EXAM NOTES PDF

**Unit 1: Legal Foundations** - Principles of justice - Access - Fairness - Equality - Courts - Statutory interpretation - Binding precedent - Persuasive precedent - Ways to avoid following a precedent **Unit 2: Presumption of Innocence** -...

**Unit 1: Legal Foundations** - Principles of justice - Access - Fairness - Equality - Courts - Statutory interpretation - Binding precedent - Persuasive precedent - Ways to avoid following a precedent **Unit 2: Presumption of Innocence** - The presumption of innocence and the key concepts of criminal law - Burden of proof - Standard of proof - Distinction between summary and indictable offences - Summary offences - Indictable offences **Unit 4: Civil Liability** - Possible parties for a civil case - Negligence - Elements of negligence **Unit 5: Remedies** - Dispute resolution methods - Arbitration - Mediation - Conciliation - dispute resolution institutions - tribunals - ombudsman - complaints bodies - the jury - purpose of remedies **Unit 6: Human Rights** - the meaning and development of human rights - the protection of rights through the Australian constitution - the right to vote (Roach case) **Unit 1: Legal foundations** **[The Principles of Justice]** **Fairness:** - Freedom from discrimination - Impartial and open process - No bias from any party - Open processes - Insures transparency - Allows processes to be scrutinised by community and media - Participation - All must have the opportunity to know the facts against them - There must be time and facilities to prepare defence - Anyone can have a lawyer - Anyone can participate **Equality:** - Formal equality - All people engaging with the justice system and its processes should be treated the same - Substantial equality - People are treated differently in order to accommodate their needs to make them equal to people who don't need these things **Access:** - All people should be able to engage with the legal system and its processes on an informed basis - Technological, financial and legal assistance and advice **[Courts]** **Glossary terms:** Jurisdiction - The lawful authority of a court, tribunal and other dispute resolution bodies to decide legal cases Appeal - An application to have a higher court review a ruling Doctrine of precedent - Decisions made in higher courts are binding in lower courts in the same hierarchy in cases where the material facts are similar. Court hierarchy - The ranking of courts according to the seriousness and complexity of the cases they deal with. **Statutory interpretation:** - The process where a judge clarifies or interprets the laws written by parliament. - This interpretation forms part of the law that can become binding on other courts as part of the doctrine of precedent. - E.g. studded belt case 'is it considered a weapon' **Binding precedent:** - Must be followed by lower courts in the same court hierarchy. - Considered binding when: - The material facts of the precedent are similar to the material facts of the new case. - The precedent was set in a higher court that is in the same court hierarchy as the court hearing the new case **Persuasive precedent:** - The court is not bound to the precedent and can choose to follow it. - A precedent is persuasive in the following circumstances: - Where a court in another state or country set the precedent - Where a lower court set the precedent - Where the same court sets the precedent **Avoiding precedents:** R- reversing O- overruling D- distinguishing D- disapproval **Unit 2: Presumption of innocence** **[Presumption of Innocence]** **Presumption of innocence meaning:** - Innocent until proven guilty or no guilt can be presumed until the charge has been proved beyond reasonable doubt. **How is the presumption of innocence upheld/protected?** 1. The burden of proof is on the prosecution. 2. The standard of proof against a person must be proved beyond reasonable doubt 3. Most crimes require a person to act of their own free will 4. Police must reasonably believe a person has committed a crime before arresting them 5. Everyone has the right to apply for bail and should be granted it unless the circumstances prevent it 6. The right to legal representation 7. The accused has the right to remain silent 8. Past convictions cannot be brought up in court 9. Right to appeal for a wrongful conviction **Strict liability crimes:** - When a defendant is responsible for committing a crime regardless of their intent or mental state. An example of this would be selling alcohol to minors without knowing their age. **Age of criminal responsibility:** - A person under 10 years of age cannot be charged with a crime. - A child between 10-13 years will be charged with a crime if the prosecution can prove that the child knew what they were doing was wrong. **Burden of proof:** Falls on the prosecution to prove the case. **Standard of proof:** The degree or extent to which a case must be proved in court. **[Summary or Indictable?]** **Summary offences:** - Include offences such as drink driving, disorderly conduct and minor assaults - Most crimes committed in Victoria are summary offences - The court procedures for them are simple. **Indictable offences:** - Includes offences such as homicide, Murder, and rape. - An offence in the crimes act is an indictable offence unless it says otherwise. - The law allows some indictable offences to be heard summarily, these are less severe offences. - A small indictable offence cannot be heard in the magistrates if it's punishable by more than 10 years in prison or has a fine of \$1200+ **Magistrates cannot:** - Give sentences longer than 2 years imprisonment. - Hear matters where the sanction/remedy (civil) is more than \$100,000. **Unit 4: Civil liability** **[Possible parties to a civil dispute]** **Possible plaintiffs:** - The aggrieved party - The person whose rights have been infringed and have suffered a loss - It's possible to have a civil claim brought forward by several or more people because they all suffered a loss at the fault of the defendant - Other victims - has indirectly suffered loss or damage as a result of actions against another party - e.g. a witness who has suffered mentally or a family member of the dead aggrieved party **Possible defendants:** - The wrongdoer - Person or company that has directly caused the loss or damage to the plaintiff - Employer - Can be sued if an employee breaches a duty of care - If the wrong takes place at their workplace - Employer is liable instead of or as well as the employee because the employer has a duty to control the activities of the wrongdoer - Persons involved in wrongdoing - A person may be involved in the wrongdoing if they: - aided, abetted or procured the wrongdoing - induced or urged the wrongdoing - were in any way, directly or indirectly, a party to the wrongdoing - conspired with others to cause the wrongdoing **Accessorial liability:** A person can be found liable for the loss or harm caused because they were either directly or indirectly involved. **Vicarious liability:** Meaning that an employer would potentially be liable for the actions of their employees. **[Negligence]** **Key terms:** Tort: a wrongful act that is recognised by law. Defendant: a party who is alleged to have breached a civil law and who is being sued by a plaintiff Damages: an amount of money that the court or tribunal orders one party to pay to another Negligence: a type of tort which involves a breach of a duty of care, causing loss or harm Defamation: involves the action of damaging a person's personal or professional reputation in the community through the communication of false and untrue statements **Limitation of actions:** - the restriction/time allowed for a plaintiff to bring their claim forward since the wrong occurred - Types of negligence claims: - General negligence claims (6 years) - negligence claims where the plaintiff contracted a disease or disorder (3 years) - negligence claims where the plaintiff died or suffered serious injury (either 3 or 12 years) **Elements of negligence:** - duty of care - the defendant owed a duty of care to the person injured - the risk was foreseeable - the risk was significant or not insignificant - a reasonable person in the same circumstances would have taken precautions to eliminate any risk of harm. - Exceptions to a duty of care: - A risky activity that required people to sign a waiver - When a good Samaritan acts in good faith - Someone who donated food that resulted in harm - volunteers - breach of duty of care - the defendant breached the duty of care - In determining whether a reasonable person would have taken precautions against a risk of harm, the court considers: - the likely risk of harm - the likely seriousness of the harm - the burden of taking precautions to avoid the risk of harm - the social utility (benefit or worth) of the activity that creates the risk of harm - Causation - the breach of duty of care caused the harm to the plaintiff - If it can be shown that the harm was too remote from the breach of duty of care, the plaintiff will not be successful in claiming negligence. - Injury, loss or damage - occurred as a direct result from the breach of duty of care - This injury could be physical, mental or damage to income, property. **Possible defences:** - Contributory negligence - the plaintiff contributed to the harm caused by the defendant. If proved, this will reduce the damages the defendant has to pay volenti non fit injuria a Latin term meaning 'to a willing person, injury is not done'. - Assumption of risk - The plaintiff knew the risks and accepted either expressed or by implication **Possible remedies:** - Special damages - To compensate for a loss that can be accurately measured in monetary terms, such as wages - general damages - to compensate for a loss that can't be accurately measured in monetary terms, such as a loss of enjoyment of life - aggravated damages - awarded if the defendant shows reckless disregard for the plaintiff's feelings. The court not only looks at the civil wrong but also how the defendant infringed the plaintiff\'s rights. The amount and type of damages awarded depends on various factors, including the following: - whether the loss is financial only or non-financial - whether the loss is significant or minor - caps on damages - thresholds that apply **Impact categories:** - financial - emotional - physical **Impacts on the plaintiff:** - loss of life - permanent physical incapacity - serious physical injury - emotional impact - loss of wages and livelihood - unemployment - effects on mental health **Impacts on the defendant:** - loss of business - public humiliation - physical injury - costs - need to sell assets **Unit 5: remedies** **[Dispute Resolution Methods]** \*Key differences\* **Methods:** - Mediation - Cooperative method - Process is overseen by a neutral and impartial mediator - Mediators are not experts in particular types of disputes - Mediators do not make the decision, they help parties compromise - Can be ordered by the court/tribunal or organised privately by the parties - Not binding - Conciliation - Cooperative method - Process is overseen by a neutral and impartial conciliator - Conciliator listens to both parties and makes suggestions about how to resolve the matter - Conciliators have expertise in the subject of the dispute - The suggestions are not binding and if the parties accept the suggestion they enter into terms of settlement - Arbitration - Arbitrator is a third party who listens to both sides and issues a binding decision called an award - More formal than mediation and conciliation. Witnesses can be called to answer questions and evidence can be tabled. - Arbitrators are often experts in the subject of the dispute. - Used in commercial or corporate disputes. - Civil claims for up to \$10 000 filed in the Magistrates' Court are solved by arbitration. **[Dispute Resolution Institutions]** **Tribunals:** - Resolve civil disputes - Low cost, efficient and fast process - Increase access to justice - Not called a judge, called a member. Given power by parliament - Victorian Civil and Administrative Tribunal (VCAT) **\ **a tribunal that deals with disputes relating to a range of civil issues heard by various lists/divisions: - Administrative Division - Civil Division - Human Rights Division - Planning and Environment Division - Residential Tenancies Division. **Ombudsman:** - An official appointed by the government to investigate complaints made by individuals against certain bodies or institutions - Ombudsmen are free - Provide individuals with independent, timely and accessible dispute resolution services in certain industries. - There are 2 types of Ombudsmen: - A government ombudsman who deals with disputes and complaints about government agencies - An industry ombudsman who deals with disputes between customers and businesses **Complaint bodies:** - Complaints bodies deal with complaints about the provision of goods and services, or decisions made by certain bodies or authorities. - provide a free complaints and dispute resolution service so that ordinary Australians have access to dispute resolution services without any cost to them. - Focus on specific service or industry - Types of complaint bodies: - Victorian complaints bodies - Commonwealth complaints bodies - Consumer affairs VIC - Offer dispute resolution services to consumers and traders, and landlords and tenants. - No cost - Only offers to consumers and tenants against landlords and traders  **[The Jury]** **Terms:** Unanimous verdict - All jury members agree Majority verdict - All but one jury member agrees Contributory negligence - The plaintiff contributed to the harm caused by the defendant **When is a jury used in civil law?** - In the Magistrate's Court and in appealed cases, there is no jury - In the County and Supreme court, a jury is optional. If either party wants a jury, then they must request a jury trial. They must also pay the fees for the jury. - A judge is still able to order that the trial be by judge alone. **Civil jury composition** - Made up of 6 people who are selected at random - 2 extra backup jurors can be selected in lengthy cases **Role of the civil jury** - Decisions made on the balance of probabilities - Decide amount of damages to be awarded - Not required to give reason for their decision - Must be a good reflection of society **Strengths and weaknesses** **[Remedies]** **What is a remedy?** - A remedy is a term used to describe any order made by a court designed to address a civil wrong or breach. - Various remedies are available such as damages and injunctions. - Purpose is to restore the plaintiff to the position they were in before the wrong occurred **To what extent do remedies achieve their purpose?** - Depends on many factors such as the individual's circumstances and the plaintiff's characteristics (such as financial, emotional and economic characteristics) and what the plaintiff wants to achieve - In some situations they don't achieve their purposes such as if a plaintiff loses a limb **Unit 6: Human rights** **[The meaning and development of human rights]** **Glossary terms:** Human rights - Basic freedoms and standards that promote and uphold the dignity of all people and are guaranteed by a moral sense of duty or by the law Intergenerational trauma - A psychological response to highly distressing or oppressive historical events such as war or significant injustice which is passed down to future generations. Multiculturalism - The idea that people with distinct cultures and ethnicity can coexist peacefully and equitably in a single country Universal declaration of human rights - An international document that outlines basic rights and fundamental freedoms to which all human beings are entitled **Development of human rights** - Women did not have the right to vote when Australia was first federated in 1901 - First nations people have been denied rights and suffered injustices since the colonization of Australia in the late 1700's. they were not even recognised as part of the Australian population until 1967. - First nations children were forcibly removed from their families (stolen generation) which has resulted in [intergenerational trauma] - The White Australian Police (1901) was meant to limit non-British migration to Australia - Rights for LGBTQIA+ people developed; marriage equality was not recognised in Australia until 2017 **International treaties** - Is a legally binding agreement between countries and intergovernmental organizations, in which they undertake to follow the obligations set out in the agreement and include them in their local laws - Australia must specifically pass statute law to approve and adopt the various rights outlined in the international treaty. This is called [ratification of the treaty]. **International declarations** - a non-binding agreement that sets out aspirations or intentions of countries who are part of the declaration - Australia was involved in drafting the [Universal Declaration of Human Rights (1948)] following the end of WW2. - This declaration sets out the most basic human rights that all nations and governments should strive to promote and uphold, these include: - All people are born free and equal in dignity and rights - Everyone has the right to life, liberty and security of person - No one should be subject to slavery, torture, or cruel degrading treatment or punishment - Everyone charged with a criminal offence has the right to be presumed innocent until proven guilty in a public trial **How are human rights protected in Australia?** Statute law - The federation and state/territory have passed a legislation to protect a wide range of human rights Common law - Australian courts have enforced various human rights in their judgment Australian constitution - Protects a limited number of human rights **[Protection of rights through the Australian constitution]** **Glossary terms:** Express rights - Rights that are stated in the Australian constitution - Can only be changed through referendum Implied rights - Not stated in the constitution but are considered to exist through interpretation by the high court Referendum - Method used for changing the words in the constitution **Express rights** 1. Right to free interstate trade and commerce 2. Right to not be discriminated against by the commonwealth based on state of residence 3. Right to receive just terms when property is acquired by the commonwealth 4. Right to trial by jury for commonwealth indictable offences 5. Right to freedom of religion **What is an implied right?** - A right that is not explicitly stated in the constitution but is rather considered to exist by the high court when interpreting the constitution - Able to imply when resolving disputes between individuals and the government **[The right to vote]** **Nature and development** - Australia is one of the original countries supporting the universal declaration of human rights (1948) and is committed to respecting and promoting the achievement of the basic human rights and freedoms outlined in the declaration - Recognises the right of all people to take part in the government of their country, either directly or through freely chosen representatives - The will and wishes of people will be the basis of the authority of government and that people will have the right to express their wishes through the right to vote **Laws the right to vote is protected by** - Statute law, including the Victorian Human Rights Charter - Australia does not have a single charter of human rights (or bill of rights). However, the Commonwealth, state and territory parliaments have passed several Acts of Parliament that recognize and protect basic human rights - It has been compulsory for all Australian citizens aged 18 and over to vote in federal elections since 1925 - Some citizens are disqualified from voting if they: - Are mentally unwell and cannot understand voting - People who are found guilty of treason or treachery - Someone serving a prison sentence of 3 years or longer - The Australian constitution - Right to vote is not expressly protected in the Australian constitution - Establish the principle of representative government - Common law - High court clarified meaning of laws and restricted the ability of the commonwealth parliament to unreasonably deny Australian citizens the right to vote **The roach case 2007** - In June 2006, there were more than 20,200 prisoners in Australian and 24% of those were First Nations people - Vickie lee roach was a first nations woman serving 6 years in jail - In 2006, the Commonwealth Parliament passed the Electoral and Referendum Amendment Act 2006 to change the Commonwealth Electoral Act 1918 to ban all prisoners from voting in federal elections. - In 2007 4 of the 6 high court justices declared the act unconstitutional and invalid because it breached the right to a representative government