10 - Legal Studies: Justice

Legal Laws

official laws enforced by the police and court system that apply to all members of society.

• any individual that breaks a law may receive punishment – Sanction. 

• Sanctions are imposed by the courts - paying a fine, rehabilitation, or for a serious breach spending a period of time in prison.

non-legal rules

rules or regulations that are put upon members of a specific group so they can work together in a peaceful manner.

• Imposed to establish – code of behavior. Any member who breaks a rule may incur a penalty.

Characteristics of an effective law

Reflects societys values, enforcable, known, clear and understood, stable

Structure of the Commonwealth parliament

●Has a bicameral structure – this means it has two houses

●Consists of:

○The Governor-General (King’s Representative)

○The Senate (upper house)

○The House of Representatives (lower house)

Structure of the state parliament

●Has a bicameral structure

●Consists of:

○The Governor (King’s Representative)

○The Legislative Council (upper house)

○The Legislative Assembly (lower house)

Australian Consitution

a set of rules and principles

A ‘rule book’ that guides the way that Australia should be governed

Three brances of the seperation of powers

Judiciary - power to make judgements on law

Executive - power to put law into action

Parliament - power to make and change law

Principles of justice

fairness: fair process and unbiased - present all sides and looked at impartially

access: understanding of lehal rights - able to pursue case + easier acess to legal system

equality: equal before the law - same oppurtunity to present case without judgement

⬆⬆equity: making sure everyone is on the same level

mens rea

‘guilty mind’ - intention or state of mind

prosecution must prove the accused intentionally or kowingly commited a crime

actus reus

‘guilty act’ - physical act or omission

prosectution must prove the accused physically did the wrong act

strict liability crimes

A crime is one where responsibility for committing a crime can be established without having to prove mens rea

• In other words, the Prosecution only need to prove the act (or omission) was committed. there is no need to prove intention (eg. speeding fines, parking fines, drink driving)

age of criminal responsibility

•The age of criminal responsibility is the minimum age a person must be in order to be charged with committing a crime

•There is a minimum age as some people are considered too young to form the intention to commit a crime

under 10: CANNOT be charged with a crime

10 to 13: can be charged if prosecutor can prove the child knew their actions were wrong: goes against doli incapax - children in this age group are incapable of forming mens rea

14+: CAN be charged

standard of proof

the MINIMUM that must be met in order for the accused to be found guilty

summary offence

minor (less serious) - eg. speeding, minor assault

- to hear it without a jury – there is never a jury in the Magistrates’ Court

- the court procedures for summary offences are less complex

indictable offences

serious crimes → eg. murder, rape

- an offence in the Crimes Act 1958 (Vic) is an indictable offence

- the jury will decide a verdict of guilty or not guilty

- if the accused is found guilty, then the judge will decide a sentence

indictable offences heard summarily

•Serious offences that can be heard and determined as a summary offence, in the Magistrates’ Court

•An indictable offence cannot be heard summarily in the Magistrates’ court:

•If it is punishable by more than 10 years imprisonment or a fine greater than 1200 penalty units; and

•Without the consent of the accused

plaintiff

•The person or group who claims they have been legally wronged

•They hold the burden of proof – they need to prove the defendant is liable

•To prove the defendant liable, the plaintiff needs to meet the standard of proof, which is on the balance of probabilities

defendent

•The person or group who allegedly breached a civil law

•Their role is to defend themselves against the plaintiff

•Their goal is to avoid a remedy being awarded against them

breach

prove that defendant has broken or failed to fulfil a duty or obligation

causation

•The plaintiff will need to prove that the defendant’s actions caused or resulted in the harm or loss suffered by the plaintiff

loss

•The plaintiff will need to prove that a type of harm, loss, or damage was suffered

•Different forms –financial or non-financial

limitations of actions

Once a breach has occurred, there is a certain period in which the wronged party can sue the wrongdoer

➡this is the restriction on bringing a civil law claim after the allowed time

➡Having this limit allows for efficiency in the court system and ensures any evidence and witness accounts are reliable

➡In Victoria, all limitations are located in the Limitation of Actions Act 1958 (Vic)

Criminal Law

Criminal law regulates conduct in society to protect the community and provides sanctions against those who commit crimes

• Mens rea and actus reus

• Strict liability crimes

• Age of criminal responsibility

Civil Law

an area of law that defines the rights and responsibilities of individuals, groups, and organisations in society and regulates private disputes

➡Civil law enables people to enforce their rights where loss or harm has occurred

dispute resolution methods used in civil law

mediation, conciliation, and arbitration.

mediation

• A neutral third party (the mediator) facilitates discussions between disputing parties to help them reach a voluntary agreement.

• The mediator does not impose a decision; the parties retain control over the outcome.

concilliation

• Similar to mediation, but the conciliator plays a more active role, offering solutions and suggestions for resolving the dispute.

• The outcome is not binding unless both parties agree to it.

arbitration

• A neutral third party (the arbitrator) hears both sides' arguments and evidence, then makes a binding decision (similar to a judge).

• The decision (called an award) is typically final and enforceable by law.

Original and appellate jurisdiction of Victorian criminal courts

High court

federal court.

presumption of innocence.

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

burden of proof

the RESPONSIBILITY to prove the accused is guilty of the crime

Different ways social cohesion operates in society. (roles of individuals, laws, and legal system)

1. The law

The systems where people live, their behaviour, and allowing groups and individuals to make choices that depict how they choose to live.

2. The individual

Individuals must be aware of their laws and contribute to it by reporting crime and using the legal system to resolve disputes. 

3. The legal system

It is the bodies that make and implement the law to help achieve social cohesion.

Similarities between Criminal and Civil Law

• standard of proof and burden of proof

• utilise the evidence act

• require the same court etiquette

Similarities and differences of dispute resolution methods

Similarities

• All involve a neutral third party to assist in resolving disputes.

• Aim to save time and money compared to litigation.

Differences

• Control of Outcome:

  • Mediation & Conciliation: Parties decide.

  • Arbitration: Arbitrator decides.

• Binding Nature:

  • Mediation & Conciliation: Typically non-binding unless agreed.

  • Arbitration: Binding by default.

Social Cohesion

Social cohesion is the willingness of society often cooperate to ensure their survival and prosperity.

The three groups of social cohesion are individuals (or police), law, and the legal systems.

Threat to Social Cohesion

•Organised crime

•Corruption

•Lawlessness