Law and Citizens test

Rules

Regulations or guideline imposed upon the members of specific group so they work together in a peaceful manner

Laws

Formal rules that are designed to govern the way in which people behave so we can live together in one peaceful, united society. Laws apply to everyone in society. They’re purpose is to maintain order, protect people and ensure fairness.

Rules vs Laws

Rules are made by a group or organisation and only applies in that setting, while a law is made by parliament and applies to everyone in society. If you break a law the consequences are more serious than breaking a rule.

Principles of Australia’s Justice system

• All individuals are equal before the law

• The judiciary is Independent and impartial

• Individuals have the right to a reasonable appeal

What are the 2 main types of law in Australia

Criminal Law and Civil Law

Criminal Law

A body of law that protects the community. It establishes crimes and sets sanctions for those who commit crimes, e.g. murder, theft, assault ect.

Purpose of Criminal Law

To punish wrongdoing and protect society.

Consequences of criminal law

If found guilty, a sanction may be imposed

Parties in criminal law

• Prosecution (the state)

• The accused

Sources of Criminal Law

• Statute Law - laws made by parliament.

• Common Law - developed by judges on a case-by-case basis.

Areas of criminal law

• offences against the sovereign

• offences against the person

• public order offences

• economic offences

• preliminary crimes

• driving offences

• drug offences

Standard and burden of proof for criminal law

• The accused is innocent until proven guilty (burden proof)

• prosecution must prove that the accused committed the crime beyond a reasonable doubt, so they must be certain and theres no other possible outcome. (standard proof)

Summary offences

Is a less serious offences e.g. minor theft or assault, that is heard in the magistrates Court. It can result in fines or imprisonment for up to 2 years. There is a strict short limitation period that is usually 12 months. Finally trail called a hearing.

Indictable offences

Is a more serious crime e.g. murder, armed robbery, sexual assault ect,m that is heard in higher courts like the country or supreme court. It has a right to trail by a judge and a jury. It can result in heavier penalties. There is no limitation period meaning charges can be laid many years after the event.

Civil Law

Regulates disputes between individuals and groups. These are private disputes (don’t involve the state), e.g. tort law (trespass, defamation, nurisance ect), Contract, divorce, ect.

Purpose of Civil law

To remedy the situation, to resolve these conflicts and make things right for the victim

Consequences of Civil law

Compensation (usually financial) for injustices or damages.

Parties in Civil law

• Plaintiff - the party who initiates/commences a civil action against another party

• Defendant - the person accused of a crime

Sources of civil law

• Common law - based of judges decisions

• Statute law - law made by parliament

Areas of civil law

• Defamation

• Consumer

• Trespass

• Immigration

• Negligence

• Contracts

• Nusiance

• Torts

• Bankruptcy

• Property

• Family

• Employment

• Tax

Resolving a civil dispute

Civil disputes are resolved through alternative dispute resolution methods such as mediation, conciliation and arbitration, or through court proceedings if ADR is unsuccessful.

Standard and burden of proof for civil law

• Decisions are made on the balance of probabilities (standard of proof)

• The plaintiff must prove there case (burden of proof)

Remedies in Civil Law

• Court can make you pay damages to the plaintiff

• Court can also order an injunction

Precedent

An earlier event, action or decision that is used as an example or guide for similar situations in the future.

Binding precedent

A legal principle from a higher court decision that lower courts must follow in similar cases in future.

Persuasive precedent

A decision that a court can consider and therefore use a source of influence but don’t have to follow. It may come from same-level court, lower courts or even courts in another country.

Australian court hierarchy

The ranking of courts, to organise courts and allow appeals

Jury

A group of citizens selected to decide a verdict.

Role of the jury

• Listen to all the evidence

• Concentrate during trail

• Piece the evidence together and decide whether the accused is guilty or not

Trail by Jury

Is when a group of ordinary citizens listen to evidence in a case and decide whether the accused is guilty or not guilty.

Composition of a jury

• A jury of 12 is selected in country or supreme court

• Selected at random

• Must be over the age of 18

Selection of jurors - why people will be unable to serve

• Ineligible - Not allowed to serve on a jury at all

• Disqualified - Legally barred from jury duty

• Excused - Allowed to skip jury duty for a valid reason

• Challenges - Lawyers can reject potential jurors

Strengths of the jury

Independent and impartial, community involvement, fairness, spreads responsibility and reflects community values.

Weaknesses of the jury

No reason for their decisions and occur behind closed doors, difficult, unduly influences, biases, may result in delays

Factors courts consider in sentencing

• Current sentencing practices - usual punishment for similar crimes

• Maximum penalty - highest legal punishment

• Victim circumstances - harm caused to victim

• Mitigating and aggravating factors

Mitigating Factors

Facts or circumstances about the offender that can lead to a less severe sentence

• Acting under Duress - They were pressured or threatened into doing it.

• Showing remorse - They show they feel genuinely sorry, e.g. apologies, confessing, cooperation and pleading guilty early

Aggravating Factors

Facts or circumstances about the offender or the offence that can lead to a more serve sentence

• Prior offending - They’ve committed crimes before.

• Nature & gravity of offence - Offending is on the high end of the scale of seriousness, use of weapons, and  intentional conduct of the offender

Constitution

A set of rules and laws that explain how a countries governed, how power is divided and the right and responsibilities of government.

Australian Constitution

The written document that sets rules of how Australia is governed. it explains the powers of the federal + states governments and how laws are made.

Specific powers

Powers that are specially listen in the constitution and are given to the federal commonwealth government such as immigration, trade, ect

Residual powers

Powers not listed in the constitution meaning they remain under the state government such as education, police, ect

Referendum

A vote by Australians to decide whether the constitution should be changed. To pass majority much agree.

3 main purposed of Australian constitution

• sets up government structure (how they work together)

• Divides powers (federal/state)

• Produces rules for law making

Relationship between high court and constitution

High court interprets the constitutions laws, decides if laws are valid and resolves conflict between federal and state

Types of Law making powers

• Exclusive - federal only can make laws in these areas

• Concurrent - both can make laws but if conflict federal overrides

• Residual - powers not mentioned in the constitution

Express rights vs implied rights

• Express- rights clearing written in the constitution e.g. freedom of religion

• Implied - rights not directly written but interpreted by the high court, e.g. freedom of political communication

Sanction

A penalty imposed on a person who has breached criminal law

Statutory authority

A body or organisation that is established by parliament to make laws of its behalf e.g. local councils, australia post or vic roads

Presumption of Innocence

A person is considered innocent until proven guilty.

Trial

A formal court hearing to decide a case.

Bail

Temporary release before trial, usually with conditions.

Remedy

A remedy is the solution or outcome a court gives to fix a civil wrong.

negligence

When someone fails to take reasonable care, and that causes harm to another person.

Breach of Contract

Where one individual believes another fails to fulfil the terms of a legally binding agreement.

Defamation

A type of civil action where one party makes false statements that cause another party to lose their reputation.

Jurisdiction

The legal power to make legal decisions and judgements

Statutory interpretation

when a judge is called to resolve a dispute in which the existing legislation is unclear and needs to be interpreted.

Ratio Decidendi

The legal reasoning behind a judge’s decision. it is the binding part of the precedents.

Stare Decisis

The principle that courts should follow previous decisions in similar cases to ensure consistency in the law.

Obiter Dictum

Extra comments made by a judge that are not part of the legal reason for the decision and are not binding.

Actus Reus

The physical act of committing a crime.

Mens rea

The intention or mental element of a crime.

Beyond a reasonable doubt

The jury or judge must be certain the accused committed the crime. And theres no other possible outcome