year 11 vce legal studies

Mediation strength

More efficient, less cost than court resolution

Mediation weakness

Mediator cannot make a legally binding decision

Conciliation strengths

Same as mediation + conciliator can make suggestions on ways to resolve issue

Conciliation weaknesses

Conciliator cannot make a legally binding decision

Arbitration strengths

Decisions made by arbitrators are legally binding, legal representatives allowed

Arbitration weaknesses

Often limited rights of appeal against arbitrator’s decision, expensive (professional arbitrators charge a fee)

Tribunals purpose

provide individuals with low-cost, efficient, speedy method of dispute resolution

VCAT divisions

• Administrative

• Civil

• Human rights

• Planning and Environment

• Residential Tenancies

State tribunals

VCAT, victims of crime assistance tribunal, mental health tribunal

commonwealth tribunals

fair work commission, national native title tribunal, national sports tribunals

how tribunal increase access to justice

low cost + lower formality. also refers parties to mediation to try resolve dispute before tribunal

ombudsman definition

officee holder able to hear + investigate complaints regarding action taken by government departments/other authorities/bodies.

ombudsmen strengths

Free; ensures parties are able to respond to a complaint

ombudsmen weaknesses

Not every ombudsman is able to make binding decisions, may involve delays in investigation or decision-making

what is a complaints body

organisations established by parliaments to resolve formal complaints made by an individual.

role of courts

to determine a party’s liability/whether or not they are responsible, decide on remedy if necessary

who might have difficulty accessing justice system

first nations australians, low socioeconomic status people, young people, people in regional/rural areas

purposes of remedies

• to restore party who has suffered to position of before harm was caused

• to make point that defendant’s conduct not acceptable

• to stop harm from happening any further

• to force someone to do something/stop doing something

types of damages

compensatory, nominal, contemptuous, examplary

types of injunctions

restrictive, mandatory, interlocutory, perpetual

nominal damage

reinforces legal interest of plaintiff even if they didn’t suffer significant loss. usually small like $1

types of compensatory damages

general, specific/special, aggravated

contemptuous damages

when plaintiff has valid legal claim but court doesn’t think they deserve it. usually small to show court’s contempt

interlocutory injunction

temporary, awarded quickly, only applies until a final court decision made

perpetual

permanent, granted after case has been heard

strength synonyms

benefit, advantage, asset

words to introduce limitations

whereas, however, although

role of jury

to decide on amount of damages (except defamation cases), to ensure justice administered in line with community rather than judge, to uphold equality and impartiality

key concepts of civ law

-breach

-causation

-loss

-limitation of actions

-standard of proof

-burden of proof

purposes of civ law

• provide guidelines for acceptable behaviour

• protect the rights of individuals and groups

negligence elements

• duty of care

• breach

• causation

• injury, loss, damage

negligence limitation of actions

3 years (personal injury disease/disorder)

6 years (property)

12 years (general personal injury)

negligence defences

elements not proven

contributory negligence: plaintiff contributed to harm

assumption of risk (volenti non fit injuria) plaintiff accepted risk

negligence remedies

damages (special, general, aggravated)

agg: defendant shows reckless disregard for plaintiffs feelings

special: compensation for damage that can be measured monetarily e.g wages, medical costs

limit on damages

650,000

defamation elements

statement is defamatory

untrue

refers to plaintiff

has been published by defendant

has caused/is likely to cause serious harm

defamation limitation of action

1 year of date statement published, can be extended up to 3 years

defamation defences

truth

contextual truth

absolute privilege

qualified privilege

honest opinion

innocent dissemination (libraries, booksellers)

negligence remedies

damages

injunction: an order requiring defendant to do something

mandatory injunction

forces defendant to do something e.g take down a post

restrictive injunction

stops someone from doing something e.g stop posting on socials

Characteristics of an effective law

Reflects society’s values, is enforceable, is clear and understood, and is stable

VECUS (values enforceable clear understood stable)

Court hierarchy top to bottom

1. High Court of Australia

2. Supreme Court of Victoria (Court of Appeal)

3. Supreme Court (Trial Division)

4. County Court

5. Magistrate’s Court (+ Children’s Court and Coroner’s Court)

Three principles of justice

Fairness, Equality, Access

4 reasons for court hierarchy

1. Specialisation

2. Administrative convenience

3. Appeals

4. Doctrine of Precedent

SAAD :(

What do laws do

• Specify a particular behaviour/type of behaviour, usually prohibiting or regulating it)

• Provide a sanction, penalty, or remedy against anyone who violates the law

The rule of law

Principle that everyone (individuals, groups, government) is bound by and must obey laws

How do individuals help to achieve social cohesion

by making sure they know the law and follow it

How does the legal system help to achieve social cohesion

Punishes committed crimes, resolving legal disputes and reviewing laws

How do laws help to achieve social cohesion

Setting out behaviour guidelines and protecting rights

Social cohesion

The willingness of individuals to follow laws in order to be able to live in peace and harmony in society

Fairness

People should not be discriminated against

Equality

All people are treated equally before the law, all people have an equal opportunity to present their case, legal processes are free from bias.

Access

Understanding of legal rights, ability for people to pursue their case, ability to use laws and the legal system

Path of a bill

1. Introduced into and debated by House of Reps. If they agree to pass bill, it is passed to Senate

2. Introduced to Senate. If they don’t agree to pass the bill it goes back to house of Reps

3. Must be passed by a majority vote in both House and Senate

4. Must be agreed to in identical form by both House and Senate

5. Given Royal Assent by Governor General

Common law

When courts make decisions based on a case

Codification

When parliament passes legislation to confirm common law

Abrogation

When parliament passes legislation to change/cancel common law

Precedent

Previous legal decision that may be/must be followed in similar cases after

Binding precedent

A precedent that must be followed

Persuasive precedent

A precedent that does not have to be followed but court may be influenced by it.

What makes a precedent binding

• Facts of precedent are similar to current case

• Created in a court in same hierarchy as current case

What makes a precedent persuasive

• Created by a court in another jurisdiction or hierarchy

• Lower/same court

• Obiter dictum statements

Obiter dictum statement

judge making a statement that is important but not part of the reason for their decision

Four ways a court can develop or avoid earlier precedent

• Distinguish

• Overrule

• Reverse

• Disapprove

DORD

Parties in a criminal case

Prosecution and accused

Parties in a civil case

Plaintiff and defendant

What cases does the High Court hear

Crim: Appeals only

Civ: Constitutional matters

What cases does the Supreme Court (CoA) hear

Appeals only in both crim and civ cases

What cases does Supreme Court (TD) hear

Crim: most serious crimes

Civ: unlimited civil claims

What cases does County Court hear

Crim: serious crimes such as r*pe

Unlimited civil claims

What cases does Magistrates’ Court hear

Crim: Minor crimes e.g traffic

Civ: claims <$100,000

Types of crimes

• Crimes against the person

• Crimes against property

• Drug offences

• Public order and security offences

• Justice procedure offences

Purposes of criminal law

• Assist social cohesion

• Protect individuals

• Protect property

• Protect society

• Protect + promote social justice

Key concepts of criminal law

• Actus reus

• Mens rea

• Strict liability

• Age of criminal liability - min age in VIC 10

• Burden of proof - on prosecution

• Standard of proof - Beyond reasonable doubt