unit 2 exam legal studies

fairness - poj

• all people can participate in the justice system

• processes should be impartial and open

equality - poj

• all people engaging with the justice system should be treated the same

access - poj

• all people should be able to engage with the justice system
• physical access, financial access, access to information

aim of mediation

• cooperative method
• compromise (win/win)
• parties are expected to problem solve
• suitable when parties want to maintain an ongoing relationship

process of mediation

• encouraged to resolve dispute themselves
• mediator facillitates discussion between parties (do not offer suggestions or advice)
• can be compolsury or voulentary
• agreements are not legally binding (they are if deed of settlement)

aim of conciliation

• coorperative method
• brings parties together in a compromise
• fair and legally sound

process of conciliation

• concilliator facillitates discussion
• mutually accepted agreement
• conciliator can offer suggestions and advice
• not legally binding unless terms of settlement

arbitration

• used in magistrates courts involving disputes less than 10,000
• resolve commercial disputes in the Supreme Court

aim of arbitration

• inquisitorial method of solving disputes
• effectivley find out which party is in the wrong

process of arbitration

• arbitrator listens to evidence (makes legally binding decision (arbitral award))
• more formal than other adr
• arbitrator makes suggestions
• if not possible, makes decision
• arbitrator encourages parties to come to a solution

strengths of mediation and conciliation

• more likley to be accepted by the parties if they have reached a decision themselves
• held in an imformal atmosphere (alleviate stress)
• less confrontational than a court room (better for ongoing relationships)
• both quicker and cheaper than going to court

weaknesses of mediation and conciliation

• the patricipation and willingness of parties is required
• one party may dominate the other
• not appropriate for some disputes (unfair power)
• judgement is not binding (mediator and conciliator have no power)

strengths of arbitration

• binding on all the parties (certainty)
• more informal than court
• can be cheaper and quickernin resolving disputes

weaknesses of arbitration

• the parties have no control over the outcome
• at times, can be formal
• can take a long time for a decision to be made (evidence)

tribunals

• provide individuals with a low cost, efficent and speedy method
• alternative option of resolvign disputes to courts

VCAT

• the main tribunal in victoria
• range of civil disputes
• lead bu a supreme court judge (president)
• county and court judges (vice)
• members that also can determine cases

structure of VCAT

• consumer division: home rental, consumer and buisness
• peoples rights and responsibilities: human rights, legal services
• land and environment: property, enviroment, resources
• other sub divisions: ADR, legal and policy

the role of VCAT

• minor civil disputes
• low cost: dont need a lawyer (80% self rep)
• no or low application fees
• timley and efficient: 1 day >, waitlist shorter
• accessabe anf informal: no strict evidence rules, eg: phone call
• expert bodies: specilised divisions

dispute resolution methods used by VCAT

• mediation: fast track mediation and hearing can be offered
• compulsory conference (conciliation)
• final hearing before vcat member

apppropriateness of VCAT

• within VCAT jurisdiction
• is there a better way to resolve the dispute
• matter is of complexity and size = not appropriate
• wish to have greater avenues of appeal
• cannot be representative proceedings, employee/employer, neighbours

appeals from VCAT

• may appeal a descision only on a point of law
• if tribunal was presiced over president/vice, appeals heard int eh Supreme Court (appeal)
• others heard in the Supreme Court (trial division
• may uphold VCATs decision, make a new one, or return back
• appeals are limited

strengths of VCAT

• normally cheaper than going to court due to low aplication fees
• generally offers a fast resolution for disputes
• there is an informal atmosphere, more comfortable

weaknesses of VCAT

• increased legal representation
• suffers long delays in some areas
• may be too informal

ombudsman

• an official appointed bu the government to investigate complaints (against certain bodies or institutions)
• parliament grants ombudsman powers by passing a statute
• a free service

role of ombudsman

• provide individuals with independant, timley, and accessable dispute resolution servides

types of ombudsman

• government ombudsman
• industry ombudsman

complaints bodies

• deal with complaints about provision of goods and services
• provide free complaints
• focus on industry and serviece
• do not have power to conduct hearing (no binding)

CAV

• the victorian government responsible for regulating victorian consumer affairs

purpose of CAV

• advises vic government on consumer legislation
• includign reccomended changes
• provided information and guidance to educate consumers, tennants, landlords, and buissnesses
• through websites, phone helplines, social media
• conciliates disputes
• takes action in the courtd

appropriateness of CAV

• cant resolve all disputes
• must be in the jurisdiction
• likelihood of disputes to be resolved through conciliation
• are there better ways to resolve the dispute

strengths of CAV

• free and accessable
• informal and efficent
• promotes coorperative solutions

weaknesses of CAV

• cannot force parties to participate
• not legally binding
• limited jurisdiction

strengths of the courts

• the outcome is legally binding
• court hierarchy allows for parties to appeal
• formalites ensure fairness in parties presenting there case
• open justice provides information to the public

weakness of the courts

• win/lose outcome can damage ongoing relationships
• expensive to appeal decision
• formalites can be problematic for self rep parties
• anxity and stress can encourage negative attention

roles of the victorian courts

• to determine liabilty
• to decide on a remedy

jurisdiction of the courts

• original: hearing the case for the first time
• appellate: what courts can hear through appeals
• magistrates under 100k, less than 10k=arbitration

civil jury

• decide on question of fact and verdict
• no automatic right to a jury
• magistrates and appeals: no jury
• county and supreme: optional
• 6 jurors

roles of the civil jury

• be fair and impartial
• put aside own bias
• listen to all the evidence
• understand points of law
• deliver a verdict if the party is liable (try for unanimous, majority is accepted)
• decide damages, except defamation

strengths of a civil jury

• independent and impartial: ensures fairness
• the responsibity is spread across multiple jurors
• allows for the community to be involved

weaknesses of a civil jury

• no reason for decision
• very expensive
• hard to understand legal terms

purpose of remedies

• any order made by court to address a breach
• to restore the plaitiff back to where they were before

compensatory damages

• general: the monetary compensation for intangible costs that do no have monetary value
• specifc: precise monetary value
• aggravated: defendants conduct was cruel

exemplary

• punish the defendant for their behaviour

nominal

• plaintiff is right, but does not need compensation
• small amount of money

contemptous

• plaintiff is right, but does not need any compensation
• legal right to damages but no moral right

effectiveness of damages as a remedy (for)

• compensate for the loss through money
• compensate for financial loss
• different types of damages
• can be tailored to the case and circumstances of the party

effectiveness of damages as a remedy (against)

• may not truly represent the general damages (no monetary value)
• defendant may not be able to pay the damages
• can be difficult to calculate

injunction

• a court order against the losing party
• restrictive: prohibits from doing something
• mandatory: compels them to do something

purpose of injunctions

• to rectify a situation caused by the person who was found to be in the wrong, can be temporary or permanent

criminal v civil jury similarities

• no bias, deliberate in private
• determine the outcome of a case
• both must follow and apply the law
• both must listen to all the evidence and pay attention

criminal v civil jury differences

• criminal has 12 people, civil has 6 people
• criminal decision must be unanimous, civil tries for unanimous, accepts majority (5/6)
• criminal determines guilt, civil determines liability and damages (except defamation)

right

• a moral of legal entitlement to do something
• respect, dignity, equality, and justice

how are rights protected

• the constitution
• statute law
• common law

the australian constitution

• commonwealth of australian constutution act 1900 (UK)
• document that achieved federation
• forms the basis of the political system
• established basic rights

express rights

• protections that are explicitly writted in the constitution
• 'entrenched' cannot be changed or removed
• go to the high court if infringed rights
• apply at commonwealth level
• 5 express rights

implied right

• not explictly stated in the wording of the constitution
• considered to exist by the high court
• high court able to imply the existence of rights when resolving the dispute

the right to freedom of political communication implication

• australian capital television v commonwealth
• act banned political podcasts and advertising
• constitution does not express freedom of speech
• australian representative government requires freedom of speeches

structural protections in the constitution

• structural protections are protections that come from the way the australian constitution divides and limits government power.

enforcement of rights

• all rights protected bu the australin constitution are fully enforceable by the high court
• if there has been a breach of right the high court can declare the law is invalid
• an individual must ave standing to bring the case up

strengths of the constitution

• express rights cannot be changed
• implied freedom of political communication shows that rights can be interpreted
• there are some rights that are indirectly protected through text and structure

weaknesses of the constitution

• rights are difficult to change
• very few rights are expressly protected under the constitution
• is it expensive and time consuming to take a case to court

vicki roach case

• vicki lee roach was a high court case that found a law banning all prisoners from voting was unconstitutional because it went too far in restricting the right to vote.
• federal law banning all sentenced prisoners from voting was unconstitutional, while upholding a prior 2004 law that banned prisoners serving sentences of three years or more

example of structural protections in the constitution

• section 7 and 24 establish the principle of representative government by requiring that both houses of the Commonwealth Parliament be "directly chosen by the people.

how are rights in the constitution enforced

• enforced primarily by the High Court of Australia, which reviews challenges to laws that allegedly breach express or implied constitutional provisions

freedom of religion

• section 116
• Adelaide Jehovah's Witnesses Inc v Commonwealth

freedom of interstate trade and commerce

• section 92
• Cole v whitefeild

residential non-discrimination

• section 117
• r v loubie

trial by jury

• section 80
• Brown v R

aquisition of property on just terms

• section 51
• JT International SA v Commonwealth

strengths of express rights

• 1. Express rights are protected and cannot be changed through legislation

1. High court can declare laws invalid if they breach the express rights

weaknesses of express rights

• 1. Changes can be difficult as a referendum requires

1. Very limited express rights

statute law

• a law made by parliament known as the acts of parliament

how does statute law protect rights

• acts of parliament can be created continously

what is the victorian charter of human rights

• rights set out by the charter of human rights and responsibilites act eg: freedom of movement

statement of compatability

• when a minister introduces a bill, they must read out a 'statement of compatability' to explain wether the roposed law aligns with the charter

override declaration

• parliament may still pass a law that does not uphold rights eg: freedom of movement durign covid

strengths of statute law

1. parliament can amend statutes and charters to incorperate further rights as society changes, eg: same sex marriage

2. parliament has the ability to pass laws quickly if there is a need even if thry dont align with the charter

weaknesses of stature law

• 1. because parliament is te supreme law making body, it can amend statutes and charters so rights may become limited

1. parliament can include limitations or restrictions so they can override the charter

common law

• laws made by judges through decisions in cases

how can common law protect rights

• personal and legal rights through historical decisions and ongoing case law. Examples include the presumption of innocence, the right to a fair trial

kevin and jennifer case

• rights for transgender people
• statutory interpretaiton to determine the meaning of 'man'
• marriage act
• established the right for post operative transgender people to marry

ultra vires

• courts can also protect the rights of the Australian people by using their power to declare Acts of Parliament ultra vires

codification

• confirmed by parliament

abrogation

• cancel rights established in common law

strengths of common law

• 1. courts and judges are independant from parliament and can establish precdent without political pressures

1. the courts are able to infer rights without the need to consider how they may be limited

weaknesses of common law

• 1. the courts must wait for a case to become before them

1. parliament can abrogate common law rights

how does the constitution protect the right to vote

• not expressly stated
• section 7 and 24 have been interpreted as protecting a limited right to vote

how does statute law protect the right to vote

• passes numerout laws that protect the right to vote eg: commonwealth electoral act 1918 provides over 18s

how does common law protect the right to vote

• high court established legal principles (vr case)
• interpreted section 7 and 24

possible voting reforms

• lower the voting age
• allowing all prisioners to vote

prisioners arguements for and against

• for: denying it breaches ICCPR, disproportionatly effects vulnerable groups against: should be denied as punishment, members may be reluctant to support

age arguements for and against

• for: more likley to feel long term effects, encourages involvement, may breach humans rights to deny against: lack maturity, members may be reluctant to support

breach

• must prove there has been a breach by the defendant
• failed to observe law or obligation
• nature depends on the area of law

causation

• plaintiff must prove the actions of the defendant caused harm
• the harm would not have happened but for the defendants actions
• there may be intervening events

loss

• plaintiff may have suffered loss or harm
• may be financial, property damage, injury, pain, loss of amenity

limitation of actions

• limitations of actions act 1958
• a time limit which the wronged party must sue the wrondgoer
• once passed they defendant may raise they are out of time to obtain a certain remedy
• time period varies between each claim

why is there a limitation of actions

• the defendant does not have to face an action after time
• the evidence is not lost
• people may not remember what happened
• promote social cohesion (disputes resolved quick)

the burden of proof

• the plaintiff must prove the case
• if defendant brings counterclaim, they have the burden

the standard of proof

• the standard which the case must be proved
• on the balance of probabilites
• must be more probable than not

representative proceedings

• a group of people that join together to commence legal action (claims against the same party)
• action brought in the name of the lead plaintiff
• must be seven or more people
• claims relate to the same, similar, or related circumstances