Legal Studies

The role of laws

What laws DO:

1. Protect and establish individual rights

2. Create consequences for violations

3. Provide peaceful conflict resolution

Why we need them:

• Conflicts are inevitable

The role of individuals

• Once laws are in place, it is the responsibility of individuals to ensure that we are aware of the laws and abide by them

• Will not know all laws but will need to obey all laws

• Expected to respect human rights

Negotiation (Alternate Dispute Resolution)

= Opposing parties dealing with each other directly

• Simplified process

• Minimised cost

• Can be through direct meetings or other correspondence

• People can have legal rep but it is not required

• Most disputes can be resolved this way

• Mutually beneficial outcome is sought

Mediation (Alternate Dispute Resolution)

= Dispute resolution that promotes understanding

• NOT the same as Conciliation

• Focussed on promoting understanding + using creative problem solving to seek an outcome

• Mediators don’t have to be an expert in the field (more focussed on communication rather than technical nature)

• Dispute may remain unsolved

Conciliation (Alternate Dispute Resolution)  

= Involves the use of a third-party (conciliator)

• NOT the same as Mediation

• Uses a conciliator usually appointed by formal tribunal (sometimes have to be an expert in the area)

• Legal rep can be used but not required

• Fair & affordable

• Opposing parties express their views and discuss perspectives

• Mutually beneficial outcome is sought

Arbitration (Alternate Dispute Resolution)

=  involves a third party neutral who makes a binding decision.

• Used when parties need a resolution that is legally binding

• Most intense and expensive method

• Independent third-party is used (Arbitrator or panel)

• Third-party consider legal implications of opposing arguments

• Parties must be willing to accept the outcome

Key ideas of the legal system

Acronym: "MR PEPSA"

• Maintaining social cohesion

• Resolving disputes

• Protecting individual rights

• Ensuring fairness and justice

• Promoting stability/certainty

• Social framework (Making a framework for society)

• Accountability (Ensuring accountability)

Fairness (principles of justice)

• Impartiality

• Proportionality

• Due process

• Presumption of innocence

Independent & Impartial Judiciary

• Independent means separate from the elected parliament and government 

• Allows courts to maintain the balance of power so parliaments cannot abuse their powers

• Judges are free to make decisions without influence from local authorities

• All cases are approached equally

Equality (principles of justice)

• Equality before the law

• Equal opportunity

• Non-discrimination

Equality Before The Law

• Individuals should not face discrimination

• Does not mean that everyone is treated the same

• The accused has the right to be treated innocent until proven guilty

Access (principles of justice)

• Knowledge of the law

• Access to justice

• Affordability

The Right To Appeal

• Individuals can appeal their case if they are unsatisfied with the outcome

• The case is taken to a higher court for review

• Only open to people who have either new evidence or can prove that their trial was unfair

Rule of Law

fundamental principle where everyone (including people in power) is subject to and accountable under the law. This ensures fairness & prevents arbitrary actions.

Presumption of Innocence

Everyone the right to be considered innocent until proven guilty in a fair & public trial

Retrospective Laws

Person can only be punished if what they did was illegal at the time of them doing it. Laws can not change what was legal in the past.

Government Challenges

Government can be challenged about its actions through the courts and by the media/citizens

Benefits to the rule of law

• Citizens are treated equally and lawfully

• Judicial system is independent, impartial, and transparent

• Everyone is free from being arrested without a reason, or for breaking an unknown law

• Democracy is strengthened because laws are made up by the people

• Level of order and predictability in society

Commonwealth

• Defence

• Communication

• Foreign Affairs

• Trade

• Commerce and Industry

• Finance Tax

Conflict (Division of powers)

• When there is difference between the laws created by the Commonwealth vs the States, there is an issue

• They can be applied slightly differently but there can’t be any conflicting approaches

• E.g. ACT & Commonwealth’s law on same-sex marriage

Precedent (common law)

= a decision or legal principle made by a judge

• Must be followed by all lower courts within the same court hierarchy where cases are similar (maintains consistency & predictability)

• The purpose is that our law develops as a society around it develops

Statutory Interpretation

= A judge resolves a dispute where there is existing legislation but the wording is unclear

• It must be interpreted by the judge before it can be properly applied.

Criminal Case

The individual who has allegedly committed the act is taken to court by the state or federal government.

Summary Offence

= minor crimes usually heard in the Magistrates court (e.g. destruction of property, disorderly behaviour, driving offences)

• Heard in the lower courts

• Usually dealt with through fines rather than imprisonment

Indictable Offence

= Serious crimes requiring a judge and jury (murder, assault, theft, home invasion)

• Heard in higher courts like the County court (Victoria), and the supreme court. 

• Usually result in outcomes such as imprisonment or fines (sometimes both)

Prosecution

The party that institutes criminal proceedings against the accused on behalf of the state/commonwealth

Accused

Person accused of a criminal offence but has not yet been found guilty. 

Offender

 Person who has been found guilty of a criminal offence by a court

Jury

= Gives the verdict on a legal case

• Not always necessary in trials at court

• Their main objective is to listen to the facts and base their decision on that

Judge

= Maintains fairness for both parties and decide on the sanction/outcome based on the decisions of the jury

• Present in all cases writing the state system

Actus Reus

Action or conduct which is an element of a crime, as opposed to the mental state of the crime

Mens Rea

Intention or knowledge of wrongdoing that is part of a crime (Mental Element)

Doli Incapax

Means ‘incapable of evil’. Legal presumption that children under a certain age are presumed incapable of forming the necessary criminal intent for committing a crime.

Civil Law

= area of law that defines rights and responsibilities of people and groups in society and regulates private disputes. 

• Involves disputes between individuals over alleged breach of rights 

• Plaintiff hopes to receive a remedy that will restore their position prior to the wrongdoing

Remedy

Any order made by a court/tribunal to address a civil wrong or breach. May be in the form of damages.

Plaintiff

The party who makes a legal claim against another in court

Defendant

Party that is alleged to have breached a civil law and is being sued by the plaintiff

Tort

‘wrong’. A wrong that has interfered with a person’s legally protected interests

Criminal vs Civil

	CRIMINAL	CIVIL
PUNISHMENT	Sanction	Remedy
WHO BRINGS THE CASE TO COURT?	Prosecution	Plaintiff
WHO IS BEING TAKEN TO COURT?	Accused	Defendant
STANDARD OF PROOF	Beyond a reasonable doubt	Balance of probabilities

Tort Law

Negligence = Individual claims they have suffered injury due to another person’s failure in their duty of care

Defamation = A person believes they have suffered harm due to another person’s false public statements

Contract Law

Breach of Contract = One individual believes another has failed to carry out the terms of a legally binding contract

Sanction

= A penalty or coercive measure imposed by a court on a person found guilty of a criminal offence.

Purpose:

• Deter future violations

• Enforce compliance

• Provide consequences for non-compliance

• Incentive for obedience 

• Include imprisonment, Fines, etc.

Remedies

= how a court enforces a right, imposes a penalty, or makes an order to compensate for a wrongful act/breach of contract

Purpose

• Address legal wrongdoings

• Provide relief to people who have been harmed

• Include fines, asset freezes, etc.

Standard of proof

A legal burden of proof that requires the guilt to be proven to a particular extent

Beyond a reasonable doubt (Criminal)

requires the prosecution to prove the accused’s guilt to a point where there is no other logical or reasonable explanation based on the evidence.

Balance of probabilities (civil)

The court must be satisfied that a case is more likely than not to be true based on the evidence provided

Aggravating Factors

= circumstances that increase the seriousness of a crime and can lead to harsher sentences

Examples

• Use of weapon

• Prior criminal history

• Lack of remorse

• Victim’s vulnerability

• Planning

• Substantial harm

Mitigating Factors

= circumstances that can lessen the severity of a crime or punishment

Examples

• Remorse/accepting responsibility

• Cooperation

• Early guilty plea

• No criminal history

• Significant mental/physical health issues

• Youth

• Minor role

Jurisdiction

= The extent and official power to make legal decisions and judgements

• Different variation on jurisdiction depending of the court

Original Jurisdiction

= A court’s authority to hear a case for the first time

• Often establishes the factual and legal bases of the cases

• Courts will hear different cases depending of the type of case and severity of the situation

Appellate Jurisdiction

= A court’s authority to review a lower courts’ decision

• Allows a higher court to review a decision made by a lower court

• Can confirm the initial decision or might overturn/modify the decision

Magistrates Court (Lower Courts)

• Victorian lower court

• Busiest court in Aus (most legal cases are minor)

• NO Appellate Jurisdiction 

• Hears criminal Summary offences - (decisions are made by a Magistrate)

• Hears civil cases worth up to $100,000

Federal Civil Court

• Australia’s lower court

• Hears matters relating to laws passed by the federal government

County Court (Intermediate courts)

• Victorian intermediate court

• Hears serious criminal cases , but not murder (heard by judge and jury)

• Hears civil cases involving $100k-$300k, and claims of compensation (heard by judge - jury on request)

• Is able to hear certain types of appeals from Magistrates’ court

• When the accused pleads not guilty, a jury of 12 will determine verdict + judge will determine sanction 

• Has Appellate jurisdiction (usually in front of 1 judge)

Alternate Courts

• Not used as regularly or serve for a more specific purpose

• Have different jurisdictions varying on their focus

Koori Court

• Division of the Magistrates court for Indigenous Victorians charged with criminal offences

• All participants including family members and legal personnel sit at a table and discuss the case

• The discussion does not involve legal terminology

• Magistrate decides the appropriate outcome

Family Court

• The Federal Circuit and Family Court of Australia

• Handles various family law matters 

• Includes divorce, parenting orders, financial settlements, and child support

Mabo 1

• May 1982

• Eddie Mabo + others began their claim for ownership of their land (Island of Mer)

• High court required the Supreme court of QLD to determine the facts

• While this happened, the State Parliament passed the Torres Strait Islands Coastal Islands Act

• The act was invalid as it conflicted with the Racial Discrimination Act (1975)

Mabo 2

• June 1992

• 6/7 High Court judges agreed that Meruiam people had a claim to traditional ownership of the land 

• After this, Commonwealth Parliament passed the Native Title Act 1993

• This act allows Indigenous people across the country to claim traditional rights to unalienated land

High Court Of Australia

• Focuses on interpreting the Constitution, conflicts between states/the commonwealth

• Can hear serious federal cases

• Cases are heard by 7 justices

• Hears cases that are of federal significance or concerning federal laws being broken (Criminal)

• Hears cases involving treaties, matters between states (Civil)

• Appeals are heard from Supreme Courts across any state. This is the most common case heard.

Supreme Court - Trials Division

• Focuses on the most serious crimes

• Hears the most serious indictable Offences (Criminal)

• Can hear cases worth $300,000 and above (Civil)

• Cases tend to be more complex issues

Supreme - Court Of Appeal

• Victorian High Court

• 3 judges usually hear cases here

• Hears appeals from the County and Supreme courts

• Can hear both Criminal and Civil cases