issues of law
- Sentence offender
96
Magistrate
- Sit in lower (Local) courts; decides verdict after summary hearing
- issues rulings and sentences
97
Barristers
- Receive work via a solicitor (cannot be hired directly by an individual)
- Specialise in one aspect of the law
Two main roles:
- Provide legal advice based on facts presented to them regarding the likely outcome of the case
- Present their client’s case in court (if briefed by a solicitor)
98
Solicitors
- First port of contact for someone needing legal advice
- Majority of their work occurs outside a courtroom
Preparing wills
Family law matters (divorce)
Conveyancing (real estate purchases)
Creating contracts
- If involved in a court case, will prepare a “brief” (documents relating to the case) for a barrister
99
Rights
- Rights are something to which you are entitled and that someone cannot take away.
- Rights are entitlements or permissions that can be either legal or moral in nature.
100
Legal rights
are enforceable by law through the courts – but must exist ie. be contained in and protected by either common law (tort) or statute law (Anti- discrimination Act)
101
Moral rights
derive from one’s own morals, values or ethics and are not enforceable by law.
102
Responsibilities
Responsibilities are legal or moral obligations or duties that a person may have to another person.
- Legal responsibilities are enforceable by law
- Where there is a right, there will often be a corresponding responsibility
103
Moral vs legal rights
legal rights are enforceable by law, but moral rights are not.
- People can debate moral rights from different ethical viewpoints and may disagree on their existence or scope
- A legal right is embodied in law and its existence cannot be disputed, although it can be amended through law reform
104
Express Rights under the constitution
- Right to vote (S 41)
- Freedom of religion (S 116)
- Right to compensation for confiscation of property by the state (S 51 (xxxi))
- Freedom from discrimination based on the state in which you reside (S 117)
- Trial by jury for federal offences (S 80)
105
Implied Rights under the constitution
- Free speech on political matters.
The HCA has held that there is an implied right to freedom of political communication based on the representative nature of our democracy in Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth
106
Legal rights - statute law
Anti – Discrimination Law
- State and federal law - eg. Sex Discrimination Act 1984 (Cth)
Criminal Law
- Right to be innocent until proven guilty
- Right to silence
- Right to have your interview taped
- Right to be charged within a certain time frame
- Right not to have your prior record before the court (during trial)
107
Legal rights - common law
- Right to a Fair Hearing (Rule of Law)
- Legal Representation for serious indictable offences
Dietrich v The Queen
108
Bill of rights
a formal document that officially enshrines the minimum human rights that every citizen is entitled to and binds the government to comply with those rights.
- Australia = no Bill of Rights, most other developed countries do.
- Victoria and the ACT have adopted their own state Charter of Rights, but the Commonwealth govt has refused.
109
Resolving disputes w state -Non-legal and informal
- The media
- Members of Parliament
- Trade Unions
- Interest groups and NGO’s
110
Resolving disputs w state - Legal and formal
- Internal reviews
- External reviews
- Statutory bodies
- United Nations
111
Disputes between individuals
neighbour disputes over fences or use of property; breach of individual rights resulting in civil actions eg. defamation, personal injury or nuisance; or motor vehicle accidents.
112
Disputes between individuals and state
wrongful arrest; refusal of government benefit or other adverse decision; mandatory detention; freedom of information; childhood immunisation; or decisions by local government in relation to DA application.
113
Law enforcement
they do not create the law, only enforce it. They are created by Acts of Parliament and include the police and other government departments.
- NSW Police, Federal Police, Australian Border force, ACIC, ASIO, Australian Tax Office, Environment Protection authority
114
Domestic Violence/Abuse
- no single agreed definition of family or domestic violence.
- Violence = any incident involving the occurrence, attempt or threat of either physical or sexual assault experienced by a person since the age of 15. Physical violence = physical assault and/or physical threat. Sexual violence includes sexual assault and/or sexual threat”.
- Contemporary definitions capture a wider range of intimidating or controlling behaviours. The Family Law Act 1975 (Cth) recognises a broad range of behaviours, including: “Violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful."
115
Domestic violence/abuse in the law
- a crime. It is contained in the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
- It involves an abuse of power
- It extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse.
116
Legal responses to Domestic Violence
- Apprehended Domestic Violence Order (ADVO)
- Domestic Violence Evidence in Chief (DVEC)
- Extreme Provocation
- Police respond to all reports of domestic and family violence
- less than half of all victims of domestic violence report incidents to the police
Officers use a range of lawful means to police this crime, including:
- Removing offenders from the victim's location (victim safety is a priority)
- Taking out an Apprehended Domestic Violence Order (ADVO) on behalf of victims and any children living or spending time with the victim (whether they are by consent or not)
- Investigating breaches of ADVOs
- Developing solutions to managing repeat offenders
Criminal charges when necessary
- Using DVEC’s – Domestic Violence Evidence in Chief to support victims
117
ADVO - Domestic
made by the court to protect individuals from violence, threats and harassment from a spouse, de facto partner, ex partner, family member, carer or person living in the same household.
118
ADVO's - Domestic - CONDITIONS
(1) not to assault, harass or threaten the protected person,
(2) not to intimidate the protected person and
(3) not to stalk the protected person.
- may impose additional restrictions on the behaviour of the defendant if they deem them necessary to protect the person or any children involved
119
Types of ADVO's
PROVISIONAL
- short term = issued by a senior/authorised police officer
- urgent situations, no court.
- Remains in place until a further court order becomes effective OR 28 days after issued.
INTERIM
- A short term order made by the court - extend a provisional order/protections in place for the victim until a final ADVO application can be considered by the court.
FINAL:
- by the court - after hearing (if the defendant has been served with the ADVO documents but failed to appear in court) / cases where both parties consent to the conditions of the order.
- Duration lasts as long as the court deems necessary to provide safety for the protected person/12 months
