Legal Studies

what are the 3 principles of justice

access, fairness and equality

define fairness

Impartial or just behaviour, which does not favour some or discriminate against others. for example the ability to have a fair trial so that both sides are able to present their case and understand the facts

define equality

treatment that does not favour nor discriminate. everyone is equal before the law and should be given the opportunity to present their case without advantage or disadvantage

define access

The Ability to use the law and the legal system

what are the characteristics of an effective law

Reflect society’s value, be enforceable, be known, clear and understandable, stable

What does it mean for the law to reflect society’s values

Members of society will be more inclined to follow laws that reflect current values

What does it mean for the law to be enforceable

It must be possible to catch and punish those who break the law

what does it mean for the law to be known?

people can only follow laws that they know about, it is up to individuals to know the law and law makers to keep the public informed

What does it mean for the law to be clear and understood?

People need to be able to understand the laws, confusing or unclear laws will not be effective

What does it mean for the law to be stable

If laws change too frequently people never know their rights and responsibilities are which results in a non-functioning society

What is government made law called?

statute law

What is court made law called?

Common law

What is the main role of the government?

to make legislation

What is the hierarchy of the victorian parliament from low to high

Legislative assembly, Legislative council, Queen’s/King’s representative

What is the hierarchy of the commonwealth parliament from low to high

House of representatives, Senate, Queen’s/King’s representative

What does the legislative assembly do?

Is made up of 188 members each representing an electorate, determines which party forms the government introduces and passes bills, reviews bills passed by the legislative council

What does the legislative council do?

Made up of 40 members five from each of victoria’s large regions each elected for a four year term. Introduces and passes bills, reviews bills passed in the legislative assembly

what does the Senate do?

acts in the best interest of Victoria, passes legislation as bills have to pass through both houses

House of representatives?

introduces and debates legislation, made up of 151 seats

What is statute law?

Government made law

What is common law?

Law that is made by the courts

What is a precedent?

a legal principle created by a court in a new type of case that needs to be followed by courts of lower hierarchy in future cases with similar material facts

How is a bill passed through parliament?

first reading, bill discussion and debate, committee stages, third reading, bill then proceeds to the second house and follows the same procedure as above, then the bill receives royal ascent where it is proclaimed and becomes an act.

What is Statutory Interpretation?

when a judge gives meaning to a specific word in legislation

What is ratio decidendi?

The reasoning behind the judges decision

What is Obiter dictum?

statements from the judge that are important but not part of the judges reasoning behind their decision

When is a precedent binding?

if the facts of the cases are similar and to courts in the same hierarchy or lower

What is a persuasive precedent?

a precedent that may not necessarily be binding but the court may be influenced by it because it makes sense

When can the court makes laws?

by either setting a precedent or statutory interpretation

How can a precedent be overulled?

A precedent can be overruled by a higher court in a different case with similar facts. From then on old precedent can no longer be in use and new precedent will be follwed

How can a precedent be reversed?

When the same case is on appeal in court and the appeal judge disagrees with the trials judges decision a new precedent can be set (key point is that it is the SAME case on appeal)

How can a precedent be distinguished?

If the facts of a case are sufficiently different from the material facts in a binding precedent then a judge can choose to not use the precedent

How can a precedent be disapproved?

When lower courts are bound by precedent they can outwardly express their disapproval. in hopes that the government will hear about it and pass statute law that overrules common law

The Victorian court hierarchy from lowest to highest is?

Magistrates, county, Supreme (trial division) then (court of appeal), High court (sits on top of every court hierarchy

What does the magistrates court deal with?

Summary offences, bail applications, has other small divisions that are on the same level; Children’s court, drug court and coroners court

What does the County court deal with?

Minor indictable offences and no summary offences

What does the supreme court (trial division) deal with?

Serious indictable offences, civil cases typically where the damages being sought are of a large amount

What is the jurisdiction of the Supreme court (appeal) ?

cases on appeal, no cases for the first time

What does the high court do?

disputes that have to do with the constitution, has the final decision as you cannot appeal to a higher court

Why do we have a court hierarchy?

So that their can be specialisation, appeals can be facilitated, allows for the doctrine of precedent to operate and administrative convenience

What is statutory interpretation?

Government creates statutes and courts interpret them to fit the scenario

What is the codification of common law?

When government confirms the common law “sets it in stone” by creating a statute of the the common law

What is the abrogation of common law?

when the parliament does not agree with the common law so they publish statute law that overrides it

What are the strengths of statutory interpretation?

Allows for courts to interpret unclear legislation , enhances the characteristics of an effective law and allows for the real intentions behind the legislation to be identified, sets precedent which enables consistency

What are the weaknesses of statutory intepretation?

Courts must wait for a case to be brought to them, binding precedent can be created from statutory interpretation which can force lower courts to adhere to a ruling that they disagree with. is not considered democratic as the judges who determine the meaning behind the legislation are not elected

What is the purpose of criminal law?

To protect the community and establish sanctions for people that commit crimes

What is the purpose of civil law?

to resolve disputes between individuals and remedy wrongdoings

What is a crime?

an act or omission that breaks the law, is harmful to others and punishable by law

What is a sanction?

a punishment opposed on the offender by the court only used in criminal law

What is a remedy?

a solution that returns the plaintiff back to their original position prior to when their rights were infringed only used in civil law

Damages

monetary compensation

Injunction

a court order only used in civil law

Burden of proof in a civil case

lies with the plaintiff to the standard of the balance of probabilities

Parties to a civil case

The wrongdoer, aggrieved party, insurers, other victims

The wrongdoer

person who directly caused harm

the aggrieved party

person who’s rights have been infringed and has suffered loss

Insurers

companies that enter into a insurance policy with a person

other victims

A plaintiff can be a person who has indirectly suffered loss or damage as a result of the actions of another party.

Civil liability

the legal responsibility of a party for loss or harm caused to another party because of a breach of civil law.

Civil Law:

area of lawrights and responsibilities of individuals groups and organisations in society

Civil liability:

legal responsibility of a party for loss or harm caused to another partyas a result of a breach of civil law

burden of proof in civil law

lies with plaintiffto the standard of on a balance of probabilities

Parties to a civil case include:

wrongdoeraggrievedinsurersother victims

The wrong doer in a civil is

party that causes direct harm

Why can employers be found liable for their employees actions

vicarious liability

what is the aggrieved party in a case

part whoose rights have been infringedas a result of that suffers harm and losscan be more than one person

Representative proceeding:

a legal proceeding in which a group of people who have similar claims or related facts bring that case under the name of one person against the same defendant

Right of subrogation:

stepping into the shoes of an insured personacting on their behalf

What is the aim of civil law?

achieve social cohesionprotect individual rightsprovide an avenue where compensation can be sought due to a breach

Causation

the direct causal link between the actions of the defendant and the harm suffered by the plaintiff as a direct result of this link

who need to prove the casual link?

Plaintiff

What is loss?

harm suffered or damage sufferedboth economic and non-economic

what are the 5 different types of loss?

economic/financialamenity (intangible)property damagepersonal injurypain and suffering

What is the limitations of actions?

the time constraint placed on a particular civil claim in which after that specific period of time has passed the defendant is able to use the claim of “too late to obtain any remedy”

What is the limitation of action placed upon contract claims?

6 years

What is the limitation of action placed upon tort law

6 years

What is the limitation of action placed upon tort law where there is personal injury consisting of a disease or a disorder

3 years

What is the limitation of action placed upon an action to recover areas of rent

6 years

what does negligence involve?

civil tortrelating to duty of carefailure to take reasonable care of what is reasonably foreseeable

What is tort law?

wrongs that infringe on people’s rights

what does negligence protect?

protects rightsto be safe from harmwrongful conductreckless conduct

elements within a negligence case include:

duty of carebreachcausationinjury damage or loss

Duty of care

the duty of a person to take reasonable care to ensure that others aren’t harmed by their actions or omissions

what are some exemptions to the duty of care?

participating in risky recreational activitiesdonating foodvolunteeringbeing a good samaritan

Defences to negligence :

the plaintiff has not established the 4 elements of negligencecontributory negligence- the plaintiff contributed to the harm caused by the defendantassumption of risk (volenti non fir injuria) the defendant claims that the plaintiff accepted the dangers of a known and understood risk

what is vicarious liability?

the circumstance in which the employer carries liabilitygiven that the employer was doing their job properly

what is the main role of courts?

whiles courts are able to make laws through passing precedent their main role is to apply laws to the materials facts of a case and resolve disputes

What is a crime?

an unlawful act or omission against an existing law that results in harm to society hence is punishable by law

who carries the burden of proof in criminal law?

the prosecution

what is the standard of proof in criminal law?

the the standard of beyond reasonable doubt, that there is no other reasonable explanation for what has occurred

bail

occurs before trial and is an application process in which can be either approved or denied that the accused is allowed to continue living within the community prior to their trial, as technically under the presumption of innocence they are still innocent of any crime. However this can be denied if the accused is deemed to be a threat to society and dangerous to the community

parole

occurs after the trial after the accused has already been sentenced they may apply for parole which allows them to be released slightly early given that they have been on good behaviour during the amount of time they served, they are allowed to be released back into the community early under very strict circumstances

mens rea

the ability to form a guilty mind that meaning that the accused was aware of what they were doing and acted in an intentional, reckless or negligent manner

actus rea

That the actions the accused committed were guilty and that they physically broke the law

doli incapax

that someone is incapable of evil given that they are under the age of discretion. meaning they do not have the intellectual capacity to understand the difference between right or wrong

strict liability

certain crimes in which mens rea does not need to be proven as these crimes justify criminal liability regardless of intent these crimes include: road safety, speeding ect.

What is the age of criminal responsibility

children under 10 are considered to be doli incapax hence cannot be held accountable for their actions instead their parents or guardians are. for children between the ages of 10-13 the prosecution must prove that the child knew that their actions were wrong. Children the age of 14 are fully liable for their actions

what is the presumption of innocence?

the guarantee that the accused is innocent until proven guilty to prevent wrongful convictions and to give them a fair trial

how is the presumption of innocence upheld?

through bail allowing the accused to remain in the community until their trial, that the Prosecution is the party that has to prove that the accused is guilty of crime, police must have reasonable grounds to make arrests and citizens are given the right to silence and legal representation in court

what are the 6 divisions of crime?

A crimes against the PERSON

B PROPERTY and section crimes

C DRUG offences

D SECURITY and public order offences

E JUSTICE procedure crimes → perjury

F OTHER very minor crimes including not tapping onto PT