Legal System & Social Cohesion: Principles of Justice

Role of the Legal System in Social Cohesion

• Social cohesion: connectedness and solidarity among groups.
• A socially cohesive society works towards the well-being of its members.
• The legal system provides an avenue for dispute resolution.
• Remedies are awarded against those who have infringed rights.

Principles of Justice

• Fairness: everyone can participate in the justice system and its processes impartially.
• Guaranteed via the Charter of Human Rights and Responsibilities Act 2006.
• Equality: every individual is handled fairly by the legal system.
• Addresses disparities based on ethnicity, sexual orientation, gender identity, or religion.
• Access: guarantee that everyone can interact with the legal system in an informed manner. Includes awareness of cases, legal processes, and access to institutions, legal counsel, education, information, and help.

Characteristics of Effective Law

• Reflect society's values.
• Is enforceable: possible to identify the broken law and punish the perpetrator.
• Must be known: the public must be aware of a law for it to be effective. People are responsible for informing themselves of the laws.
• Should be clear and understood: written in a way that people can understand, so the intent of the law is clear.
• Be stable: should be stable.
• Laws meeting these benchmarks protect individuals, property, and society, maintain order and security, protect justice and the rule of law, protect rights and cultures, and generally improve society.

Commonwealth and State Parliaments Structure

• Both types of parliaments are bicameral.
• Bicameral means having two houses—an upper and a lower house.
• Commonwealth Parliament structure:
  • Governor-General.
  • Senate (Upper House): 76 elected members, 12 from each state, and 2 from each territory.
  • House of Representatives (Lower House): 151 elected members, representing an electorate.
• Victorian Parliament structure:
  • Governor.
  • Legislative Council (Upper House): 40 elected members total; 5 members from each of 8 regions.
  • Legislative Assembly (Lower House): 88 elected members; each represents an electorate.
• Both parliaments are bicameral legislatures with an upper house, a lower house, and a crown representative.

Sources of Law in Australia

• Statute Law: laws made by parliament (acts of parliament/legislation).
• Common Law: laws made by courts (case law).

Donoghue v Stevenson [1932] – 'Snail in the Bottle' Case Study

• May Donoghue had a ginger beer bought for her, and after drinking from it, and emptying the contents into a glass, a decomposed snail fell out.
• Donoghue suffered mental shock and severe gastro.
• As she did not actually buy the drink she could not sue David Stevenson, the manufacturer, for breach of contract, and instead due for negligence.
• She won her appeal in the House of Lords and was awarded damages for breach of the owed duty of care.
• Foreign substance in product.
• That cannot be seen with the naked eye.
• Entered during manufacture.
• Causes physical harm.
• Grant case the judge adopted the principle and and applied it to the case.
• The ruling was persuasive and when it was applied in Australia it became binding in Australian courts.

Statutory Interpretation

Occurs with:

• Broad wording.
• Failure to foresee all future circumstances.
• Meaning of words may change over time.
• Courts give meaning to legislation that has some ambiguity.
• Deing v Tarola [1993] ‘Studded Belt' Case Study.
• Deing was found guilty of possessing a regulated weapon after wearing a black leather belt with studs.
• His appeal to the Victorian Supreme Court was successful as the judge determined the legal definition of a weapon and that the studded belt was most commonly used as an accessory.

Doctrine of Precedent

• Stare decisis: 'stand by what has been decided;' following past case decisions in similar future cases.
• Ratio decidendi: Legal reasoning the judge used, treated as binding in future cases.
• Obiter dictum: Statements 'by the way' that may form part of persuasive precedent.
• Binding precedent: Precedent that must be followed by lower courts with similar case facts; ratio is the binding aspect.
• Persuasive precedent: precedent a judge can use as reference/influence, but doesn't have to follow.
• Overruling: when a higher court considers a lower court's decision to be wrong.
• Reversing: when a higher court overturns the lower court's decision on appeal.
• Distinguishing: court identifies a difference between the facts of cases.
• Disapproving: lower court disagrees with higher court's decision, but cannot overrule it.

Relationship Between Parliament and Courts in Law-Making

• Codification: parliament incorporates common law into statute law.
• Abrogation: parliament creates legislation which changes/overrides common law.
• Codification involves systematic legal principle consolidation; abrogation involves specific laws/provisions’ formal repeal.

Differences Between Criminal and Civil Law

• Criminal Law:
  • Defines behaviors and conduct which are prohibited with sanctions.
  • Parties involved: Prosecution and Accused/Defence
  • Burden Of Proof: On the prosecution
  • Standard Of Proof: Beyond a Reasonable Doubt
  • Juries: Juries of 12
  • Decision/Verdict: Guity/Not guildy
  • Consequences: Sanctions, fines, imprisonment, compensation orders
• Civil Law:
  • Defines individual rights and responsibilities, and disputes with remedies.
  • Parties Involved: Plaintiff and Defendant
  • Burden Of Proof: On the plaintiff
  • Standard of Proof: On the Balance of probabilities
  • Juries: Optional juries of 6
  • Decision/Verdict: Liable/Not liable
  • Consequences: Damages and Injunctions

Victorian Court Hierarchy

• High Court of Australia
• Supreme Court - Court of Appeal
• Supreme Court - Trial Division
• County Court
• Magistrates' Court
• Courts are ranked by status and legal power to hear different cases.

Why Courts are Organized Hierarchically

• Doctrine of precedent operation
• Allows appeal avenues
• For administrative convenience
• To allow for specialization The acronym RECKS stands for Reflect society's values, Enforceable, Clear and understood, Known, Stable.

Types of Crime

• Cyber Crime: criminal activities via computers/internet. E.g., hacking, spreading hate, child pornography, grooming.
• Hate Crimes: motivated by attacker’s bias and hatred towards the victim's characteristics; including their race or religion. E.g., physical assault, property damage, harassment, online targeting.
• Organized Crime: planned and coordinated criminal conduct. E.g., drug activity, tax or other fraud, identity or cybercrime.
• White Collar Crime: nonviolent crime involving deceit for financial/business advantage. E.g., public corruption, health care fraud, mortgage fraud, securities fraud, money laundering.
• Juvenile Crime: juveniles participating in unlawful behaviour. E.g., graffiti, vandalism, shoplifting.
• Crimes Against the Person: involve violence/threats. E.g., homicide, infanticide, assault, rape, kidnapping.
• Crimes Against Property: private property crimes. E.g., burglary, arson, shoplifting, motor vehicle theft.
• Summary Offences: less serious offences heard by a judicial officer. E.g, disorderly behaviour, certain assault and driving offences.
• Indictable Offences: more serious charges, greater penalties. E.g., assault, murder, theft, manslaughter.
• Indictable Offences Heard Summarily: road traffic offences, minor assaults, property damage and offensive behaviour.

Parties in a Criminal Trial

• Prosecution: represents the government, presents the case against the defendant.
• Defendant: accused of the crime.
• Defence: defends the accused.
• Judge: presides over the trial, ensures legal procedures, and decides on law points.
• Jury: determines guilt or innocence based on presented evidence.
• Witnesses: testify about the events or provide expert opinions.

Circumstances of the Case

• Essential for law enforcement, investigators, and legal professionals.
• Time and location
• Motive
• Means and methods
• Victim-Offender Relationship
• Witnesses and evidence

Mitigating Factors

• Aim is reduce culpability.
• No Prior Criminal Record
• Remorse or Acceptance of Responsibility
• Cooperation with Law Enforcement
• Mental Health Issues
• Provocation or Duress: self-defense, coercion.
• Good Character References

Aggravating Factors

• Serve to increase culpability.
• Prior Criminal Record.
• Use of Violence or Weapons.
• Degree of Harm.
• Lack of Remorse.
• Victim Vulnerability.
• Motivated by Hate or Prejudice. How Aggravating Factors Impact Sentencing:
• Increased Sentence Length
• Higher Fines
• Mandatory Minimum Sentences
• Denial of, or more difficult for Probation or Parole
• Enhanced/Repeat penalties

Principles of Justice Assessment

• Is equality reached?
• Is there Access to Justice
• Is Fairness achieved?
• Consider impartiality, resources, procedures, transparency.

Mens Rea

• Intent to commit the crime.
• Include intent or plan to cause harm.

Actus Reus

• Actually committing the crime.

Legal Definitions: Crime

• A crime is an act or omission that is against an existing law and punishable by law.
• Accused: A person charged with a criminal offence.
• Prosecution: Advocates for the State who formulate and present the case against the accused.
• Summary Offence: A less serious offence typically heard in the Magistrates' Court.
• Indictable Offence: A serious offence typically determined by judge and jury in County or Supreme Court.
• Indictable Offences Heard Summarily: Less serious indictable offences for cases to be heard in the Magistrates court and be judged a summary offence with trial by jury available.
• Burden of Proof: The onus upon a party to prove their case in court.
• Beyond Reasonable Doubt: The standard of proof that must be achieved in a criminal case.
• Actus Reus (doing the crime): The physical act of committing a criminal offence.
• Mens Rea (intention): The legal intent to commit a crime.
• Strict Liability Crimes: Those crimes where intent does not need to be established, merely that the offender committed the offence. Age of Criminal Responsibility:
• Those under 10 cannot be charged.
• Those 10-13 can be charged if they knew actions were wrong.
• Those 14+ are liable.
• Presumption of Innocence: Accused treated as not guilty until proven otherwise with a fair trial.

Principles of Justice

• Fairness: impartial proceedings regardless of circumstance.
• Equality: fair treatment without external influence.
• Access: availability of legal resources.

Civil Law

• Plaintiff: party with infringed rights seeking remedy.
• Defendant: party who allegedly infringed rights.
• Remedy: The outcome the plaintiff seeks.
• Damages: payment to compensate the plaintiff's loss.
• Injunction: court order for defendant to perform or cease an act. Elements:
• Breach: failure to fulfil obligations.
• Causation: link between breach and harm.
• Loss: damage/harm suffered by plaintiff.
• Limitation of actions: the time frame to initiate a legal action.
• Burden of Proof: for the plaintiff
• Standard of Proof: balance of probabilities.

Civil Law Concepts

• Counterclaim: claim made by defendant against plaintiff.
• Vicarious liability: responsibility for actions of another.

Negligence

• Failure to take reasonable care causing foreseeable harm.
• Composed Of;
  • duty of care
  • breach of duty
  • plaintiff suffered loss Defendant owed a duty of care to the plaintiff.
• Defendant owes a duty to neighbours. (Neighbour principle).
• Duty is to avoid foreseeable harm to neighbour.

Dispute Resolution Methods

• Mediation:
  • Facilitated discussion; mediator ensures communication.
  • Outcome: potentially legally binding settlement.
  • Strength: parties create the solution.
  • Weakness: not enforceable.
• Conciliation:
  • Recommends solutions; more active third-party role.
  • Outcome: potentially legally binding settlement.
  • Strength: increased third-party involvement.
  • Weakness: not enforceable.
• Arbitration:
  • Third party listens and hands down a binding decision.
  • Outcome: legally binding decision.
  • Strength: arbitrator expertise.
  • Weakness: can be more expensive then other methods.

Ombudsman

• Official specializing in complaints against bodies/institutions:
  • Government ombudsmen: handle disputes re: agencies.
  • Industry ombudsmen: handle sector-specific consumer/business disputes.

Victorian vs Federal Ombudsmen

Victorian Ombudsman:

• Has power to investigate administrative decisions in any Victorian Government departments or administrative offices
• Has no power to investigate actions taken by certain groups, such as; police, judges, magistrates, and offers of the governer Commonwealth Ombudsman:
• Investigates complaints made about Federal government departments Has many roles
• Ombudsman for postal industries, insurance, and immigration.

Tribunals

• Disputes resolution bodies authorized by parliament to resolve disputes.
• Binding decisions.
• Provide low-cost, efficient dispute resolution.
• Tribunals cannot hear every type of dispute, notably class action.
• National Sports Tribunal: resolves sports-related disputes.
• Fair Work Commission (FWC): resolves workplace disputes i.e. resolves workplace disputes through mediation and/or conciliation or through public hearings
• National Native Title Tribunal: determines native title claims.

Similarities and Differences between Ombudsmen and Tribunals

• Similarity: both get power from parliament to hear complaints
• One difference is that, the Ombudsman is limited to working with government sectors with limited power, though the tribunal can work with private sector matters
• The other difference is that they all provide individual services

Complaint Bodies

• Handle complaints about goods, services, and decisions made by authorities.
• Provide free dispute resolution.
• Handles cyberbullying via issues
• Office of the eSafety Commissioner
• The Inspector-General of Taxation The Inspector-General of Intelligence and Security (IGIS)

Comparative Strengths and Weaknesses

Strengths of Tribunals:

• Cost effectiveness as it is lower than the cost of going to court
• They are quick and efficient
• Easy to access Weaknesses of tribunals:
• Some services are not free
• Some of the sectors are not available for everyone
• Not appropriate for large amounts of money cases

Courts: Original Jurisdiction

• Magistrates Court: Cases up to $100,000
• County Court: Unlimited cases
• Supreme Court: Unlimited cases, highest appellate jurisdiction.

Appellate Jurisdiction

• Magistrates Court: Cannot exercise appellate jurisdiction
• County Court: Can exercise appellate jurisdiction
• Supreme Court: Can exercise appellate jurisdiction

Civil Trial Jurors

• Reach decisions with a 4/6 majority not a unanimous verdict.
• Jurors are independent and impartial, thus helping to ensure equality and fairness.
• Verdicts can be prejudiced.
• The jury system allows the community to be involved in the legal system
• Requires much explaining
• Relies on the values of the community

Civil Remedies

• When a civil action is take to resolve against actions conducted, the resolution comes in the for of damages or inhibitions against the defendant.
• The main purpose is to restore the injure to the original state
• If this can not happen the resolution will usually come in the form of monetary compensation Damages:
• Specific damages : Monetary compensation for quantifiable financial losses.
• General Damages: cover emotional losses (pain, suffering, mental anguish).
• Aggravated damages extra compensation for behavior leading to high humiliation.
• Nominal damages: A small payout, but a payout non the less that acknowledges the wrongful behavior.
• Exemplary damages: Damages that push an example forward on the defendant.
• Contemptuous damages: A minimal amount that acknowledges the wrong doing of the actions
• Restrictive: Stops a party from doing an action.
• Mandatory injunctions Requires an order or action be put in place to remedy the damages.

Difficulties in the Civil Justice System

• Young, rural Aboriginal or SES folks may not be able to get proper justice.