Topic 9: Law in action

accused

accused

to be charged with an alleged criminal offence

adult

a person aged 18 years or over

arbitration

a method of resolving disputes whereby an impartial third party decides on a settlement arrangement that is then binding on the parties to the dispute

capacity

the ability of a person to do something

capital

punishment the practice of putting an offender to death as punishment for a crime

ceasefire

a temporary or permanent suspension of fighting

charge

a formal allegation that a person has committed an offence

charter

an official document describing the goals and principles of an organisation

civil law

deals with non-criminal matters involving disputes between individuals and organisations

codified

laws that have been collected and organised, usually in written form

colonised

a country or region whose government has been replaced by one from another country

conciliation

similar to mediation except the conciliator can suggest possible solutions

contract

a legally binding agreement

criminal law

law involving cases where the parliament has declared some action to be illegal

customary law

comprehensive systems of governance in Aboriginal and Torres Strait Islander cultures, including ownership and custodianship, caring for Country/Place responsibilities, kinship, ceremonial duties, marriage and childcare, as well as sanctions and dispute resolution processes

democratic

supporting democracy, or the system of government where supreme power is vested in the people and exercised directly by them or by their elected representatives under a free electoral system

evidence

information presented that helps a court reach a decision in a case

good behaviour bond

a type of punishment whereby the offender agrees to display good behaviour for a set time or they will forfeit a sum of money and be sentenced for the original offence as well as any new offences of which they may be found guilty

guarantor

a person who agrees to pay another person's debt if they are unable or unwilling to pay themselves

mediation

when a third party helps those involved in a dispute to negotiate a solution acceptable to both sides

minor

a person under 18 years of age

oath

a promise (in the legal system, a promise to tell the truth as a witness)

victim

a person who is injured or killed by another

witness

a person who gives evidence in court

actus reus

(guilty act): main features

• the act, or omission, actually occurred

• it was done by the accused

• it was voluntary; not committed under force.

mens rea

(guilty mind): a person must have intended to commit the crime. It can take several forms:

• intending to commit a crime (such as robbing a bank)

• being reckless (such as driving under the influence of drugs or alcohol)

• being negligent (such as failing to give someone first aid)

What is the age of criminal responsibility in Australia

In Australia children as young as 10 can be charged with a criminal offence.

Capital punishment

An offender is put to death for comitting a crime

Good Behaviour bonds

The offender agrees to display to display good behaviour for a set time they will be released/ get a reduced sentence

Community service

The offender must to unpaid community work (e

Fines

Payment of money for breaking the law

Weekend detention

A person must spend the weekend in jail but is allowed to go home during the week

Bond

The offender agrees to display good behaviour for a set time or they will forfeit a sum of money and be sentenced for the original fine as well as the new one

Imprisonment

The offender must spend time in jail

Capital punishment

When the offender is sentenced to death

Civil law

deals with non-criminal matters invlving disputes between individuals and organisations

Damages

money paid to the wronged party as compensation

Contract

a legally binding agreement

Guarantor

a person who agrees to pay another persons debt if they are unable or unwilling to pay themselves

Negligence

the failure to exercise proper care, which could result in another person being injured or sufferieng a risk

How do cases arise in Criminal law?

Deals with offences that the parliament has deemed illegal

How do cases arise in Civil law?

Non criminal matters (disputes between individuals or organistations)

Common punishments in Civil Law

Damages (money paid as compensation)

Common punishments in Criminal Law

Fines, community service, weekend detention, bond, imprisonment, capital punishment

Actors involved in a Civil Law case

Paintiff, Respondent, solicitors, barristers, judge

Actors involved in a Criminal Law case

Accused, prosecutor, defence solicitor, barrister, informant (usually police officer present), judge, jury(in some cases)

Contract

A legally binding agreement

When can a minor legally enter a contract

Purchase essential goods and services necessary to support the young person, e.g. rent a flat

When CANT a minor legally enter a contract

Goods and services that are not necessary, e.g. luxury goods (jewellery, stereo equiptment, etc.)

Precedent for modern law of negligence

Donoghue v. Stevenson (1932)

Offender

a person who commits an illegal act

Plaintiff

a person who brings a case against another in a court of law.

Defendant

an individual, company, or institution sued or accused in a court of law

Employees

an employer must provide a safe workplace. Employees who are injured at work due to the employer’s negligence can sue their employer.

Customers

businesses may be found negligent if their goods and services cause harm. For example, restaurants must serve safe food.

Remedies

The seriousness of the negligent act is a deciding factor in how much money will be awarded as compensation in a civil trial.

Joint criminal enterprise

If you are present as part of a group and a crime is committed by members of that group, you risk being charged with that crime, even if you did not play any active role in the commission of the offence present when the crime was committed, knew what was going on, and were in some sort of agreement with other members of the group to commit the crime.

Social Media

A trend has emerged whereby people video or livestream themselves doing criminal activities.

What rights does the Australian Constitution guarantee?

The Australian constitution guarantees the following rights: Right to vote (Section 41), Protection against acquisition of property on unjust terms (Section 51 (xxxi)), Right to a trial by jury (Section 80), Freedom of religion (Section 116) Prohibition of discrimination on the basis of State of residency (Section 117).

What is the Australian Human Rights Commussion?

The Australian Human Rights Commission investigates infringements of anti-discrimination legislation,

Examples of anti-discrimination legislation

EXAMPLES Australian Human Rights Commission Act 1986 (Cwth) Age Discrimination Act 2004 (Cwth) Disability Discrimination Act 1992 (Cwth) Racial Discrimination Act 1975 (Cwth) Sex Discrimination Act 1984 (Cwth). Discrimination can be direct or indirect.

Basic Human Rights

Inherent value of each person

Principles of dignity, equality and mutual respect

Fair treatment

Ability to make genuine choices

When was the UN Convention on the Rights of the Child written?

1989

When was the UN Convention on the Rights of the Child Ratified by Australia?

Ratified by Australia in 1990

How does the UN Convention on the Rights of the Child protect children?

protect children through: Protection from discrimination based on family background

Courts and welfare agencies must consider their interests

Right to express their opinions freely

Right to inform others of their ideas

Right to freedom of thought, morals/conscience and religion (to be respected by governments)

Customary law:

guidelines for behaviour that have been developed by aboriginal and Torres strait islander peoples, which are passed on through oral tradition

Dreaming:

the dreaming is the time when the Earth took on its present form, and cycles of life and nature began. It is believed that customary law originated in the Dreaming.

Dreaming stories about customary law?

elders passed on customary laws by telling dreaming stories, which provide guidance about how to behave

Dispute resolution:

resolved by elders, who would want to meet to discuss the matter and agree to a solution or consequences.

Common punishments in customary law?

Common punishments:

• Less serious offences: shaming and public ridicule

• More serious offences: exile or spearing

Circle Sentencing:

A scheme designed to avoid imprisoning Aboriginal offenders, whereby a circle of people - including Aboriginal Elders, the victim, the offender, the offender’s lawyer, the prosecutor or police and a magistrate - will sit together to attempt to decide an appropriate sentence.

who is included in a circle sentencing hearing?

Aboriginal Elders, the victim, the offender, the offender’s lawyer, the prosecutor or police and a magistrate

Steps in a circle sentencing hearing

Steps:

1. The offender must first plead (or have been found) guilty to be eligible.

2. The offenders crime and background are considered

3. Elders decide on a proposed sentence (eg good behaviour bond with conditions).

4. A magistrate must approve this sentence.

Outline the way in which the judge incorporated customary law into the sentence imposed on Mr Walker

The judge incorporated customary law on Mr Walker by imposing a punishment native to Indigenous law. He described in full how the punishment would be carried out, and sent officers to witness the undertaking of this punishment. Should this punishment have failed, he would be made to return to court and have his sentence reviewed. It also linked back to the significance of familial connections within indigenous culture and to several of its core values.

Alternatives to going to court: Civil disputes

• Mediation

• Conciliation

• Arbitration

Alternatives to going to court: Criminal matters

• Warnings

• Formal cautions

• Community conferencing

• Circle sentencing

Restorative justice

enables all parties to express how they have been affected and what is required for them to be able to move on.

Warnings

A senior police officer or member of the community may …… a minor who commits an offence, depending on seriousness of the offence, whether violence was involved, the harm caused to the victim, the nature of prior offences and the number of previous offences.

Formal caution

If a minor commits a crime, police may take the child’s name but it will not become part of their criminal history.

Community conferencing

If a minor admits an offence, this process may be used. It is considered more serious than a caution, but not as severe as a court appearance.

Three parts in separation of powers

Judicary, parliament, executive government

Judiciary

The judiciary is the branch of government which administers justice according to law

Courts: interpret laws

• Follow strict rules of evidence and procedure to settle disputes

• Must follow legislation

• Power to create new comon law throughdecisions (an act of precedent)

• Most open to the public

Parliament

Governmental body

Politicians: Make laws

• Parliament: main law-making institution

• Power to create or change legistative law (binding in all courts)

• Responds to pressures (lobbying, petitions, demonstrations, constituents)

Exceutive government

Police: enforce laws

• Prevent and investigate crimes

• Protect life and property and maintain peace and order

• Assist in prosecution

• Rules outline police powers