unit 2 exam revision Flashcards
Fairness
A principle of justice which means all people can participate in the justice system, and its processes should be impartial and open.
Equality
A principle of justice which means all people engaging with the justice system and its processes should be treated in the same way; if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage.
Access
A principle of justice which means that all people should be able to engage with the justice system and its processes on an informed basis; that is, they should have the means and ability to be able to use and participate in the legal system.
List the characteristics of an effective law
Reflect society’s values, be enforceable, be known, be stable, be clear and understood
Statuatory Interpretation
When the courts interpret and apply statute laws in relation to a particular case
Setting a precedent
When the courts decide on an issue that does not have legislation or expand on previous legislation
Codification of common law
When parliament passes an Act of Parliament that reinforces a principle established by a court
Abrogation of common law
When parliament passes an Act of Parliament that overrides a principle established by a court
Ability of courts to influence parliament
Courts can influence changes in the court through the comments made by judges
Roles of courts
Primary role –> To resolve disputes
Secondary role –> To make common law
Indictable offences
Serious crimes generally heard and determined in the higher courts before a judge and jury
Summary offences
Minor crimes heard and determined in the Magistrates’ Court by a magistrate
Indictable offences heard summarily
Serious crimes which are heard in the Magistrates’ Court and are determined by the magistrate without a jury
Murder
Murder is the unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification
Elements of murder
- The killing was unlawful
- The accused’s acts were voluntary
- The accused committed the acts that caused the victim’s death
- The accused acted with intent to kill or cause serious harm
Possible sanctions for murder
- Maximum penalty for murder is life imprisonment
- The standard sentence for murder is 25 years’ imprisonment, or 30 years’ imprisonment if the victim was an emergency worker on duty
List defenses to murder
- If the elements of murder are missing
- Self defense
- Mental impairment
- Duress
- Sudden or extraordinary emergency
- Automatism
- Intoxication
- Accident
An accused may use self defense
as a defense if they…
- Believed that their actions were necessary to protect themselves
- Perceived their actions as a reasonable response in the circumstances
An accused may use mental impairment if..
- At the time of the offence, they were suffering from a mental illness
- Did not know what they were doing because they had little understanding of the nature and quality of their actions
- Did not know their conduct was wrong or could not reason, or think about, their conduct like an ordinary person
An accused may use duress as a defense if…
- A threat of harm existed
- the threat would would have been carried out unless the offence was committed
- the offence was the only reasonable way to avoid the threatenedharm, and
their conduct was a reasonable response to the threat
An accused may use sudden or extraordinary emergency if…
- there was a sudden or extraordinary emergency
- their actions were the only reasonable way of dealing with thesituation
- their actions were a reasonable response to thesituation.
An accused may use automatism as a defense if…
- while sleeping orsleepwalking
- while sufferingconcussion
during an epilepticseizure - as a result of a medical condition or because of a side effect of the proper use ofmedication.
An accused may use intoxication as a defense if…
- acted involuntarily or without intent due to being in an intoxicated state as a result of consuming alcohol, taking drugs, or ingesting some other substance
- in general, to successfully argue intoxication, the accused must prove that their state of intoxication was not self-induced.
The role of the jury in criminal law
To determine whether or not the accused is guilty or not guilty
The purposes of sanctions
Punishment, Rehabilitation, Deterrence, Protection, Denunciation
Fines
A fine is a monetary penalty that is paid by the offender to the state of Victoria (not to the victim)
Community Correction Order (CCO)
A community correction order (CCO) is a a flexible, non-custodial sanction the offender serves in the community, with conditions attached to the order.
When can a CCO be imposed?
A CCO can be imposed if:
- the offence is punishable by more than five penaltyunits
- if the offender consents to the making of aCCO.
A CCO cannot be imposed for ‘category 1’ offences.
What are the conditions of a CCO
Mandatory and optional conditions
Imprisonment
Imprisonment is the most serious sanction that can be imposed. It involves the removal of the offender from society and into a secure facility known as a jail or prison.
What are the conditions of imprisonment?
Parole, concurrent and cumulative sentence
Mitigating factors for sentencing
Nature and gravity of the offence,
Early guilty plea,
Lack of prior offending,
Remorse,
Cooperation with the police
Aggravating factors for sentencing
Nature and gravity of the offence,
Prior offending,
Impact of offence on any victim,
Injury, loss or damage as a result of the offence
Breach
A breach is a breaking of or failing to fulfill or comply with a duty or obligation.
Causation
The plaintiff must prove that the defendant’s actions caused or resulted in the harm suffered by the plaintiff, and that the harm would not have occurred if the defendant had not acted in the way they did
Loss
A plaintiff can only obtain a legal remedy if it can be proved that they have suffered loss or harm
Loss includes economic or financial loss, property damage, personal injury, pain and suffering, loss of amenity, etc.
Limitation of actions
The time period within which a civil law action can be initiated
The burden of proof
The obligation of a party to prove the facts of the case
In a civil case, the burden of proof lies with the plaintiff
The standard of proof
The degree or extent to which a case must be proved in court
In civil cases, the plaintiff must prove the case on the balance of probabilities
Plaintiffs in a civil case
The aggrieved party, other victims
Defendants in a civil case
The wrongdoer, employers, persons involved in the wrongdoing
Define negligence
Negligence is a tort that involves a break of a duty of care, causing loss or harm
A person is obliged to take care when it is reasonably foreseeable that others could be harmed
Purposes of negligence laws
- protects an individual’s right to be safe from harm
- establishes legal principles about when duty of care is owed and the standard of care required
- allows people to seek an appropriate remedy against those who breached duty of care
- establishes limitation for what remedies may be sought
Elements required to establish liability for negligence
- the defendant owed a duty of care to the plaintiff
- the defendant breached the duty of care
- the breach of the duty of care caused harm to the plaintiff
- the wronged person has suffered harm; injury, loss or damage
Limitation of actions for negligence
Negligence claims where the plaintiff contracted disease - 3 years
General negligence claims - 6 years
Negligence claims where the plaintiff died/ suffered personal injury - 3 years or 12 years
Defenses to negligence
- the four elements of negligence have not been established
- contributory negligence
- volenti non fit injuria
Exemptions to negligence
- participating in risky recreational activities
- volunteering
- donating food
- being a good samaritan
Possible remedies for negligence
Compensatory damages
These damages involve a payment of money from the defendant to the plaintiff
Define contributory negligence
Contributory negligence is a defense where the defendant alleges that the plaintiff contributed to the harm caused.
E.g. the plaintiff does not wear a seatbelt in a car accident
Define ‘volenti non fit injuria’
A Latin term which mean ‘to a willing person, injury is not done’. The plaintiff has accepted and understood the risk, either expressly or by implication
Define special damages
Damages which compensate for loss that can be accurately measured in monetary terms
E.g. loss of wages and medical cost
Define general damages
Damages to compensate for loss that cannot be accurately measured in monetary terms
E.g. loss of enjoyment of life, pain and suffering
Define aggravated damages
Awarded if the defendant shows reckless disregard for the plaintiff’s feelings. These damages aim to compensate the plaintiff for distress and feelings of humiliation
Define defamation
Defamation is a type of tort that involves the action of damaging a person’s personal or professional reputation through the communication of untrue or false statements or information
Purposes of defamation law
- protects the right to freedom of expression
- protects the right tp be considered of good character and reputation
- the right to have good reputation is protected by placing limits on freedom of expression
- protects the right to seek effective and fair remedies
- protects the right to a quick and effective method of resolving disputes
- protects individuals against material or free speech that would harm their reputation
Elements required to establish liability for defamation
- the statement is defamatory
- the statement is untrue
- the statement refers to the plaintiff (not necessarily by name)
- the statement has been published by the defendant
- the defamatory material has caused/ is likely to cause serious harm to the reputation of the plaintiff
Limitation of actions for defamation
Within 1 year of the publication date
The court may extend the limitation period by up to 3 years, if it was not reasonable for the plaintiff to have commenced action within a year
Defenses to defamation
Justification, contextual truth, absolute privilege, publication of public documents, fair report of proceedings of public concern, public interest, honest opinion, innocent dissemination
Justification as a defense to defamation
The statement is substantially true
Contextual truth as a defense to defamation
The statement is made in the same context as statements that are substantially true
The statement does not further the harm to the reputation of the plaintiff
Absolute privilege as a defense to defamation
The defendant has complete immunity from being sued in certain cases.
E.g. the defamatory statement was published in the course of proceedings of parliamentary bodies, courts or tribunals
Publication of public documents as a defense to defamation
The published statement was a fair copy, summary, or extract of a public document, but only if the statement was published for the public or for educational purposes
Fair report of proceedings of a public concern as a defense to defamation
The statement is a fair report of proceedings, published for the public’s information or for educational purposes
E.g. Parliamentary body
Public interest as a defense to defamation
When the defendant reasonably believed that the publication of the matter was in the public interest.
Honest opinion as a defense to defamation
Expression of honest opinion rather than a statement of fact
Innocent dissemination as a defense to defamation
Defendant unknowingly distributed the defamatory information
E.g. published as a subordinate or employee
Possible remedies for defamation
Damages
Injunction
(an order requiring the defendant to do or not to do something, non financial remedy)
Slander
A type of defamation that is non permanent (i.e. verbal)
Libel
A type of defamation that is permanent (i.e. written)
Mandatory injunction
Compels behaviour, forces someone to do something
Restrictive injunction
Prohibits behaviour
Remoteness
If the damage was not reasonably foreseeable, the defendant will not be held liable as the damage is too remote
Define arbitration
A method of dispute resolution in which an independent person is appointed to listen to both sides of a dispute and to make a decision that is legally binding on the parties. The decision is known as a arbitral award
Define damages
An amount of money that one party is ordered to pay to another party for loss or harm suffered. It is the most common remedy in a civil claim.
Conciliation
A methods of dispute resolution that uses an independent third party to help the disputing parties reach a resolution. A conciliator has more influence over the outcome as they are someone with specialist knowledge and can suggest options and possible solutions to resolve the dispute.
Mediation
A method of dispute resolution that uses an independent third party to help the disputing parties reach a resolution. It is a joint problem-solving process in which the parties in conflict try to reach an agreement through negotiation and compromise with the help of a mediator
Ways mediation can be used…
- Parities can arrange a private mediation
- Parties in a court case can be referred to mediation by a court before a final trial/hearing
- Parties in a tribunal case are referred to mediation to try and resolve the dispute before the hearing
Ways conciliation can be used…
Federal Circuit Court, Family Court of Australia, Consumer Affairs Victoria
Strengths of mediation and conciliation
- The decision made is more likely to be acceptable to the parties as they have reached the decision themselves
- Less formal and less confrontation, which may alleviate stress
- Confidentiality
- Save time and money
Weaknesses of mediation and conciliation
- Decision are not binding
- One party may dominate or influence the other party and the independent party
- Both parties must be willing to participate
- Not appropriate for some disputes
Weaknesses of arbitration
- Not always available
- May take a long time for the decision to be reached
- The parties have no control over the outcome
- Arbitration is more expensive than mediation and conciliation
- Can be as formal as the court process
- Not as flexible as mediation and conciliation
Arbitration can be used when…
- Parties have previously agreed that any dispute between them will be resolved through arbitration
- The Magistrates’ Court uses arbitration to resolve civil claims less that $10,000
Strength of arbitration
- Privacy allows for flexibility
- Less formal than court processes
- Cheaper than courts
- The arbitral award is legally binding
- Private and confidential
Define tribunal
A tribunal is a dispute resolution body that resolves civil disputes and is intended to be a less costly more informal and faster way to resolve disputes
Tribunals can be used when…
- Tribunals develop expertise in particular types of disputes
- Tribunals can make decisions that are binding
- Tribunals cannot hear every type of dispute (e.g. cannot hear class actions)
Examples of tribunals
National Sports Tribunal, Fair Work Commission, National Native Title Tribunal, Mental Health Tribunal, Victorian Civil and Administrative Tribunal
Victorian Civil and Administrative Tribunal
VCAT deals with a large variety of civil disputes
It is made of 5 divisions which hear different kind of disputes
- Administrative Division
- Civil division
- Human Rights Division
- Planning and Environment Division
- Residential Tenancies division
Features of VCAT
- Low fees
- More informal than courts
- Accessible (many VCAT locations, teleconferencing, online portal)
- Cases heard quickly
- Offers dispute resolution methods before making a binding decision on the parties
Define ombudsman
An ombudsman is an official appointed by the government to investigate complaints made by individuals against certain bodies/institutions
Types of ombudmen
Government ombudsman, industry ombudsman
Government ombudsman
Deals with disputes about government agencies
Industry ombudsman
Deals with disputes between consumers and businesses in particular industries
E.g. telecommunications, financial services, public transport, energy and water
Features of an ombudsman
- Free
- Only hears complaints from individuals against government agencies or business
- Ombudsman may or may not have the power to make binding decisions on the parties
- Acts independently of the government
- Generally, the ombudsman will only hear complaints that the individual has already tried to resolve directly
Types of ombudsman at a federal level
Commonwealth Ombudsman, Telecommunication Industry Ombudsman, Fair Work Ombudsman, ASBFEO
Types of ombudsman in Victoria
Victorian Ombudsman, Energy and Water Ombudsman, Public Transport Ombudsman
Complaint bodies
Deal with complaints about the provision of goods and services, or decisions made by certain bodies or authorities.
Commonwealth complaint bodies
- Office of the eSafety Commissioner
- Inspector-General of Taxation
- Inspector-General of Intelligence and Security
Victoria complaint bodies
- Consumer Affairs Victoria
- Disability Services Commissioner
- Health Complaints Commissioner
- Victorian Equal Opportunity and Human Rights Commission
Weaknesses of complaint bodies, ombudsmen and tribunals
- Not always free
- Difficulty finding the appropriate service due to oversaturation of options
- Limited power to make binding decisions
- Not appropriate for larger claims
- Not available to everyone (Only for individuals)
Strengths of complaint bodies, ombudsmen and tribunals
- Lower cost
- Complaints are resolved quickly (1-6 months)
- Accessibility (Websites, online services, telephone)
- Informal
- The person assisting the parties are independent and impartial
- Specialised in relevant industry
Roles of the Victorian Courts in resolving disputes
- determine liability
- decide on the remedy
Jurisdiction of the Magistrate’s Court
Original Jurisdiction
- disputes up to $100,000
- cannot award damages over $100,000
Appellate Jurisdiction
- N/A
Jurisdiction of the County Court
Original Jurisdiction
- Unlimited
Appellate Jurisdiction
- N/A unless given under a specific Act of Parliament
Jurisdiction of the Supreme Court (Trial Division)
Original Jurisdiction
- Unlimited
Appellate Jurisdiction
- On a question of law from Magistrate’s or from VCAT
Jurisdiction of the Supreme Court (Court of Appeal)
Original Jurisdiction
- N/A
Appellate Jurisdiction
- Appeals
Strengths of the courts
- Judges are impartial and make decisions based on fact and law
- Aims to reduce delays and costs
- Specialised
- Formal
- Allows for appeals
Weaknesses of the courts
- Difficult to understand (Therefore, inaccessible to some)
- Too expensive
- Delays
- Formal (Therefore, parties may be intimidated)
- The right to appeal is not automatic
When in a civil case, can a jury be used?
- There is no automatic right to a jury in a civil trial
- In Magistrates’ court and appeal cases, there is no jury
- In County and Supreme court, a jury is optional
- The party that requests the jury must pay the fees associated with having a jury
How many jurors are there in a civil case?
6 jurors, rather than 12 jurors in criminal cases
What is the role of the jury in a civil case?
- consider the facts of the case
- decision if the defendant is liable
- may decide the amount of damages (not in defamation cases)
Strengths of the jury
- independent and impartial
- community involved in legal system (therefore increases confidence in legal system)
- responsibility for decision is spread across the jurors
- jurors are selected at random (ensures impartiality)
- reflects community values
Difficulties faced by First Nations people in the civil justice system
- distrust in the justice system
- language barriers
- cultural differences
Weaknesses of the jury
- reasons for decisions not given
- not a true representation of community
- jurors may be biased
- jurors easily influenced by lawyers (e.g. emotional appeal)
- delays from explaining legal processes to jurors
- jurors may have difficulty understanding evidence
How are difficulties faced by First Nations people in the civil justice system addressed?
- The Victorian Aboriginal Legal Service
(however service cannot keep up with demand) - ongoing cultural competence training
- VCAT becoming more accessible
(Koori staff, Koori support team, Koori hearing room)
Difficulties faced by young people in the civil justice system
- age related communication barriers
- lack of knowledge about the legal system
- lack of resources
How are difficulties faced by young people in the civil justice system addressed?
- YouthLaw (dedicated community legal centre for young people under 25)
- The courts use less formal and complex language when dealing with young people
- Various organisations provided young people with information and education about their legal rights and obligations
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 occured
- to make the point that the defendant’s conduct is not acceptable
- to stop further harm
- to force someone to do something that they are refusing to do
Types of damages
- compensatory damages
- nominal damages
- exemplary damages
- contemptuous damages
Compensatory damages
- special damages
loss that can be calculated exactly and objectively - general damages
for pain and suffering that cannot be calculated objectively - aggravated damages
when the defendant’s conduct injured the plaintiff’s feelings by causing humiliation and insult
Nominal damages
Awarded when the defendant has infringed the rights of the plaintiff, but the plaintiff’s loss was not substantial. Usually a very small amount of money
Exemplary damages (or punitive)
Awarded when the defendant’s actions are so outrageous that the court wishes to deter others from similar action and to show disapproval of the defendant’s action.
Cannot be awarded in defamation cases.
Contemptuous damages
A very small amount of money awarded to show that even though the plaintiff’s claim succeeded legally, the court disapproves of it in moral terms
Define human rights
While there is no single universally accepted definition of human rights, it can be defined as ‘basic freedoms or standards that promote and uphold the dignity of all people, and are guaranteed by a moral sense of duty or by the law’
Examples of how human rights have developed over time
- First Nations people not recognised in the Australian population count until 1967
- The White Australia police was formally abolished in 1973
- Same-sex sexual activity between men was a crime until the 1970s
- Marriage equality was not recognised in Australia until 2017
The Universal Declaration of Human Rights
Sets out most of the basic human rights that all nations and governments, including Australia, should strive to promote and uphold.
E.g.
- all people are born free and equal in dignity and rights
- everyone is entitled to the same rights and freedom without discrimination of any kind
- everyone has the right to life, liberty and security of person
- no one should be subject to slavery, torture, or cruel or degrading treatment or punishment
Define international declaration
a non-binding agreement between countries that sets out the aspirations of the parties to the agreement
How are human rights protected in Australia?
Statute law, common law, the Australian Constitution
Examples of rights protected by statute law
- the right to privacy
- the right to security of person
- the right to freedom from discrimination
- the right to vote
The Victorian Charter of Human Rights and Responsibilities
An Act of Parliament that promotes and protects the basic human rights of people who live in Victoria.
What rights are protected in the Human Rights Charter?
The Human Rights Charter outlines 20 basic human rights, including…
- the right to life
- the right to protection from torture and cruel, inhuman or degrading treatment
- freedom of movement
- freedom of though, conscience, religion, and belief
- the right to take part in public life
- the right to recognition and equality before the law
- the right to a fair hearing
- the right to not be tried or punished more than once
- the right to be provided with legal aid if the denial of such assistance would lead to an unfair hearing/trial
- the right to free assistance from an interpreter if necessary
- the right to not be compelled to give evidence against themself or to confess guilt
General limitation clause
The ‘general limitation clause’ is a section of the Human Rights Charter which allows public authorities (e.g. the Victorian Government) to restrict human rights in situations where it is reasonable and justified.
E.g. COVID-19 lockdowns imposed restrictions on freedom of movement
Strengths of statute law in protecting human rights
- Parliament can create new legislation and amend existing statutes to incorporate further human rights, particularly as the views and values of the community changes
- Details, precise and specific, rather than implied
- Generally enforceable and recognised by government organisations
- Parliament can pass laws quickly to protect additional human rights
Weaknesses of statute law in protecting human rights
- Parliament can amend statutes to restrict or cancel existing human rights
- Parliament can include exemptions, limitations or restrictions in statues, so protected human rights are not always absolute
- Statues do not always enable a person to be awarded any damages if their human rights are breached
- Human rights protected by statute law are not as well protected as constitutional rights
How can human rights be protected under common law?
- through the courts establishing new human rights
- through the courts recognising and upholding human rights contained in statute law
- through the courts determining the validity of human rights legislation
How does the Australian Constitution protect human rights?
- express rights
- implied rights
Define express rights
Rights that are expressly stated in the Australian Constitution
Name the express rights
- right to free interstate trade and commerce
- right to not be discriminated against by the commonwealth based on state of residence
- right to receive ‘just terms’ when property in acquired by the Commonwealth
- right to trial by jury for Commonwealth indictable offences
- right to freedom of religion
How can the Constitution be changed?
With the approval of the Australian people, through a successful referendum, which requires a double majority
Define implied rights
Rights that are not expressly stated in the Australian Constitution but are considered to exist through interpretation by the High Court
Example of implied rights
- freedom of political communication
How can constitutional rights be enforced?
The High Court can declare the Commonwealth’s law unconstitutional and invalid
If the High Court declares legislation invalid, Parliament must…
–> amend the legislation to remove the unconstitutional provisions
–> try to change the Constitution by holding a referendum
Strengths of protecting human rights through the Australian Constitution
- Express rights can only be abolished or changed with the support of the Australian people
- Human rights can be implied and recognised by the High Court even if not expressly written in the Constitution
- All rights are enforceable through the High Court
- The High Court can interpret the meaning of the words and phrases in the Constitution, meaning it can keep pace with changes in community values and remain relevant
Weaknesses of the Australian Constitution in protecting human rights
- changing express rights through the referendum process is difficult for many reasons
- very few human rights are expressly protected by the constitution and the ones that are are limited
- it is expensive and time-consuming to take a case to the high court to challenge a statute that breaches any right contained in the constitution
- the high court cannot interpret the meaning of the constitution and declare an infringement of rights until a relevant case is brought before it
One human rights issue
Asylum seekers and refugees
–> Operation Sovereign Borders
–> No permanent VISAs available for asylum seekers
