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Legal > Unit 1 > Flashcards

Unit 1 Flashcards

1
Q

What is the role of individuals in achieving social cohesion and protecting the rights of
individuals?

A

Individuals help achieve social cohesion by abiding by the law and working together to challenge disharmony

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2
Q

What is the role of laws in achieving social cohesion and protecting the rights of
individuals?

A

Laws help achieve social cohesion by providing guidelines for expectable behaviours and provides the sanction if someone infringes on an individuals rights.

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3
Q

What is the role of the legal system in achieving social cohesion and protecting the rights of
individuals?

A

The legal system helps achieve this by creating the laws as well as sanctioning those who infringe on an individuals rights

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4
Q

What are the principles of justice?

A

fairness, equality, access

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5
Q

what is fairness?

A

Fairness refers to having impartial and just legal processes and hearings

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6
Q

what is equality?

A

Equality refers to everyone being treated without advantage or disadvantage before the law

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7
Q

what is access?

A

Access refers to being able to use the legal system to solve disputes, as well as to understand your rights.

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8
Q

What are the characteristics of an effective law?

A

the law must be enforceable, reflect societies values, be stable, clear and understood, and it must be known

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9
Q

the law must be enforceable

A

there must be a way to punish individuals when they break the law

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10
Q

reflect societies values

A

people are more inclined to abide by the law if it reflects their beliefs and values

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11
Q

the law must be stable

A

the law can not be constantly changing otherwise people will not be able to keep up with what the law is and are therefore, less inclined to follow it

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12
Q

Must be clear and understood

A

a law must be written in a manner that that anyone can understand

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13
Q

must be known

A

a law must be publicised in some ways because individuals can not know all laws.

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14
Q

what is a legal rule?

A

a legal rule is created and enforced by legal authorities. A legal rule must be followed by all members of society and you will receive a legal punishment if you break the law

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15
Q

what is a non-legal rule?

A

Non-legal rules are created by private individuals and groups and only a specific group of people need to follow it. If somebody breaks a non legal rule they will not receive a legal punishment and the police do not enforce these rules.

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16
Q

what is social cohesion?

A

Social cohesion is the willingness of all members of a society work together to survive and prosper

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17
Q

How does civil law protect the rights of individuals?

A

You have the right to be protected from false statements that might damage your reputation and the right to a promise made in a contract between 2 or more parties

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18
Q

What is civil law?

A

civil law is the area of law that outlines the rights and responsibilities of individuals, groups and organisation in society. Civil law also regulates with private disputes.

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19
Q

What is burden of proof (civil)

A

Burden of proof refers to the responsibility of the plaintiff to provide enough evidence to find the alleged defendant liable on the balance of probability

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20
Q

standard of proof (civil)

A

Is the degree or extent in which the plaintiff has to prove to be found liable on the balance of probability

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21
Q

purpose of civil law

A

to protect individuals rights, achieve social cohesion, provide an avenue to seek compensation, provide a means to seek compensation

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22
Q

How does civil law achieve social cohesion

A

provides guidelines for acceptable behaviour so there is a standard within society. Without these guidelines the standard cannot be met therefore, abusing the rights of individuals.

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23
Q

How does civil law provide an avenue to seek compensation?

A

individuals can seek compensation for a breach of civil law through courts, tribunals, dispute resolution bodies

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24
Q

how does civil law provide a means to seek compensation

A

when a persons rights have been infringed, civil law provides a way to return the harm as far as possible back to the position they were in before the harm occurred.

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25
Q

types of civil law

A

negligence, trespass, defamation, family, contract, nuisance

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26
Q

what is breach?

A

breaking or failing to fulfil a duty or obligation

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27
Q

what is causation?

A

the direct relationship between one event and another event, where event 1 was the reason that event 2 happened and event 2 would not have happened without event 1

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28
Q

what is loss?

A

A plaintiff can only obtain a legal remedy if it can be proven they they suffered loss or harm.

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29
Q

types of loss

A

economic, property, personal injury, pain and suffering, loss of amenity (loss of enjoment of life)

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30
Q

what is limitation of actions?

A

The restriction on bringing a civil law claim after the allowed time
For all civil claims there is a time limit within which a wronged party can sue the wrongdoer. Once that time period has passed then the defendant can use the defence that the plaintiff is too late to obtain any remedy.

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31
Q

limitation of action-breach of contract

A

6 years

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32
Q

possible plaintiffs to a civil dispute

A

the aggrieved party, other victims, insures

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33
Q

what is an aggrieved party

A

is the person whose rights have been infringed and who has suffered loss.

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34
Q

what are other victims

A

a plaintiff can be a person who has indirectly suffered a loss or damage as a result of the actions of another party. eg. a person may suffer loss and damage as a result of the death of a family member.

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35
Q

what are insurers plaintiff

A

are individuals or companies that enter into an insurance policy with a person and under the policy the insurer agrees to provide insurance in certain circumstances. The insurance policy usually provides the insurer with the right of subrogation, the right of the insurer to act on the behalf, taking legal actions in their name

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36
Q

possible defendants

A

the wrongdoer, employers, person involved in the wrongdoing, insures

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37
Q

the wrongdoer

A

the individual or company that the plaintiff has sued that has directly caused them loss or damage.

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38
Q

employers

A

an employer of an employee who is the wrongdoer may become a defendant because of the principle of vicarious liability, meaning that somebody is held responsible for the actions of another.

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39
Q

person involved in the wrongdoing

A

a person may be involved in the wrongdoing if they encouraged the wrongdoing, directly or indirectly a party to the wrongdoing, conspired with others to cause the wrongdoing
this is known as accessorial liability meaning that a person can be held liable for the loss or harm suffered by another party because they were directly or indirectly involved in causing the harm or loss

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39
Q

person involved in the wrongdoing

A

a person may be involved in the wrongdoing if they encouraged the wrongdoing, directly or indirectly a party to the wrongdoing, conspired with others to cause the wrongdoing
this is known as accessorial liability meaning that a person can be held liable for the loss or harm suffered by another party because they were directly or indirectly involved in causing the harm or loss

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40
Q

insurer defendants

A

it may be possible for the plaintiff to sue the insurer of the person who has caused loss or damage/.

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41
Q

what is negligence

A

A type of tort that involves a breach of duty of care, causing loss or harm.
when a person is negligent in civil law the person has failed to take reasonable care that was due to another. A person is obliged to take care when it is reasonably foreseeable that other people could be harmed by their actions or omissions.

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42
Q

rights protected by negligence laws

A

Protects individuals right to be safe from harm- harm to the person or harm to their property

negligence aims to protect people from wrongful conduct by others, where a person acts recklessly or with complete disregard for another person

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43
Q

elements to establish negligence

A

duty of care, breach of duty of care, causation, injury, loss, or damage

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44
Q

what is duty of care

A

A person has the legal obligation to be cautious and careful keeping others in mind when doing anything that could potentially harm them.

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45
Q

a person owes a duty of care if…

A

the risk was foreseeable, the risk was significant or not insignificant, a reasonable person in the same circumstance would have taken precautions to eliminate any risk of harm

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46
Q

breach of duty of care

A

a breach of duty of care occurs when a person does not take all the care that they should. The duty is breached when someone fails to do what a reasonable person would have done.

To determine if a reasonable person would have done it:
the likely risk of harm, the likely seriousness of the harm, the burden of taking the precautions to avoid the risk of harm, the social utility (benefit or worth) of the activity that creates the risk of harm

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47
Q

causation

A

a plaintiff must prove that the injury or loss they suffered was caused by a breach of duty of care and that the loss would not have occurred if not for the duty of care being broken

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48
Q

What is loss?

A

a plaintiff can only seek a remedy through the law of negligence if it can be proven that they suffered injury, loss or damage (even if its minor). The injury, loss or damage can be physical, mental or damage to property

49
Q

What is limitation of actions?

A

A limitation period is the time period in which a civil claim must be made

50
Q

calculation of time

A

the start of the limitation periods for negligence claims depends on the type of injury suffered by the plaintiff:
general negligence claims- the date the loss or damage was suffered by the plaintiff
for actions involving disease or disorder- starts from when the plaintiff first knew they had the disease or disorder caused by the defendant

51
Q

death or personal injury claims

A

the limitation period for death or personal injury is whichever expires first:
12 years from the date of the conduct of the defendant that caused the death or injury
3 years from the date on which the cause of action was discoverable

52
Q

child abuse

A

in 2015 the Victorian Parliament passed legislation amended the limitation period for certain actions involving child abuse. The legislation removed limitation periods for child abuse to allow survivors to bring civil action regardless of the time that has passed since the abuse occurred.

53
Q

possible defences to negligence

A

contributory negligence, ‘violenti non fit injuria’ (assumption of risk)

54
Q

contributory negligence

A

contributory negligence is a formal defence to negligence that claims that the defendant contributed to the harm by the defendant. If the defendant can prove that the plaintiff is partly to blame for the harm done then the amount of damages will be reduced.

55
Q

‘violenti non fit injuria’

A

‘violenti non fit injuria’ is Latin for ‘to a willing person injury is not done’ Meaning that the plaintiff accepted the dangers of a known and understood risk either expressively or by implication. This is voluntary acceptance of the risk of injury.

56
Q

possible impacts of negligence on the plaintiff

A

loss of life, permanent physical incapacity, serious physical injury, emotional impact of the breach, loss of wages and livelihood, unemployment, effect on mental health

57
Q

possible impacts of negligence on the defendant

A

loss of business- consequence of the publicity of the claim
public humiliation, physical injury- a result of contributory negligence, legal costs and remedy, need to sell assets- consequence of high damage award

58
Q

common law development of negligence

A

common law established the tort negligence in the case Donoghue v Stevenson. The common law principle allows a plaintiff to take legal action on the grounds that a defendant did not act in a way to protect the interests of their ‘neighbour’

59
Q

Statute law development of negligence

A

In Vic part x of the wrongs act is the main legislation that governs negligence claims.

60
Q

What is actus reas?

A

An element of crime that refers to the guilty act committed

61
Q

what is mens rea?

A

An element of a crime that refers to a guilty mind

62
Q

How does criminal law promote social cohesion?

A

it defines and prohibits the types of behaviours that are unacceptable (crimes) and outlines the consequences (sanctions) for people who commit these behaviours.

63
Q

What is a crime?

A

A crime is an act or omission that is against an existing law. harmful to individuals or punishable by law.

64
Q

Purposes of criminal law

A

protect individuals, protect society, promote justice, protect property

65
Q

relevant crimes to protect individuals

A

murder, manslaughter, rape

66
Q

relevant crimes to protect property

A

trespassing, theft

67
Q

relevant crimes to protect society

A

drug offences, terrorism

68
Q

how does criminal law promote justice

A

Having the state enforce criminal law helps prevent victims of a crime, and their family and friends, from taking the law into their own hands and imposing their own punishment

68
Q

how does criminal law promote justice

A

Having the state enforce criminal law helps prevent victims of a crime, and their family and friends, from taking the law into their own hands and imposing their own punishment

69
Q

How does criminal law protect individuals

A

by establishing crimes and processes to deal with people who commit these crimes

70
Q

how does criminal law protect property

A

Criminal law protects privately owned and public property. This includes protecting land and the environment, and personal property

71
Q

how does criminal law protect society

A

protects the community as a whole by setting standards and making it clear what behaviour is not tolerated by the community and the legal system

72
Q

what is the presumption of innocence?

A

The right of the accused to be presumed not guilty unless proven otherwise

they’re innocent until proven guilty beyond reasonable doubt

73
Q

standard of proof criminal

A

To prove someone is guilty beyond reasonable doubt is the standard of proof.

So, for the accused to be found guilty, this standard must be met (or surpassed)

74
Q

burden of proof criminal

A

It is the Prosecutions responsibility to prove that the accused is guilty beyond reasonable doubt

The Prosecution holds the burden of proof

75
Q

elements of a crime

A

actus reas and mens rea

76
Q

What is the age of criminal responsibility

A

the minimum age a person must be in order to be charged with committing a crime

77
Q

why is there an age of criminal responsibility

A

There is a minimum age as some people are considered too young to form the intention to commit a crime

78
Q

what is the minimum age of criminal responsibility

A

under 10 years of age

79
Q

can children aged 10-13 be charged with a crime

A

they can be charged if the Prosecution can prove against doli incapax and knew that their actions were wrong

80
Q

What is doli incapax

A

doli incapax means that no child in the age of 10-13 and under can not form a mens rea and know hwat they are doing is wrong

81
Q

Types of offenders or victims

A

cyber crime, hate crime, organised crime, juvenile crime, white collar crime

82
Q

What are indictable offences

A

Serious crimes generally heard and determined in the higher courts (county and supreme) before a judge and jury

83
Q

what are summary offences

A

minor crimes heard and determined in the Magistrates’ Court by a magistrate eg speeding

84
Q

example of indictable offence

A

murder, rape

85
Q

example of summary offences

A

speeding, parking fines

86
Q

when can an indictable offence not be heard summarily

A

if it is punishable by more than 10 years imprisonment or a fine greater than 1200 penalty units or without the consent of the accused

87
Q

why would the accused consent to having their indictable offence charges heard summarily

A

These hearings are generally cheaper and quicker
An accused may receive a lesser punishment - there is a limit on the maximum term of imprisonment a magistrate can impose (two years for a single offence and five years for multiple)

88
Q

what is a principle offender

A

Is the person who directly committed the crime

89
Q

how is someone involved in a crime

A

If they directly help plan and encourage someone to commit a crime or if they help and encourage knowing another crime will have to occur or make an agreement with someone to commit a crime

90
Q

what is an accessory

A

a person who knowingly assists another person who has committed a serious indictable offence after the fact to avoid being prosecuted.

91
Q

types of unlawful homicide

A

murder, manslaughter, infanticide, child homicide, culpable driving causing death.

92
Q

what is murder

A

the unlawful homicide of another human being with malice aforethought who is over the age of criminal responsibility and of a sound mind

93
Q

what is malice aforethought

A

intention to kill or cause serious injury

94
Q

elements of murder

A

the killing was unlawful, the victim was a human being, the accused was over the age of discretion, the accused caused the victims death, the accused was of a sound mind, there was malice aforethought

95
Q

possible defences to murder

A

self defence, mental impairment, duress, unwilling intoxication

96
Q

common law role in developing murder

A

the definition and elements are found in common law

97
Q

statute law role in developing murder

A

the penalty and defences to murder are found in section 3 Crimes Act 1958 (Vic)

98
Q

impacts of murder on the victim and family

A

loss of life, disruption to family life, trauma, grief and loss, funeral costs, loss of household income, loss of trust in law and order

99
Q

impacts of murder on the community

A

cost of publicly funded medical treatment, need for coronial services, increased need for police, fire and emergency services, loss of workplace productivity

100
Q

impact of murder on the offender

A

guilt or shame, legal costs, negative influences as a result of exposure to prison

101
Q

Sources of law

A

statute law and common law

102
Q

Statutory interpretation

A

refers to when the courts have to give meaning to laws in cases like Deing v Tarola

103
Q

precedent

A

a legal principle established in a legal case and is followed by the courts in cases when teh material facts are similar

104
Q

types of precedent

A

binding or persuasive

104
Q

features of the relationship between parliament and the courts

A

ability to influence parliament, statutory interpretation, codification, abrogation

105
Q

codification

A

When they make laws that confirm a precedent established in court.

106
Q

abrogation

A

when parliament changes or overrides common law.

107
Q

ability to influence parliament

A

courts are able to influence changes in statute laws through comments (obiter dictum) made during cases.

108
Q

Reasons for Court hierarchy

A

specialisation, appeals, doctrine of precedent, administrative convenience

109
Q

specialisation

A

allows courts to develop expertise in dealing with the types of cases that come before them

each court has a unique jurisdiction they can specialise in the types of cases that they hear

110
Q

appeals

A

allows for the opportunity to appeal lower court decisions to a higher court.

111
Q

doctrine of precedent

A

precedent is the process of law making in courts, which relies on a higher court making a decision which is then binding on the lower courts.

parties can use this to help predict a likely outcome of a case

112
Q

administrative convenience

A

there are more Magistrates’ Courts in the state then county or supreme. by having a hierarchy less serious cases can be heard in the Magistrates’ and more complex cases to be heard in higher courts.
Allows for efficiency and convenience in the way cases are heard

113
Q

Structure of Victorian Parliament

A

bicameral structure- two houses
the governor (kings representative)
The legislative council (upper house)
The legislative assembly (lower house)

114
Q

structure of commonwealth parliament

A

bicameral structure- two houses
governor
senate
house of representatives

115
Q

house of representatives

A

represents the people, introduces and passes bills reviews passed by the Senate
There is representative (or seat) for each electorate in Australia – electorates are divided up by population
Government is formed here (i.e. the party with the majority of seats)
Currently 151 seats
Representatives are elected for three years

116
Q

the senate

A

Represents the states and territories, introduce and pass bills, and review bills passed by the House of Representatives
76 Senators – 12 for each state and two for each territory
State senators are elected for six years, and territory senators for three
Often called the house of review and the states’ house

117
Q

legislative assembly

A

introduces and passes bills, reviews bills passed by the Legislative Council
Government is formed here (i.e. the party with the majority of seats)
Currently 88 seats – one for every electoral district
Representatives are elected for four years

118
Q

legislative council

A

Introduce and pass bills, and review bills passed by the Legislative Assembly
40 seats – five members per regions
Elected for four years

Legal (10 decks)

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