Practice exam Unit 1 Flashcards
In 2013, the Victorian government introduced new laws that prohibit all drivers with probationary drivers from using hand-free mobile devices. In the light of your knowledge of the characteristics of an effective law, and the information provided, identify a potential issue with this law and describe how it may render the law ineffective.
key points
- State potential issue with the law (enforceability)
- Link issue to how this affects the ability of the law to be effective
One potential issue that may arise when attempting to implement this law is its ability to be enforced. A law such as this would require police to monitor within vehicles themselves, which would prove difficult as it is essentially a private dwelling which may render the law ineffective if it is unable to be properly enforced.
Based on the information provided identify the relevant source(s) of law and explain the distinction (if any) between them.
The Sentencing Act 1991 (Vic.)
The law of negligence as established in Donoghue v Stevenson [1932] UKHL 100
As the Sentencing Act 1991 (Vic.) was passed by ‘Victorian Parliament’ it is an example of statute (laws passed by Parliament via the legislative process). The source of Donoghue v Stevenson [1932] is common law as it does not contain the word ‘Act’ and therefore is an example of a law made through the courts through establishing precedent.
In achieving equality for all individuals before the law, it does not mean that all individuals are treated fairly before the law’. To what extent do you agree with this statement? Justify your answer.
key points
- State ‘how much’ you agree with the statement: a limited extent, a large extent etc.
- Provide one reason to corroborate opinion
- Link reason to how equality may undercut fairness
I agree to a large extent with the above statement. If all individuals are treated equally before the law this means that regardless of age, gender, educational background etc. everyone should be provided with the same level of information and concessions. In doing so this would leave little room in which to cater to the specific needs of certain individuals before the law which, by extension, undercuts fairness (for example, juvenile offenders should not be treated the same as adult offenders as they often have a fundamentally different set of needs and challenges).
Explain the role of laws in achieving social cohesion and protecting the rights of individuals.
Key points.
- Define the feature of laws that seek to ensure social cohesion specifically
- Define the feature of laws that seek to uphold individual rights specifically
As laws are made in the interests of society at large and reflect the moral standard to which all persons should adhere this seeks to ensure social cohesion as laws clearly define the line between right and wrong and, as such, means that all individuals feel a sense of belonging in working towards a common good. Laws also seek to protect the rights of individuals by setting out the minimum rights of all persons, processes and procedures to uphold these rights and stipulating penalties when such rights are infringed upon.
’Without a court hierarchy a number of mechanisms would not be able to operate’.
To what extent do you agree with this statement? Refer to one reason for a court hierarchy in your answer.
Key points.
- State ‘how much’ you agree with the statement (to a limited, large extent etc.)
- State one mechanism that relies on the existence of the court hierarchy to operate
- Detail how mechanism could not operate without a court hierarchy
I agree with the above statement to a large extent. One mechanism that would not be able to operate without a court hierarchy is the system of appeals. In order for judicial decisions to be reviewed, the courts need to be arranged in terms of superiority; otherwise, decisions that require a more extensive jurisdiction (and greater expertise upon review) could not progress.
Distinguish between how Parliament and the courts operate as law-makers.
Key points.
- Identify or ‘state’ point of difference
- Expand on point of explaining why it differentiates the two bodies
One way in which the Parliament and the courts differ in their role as law-makers is that the latter primarily applies statute law to cases that come before them, possessing only a secondary role as law-makers through establishing precedent to develop common law. Secondly, while the courts operate as unbiased, politically neutral body whereby a particular judge’s political allegiances do not factor into their judgements, bills are introduced by members of Parliament and therefore are often aligned to the political stance of the member’s party.
Explain how one characteristic of an effective law seeks to uphold the principle of fairness
Key points.
- State characteristic that prominently provides for fairness
- Link characteristic to how it provides for fairness
One characteristic of effective laws that most prominently seeks to uphold the principle of fairness is ensuring laws reflect society’s values. The principle of fairness is upheld when a law reflects the moral and ethical standards of the majority as people deserve to have the law to which they will all be bound reflect their vision for a just society without fear of persecution, their safety or security.
To what extent does the existence of the court hierarchy uphold the principle of fairness? Justify your answer.
Key points
- State ‘how well’ you think the existence of a court hierarchy provides for fairness
1 mark
- State ’reason for a court hierarchy’ that most prominently provides for fairness
1 mark
- Detail why the appeals process relies on the existence of a court hierarchy
1 mark
- Link existence of court hierarchy as facilitating the appeals process to how it upholds fairness
The existence of a court hierarchy upholds the principle of fairness to a large extent due to the facilitation of the appeals process. The appeals process relies on the existence of a court hierarchy, as the courts must be organised in terms of superiority in order for judicial decisions to be reviewed by judges with more experience and courts with more extensive jurisdictions. It is in this way, then, that the court hierarchy provides for fairness, because it enables a process by which defendants/appellants may appeal their decision should they feel it is unjust, thus ensuring that all judicial decisions are checked to ensure they are fair and just.
What is the primary purpose of civil law?
- Identification of protection and enforcement of rights
- Explain what the protection and enforcement of rights does
Civil law aims to protect the rights of individuals, groups and organisations. It is an area of law that regulates disputes between individuals and groups, and seeks to enforce rights where harm has occurred.
Other than the burden and standard of proof and limitations of actions, describe two other key civil law concepts.
Key points.
- Describe and explain the first of the two key civil concepts
- Describe and explain the second of the two key civil concepts
One key element the plaintiff would have to prove in a civil case, would be that there has been a breach by the defendant. This means that the defendant has failed to do something that he/she has to do. The plaintiff has to establish the defendant is in breach.
Another key element is the plaintiff will normally need to prove a case, is causation. The plaintiff will need to prove that the actions of the defendant caused or resulted in the harm suffered by the plaintiff.
Other possible answer:
Another is that as a general rule; the plaintiff will only be able to obtain a legal remedy, if the plaintiff proves they suffered loss or harm.
What are the main elements that need to be proven to be successful in a case of negligence?
key points.
- Identify that the Defendant owed duty of care
- Identify that the Defendant breached duty of care
- Explain the defendants breach of duty of care caused harm
- Explain plaintiff suffered injury, loss or damage
In a negligence case, the plaintiff needs to prove that the Defendant owed them a duty of care. The Defendant breached that duty of care. This caused the harm to the Plaintiff and the wronged person suffered injury loss or damage.
Rebecca slipped on a wet floor at her local shopping centre Westland, causing her serious injury. Identify the plaintiff and defendant in this case. What is the standard of proof in a civil case like this, and which party has the burden of proof?
Key points.
- Identification of the Plaintiff and Defendant
- Who has the Burden of Proof in this case
- What is the Standard of Proof in this case
The plaintiff in this case is Rebecca and the defendant is the Westland shopping centre group. Rebecca, the plaintiff, has the burden of proving that on the balance of probabilities, the Westland shopping group caused her injury. The balance of probabilities is the standard to which Rebecca will have to prove this.
Explain four possible impacts of defamation on the plaintiff.
The loss of reputation, this could include loss of status in the community or loss of finances from business transactions.
A person could be psychologically impacted by a case of defamation as they could get depressed or become very anxious because of the case and the statement.
The plaintiff may lose wages or livelihood because of their loss of reputation.
If someone’s reputation is put into question; even if it is not true, they could loss their job as their employer may not want to be associated with the media and stories which could become news.
Describe the law relating to duty of care and explain the rights this area of law is protecting.
Key points.
- Description of the law relating to duty of care
- Explanation of the rights protected
- Identification of Negligence law
The law relating to the duty of care is known as negligence. According to the law, a person is negligent when they fail to take reasonable care when dealing with others. A person has the obligation to take care when it is reasonably foreseeable that their actions or inactions could harm other people.
The law of negligence protects an individual’s right to be safe from harm. It is expected that people are aware of the potential damage or harm that our actions or inactions could cause, and that we must take reasonable steps to avoid causing harm or damage. The law of negligence also allows parties to seek compensation against those people who have acted without care.
