Unit 2 Legal Studies

Fairness

Fairness

just and impartial legal proceeding that is run according to the rules of evidence and procedure as ensured by the judge overseeing the case.

Equality

the state of being seen as the same before the law and having comparable opportunities to present their respective cases (eg able to question each other’s witnesses)

Access

being able to use the legal system and various aspects of the system such as interpreters, lawyers, juries, etc

Role of the police

to uphold the law and to ensure that the community is safe and operates in an orderly manner

The drug court

a division of the Magistrates’ Court of Victoria that provides for the sentencing and supervision of the treatment of offenders with a drug and/or alcohol dependency who have committed an offence under the influence of drugs or alcohol or to support a drug or alcohol habit.

The koori court

The Koori Court operates as a division of the Magistrates' Court, Children's Court and County Court,  providing a culturally sensitive atmosphere and allows greater participation by the Aboriginal community in the court process.

Delegated body

an authority or agency given power by parliament to make and/or enforce laws.

Consumer affairs

Consumer affairs Victoria can take action in relation to breaches of consumer trading laws and tenancy laws

Environment protection Authority Victoria

Has the power to investigate breaches of environmental laws and to commence proceedings for offences committed in relation to the environment

Local councils

local councils govern at a local level and have the power to enforce local laws where a local law makes an act or omission a criminal offence.

State revenue office

Victoria’s Tax collection agency. It administers laws relating to taxes, duties and levies.

Vic Roads

has the authority to prosecute certain road and traffic offences. it can also issue infringement notices for breaches of road rules

Institutional powers

The authority given to bodies such as Victoria police to undertake certain action

Arrest

Arrest means that a suspect has allegedly committed a crime and the police are detaining them

Institutional power of arrest

A police officer can hold you in custody because they believe you have broken the law. A police officer can arrest someone with or without a warrant. If they get a warrant it needs to be obtained from a Magistrate.

Individual rights of arrest

If someone is arrested they must be informed of why and be promptly brought before a court. The arrested person doesn't need to say anything besides their name and address and the person must be released or brought before a bail justice within a reasonable time of being arrested.

Institutional power - questioning a suspect

Anything a suspect says or does can be used against them. Police can hold someone for a reasonable amount of time (depends on crime and suspect). There is also the usage of recordings ( video + audio)

Individual rights - questioning a suspect

The person can communicate or attempt to communicate with: A friend or relative or a legal practitioner and this cant be overheard. The person has a right to an interpreter if they do not have sufficient knowledge of the English language and they can stay silent so they don't incriminate themselves.

Institutional rights - Provision of bail

Police can grant or refuse bail depending on the crime committed. The police also have the right to keep you until you agree to the provisions of bail

Individual rights - Provision of bail

Everyone is entitled to apply for bail, which includes where a hearing has been postponed or adjourned, or while waiting there sentence an individual can also refuse bail or impose certain conditions.

Institutional power - court proceedings

Courts have the power to enforce laws and the power to commence criminal action against the accused. Prosecutors have the power to prepare a case with evidence. Bring witnesses in against you and question your witnesses

Individual rights - court proceedings

They have the right to be presumed innocent until proven guilty, be informed about the reason for their charge, have adequate time and facilities to prepare a defence, have an interpreter, have a lawyer/legal aid

Institutional power - imprisonment

They hold the prisoner for a predetermined set period of time and limit access to the outside world. The court can order someone to undergo treatment. The police at the prison can search and examine any person, seize unauthorised goods, arrange for medical tests for drugs or alcohol and require any prisoner to be electronically monitored.

Individual rights - imprisonment

The prisoner has the right to be in the open air for at least an hour a day, they have the right to be provided with adequate food, they have the right to be provided with suitable clothing, have the right to access medical care and treatment. If the prisoner is disabled or mentally ill they have the right to appropriate special care and treatment. They have the right to apply for parole

Court hierarchy reasons

It allows the system of appeals to operate, allows for precedents, provides administrative convenience and aids in the development of expertise.

The Jury system

A jury involves a panel of 12 citizens who make judgement on the guilt of a defendant

Jurors responsibilities

• Listen to all evidence

• understand the evidence put forward

• maintain concentration – even if questioning is long and complicated

• remember the evidence and make sense of it

• understand the points of law as outlined and explained by the judge

• disregard any preconceived ideas or personal prejudices

• reach a conclusion on which party is right

• deliberate in the jury room debate

• concur on a decision on the facts of the case

Exemptions for jurors

They can be disqualified (exempt because of an act in their past such as bankruptcy or having a criminal record). They can be ineligible (Lawyers and people who are deaf or intellectually impaired). They also may be excused (this may due to poor health or having to travel a substantial distance to get to the court)

Criminal sentencing

The 5 aims of criminal sanctions are, to punish, deter, denunciate, rehabilitate and to protect. When sentencing an offender, a judge or magistrate will take the following factors into consideration: The statutory parameters set for the offence, Whether the offender has a long criminal history, The nature and severity of the offence, Remorse shown by the offender / willingness to enter a guilty plea, Any mitigating and aggravating factors, Victim impact statements

Imprisonment

A set period of time where the offender is detained in jail. It is given as a last resort for a serious offence. It meets the aims of punishment, protection, deter and denunciate.

Drug treatment order

Where the court requires the offender to undergo a rehabilitation program. They are given if the offender committed a crime under the influence or to support their addiction. It meets the aims of rehabilitate, protect and denunciate.

Youth justice centre order

Juvenile detention for a set period of time. It is a last resort for the most serious offences committed by those under 18. It meets the aims of punishment, protection, deter and denunciate.

Community corrections order

A non-custodial punishment that is tailored for the offender and the crime. These are mostly for summary offences and involve community service. it meets the aims of punishment and denunciate.

Fines

A monetary penalty that requires the offender to pay money to the state. They can be given in conjunction with other sanctions or alone. It meets the aims of punishment, denunciate and deter.

Adjournment

When an offender is released but will be called back if they reoffend. They are given to first time offenders and for summary offences. It meets the aims of deter and protects in the short term

Discharge

To record a conviction but there is no punishment. They are for first time offenders and summary offences. They do not meet any of the aims.

Dismissal

No conviction or punishment. They are given for first time offenders and summary offences. They meet the aims of nothing.

Plaintiff

The party who has had their rights infringed and is seeking some sort of legal remedy from the defendant.

defendant

The party who has allegedly infringed the rights of the plaintiff.

Remedy

The legal outcome sought by the plaintiff. These aim to restore the plaintiff to their original position.

Damages

A civil remedy in the form of a financial payment

Injuction

a civil remedy in the form of a court order that requires the defendant to either perform or cease performing an act.

Specific damages

Calculated to compensate the plaintiff for items that can be calculated objectively and exactly such as loss of wages or medical or hospital expenses.

General damages

For things you can’t put an exact value on, like emotions. They are awarded to the plaintiff for pain and suffering. They cannot be calculated objectively.

Aggravted damges

awarded to the plaintiff to compensate them further if the court believes that defendant’s conduct damaged the plaintiffs feelings by causing humiliation or insult.

Exemplary damages

When the court seeks to punish the defendant.

Nominal damages

They are awarded by the court if the court believes that the defendant has infringed the rights of the plaintiff, but the plaintiff didn’t suffer any actual loss.

Contemptuous damages

When the court thinks the plaintiff has the legal right to damages but not the moral right.

Restrictive injuction

a court order to stop someone from doing something

Mandatory injunction

a court order that requires someone to do something.

Mandatory sentencing

laws that impose a compulsory minimum sentence for a particular offence.

Australian constitution

it outlines how Australia is to be governed, there are five rights contained in the constitution.

Free and interstate trade and commerce (section 92)

This right prevents parliament from treating interstate trade differently between states. It provides freedom of movement between states, without burden or hindrance. For example, it restricts imposing taxes on goods moving from Victoria to New South Wales

Not be discriminated against by the Commonwealth on the basis of the state where you reside (Section 117)

Says it is unlawful for the Commonwealth to discriminate against someone based on the state in which they live. This means, for example, that a resident of New South Wales in Victoria cannot be subject to a law that would make them in a worse position than if they were from Victoria. However, the High Court has said that states can favour their own residents in limited circumstances, such as the right for only residents of a state to vote in elections for that state

Receive ‘just terms’ when property is acquired by the Commonwealth (Section 51(xxxi))

This means that the Commonwealth must pay fair and reasonable compensation for property that they compulsorily buy. The Commonwealth is only able to acquire or obtain property for a purpose or area for which it has the power to make laws (e.g. for airports)

Trial by jury for indictable Commonwealth offences (Section 80)

This provides citizens with the limited right to trial by jury, as it is guaranteed for indictable (or serious) Commonwealth offences (although most indictable offences are state offences)

Freedom of religion (though limited) (Section 116)

Provides citizens with a limited right to freedom of religion. The government may not institute a state religion nor ban the practice of any religion.

Implied rights

A right that is not explicitly stated in the wording of the Australian Constitution but is rather considered (or implied) to exist by the High Court when interpreting the Constitution’s words. There are 2 implied rights, the right to freedom of political communication and the right to vote.

Meditation

 uses an independent third party to help the disputing parties reach a resolution by facilitating the discussion and encouraging them to come to a compromise. This outcome is not binding unless a deed of settlement is signed by both parties.

Dispute resolution

ways of resolving or settling civil disputes that do not involve a court

Conciliation

a method of dispute resolution, similar to mediation except the third party has a more active role and may suggest potential resolutions to the parties.

Arbitration

A method of dispute resolution, involves the third party listening to the applications of both parties and handing down a binding decision.

VCAT list

• civil claims list

• human rights list

• residential tenancies list

• crimes compensation tribunals

• equal opportunity commission

• victims of crime assistance

Ways in which rights are protected

• constitution

• implied rights

• legislation

To have a standing

Means that a person is eligible to commence legal action because they have been directly impacted by a breach of rights.

Criminal vs Civil cases

Criminal cases involve the state whereas civil cases are between private parties. The types of cases are also different. Criminal involves matters such as murder, robbery and terrorism while civil matters are those involving negligence, family law, contract law and defamation. The aims and outcomes present further differences.

Criminal law aim

To punish offenders, protect society, rehabilitate the offender, denunciate the behaviour and deter individuals from committing crimes in the future (both the offender and potential offenders)

Magistrates court jurisdiction

The criminal jurisdiction is for summary offences and the civil jurisdiction is for civil cases where the plaintiff is seeking between $10,000 and $100,000 in compensation. It also hears committal hearings and bail applications. There is no appellate jurisdiction.

County court jurisdiction

The criminal jurisdiction is for all indictable offences other than murder, treason and terrorism. The civil jurisdiction is for claims of an unlimited amount of compensation. They may hear criminal appeals from the magistrates court.

Supreme court trial division jurisdiction

The criminal jurisdiction is for serious indictable offences such as murder, treason and terrorism. The civil jurisdiction is cases for an unlimited amount of compensation. They may hear civil and criminal appeals from the magistrates and county court.

Supreme court of appeals jurisdiction

They have no original jurisdiction but may hear criminal and civil appeals from the Magistrates court, county court or the Supreme Court trial division.

High court jurisdiction

They deal with disputes between various levels of government and matters pertaining to the constitution. They may hear appeals from various state courts

Jury in a criminal trial

They must listen to the evidence presented in court, apply it to the law as directed to them by the judge and deliberate in the jury room to reach a verdict

Deter

to discourage others in the community from committing a crime

denunciate

to demonstrate the communities disapproval

rehabilitate

to reform an offender to prevent them from committing a crime in the future.

protect

to keep the community safe from an offender

punish

to penalise the offender

Equal opportunity commission

identifies where discrimination has allegedly occurred in employment and education setting

Human rights list

cases where discrimination has allegedly occurred under the provision set out by the Equal Opportunity Commission.

Civil claims list

settles claims arising from the supply of goods and services.

Residential tenancies list

settles disputes between landlords and tenants.

Jury in civil trial

the jury will listen to the facts of the case and apply these facts to the law that the judge describes to them, they will then decide if the plaintiff’s rights have been breached. In all civil cases other than those involving the tort of defamation, the jury will decide on the amount of damages to be awarded to the plaintiff if they win the case.