Legal Notes: Principles of Justice and Criminal Justice System

**3.1.1 - The Principles of Justice** *Essential Question: What are the principles of justice and how does our legal system promote them?*   **The 3 Principles of Justice:** - Fairness - Equality - Access   **Fairness:** Equitable legal processes being put in place, and all parties re...

**3.1.1 - The Principles of Justice** *Essential Question: What are the principles of justice and how does our legal system promote them?*   **The 3 Principles of Justice:** - Fairness - Equality - Access   **Fairness:** Equitable legal processes being put in place, and all parties receiving an impartial hearing. - Impartial role of the Judge - Strict rules of evidence and procedure - Legal rights of the Accused and the Victims - Presumption of Innocence **Note: This does not mean that everyone is treated the same though, some people may need to be treated differently for the legal system to be fair (Mitigating and Aggravating factors).**   **Equality:** All people being treated the same before the law with an equivalent opportunity to present their case. - Role of a Jury - Appeal Avenues - Similar sanctions for similar crimes - Rules apply to both parties in a balanced way - Processes and procedures followed from case to case are the same for all parties **Access:** Individuals in society having an understanding of their legal rights and are able to pursue their case. - Legal Aid and Community Legal Centers - Evidence as a vulnerable witness - Pre-trial procedures (They know how to resolve a dispute through the Courts) - Interpreters **Note: Access should not be limited by costs, language, cultural barriers, lack of understanding, illness or disability or delays.**   **Note: Know how the principles of justice are achieved and not achieved by the Criminal Justice System, in terms of an *Evaluate* question.**   **3.1.2 - Key Concepts of the Criminal Justice System** *Essential Question: What are the key concepts that exist in the criminal justice system?*   **The Key concepts are:** - Summary offences - Indictable offences - The burden of proof - The standard of proof - The presumption of innocence   **Summary offences:** A type of criminal offence that is minor in nature, that are usually resolved by a single Magistrate in the Magistrates\' Court. - No jury - Can be heard in the absence of the accused - Are heard and determined quickly - Listed in the *Summary Offences Act 1996* - Sanctions imposed are usually less severe ***Examples:*** Common assault, speeding, food or drink spiking and tattooing of juveniles   **Indictable offences:** A type of offence that is more serious in nature heard by a Judge and a Jury in a higher court. - Jury of 12 - Can\'t be heard in the absence of the accused - County or Supreme Court - Sanctions imposed are usually more severe - Stated in the *Crimes Act 1958* ***Examples:*** Murder, manslaughter, kidnapping and stalking   **[Indictable offences heard summarily]:** These are a subset of indictable offences that can be heard like a summary offence, so heard by a Magistrate instead of a Judge and a jury, in the Magistrates\' Court. - Punishment for the indictable offence must not exceed 10 years imprisonment - The court determines it appropriate - The accused agrees ***Examples:*** Recklessly causing serious injury, robbery and theft (if not exceeding \$100,000) **Note: This is a factor of the Criminal Justice System which may help achieve the principle of access.**   **The Burden of proof:** - It refers to the responsibility of proving the facts of a case. - In a Criminal Trial, the burden of proof rests with the ***prosecution***. - It protects the presumption of innocence.   **The Standard of proof:** - It refers to the strength of the evidence required to support a case or a conviction. - In a Criminal Trial, the standard of proof is ***\'Beyond a reasonable doubt\'***. - This means that the presiding Judge/Jury are so confident that the accused in guilty, that returning a \'not guilty\' verdict would be unreasonable. So, people can only be convicted if no reasonable doubt exists. **Note: Protects against wrongful convictions - evidence must be overwhelming. In this way the Criminal Justice System, achieves the principle of fairness.**   **The Presumption of Innocence:** - It guarantees that all accused persons are to be presumed innocent until proven guilty, beyond a reasonable doubt. - This principle guards against self-incrimination. - An accused does not need to/cannot be pressured to present evidence proving their guilt or innocence. - They can, in general, just remain silent. - Both the burden of proof and standard of proof uphold this principle, as the prosecution must prove that the accused is guilty beyond a reasonable doubt but the accused is not required to prove their innocence. - Can be reversed in some circumstances. - Upheld by the assumption of bail.   **Note: Know the correct legal terminology so you know what the Questions in the exam are asking!**     **3.1.3 - Rights of the Accused** *Essential Question: What rights does an accused person have when they are charged with an offence?*   **The 3 rights of the accused:** - To be tried without unreasonable delay - To have a fair hearing - To trial by jury   **The right to be tried without unreasonable delay: \'Justice delayed is justice denied\'** - This is the right of an accused person to have their case heard and determined in a timely fashion, unless there is a reasonable reason as to why it should be delayed. - It is protected under the *Charter of Human Rights and Responsibilities* - Factors in determining the \'unreasonableness\' of a delay may include - the length of the delay, the reason for the delay and the complexity of police investigation. - Other factors for delay may include complexity of the case, case blockages in court, availability of resources and impact on victim. - A court is only likely to intervene if an individual can demonstrate that the delay causes unacceptable unfairness or injustice, resulting in things like releasing an accused person on bail. - Delays mean added stress and costs for the parties. **Note: Delays may impact fairness as witnesses may have difficulty remembering details.**   **The right to a fair hearing:** - It is the right of an accused person to have their case heard fairly, publicly and by an impartial, competent and unbiased court. **Note: A court may, at their discretion, exclude certain individuals or parties from attending a particular hearing, if their presence is distressing or intimidating witnesses or detracting the hearing.** - This right is upheld through the factors that uphold the principle of fairness and equality. Such as, consistent rules of procedures, juries basing verdict off of the facts of the case only, the ability to cross-examine, burden of proof, ability to select legal representation, accused being able to present defence, public hearing and presumption of innocence. **The right to trial by jury:** - This is the right to be tried by an unbiased and impartial jury comprising the accused person\'s peers who have been randomly selected from the electoral roll. - This right only applies to accused persons who have pleaded \'not guilty\' to an indictable offence. - Juries determine the guilty or not guilty verdict for County and Supreme Court trials. - Ensures evidence and arguments are presented in a way that is understandable to everyday people. - The jury is randomly selected to provide a cross-section of the community. - Shared decision-making.   Graphical user interface, text, application Description automatically generated   **3.1.4 - The rights of Victims** *Essential Question: What rights does a victim have during criminal proceedings?*   **The 3 rights of the victims: Enshrined in the Victorian Victim\'s Charter** - Right to give evidence as a vulnerable witness - Right to be informed about the proceedings - Right to be informed about the likely release date of the accused   **The right to give evidence as a vulnerable witness:** - This right provides that when someone is considered a \'vulnerable\' witness is required to give evidence in court, certain arrangements should be made to accommodate them in their vulnerability. - A vulnerable witness is generally one that is - a child under 18, suffers from a mental disability, alleged victim of SA, victim of family violence. - Accommodations that can be made for a vulnerable witness include - witnesses giving evidence via close-circuit television if intimidated by the atmosphere of the courtroom, witnesses may give evidence from behind a curtain, certain individuals may be barred from the courtroom, court must prevent defense from asking any improper or distressing questions to the witnesses. - These accommodations may be needed as all witnesses can be questioned by both parties, and the accused if they are self-representing. - The Judge ultimately decides whether to grant permission to the victim or not.     **The right to be informed about the proceedings:** - This right provides that victims of a crime should be knowledgeable about the case in which they are involved. - This includes the victim having the right to know - the offences the accused has been charged with, if the charges are withdrawn or changed and the reasons why, key developments in the case like if bail is granted and whether an appeal has been lodged or not and finally, the outcomes of the trial so the sanctions imposed etc. - This information will be provided to the victims by DPP and Victoria Police.     **The right to be informed about the likely release date of the accused:** - Only those who are placed on the Victims Register, government record of victims of crime, will be notified about the likely release date of the offender. - A person can be placed on the Victim\'s Register if they are a victim of a serious/indictable offence. - Regarding an offenders\' release date, a victim will be advised of - the length of the offender\'s sentence, the earliest possible release date, whether the offender applies for or is released on parole and whether the accused is on parole or it has been cancelled. Also, if they die in or escape from prison.   **Note: For explain questions you just need to demonstrate full understanding of the topic the question is asking about.**        **3.1.5 - Victoria Legal Aid and Community Legal Centres** *Essential Question: What role to institutions such as VLA and CLCs play?*   **Note: In the exam the question might just say explain the role of institutions that assist an accused, and you need to know that it is referring to VLA and CLCs.**   **Victoria Legal Aid:** - Government-funded agency with the broad role of ensuring equal access to the legal system for all Victorians. - It provides a online and phone service, as well as physical offices in 14 locations around Victoria. - VLA funding is also often criticized for being insufficient to meet the community\'s demands for legal services. - In general, VLA aims to provide free legal assistance to those in the community who need it the most. - ***Their role consists of*** - publishing information online, providing free initial legal advice, providing funds to engage legal representation for accused persons who are poor and meet the strict eligibility criteria of VLA (who it will assist based off of income and assets) and the accused may still be required to meet some of the costs and to provide duty lawyers based in the Magistrates\' Court in order to provide case-specific advice and information. The duty Lawyers may provide representation for accused persons without legal representation that more serious charges. - Prioritizes prevention and early resolution of legal problems. **Note: The strict eligibility criteria of VLA is a difference between itself and CLCs.**     **Community Legal Centers:** - They offer free legal advice to people in their local area - Can provide general legal support in all areas. - Can also provide specific legal support in certain areas. - They are not-for-profit organizations that provide free legal advice, casework and information. - CLCs can be found in suburbs across Melbourne but also in some larger rural area as well. - ***The main role of the CLCs is*** - providing people with information, legal advice and minor assistance, legal case-specific advice and legal representation in a small number of cases. - They provide assistance to those who cannot afford to engage legal representation and those who do not meet VLA\'s strict eligibility criteria. - Each CLC is independent, thus, has different criteria regarding who it will assist and in what way.   **Note: Differences between the two institutions is also that CLCs provide only limited assistance and advice for those charged with minor criminal matters only. VLA is also better funded.**   Table Description automatically generated     **3.1.6 - Committal Proceedings** *Essential Question: What is the purpose of having committal proceedings?*   **Key Vocabulary:** - ***Committal Process*** - A set of hearings in the Magistrates\' Court for any indictable offence, starting with a filing hearing through to a committal hearing. - ***Committal Hearing*** - The final hearing in the committal process.   **Committal Proceedings: What is it** - Include the prosecution presenting a summary of the evidence against the accused person in a written format, which is the hand-up brief. This will include things like statements by victims, police and witnesses, forensic evidence and expert evidence such as findings of an autopsy. - Committal proceedings also include a number of often quick hearings in the Magistrates\' court, in which the accused can apply for bail and the Magistrate advices the prosecution if they are satisfied that the evidence is of sufficient weight to support a conviction. - At the conclusion of a committal proceeding the Magistrate will determine whether the evidence presented is of sufficient weight to support a conviction. If the evidence is of sufficient weight, then the accused is committed to stand trial in the County or Supreme Court but if not, then the accused person is discharged. - So, the Committal process basically acts as a filter, to let through strong cases and filter out any weak cases. - This process of committal proceedings can also be described as the Magistrate deciding whether a \'prima facie\', on the face of it exists.   **Purposes of Committal Proceedings: As stated in s.97 of the Criminal Procedure Act 2009** - To determine whether a charge of an offence is appropriate to be heard summarily - To determine whether the evidence is of sufficient weight to support a conviction against the accused person - To determine how the accused proposes to plead to the charge - To ensure a fair trial (allows the accused to see the evidence against them)                                               **3.1.7 - Plea negotiations and Sentence indications** *Essential Question: What are plea negotiations and sentence indications and when are they appropriate?*   **Both Plea negotiations and Sentence indicators seek to convince the accused to plead guilty so that the case does not have to proceed to trial thereby, saving both costs and time.**   **Plea Negotiations:** - When the prosecution offers an incentive to the accused person in exchange for them to plead guilty. - ***This incentive will be either*** - a reduction in the charge to a less serious offence or the withdrawal of some other charges. - However, the lesser charges must still reflect the severity of the criminal conduct of the accused. - It often also includes the prosecution and accused compiling an agreed set of facts regarding the offence, often considered by the courts when sentencing. **The purpose Plea Negotiations:** - Speed up proceedings - Avoid trial related stress and trauma - Secure a conviction in cases a conviction may be less likely      **Sentence Indications:** - It is a statement by the court as to whether a guilty plea will or will not result in an immediate prison term. - Prior to their trial, a person charged with an indictable offence can request a sentence indication from the County or Supreme Court Judge. A Magistrate can give a sentence indication at any time. - If, after the indication is given, the accused pleads \'not guilty\' the application for a sentence indication cannot be used as evidence of guilt. If the accused pleads \'guilty\' the Court cannot then impose a more severe sentence. **The purpose Sentence indications:** - Put the accused person in a better position to make the decision to plead guilty or not guilty at an early stage. - Reduce the number of matters in which a guilty plea is attained later in the proceedings.   Graphical user interface, text Description automatically generated **Note: Use words from the questions to ensure you are directly answering the question. Make use of marking words such** **\'furthermore\' or \'however\' etc.**        **3.1.8 - The Victorian Court Hierarchy** *Essential Question: Why do we have a Court Hierarchy and how does it relate to criminal law?*   Text Description automatically generated   **Key Vocabulary:** - ***Court Hierarchy*** - refers to the arrangement of courts in order from least formal and superior to most formal and superior. - ***Original Jurisdiction*** - refers to their power to hear a case at first instance. - ***Appellate Jurisdiction*** - refers to their ability to hear a case on appeal. **The 2 reasons for a Court Hierarchy:** - Appeals process - Specialisation   **The Appeals process:** - An appeal is when a case is heard for a second time by a higher court. - In criminal matters appeals may be - the prosecution or offender seeking a review of sanction imposed, the law was incorrectly applied and a convicted offender appealing the conviction. - To appeal is not an automatic right, the party needs to prove reasons to appeal. - Hence, a court hierarchy is needed for the appeals process to operate because without the courts being ranked from lower to higher, it would not be possible to have decisions reviewed and mistakes corrected by a superior court.   **Specialization:** - It refers to the courts\' judges and staff developing expertise in particular criminal disputes and procedures. This develops from conducting trials of the same kind regularly. - Eg. The Supreme Court (Trial division) has experienced judges with expertise in law regarding murder and defences of murder. - A court hierarchy delivers specialisation by assigning each court a defined jurisdiction - the set of criminal matters that each court hears on a regular basis.        **3.1.9 - Key Personnel in a criminal trial** *Essential Question: What role do judges, jury, parties and legal practitioners play during a criminal trial?*   **Key Personnel in a criminal trial:** - The Judge - The Jury - The Parties - The Legal Practitioners (Solicitors & Barristers)   **Note: When the phrase \'Criminal trial\' is used it is referring to County and Supreme Court trials, where a jury is present and when its says \'hearing\' then its mean Magistrates\' Court.**   **Responsibilities of the Judge: Impartial third-party that conducts the trial** - Apply the rules of evidence and procedures to ensure that only admissible evidence is presented in court. - Being independent, impartial and unbiased so no preconceived notions or opinions. - Managing the empanelment of the Jury - Give rulings of points of Law, such as whether a particular defence may be lawfully argued or not. - Directing the jury at the conclusion of the trial. - Provide sentence indications when appropriate and when applied by the accused. - Explain to the court the sanction imposed as well as the reasons and sentences the offender, if found guilty by the jury.   **Responsibilities of the Jury: 12 members randomly selected from the electoral role** - To be objective (be independent and unbiased when reaching decisions). - Listen to the evidence presented, Judges\' directions and submissions from legal representatives (be alert and take notes). - Reach a majority verdict, 11 out of 12, of whether the accused is guilty or not guilty (this should be solely based on the facts of the case). - Keep statements made in the jury room confidential.   **Responsibilities of the Parties: Prosecution** - To determine which witnesses to call to give evidence during the trial. - To identify the legal principles relevant to the offence and present them in court. - To communicate with victims of the crime and the witnesses - To submit suggestions of appropriate sanctions to be imposed, to the Judge, once the accused has been found guilty.   **Responsibilities of the Parties: Accused person** - To enter a plea of either \'guilty\' or \'not guilty\'. - To engage legal representation. - To decide which lawful defences to present. - To be present at all of the court proceedings.   **Responsibilities of Legal Practitioners: Solicitors (prepare legal documentation) & Barristers (present the case)** - Presenting opening and closing addresses (summary of all the evidence, summarising legal arguments for why the accused is or is not guilty) - Present the case to the Judge and the Jury (presenting all relevant evidence by calling witnesses and cross-examination by both parties) - If the accused person is convicted, making submission to court about the appropriate sanction to be imposed. **Notes: All legal practitioners have a duty to not mislead the court and a duty to act with courtesy towards the courts and the witnesses. The defence does not prove that the accused didn\'t commit the offence, they just have to discredit the evidence presented by the prosecution.**   **Note: When there is a \'discuss\' question in regards to the responsibilities of key personnel, so you need to know the responsibilities the key personnel but also start to analyse and know the limitations/restrictions/negatives of these responsibilities. Eg. Jury has the responsibility of determining a guilty or not guilty verdict but in discussion, a limitation would be that they are not legal experts so there may make a decision based upon their personal bias.**     Graphical user interface, text, application Description automatically generated     **3.1.10 - The purposes of sanctions** *Essential Question: What is a Judge trying to achieve when they sentence an offender?*   **The 5 purposes of sanctions:** - Rehabilitate - Punishment - Deterrence - Denunciation - Protection   **Purpose of rehabilitation:** - It means to sentence criminal offenders in a manner that aims to break the cycle of criminal behaviour so that offending can be prevented or stopped. The courts may aim to address the underlying causes of the criminal behaviour to prevent future offending. - **A court aiming to rehabilitate will** impose a sanction that addresses the underlying causes of the criminal behaviour. ***[Example]*** - Drug Treatment orders or Community correction orders or a shorter prison sentence   **Purpose of punishment:** - It means to ensure offenders \'pay\' for the impact of their crimes on the victims and their families, as well as the society as a whole. - When we look at this purpose there are two principles to consider - a sentence should be just and appropriate to reflect the impact of the crime and it should reflect the gravity of the criminal behaviour. - A court may decide to punish as adequate retribution for the harm caused to victim and society, as justice for the victim and society and to ensure that the victims and their families do not feel the need to exact revenge themselves. - **A court aiming to punish will** impose a more severe sanction. ***[Example]*** - a larger fine, imprisonment rather than CCO etc.   **Purpose of deterrence:** - It means to \'make an example\' of the offender in an effort to sway the offender and/other would be offenders from committing similar crimes in the future. There are two types of deterrence: - **Specific deterrence** - when the offender themselves is discouraged from committing offences of the same or similar manner, through a provision of a sanction. - **General deterrence** - when individuals other than the offender are discouraged from committing similar offences. - **A court aiming to deter will** impose a more severe sanction and this will be accompanied by comments made by the court stating that the sanction is designed to specifically/generally deter.   **Purpose of denunciation:** - It means to publicly condemn or criticise the offender\'s criminal behaviour in order to highlight the extent to which the offender has transgressed against community values. - A court aiming to denounce will impose a more severe sanction, accompanied by comments from the court stating the extent of the court\'s outrage and condemnation.   **Purpose of protection:** - It means to ensure that offenders who pose a significant risk to the welfare of society are removed from the community and the level of protection will be proportionate to the degree of risk posed by the offender. - **A court aiming to protect will** impose a period of imprisonment rather than a community correction order. **Note: A CCO with certain conditions can also protect.**     **3.1.11 - The types of sanctions** *Essential Question: What is a fine, CCO and imprisonment and to what extent are they able to meet the purposes of sanctions?*   **The 3 types of Sanctions:** - Fines - Community correction orders - Imprisonment   **Note: You need to know how each of these sanctions are able to and how they are not able to achieve each of the purposes of sanctions.**   **Imprisonment:** - It is when an offender is held is custody for a given period of time and it is the most severe penalty a court can impose, hence, it is a custodial sentence.   **CCO:** - It is a non-custodial sanction that is served by the offender whilst remaining in the community. - For serious offences such as murder, illicit trafficking of drugs and causing serious injury intentionally, CCOs cannot be imposed. - A CCO can also be imposed along with other sanctions, if court deems it appropriate. - A CCO will include other conditions that the offender must comply by. In each case the court will impose conditions that punish and rehabilitate the offender. Eg. Undertaking medical treatment, completing set hours of community service, staying away from particular locations, not contacting certain individuals and curfews etc. - Breaching a CCO = 3 months imprisonment   **Fine:** - It is a monetary compensation the court will order an offender to make, as a penalty for a criminal offence. - Fines are expressed in penalty units not in \$.   **3.1.12 - The factors considered in sentencing a guilty offender** *Essential Question: What factors will a Judge consider in sentencing?*   **Factors considered when sentencing:** - Aggravating factors - Mitigating factors - Guilty pleas - Victim impact statements   **Aggravating factors:** - They are aspects of an offence or the offender that render the offending more serious. - Impact on sentencing - courts will impose a more severe sanction. ***Examples*** - a premeditated crime, a weapon used in the crime, crime motivated by hate or prejudice, a particularly vulnerable victim and the offender has prior convictions for similar offences.   **Mitigating factors:** - They are aspects of the offence or the offender that makes the offender less culpable, meaning their offending is regarded as less serious. - Impact on sentencing - presence of mitigating factors will work to reduce the severity of the sanction imposed by the court. ***Examples*** - genuine remorse, crime was a result of provocation, the age of the offender, offender having a traumatic personal history, limited or no prior criminal history, cooperating with police during investigation and favourable prospects of rehabilitation.   **Note: when defining aggravating and mitigating factors in SAC or exam, be sure to include an example.**   **Guilty pleas:** - It is full admission by an accused person of an offence for which they have been charged. - When an accused person pleads guilty, a trial will not be conducted and the court will just proceed to sentencing the offender. - Impact on sentencing- the courts regard a guilty plea as a mitigating factor, thereby reducing the severity of the sanction imposed. - Guilty pleas have this impact due to their public benefits - saved time and cost of conducting trials, victims and witnesses avoid trauma of a trial and the courts\' workload is reduced. - In general, the earlier in the proceedings the accused person pleads guilty, the greater the discount applied to their sentence.   **Victim impact statements:** - VIS is written or verbal statement to the court about the impact of an offence upon the victim. - \'Impact\' may include physical, emotional or financial loss incurred by the victim and their families as a result of the actions of the offender and it may include photographs. - The purpose of VIS is to help inform the court of the severity of the offence. - If VIS indicates significant impact on the victim = more severe sanction imposed - If VIS indicates that the victim forgives the offender = a less severe sanction being imposed - A VIS about what might be an appropriate sanction to impose will not inform the court\'s sentencing decision.      **3.1.13 - Factors that affect Principles of Justice (AOS 1)** *Essential Question: What factors stop the criminal justice system from achieving fairness, equality and access?*   **The 3 factors affecting POJ:** - Cost - Time - Cultural differences   **Costs:** - Accused persons often face high costs. - Solicitor\'s fees, Barristers\' fees, expert witness fees, appealing to a higher court and orders to pay a sum of money to the victim as compensation for the injury caused or property stolen, damaged or lost. - Costs can be awarded to accused persons who are found to be \'not guilty\', by the prosecution. - If a person charged with an indictable offence is discharged at the committal stage, they can apply to recover their legal costs. **Time:** - Delays are undesirable because - for victim of a crime delays compound suffering, giving evidence in court is stressful for witnesses and delays add to that, the community remains at risk, waiting for the outcome is distressing for the accused and criminal trial rely on oral evidence and memories fade over time. - Sources of delay in courts include - court blockages, time taken to appeal judgements, trial procedures are slow and there are many of them, judges providing directions to jury is also time-consuming and the jury process.   **Cultural difference:** - Asylum seekers/refugees/migrants - have lack of knowledge of the Victorian Legal System, may speak little/no English, refugees may not trust the police or the courts. - Indigenous Australians - a history of mistreatment by governments had led many Indigenous Australians to not trust in the criminal justice, differences in body and spoken language, such as minimising eye contact and remaining silent more often may be misunderstood as dishonesty and cultural respect for elders may prompt answers the Indigenous people to respond in a way they think is expected rather than what has actually occurred.     **3.1.14 - Recent and Recommended Reforms to the Criminal Justice System** *Essential Question: What are some recent and recommended reforms to improve the criminal justice system?*   **Recent Reform*:*** - Expansion of the Koori Court (2018) - This recent reform is designed to overcome cultural differences and improve access   **Recommended Reform:** - Additional funding to VLA and CLC (2018) - It is mainly designed to overcome cost factors and improve access   **Note: detailed info in in exercise book!** **3.2.1 - The Principles of Justice** *Essential Question: What are the principles of Justice and how does our legal system promote them?*   **Fairness:** - Impartial role of the Judge - Strict rules of evidence and procedure - Role of the parties - Resolution with minimal delays - Outcome of the trial is based off of the law and the facts of the case   **Equality:** - Strict rules of procedure and evidence - Appeal avenues - Similar cases having similar outcomes - Juries (when used) - Rules apply to both parties   **Access:** - Alternative dispute resolution avenues and methods - Pre-trial procedures - Knowing how to commence and conduct a trial - Knowing what lawful defenses and be applied, when defending a claim     **3.2.2 - Key Concepts in the Victorian Civil Justice System** *Essential Question: What are the key concepts that exist in the civil justice system?*   **The Key Concepts are:** - The burden of proof - The standard of proof - Representative proceedings   **The burden of proof:** - It refers to the party who is responsible for proving the facts of the case. - In a Civil trial, the burden of proof rests with the **Plaintiff**, the party that brings the case to court. - However, the burden of proof in civil claims can shift from the plaintiff to the defendant. - Two parties in a civil dispute are - Plaintiff and the Defendant - Protects the presumption as the defendant does not have to present evidence to defend themselves.   **The standard of proof:** - It means the level of evidence required to win a case. - In a civil trial the standard of proof is **\'on the balance of probabilities\'**. - This means that the version of the facts presented by the Plaintiff are more likely to be correct. - The civil standard of proof (50%) is a lower standard than the criminal standard of proof (95%).   **Representative Proceedings: Also known as \'Class action\'** - They are when a group of people come together to lodge a single civil action against the one defendant. - Certain types of cases for which representative proceedings are most appropriate for - workplace accidents, medical malpractice or financial malpractice. - Representative proceedings are only appropriate when a large number of claimants have suffered a relatively small loss. - A **lead plaintiff** initiates proceedings on behalf of the entire group and the resolution for this plaintiff\'s claim is seen as determining the liability of other members of the group taking action. [3 Criteria that must be met for a representative proceeding]: - 7 or more people claiming the loss - Arising out of the same or related facts - Identical legal issue to be decided                                           **3.2.3 - Factors to consider when initiating a civil claim (CLENS)** *Essential Question: What are the factors an individual needs to consider **before** initiating a civil claim?*   **The 5 Factors that must be considered before initiating a civil claim: CLENS** - Cost - Limitations of action - Enforcement issues - Negotiation options - Scope of Liability   **Negotiation options:** - Negotiation is when parties to a civil dispute discuss ways to resolve the dispute by agreement, or their legal representatives do it on their behalf. - Parties can negotiate a resolution themselves or engage a mediator or a conciliator.   **Negotiation options are appropriate when**: - Both parties consent to the option - Parties want to maintain a working relationship - They want to negotiate before they consider legal action - Reduce costs, time delays and stress - Parties want some control over the outcomes **Negotiation options are not appropriate when**: - Only one party consents to it - There is a history of violence and animosity between the parties - Imbalance of power - Parties have already failed to negotiate - Parties want their claim in court to be proved right   **Costs:** - Employing a legal representative - Filing documentation that commences proceedings - If Plaintiff is unsuccessful the court may order them to pay part/all of the costs of the defendant - If successful, the court may order the defendant to pay the costs - Civil proceedings court fees (the higher the court the more the cost)   **Limitations of actions:** - It is the legal time-frame in which a plaintiff needs to bring/initiate their civil action. - Civil cases should be brought to the courts in a timely manner to ensure that disputes are resolved in a timely manner, evidence is readily available and defendant does not have cases pending for a long time. - Defendant can also raise this as a defense if they believe the plaintiff has not initiated action with in the legal time frame. ***Examples*** - Defamation is 1 year, Contract is 6 years and most common injury claim is 3 years.   **Scope of Liability:** - It refers to who/how many people are liable for the harm caused to the plaintiff and the degree of responsibility. - A possible defendant is any party that infringes the rights of the plaintiff in part or whole. - The **\'extent of liability\'** is considering whether possible defendants are wholly (100%) or partly responsible for the harm caused to the plaintiff. The extent of their responsibility will determine the amount of damages and other remedies awarded to the plaintiff. - There needs to be a casual link between the defendant\'s actions and the harm suffered by the plaintiff. **Note: A worker is not usually responsible for any injury caused when working, rather, it's the employer.**   **Enforcement issues:** - It refers to the capacity of the defendant to fulfill their legal obligation to compensate the plaintiff. - Prior to commencing legal action, the plaintiff should consider the defendant\'s capacity to pay any damages that may be awarded - if defendant is bankrupt or unemployed, a company without assets or if the defendant is oversees or in prison.     **3.2.4 - Institutions to help resolve civil disputes (VCAT & CAV)** *Essential Question: What institutions exist to help an individual resolve a civil dispute?*   **Institutions that help resolve civil disputes:** - Consumer Affairs Victoria (CAV) - Victorian Civil and Administrative Tribunal (VCAT)   **CAV:** - CAV is a civil complaint body. - It heard disputes between landlords and tenants, and consumers and businesses. - CAV will not hear disputes between businesses, or from landlords against tenants. - It provides a forum for dispute resolution through conciliation, however, they must first try and resolve the dispute themselves. CAV cannot make binding decisions. - **The two main purposes of CAV** - provide information about consumer law to the public and conciliate disputes arising under consumer laws. - **CAV\'s jurisdiction** - A complaint by a consumer against a business who believes that Australian Consumer Law has been breached and a complaint by a tenant against a landlord who believes that Residential Tenancies Act has been breached. - **CAV is appropriate when** - dispute is within its jurisdiction, parties have tried to negotiate a settlement themselves first and both parties consent and are willing to attend conciliation. - **CAV is inappropriate when** - court system has already ruled on the matter, there is a better way to resolve the dispute, parties have not tried negotiation before and one party is unwilling to participate.   **VCAT:** - It has the power to hear limited types of civil and administrative disputes. It is made up of the President (Supreme Court Justices) and vice Presidents (County Court Justices) and members. - The **purpose of VCAT** is to provide Victorians with a low-cost, accessible, efficient and independent tribunal that delivers high quality dispute resolution. Table Description automatically generated with medium confidence   - **VCAT\'s jurisdiction** - claims made by residential landlords against tenants who believe that the Residential Tenancies Act has been breached, claims of unlawful discrimination and breaches of the Equal Opportunities Act and claims by businesses against consumers who believe that the Australian Consumer Law has been breached. - VCAT hearings, unlike CAV, resolve disputes through binding decisions. - **VCAT is appropriate when** - its within their jurisdiction, parties are unable to resolve it any other way, parties are happy to only appeal on question of law and they prefer an informal dispute resolution process. - **VCAT is inappropriate when** - case is outside of jurisdiction, parties are willing to negotiate, they want a greater ability to appeal, they prefer legal representation to conduct their case, the claim is for a large amount of damages and the case involves a complex legal issue. - VCAT is still a fair and impartial dispute resolution body.     **3.2.5 - Purposes of civil pre-trial procedures** *Essential Question: What are the purposes of different pre-trial procedures?*   **Note: The study design says to explain the purposes of pre-trial procedures using examples.**   **The 3 civil pre-trial procedures:** - Pleadings - Discovery - Directions hearings   **Pleadings:** - It is the exchange of legal documents. - It is a pre-trial procedure during which documents are filed and exchanged between the plaintiff and the defendant, which outline the claim and the defences in the dispute. - **The purpose of pleadings** - procedural fairness, disclose or reveal relevant documents, reduce the element of surprise, give a written record of the case to the court, assist is reaching an out of court settlement and set the limits to the dispute. ***Examples*** - The statement of claim which outlines the claim being made and the remedy being sought. Such as, in a defamation case, it would outline the statements being made regarding the impact of the defamatory statements. This is prepared by the Plaintiff.   Statement of defence which sets out the defendant\'s response to each of the plaintiff\'s claims. Such as, in a defamation case the defendant would address whether or not defamatory statements were made.   **Discovery:** - It is the exchange of evidence, so written forms of evidence. - It is a pre-trial procedure which requires the parties to list all the documents they have that are relevant to the case. Copies of these documents are normally provided to the other party. - **The purpose of discovery** - reduce the element of surprise, disclose or reveal all relevant evidence, determine the strength of the other side\'s case, reduce delays by ensuring all relevant material evidence and documents and assist in reaching out of court settlement. ***Example*** - Supporting documents for the claim, such as, if claiming medical expenses then copies of medical records to support injuries might be provided.   **Directions Hearings:** - Conferences between a judge and the parties, where the judge may make any order that they think will assist in the prompt, effective and economical resolution of the dispute. - **The order may include** - compulsory mediation, channelled into arbitration, scheduling of witnesses and the case in general and the discussion and agreement on relevant questions of law.   **Note: the overall purpose of all 3 pre-trial procedures is to inform the parties of the details of the dispute and also promote negotiation and potential settlement**.        **3.2.6 - Civil Court Hierarchy** *Essential Question: What are the reasons for a court hierarchy in civil disputes?*   **The 2 reasons for a court hierarchy in civil trials:** - The Appeal process (covered in Unit 3 AOS 1) - Administrative convenience   Text Description automatically generated with medium confidence   **Administrative Convenience:** - It is the benefit derived from the organization of cases according to how serious or complex the matter are. - The superior courts (Eg. Supreme Court) are free to devote their time and resources to long, complex disputes without being clogged up by resolving minor disputes. - The lower courts (Eg. Magistrates\' Court) can quickly resolve a large number of relatively minor disputes, minimizing delays for parties to such disputes.   **Note: Specialization and Administrative convenience are not the same thing!**        **3.2.7 - Responsibilities of key personnel in a civil trial** *Essential Question: What do key personnel in a civil trial do?*   **Key personnel in a civil trial:** - Judge - Jury - The parties - Legal practitioners   **Responsibilities of the Judge:** - Managing the trial (apply rules of evidence and procedure, ensure trial is run on time and use resources efficiently) - Determine the liability of the defendant, in the absence of the jury, however in defamation cases the jury determines the defendant\'s liability and Judge awarding the damages. Judges provide written reasons for their decisions. - Give directions to the jury, if it is present. - Remaining impartial throughout the trial.   **Responsibilities of the Jury:** - Being objective (be independent and unbiased when reaching their decision) - Listening to the evidence, judge\'s directions and legal practitioner\'s submissions (be alert take notes and keep track of information). - Deciding liability and calculate damages only in defamation cases. **Note: They are optional in civil disputes in the County or Supreme Court**   **Responsibilities of the parties:** - Opening and closing addresses - Present case to the judge and the jury, when it is present - They also have the obligation to act honestly, only make claims that have a proper basis, cooperate in the conduct of the proceedings, not mislead or deceive and minimize delay. - Disclose all evidence and documents   **Responsibilities of Legal Practitioners:** - Opening and closing address (present a summary of the evidence, the facts of the case they want the court to accept as true) - Present the case to the Judge and the Jury (present all evidence in a favorable way for their client, asking questions to witnesses they brought and cross-examining the witnesses of the other party, plaintiff\'s legal representation will make submissions to court regarding the appropriate remedy) **Note: Barristers present the case to court whereas the solicitors provide administrative support.**   **Note: Responsibilities of the parties and the legal practitioners is are essentially the same.**     **3.2.8 - Judicial Powers of Case Management** *Essential Question: What case management powers does a Judge have?*   **The case management powers of a Judge:** - The power to order mediation - The power to give directions   **The power to order mediation:** - The purpose of this power is to assist the parties in coming to a fast and cost-effective resolution without having to go to trial. - Parties can be referred to mediation at any time before and in the early stages of the trial. - It is common for parties in most civil proceedings in Victorian courts to be directed by Judges to attend mediation before trial.   **Power to give directions:** - The overarching purpose of this broad power is to give Judges the ability to maintain control of the proceedings by ordering the parties to do certain things before or during a trial. - Pre-trial directions can include - identifying the real issue at an early stage, encourage parties to cooperate, require the parties\' legal representatives to attend pre-trial conferences to clarify the issue, control the case\'s progress by fixing timetables. - During trial directions may include - the order in which witnesses give evidence, minimising the time for the hearing (limiting witnesses, setting a time limit for witnesses and cross-examination), directing which evidence is to be given orally or written form and ordering proceedings be live-streamed online. **Note: Judges may give any directions that they believe will help lead to a just, prompt and economical resolution of a dispute.**   **If a party does not comply with a Judge\'s directions:** - Dismiss the Plaintiff\'s claim - Dismiss the Defendant\'s defence and find in favour of the Plaintiff - Reject any evidence presented by both parties - Direct one party to pay some/all of the other party\'s costs   Text, table Description automatically generated with medium confidence   **3.2.9 - Methods used to resolve civil disputes** *Essential Question: What methods can be used to resolve civil disputes?*   **Dispute resolution methods:** - Mediation - Conciliation - Arbitration   **Mediation:** - Mediation is a cooperative, non-judicial dispute resolution process that involves an independent third-party. The mediator encourages communication between the two parties, allowing the parties to reach a voluntary resolution. - It is a non-binding resolution, but can be enforced if the parties sign a deed of settlement. - Legal representation is not required. - Less formal and more supportive environment. - **Mediation is appropriate when** - continuing relationship wants to be maintained, parties are willing to discuss the issue, there is an admission of responsibility and parties prefer confidentiality. - **It is inappropriate when** - parties are highly emotional, they are unwilling to discuss the issue, there is a history of violence or threats and there is a power imbalance. **Note: Mediation is not always inappropriate when there is animosity between the parties.** **Conciliation:** - Conciliation is a non-judicial resolution process involving an independent third-party, with specialist knowledge about the type of dispute in question. The conciliator encourages communication between the two parties as well as providing suggestions and possible solutions, allowing the parties to reach a voluntary resolution that is non-binding. - Legal representation is often not used. - It is conducted in a less formal, more supportive environment. - **Conciliation is appropriate when** - Same as Mediation! - **It is inappropriate when** - Same as Mediation   **Arbitration:** - Arbitration is a non-judicial resolution process that involves an independent third-party, who listens to the parties present evidence and then makes a binding decision. - It is less formal than a trial, without the strict rules of evidence and procedure. - **Arbitration is appropriate when** - parties agree to it, the matter is less than \$10,000 issues in Magistrates\' Court, the case requires a binding outcome, history of broken promises and when two parties cannot come to an agreement through mediation and conciliation. - **It is inappropriate when** - parties do not agree to it and parties are comfortable navigating complex court rules of evidence and procedure. **Note: Arbitration is not automatically available to parties in a dispute, mostly settles commercial disputes.**        **3.2.10 & 11 - Purposes of remedies (Injunctions and Damages)** *Essential Question: What are the purposes of civil remedies, including damages and injunctions?*   **Purpose of remedies:** - Remedies are orders from the court (or VCAT) upholding the plaintiff\'s civil rights by providing relief for the injury they have suffered. - The two types of remedies are damages and injunctions. - The overarching purpose of all civil remedies is to restore the plaintiff to the position they were in before the harm occurred.   **Damages:** - Damages are the monetary compensation provided to the plaintiff. - There are three categories - Compensatory (Specific: precise value; easily quantifiable. General: no precise value; not easily quantifiable. Aggravated: compensation for humiliation or distress) Exemplary (large monetary value to punish the defendant) and Nominal (small amount to show the plaintiff is legally right). - **Purposes of damages** - to reimburse and compensate the plaintiff for the loss suffered (compensatory), aim to punish the defendant (exemplary) and aim to reflect that the plaintiff is legally right (nominal).   **Injunctions:** - Injunctions are court orders compelling a party to do something or preventing a party from doing something. - There are two categories - Mandatory (force parties to do something) and Restrictive (preventing the parties from doing something). - Interlocutory injunctions are temporary whereas, perpetual injunctions are permanent. - **Purposes of injunctions** - Restoring the plaintiff to the position they were in before their rights were infringed and preventing further harm to the plaintiff.   **Do damages and injunctions achieve the purpose of civil proceedings?**   Text Description automatically generated      Graphical user interface, text, application Description automatically generated     **3.2.12 - Factors that limit the Civil Justice System** *Essential Question: What factors stop the civil justice system from achieving fairness, equality and access?*   **Factors that limit the Civil Justice System:** - Cost - Time - Accessibility     **3.2.13 - Recent and Recommended Reforms** *Essential Question:*   **The recent reform I have chosen:** - New Koori hearing rooms in VCAT venues (2020-21)     **The recently [recommended] reform I have chosen:** - Additional VCAT Koori hearing rooms (2017 - ongoing)      Text Description automatically generated                       **4.1.1 - Roles of the Crown and the Houses of Parliament in Law-making** *Essential Question: What roles do the Crown and the different Houses of Parliament play in Law-making.*   **Key Vocabulary:** - ***Parliament (makes the Laws)*** - A group of elected representatives who make laws for society on behalf of the people who voted them in. - *Commonwealth Parliament* - All elected members of the House of Representatives and Senate, from all Political parties, and the Governor General. - *Victorian Parliament* - All elected members of the Legislative Assembly and the Legislative Council, from all political parties, and the Governor.   - ***Government (runs the Country)*** - All elected members of the Political party that wins the most seats in the lower house, with their leader becoming the Prime Minister.   **Structure of the Commonwealth Parliament:**    - ***Bicameral*** - Parliament that operates with two houses - an upper and lower house.   ***Note: House of Representatives is the lower house and the Senate is the upper house.***   **Structure of the Victorian Parliament:**    Diagram Description automatically generated ***Note: Legislative Assembly is the lower House and Legislative Council is the upper house.***   **Roles of the Commonwealth Parliament:**    **Roles of the House of Representatives (Lower House):** - ***Determine the Government*** - The political party with the most seats in the HoR becomes the Government of Australia. The Leader of that party becomes the Prime Minister. - ***Initiate and make Laws*** - To make a new Law, or amend an old Law, it must be agreed upon by both Houses and the Governor General. Most Bills commence in the HoR and [supply bills must commence here]. - ***Provide responsible Government*** - Ministers are accountable to Parliament for their actions and decisions. Prime Minister and ministers have to answer questions about this during question time. **Roles of the Senate (Upper House):** - ***House of Review*** - Most bills are initiated in the HoR, hence, the Senate becomes the review House. Government rarely has a majority in the Senate, therefore, more scrutiny on legislation. - **Initiate and make Laws** - Same Law making power as the HoR, bills must be approved by both Houses. Some bills are initiated in the Senate. [Supply bills must be initiated in the HoR]. - ***States\' House*** - Historical role, as each state is equally represented regardless of population. Initially to protect smaller states from being taken advantage of.   - ***Rubber stamp*** - One party has the majority of the seats in both houses. A senate that will agree on and pass everything the HoR proposes.   **Roles of the Governor-General:** - ***Royal Assent*** - To make a new law or amend an old law, it must be agreed upon by both Houses and the Governor-General, this is known as the royal assent. The Governor-General formally signs a bill into law and makes it an act of Parliament. [(Only need to really know this one)] - ***Executive Council*** - The GG formally heads the executive, outlined in the Constitution. Acts on the advice on ministers and Prime Minister. - ***Reserve Powers*** - Holds some powers that are not listed in the Constitution and does not need legislative approval to use them. Includes the ability to dismiss a Government or end Parliamentary sessions. - ***Withhold giving Royal Assent*** - ***Making amendments to legislation after it has been passed by both houses*** **Roles of the Victorian Parliament:** Text Description automatically generated ***Note: The roles are the same, except the fact that Legislative Council does not act as a states\' House.***        **4.1.2 - Division of Constitutional Law-making powers (s. 109)** *Essential Question: What is the division of powers? What is Section 109 and what is its significance?*   - ***Division of powers -*** The splitting up of Law-making responsibility between the Commonwealth Parliament and state Parliaments.   **Residual powers:** - Not listed in the Constitution. - Some deliberately left to the states, others have developed as areas of law over time. - Commonwealth **cannot** legislate in these areas.   **Exclusive Powers:** - Listed in the Constitution. - States **cannot** legislate in these areas. - Exclusive by their nature, due to another section of the Constitution or listed in **s. 52**. **Concurrent Powers:** - Listed in the constitution - Both Commonwealth and States can legislate in these areas. - All specific powers that are not made exclusive are concurrent, so everything else in **s. 51.**   ***Note: Remember by with the acronym Parks & REC. All three of these are types of law-making powers.*** ***Exclusive and Concurrent powers are Specific Powers.***   +-----------------------+-----------------------+-----------------------+ | State | State & Commonwealth | Commonwealth | | | | | | Law-Making Powers | Law-Making Powers | Law-Making Powers | +=======================+=======================+=======================+ | **Residual Powers** | **Concurrent Powers** | **Exclusive powers** | +-----------------------+-----------------------+-----------------------+ | Areas not | **Both** the states | **Only** the | | specifically | and Commonwealth | Commonwealth has | | mentioned in the | share these powers -- | these law-making | | Constitution are | if inconsistent, the | powers | | **left** to the | Cth. overrules the | | | states | state. | | +-----------------------+-----------------------+-----------------------+ | **Example: Law | **Example: Taxation, | **Example: Coining | | enforcement, | trade, marriage and | money, defence, | | education, road | divorce** | customs and border | | laws** | | protection** | +-----------------------+-----------------------+-----------------------+ | **Protected in: | **Protected in: | **Protected in: s.51, | | s.106, s.107, s.108** | s.51** | s.52 (+ others)** | +-----------------------+-----------------------+-----------------------+     **Section 109 of the Constitution (Tasmania vs Commonwealth case):** - This section of the Constitution is designed to help resolve conflicts and inconsistencies between State and Commonwealth laws. These inconsistencies sometimes arise when concurrent powers are exercised by the Commonwealth Parliament **and** one or more State Parliaments. Text Description automatically generated   ***Note: This does not work automatically, the law must first be challenged in the High Court.*** ***In a discuss question regarding Section 109, the discuss element will be mentioning how the State law is only invalid to the extent of inconsistency and only has impact when the High Court is involved. Another way it does not have an impact is that it does not stop State Parliaments making laws.***     **4.1.3 - The Australian Constitution as a check on Parliamentary law-making** *Essential Question: How does the Australian Constitution act as a check on Parliament in law-making?*   ***Note: In other words how is the Parliament restricted in terms of law-making.***   **5 ways in which the Constitution restricts Parliamentary law-making:** - Bicameral Structure of the Commonwealth Parliament - Separation of the, legislative, executive and judicial powers **(JLE)** - Express protection of rights - Role of the High Court in interpreting the Australian Constitution - Requirement for a double majority in a referendum   ***Note: Although Parliament is the supreme law-making body in Australia, it does not have absolute power and the Australian Constitution ensures that.***   **Bicameral Structure: What** - Bicameral means a Parliament with two houses. - In Australia this is constituted by the House of Representatives and the Senate. - Each house has a different voting method, in elections when members are elected in each house.   **Bicameral Structure: How** - By having a different voting method for each house, meaning that a party rarely ever has a majority in both houses. - Proportional voting in Senate provides greater opportunities for minor parties to be elected. - Six year Senate terms also ensure a good spread of political views. - Means legislation must be considered, debated and agreed upon from multiple viewpoints, ensuring one party cannot abuse their law-making powers. **Separation of Powers (JLE): What** - ***Legislative powers -*** The power to make laws, given to Parliaments. - ***Executive powers -*** The power to administer the laws, so to put laws into action and is given to Crown + Cabinet. - ***Judicial powers -*** The power to settle disputes arising under the law, given to Courts and Tribunals. ***Note: Remember using the acronym JLE, Just Like Eggs.***   **Separation of Powers (JLE): How** - To prevent the power from being concentrated in one body, and helps protect individual rights by providing checks and balances on the law-making power of the Commonwealth Parliament. - Preventing abuse of power.   **Express Rights protection: What** - These are rights explicitly written in the Constitution and there are only 5 express rights. These rights are entrenched because they cannot be changed or removed without following the referendum process of **S. 128**.  ***Note: Implied rights are rights that are suggested by the text of the Australian Constitution but not explicitly stated Eg. The Freedom of Speech.***   **Express Rights protection: How** - The Parliament is restricted from making any law that breaches one of these express rights. - Any legislation that breaches these express rights will be declared invalid by the High Court, provided that it is challenged by someone. **The role of the High Court: What** - The High Court cannot change the wording of the Constitution, but can change the way the words are interpreted. Whenever, the High Court is called on to interpret any section or word, the interpretation adds meaning to the Constitution. - The role of the Court is to act as guardian of the Australian Constitution, act as a check on any abuse of power and give meanings to the words of the Constitution. - Due to the separation of Powers, the High Court is independent of the Parliament and Government.   **The role of the High Court: How** - The High Court can declare any legislation as invalid if it breaches the Constitution. - The High Court also has the power to find new rights in the Constitution that they believe are implied by the text. - Freedom of political communication.   **Double Majority in a referendum: What** - A referendum is a compulsory vote to change the words of the Australian Constitution, as outlined in **S. 128.** It\'s the only process for changing the constitution. All referendums require a double majority. - This includes a Yes/No vote from the public, which must achieve a double majority. - Double majority is a vote of **\'Yes\'** from a majority of voters in Australia and a majority of voters in a majority of States. [(Over half the voters in 4/6 States)]   **Double Majority in a referendum: How** - This ensures that any change has broad public support across the nation. - Only 8/44 referendums have been successful.       **4.1.4 - High Court Interpretations of the Australian Constitution (s. 7 & s. 24)** *Essential Question: What happened in one High Court case involving the interpretation of sections 7 and 24 of the Constitution?*   **What to include in a question when talking about a High Court case:** - ***[Facts]*** - A brief summary of the situation. What is the name of the case, who is involved and what are they doing etc. - ***[Legal Issue]*** - What is each party claiming, and what specific laws/sections of the Constitution are involved. - ***[Decision]*** - Whose favour did the High Court find in and why? - ***[Impact]*** - What was the lasting effect of the decision and how did it effect other cases?   **Section 7 of the Constitution (Roach vs. Electoral Commission):**    **Section 24 of the Constitution (Roach vs. Electoral Commission):**   **The Roach vs. The Electoral Commission Case:** - ***[Facts]*** - The Commonwealth Electoral Act prevents anyone serving a prison sentence of over 3 years from voting. In 2006 this is amended to prevent anyone serving a prison sentence from voting. Vicki Lee Roach was serving a 6 year prison sentence at this time. As she was personally affected by the Law, she was able to challenge it in the High Court by pointing out what Sections 7 and 24 of the Constitution state. - ***[Legal Issue]*** - Centred around the interpretations of Section 7 and 24 of the Constitution; to what extent are the public required to meet the \'directly chosen by the people\' wording. Roach made multiple claims around this, including that the Constitution has an implied right to vote, and that the Act limited the operation of the system of representative Government. - ***[Decision]*** - The High Court found in favour of Roach saying that the Commonwealth Law was unconstitutional. The Constitution establishes a system of representative democracy and elections, and in order to be truly representative a substantial majority of the population must be entitled to vote. The Commonwealth is able to determine who can and cannot vote in these elections with reasonable limits; that is, the right to vote can be removed if there is a substantial reason for doing so. The Court held that removing the right from all prisoners was excessive; only those convicted of a \'serious\' offences (3 years + sentence) should be denied the right to vote. - ***[Impact]*** - The immediate impact was that The Commonwealth Law, restricting all prisoners from voting, was declared invalid and the law reverted back to how it was prior to the change. Further impact of this decision was that the Commonwealth has the ability to exclude people from voting if there is a substantial reason, but the majority of the population must be able to vote to ensure representative democracy. The Constitution does not include a personal right to vote, there is implied right to vote.   **Note: \'Significance\' refers to how an interpretation of the Constitution or High Court did or did not change the legal system.**     **4.1.5 - Constitutional Referendums (s. 128)** *Essential Question: What happened in one referendum involving the changing of the Constitution?*   **The 1967 Referendum:** Prior to 1967, Section 51 (xxvi)    Section 51 (xxvi), after 1967   Prior to 1967, Section 127    Section 127 was completely removed after 1967 Chart, box and whisker chart Description automatically generated   - ***[Impact]*** - It was the most successful referendum with 90.77% of voters voting \'yes\'. Commonwealth could now legislate for Indigenous peoples in the states. Commonwealth funds could now be directed towards Aboriginal affairs. Allowed subsequent parliaments to pass reforms to housing, health, education, employment and access to justice for the Indigenous people. The Federal Government can set up an Aboriginal affairs portfolio. - ***[Significance]*** - It is significant due to the overwhelming public support for the change, especially considering only 8/44 referendums have been successful. Altered the division of law-making power between the Commonwealth and the States. Took a residual power and changed it into a concurrent power, effectively giving more power to the Commonwealth. Also allowed Aboriginal people to be counted in the census, impacting representation and righting a moral wrong.   +-----------------------------------+-----------------------------------+ | **Can people protect | **People can\'t effectively | | constitution/change it | protect/change the Constitution | | effectively through referendums** | through referendum** | +===================================+===================================+ | - Double majority - broad | - Referendums are rare | | public support | | | | - There is a lack of | | - We elect Politicians to | understanding amongst the | | represent our values | people | | | | | | - Expensive | | | | | | - Time-consuming | | | | | | - Politicians must approve | | | first | +-----------------------------------+-----------------------------------+     **4.1.6 & 4.1.7- The High Court and the Division of Constitutional Law-making powers and External Affairs (s. 51 xxix)** *Essential Question: What happened in one High Court case involving the division of Law-making powers?* *What impact have International treaties and declarations had on the External affairs power?*        - Australia has signed and ratified many international declarations aimed at protecting human rights. - By signing these declarations, Australia is showing its commitment to uphold/value the rights and basic principles contained in the declaration, but they are not legally bound and laws must be passed to protect these rights. - Declarations often lead to Treaties being made on the same topic. - Treaties usually lead to legislations being passed to protect our rights.      - Australia has signed many International Treaties to demonstrate our Government\'s intention to further include human rights protections in our Laws. These rights are not automatically protected - legislation must be passed.   **The Commonwealth vs. Tasmania Case: PPT** Graphical user interface, text, application Description automatically generated      **Treaty-making:**         **Examples of some Treaties signed by Australia:** - International Covenant on Civil and Political Rights - International Treaty on Plant Generic resources for Food and Agriculture - Arms Trade Treaty - Conventions of the Rights of the Child - Montreal Protocol   **The Commonwealth vs. Tasmania Case: Legal Studies Guy**           ***Note: Ultra varies means \'beyond their power\'. This is an important metalanguage term to use in SACs or the Exam.*** **4.2.1 - Parliamentary Law-making** *Essential Question: What factors affect the ability of the Parliament to make laws?*   **4 factors affecting Parliamentary law-making:** - The roles of the houses of Parliament - The representative nature of Parliament - Political pressures - Restrictions on the law-making powers of the Parliament   1. **The roles of the Houses of Parliament: What** - **Lower House (House of representatives)** - initiate and make laws, represent people and house of Government - **Upper House (Senate)** - initiate and make laws, house of review and states\' house   **The roles of the Houses of Parliament: How** - One party (or coalition) rarely ever achieves a majority in both of the houses. - Six year Senate term ensures a good spread of political views, so senators are elected every 6 years. - This ensures that the upper house reviews and scrutinises bills, they also have support from a spread of political views. - Added onus on the Lower house to vote in-line with the views of their electorate, or else they face the risk of losing the next election.   **2. The representative nature of Parliament: What** - Australia is a representative democracy - Elections held every 3 years federally, and fixed 4 year terms in Victoria - Lower House electorates are equally populated areas - ensures everyone\'s vote carries equal weight. **The representative nature of Parliament: How** - If Parliament passes a law that the public disapproves of, they may vote for someone else at the next election. - Ensures law reform is in line with the public interests.   1. **Political pressures: What** - There are three main types of political pressures - Domestic, Internal and international political pressures. - These pressures may result in bills being voted on based upon whether it will increase their popularity, rather than the merit and the benefits of the law itself. - This also means that influential individuals, organisation, businesses and unions can place pressures on the government to implement policies in their best interest.   **Political pressures: How** - Internally, major political parties have different factions and overall views on how a Country should be run, and who to vote for and align with etc. - Certain legislations or reforms may not even make it to the Parliament due to ideological differences within a party. - Politicians are also unwilling to legislate in controversial areas due to fear of a vocal backlash. - Legislative change with a view to the future might not always have positive short-term effects, therefore, politicians may avoid it.   1. **Law-making restrictions on the Parliament: What** - Whilst Parliament is the Supreme law-making body within its jurisdiction, there are restrictions placed around it. - Parliament does not hold ultimate law-making power. - The Commonwealth Parliament is restricted by certain areas of the constitution (express rights), and cannot change the Constitution of its own volition. - States cannot legislate in areas of exclusive power (division of powers), as well as restrictions imposed by S.109 of the Constitution.   **Law-making restrictions on Parliament: How** - The High Court can declare legislation as invalid if it is ***\'ultra vires\'*** - beyond the power of the parliament that made it and the Parliament cannot override an Ultra vires decision from the High Court.   **VCAA proposed points in response to an Exam question:**                                          **4.2.2 - Roles of the Victorian Courts and the High Court in Law-making** *Essential Question: What role do the Courts play in law-making?*   **The High Court and the Victorian Courts play two main roles:** - **Resolve dispute** - **Make Laws** - Sometimes, through the process of resolving disputes, courts will actually make laws. This is either done through establishing new rules when there is no legislation on a particular area (***Common Law***), or through interpreting words in an Act of Parliament and applying them to a case (***Statutory Interpretation***).   **Note: The decisions made by Judges in resolving disputes creates precedent.**   **Precedent:** - The reason for the decision of a Court (***ratio decidendi***) establishes a principle of law that is followed by future courts. - This is known as precedent - Precedent can be ***binding*** (***must be followed***) or ***persuasive*** (***influential only***) - Decisions by higher courts are binding on lower courts within their jurisdiction.   **Ability to make Precedent** Judges have the ability to make/develop Precedent when: - The case involves a new issue not covered by an existing precedent or statute. - The case involves interpreting a statute that hasn\'t previously been interpreted. - When a lower court has developed a Precedent.   **Key Vocabulary:** - ***Ratio decidendi*** - A Judge\'s \'reason for their decision\' forms **[binding Precedent]** on lower courts. ***The ration decidendi is not the remedy or sanction given***, it is the legal reasoning behind the decision. - ***Obiter dictum*** - A Judge\'s comment made \'by the way\' or \'said in the passing\' can form **[persuasive Precedent. ]** - **Stare decisis** - When a lower court \'stands by what has been decided\' in a higher court.   **The 4 methods for Judges to avoid applying a precedent:** Text Description automatically generated     **4.2.3 - Statutory Interpretation** *Essential Question: What is statutory interpretation and why do we need it?*   - ***Statutory Interpretation -*** It is the process undertaken by the Judges to apply the words of an Act of Parliament to specific fact situations. Through this process Judges give meaning to the words and phrases in an Act of Parliament so that it can be applied to resolve the case before them. **Reasons for Statutory Interpretation:** - ***Broad and general terms*** - Most legislations are drafted to cover a spread of situations. (*Eg. Deing v Tarola studded belt case*) - ***Future circumstances*** - The act might need to be clarified as new situations arise. (*Eg. \'External Affairs\'*) - ***Ambiguous wording*** - Some words or phrases might have multiple meanings. - ***Changing nature of words*** - As society changes, the meaning of different words also change. (*Eg. Kevin and Jennifer same-sex marriage case*)   **Effects of Statutory Interpretation:** - ***Words develop specific meaning*** - This meaning enables the statute to be applied to specific fact situations. (*Eg. Deing v Tarola* ) - ***Precedent is developed*** - In future cases the legislation and interpretation are read together to form the complete law. - ***Parliament can abrogate*** - Parliament may choose to amend legislation overruling the Courts\' interpretation. - ***Parliament can codify*** - Parliament may choose to amend legislation confirming the court\'s interpretation.   **Note: With question related to this Area of Study, there is a difference between law-making powers (*division of powers*) and law-making ability of the Parliament.**        **4.2.4 - Factors affecting the [ability] of Courts to make Law** *Essential Question: What affects the ability of Courts to make law?*   **Doctrine of Precedent: What** - Where the \'ratio decidendi\' of cases is used to inform future decisions. - Based on the principle of \'stare decisis\' to stand by what has been decided.   **Doctrine of Precedent: How** - It is the ability of Courts to make Law - decisions made are either binding or influential on future decisions. - Courts are unable to make law if they are bound by a previous decision. - Unable to make law if there is a statute covering the fact situation. - Judges may be able to distinguish their case from previous cases, and therefore, still make law even more bound. - May be unwilling to make law if there is a persuasive precedent in place (see ***Judicial conservatism***)   **Judicial Conservatism: What** - Many Judges are conservative in nature. - Heavily influenced by the Separation of Powers - they view law-making as the responsibility of the Parliament. - Adhere strictly to \'stare decisis\'   **Judicial Conservatism: How** - Means Judges are unlikely to take opportunities to make law. - May apply outdated precedents, even if it is morally upright to change the law.   **Judicial Activism: What** - The opposite of Judicial conservatism, some Judges believe it is their responsibility to develop common law in line with social change.   **Judicial Activism: How** - Judicial activists are more likely to make law. - The Mabo case is a prime example of Judicial activism at play - it overturned a 100 year old precedent   **Cost and Time: What** - Bringing a legal case to Court is very expensive - filing fees, court costs and hiring legal representatives. - Legal action takes a long time - cases may not be resolved for years.   **Cost and Time: How** - Limits opportunities for courts to make law, as there is decreased likelihood of people bringing a case to the court, accessibility lacks.   **Requirement for standing: What** - Having standing means that you are able to bring a legal action to court. - Usually this means you must have a special interest in the matter, meaning you must be personally affected by the matter or decision. - You can bring a legal matter on behalf of someone else if you can prove that you have a special interest in the case.   **Requirement for standing: How** - Judges cannot act of their own volition, meaning that someone must first being the case.     Table Description automatically generated with low confidence      Graphical user interface, text, application Description automatically generated     **4.2.5 - Relationship between Courts and Parliament in Law-making** *Essential Question: What is the relationship between the Parliament and the Courts in Law-making?*   **Features of the relationship between the Courts and the Parliament in Law-making:** - The supremacy of Parliament - The ability of Courts to influence Parliament - The interpretation of statutes by courts - The codification of Common Law - The abrogation of Common Law   **The Supremacy of Parliament:** - Parliament is the supreme law-making body in its jurisdiction. - It can pass legislation that overrides or validates common law, developed through the courts. - The only exception to this is Constitutional matters, where the interpretations by the High Court can only be over-ridden by changing the Constitution itself, which requires a referendum.   **Interpretation of Statues by Courts:** - Whilst Parliament is the supreme Law-making body, often their laws are drafted to cover broad areas. - Courts may be required to interpret different aspects of the law in order to apply it to a specific fact situation. - This process develops the law further, and may broaden its scope (\'Externals Affairs\'), or narrow it (The studded belt case).   **Ability of Courts to influence Parliament:** - Decisions made by Courts can often be influential on Parliament in law-making. - Parliament may disagree with a common law developed by the courts, or disagree with their interpretation of the Statute, which can lead to Parliament rectifying it. - Parliament may also agree with the decisions made by the Courts, and may take steps to strengthen common law by turning it into a Statute law. - Judges may also make \'Obiter dictum\' statements expressing their disapproval of law that they need to apply - this may influence Parliament to change the Law. - Court decisions can also often attract large scale public interest, and even backlash at times. This can also lead to Parliament taking action.   **Codification:** - Decisions made by the courts can often be influential on Parliament in law-making. - Parliament may also agree with the decisions made by the Courts, and may take steps to strengthen common law by turning it into a Statute law, thereby codifying the common law. - An example of this is the *Mabo case*. The decision of the High Court to overturn \'terra nullius\' was followed by the development of the *Native Title Act (1993)*.   **Abrogation:** - Decisions made by Courts can be often influential on Parliament in law-making. - Parliament may disagree with a common law developed by the courts, or disagree with their interpretation of the Statute, which can lead to Parliament rectifying it, thereby abrogating the common law. - An example of this is the *Trigwell case*. In this case the High Court chose to follow an outdated persuasive precedent from England around liability for stockowners if their stock caused an accident (judicial conservatism). Parliament chose to abrogate this common law, establishing a Statute that makes stockowners liable for damage that their livestock causes.   **Note: When answering questions in regards to the relationship between Parliaments and the Courts in law-making, they will use the command word \'Analyze\' and that means that just use an example or a case study to demonstrate this.** - **While the Parliament can abrogate laws, it can not do so when the High Court has deemed the law ultra vires, so outside the law-making powers of the Parliament.**      **4.2.6 - Reasons for Law Reform** *Essential Question: Why do we need to change the Law, and what are some examples of this?*   **4 main reasons for Law reform:** - Changing values of society - Technological advancements - Protection of the community - Generating a change in societal values   **Changing values of Society:** - Society has changed dramatically over the past years, leading to the community holding different values than they once did. - For instance, the views on defacto relationships and same-sex marriages have changed. - *The \'Marriage amendment Act 2017\' made it possible for same-sex couples to marry*   **Technological advancements:** - New technology can cause new threats to individuals, as new possible offences develop. - Social Media and transportation are an example of technological advancements. - *The \'Crimes Amendment (Stalking) Act 2003\' added cyberstalking to the Crimes Act*   **Protection of the Community:** - The role of the legal system, originally, was to regulate behavior, however, we now also expect the law to protect individuals from harm. - As new risks arise, new laws may be needed to address these and keep people safe. - *The \'Bail Amendment Act 2017\' reversed the presumption on a number of offences in order to protect the public.*   **Generating a change in societal values:** - In some cases, the law will act to drive social change, often around issues of social equality, equal opportunity and removing discrimination of minority groups. - This aims to encourage greater tolerance and cohesion in a diverse society. - *An example of this is the \'Charter of Human Rights and Responsibilities Act 2006 (Vic)\'*   **Note: Use examples when answering questions about Law reforms.**     **4.2.7 - Role of individuals in Law reform** *Essential Question: How can I/you influence Law reform?*   **3 ways individuals can influence law reform:** - Petitions - Demonstrations - Use of Courts   **Petitions: Details** - A group or individual who organizes a petition will submit it to the House of Representatives petitions committee, who will then present it to the house and may refer it to the relevant minister. - People may be invited to talk to the Committee about their petition, in person. - It is a formal, written request to the Parliament for action in relation to a change or no change to a law, signed by those who support it. - *An example of this is in 2018 over 100,000 people signed a petition asking for GST to be removed from women\'s sanitary items.* **Advantages:** - Allows an issue to be directly addressed to the Parliament - Can attract large public interest   **Disadvantages:** - Parliament has no obligation to act on it - Not as publicly visible as other methods   Text Description automatically generated   **Demonstrations: Details** - Also known as protests, a group of individuals publicly expressing a desire for Law reform or to express their common concern or dissatisfaction with an existing law or lack of parliamentary action. - Australia has a long history of demonstrations. - Generally disruptive in nature, with the more media attention and greater likelihood that politicians will take notice. - In order to be effective it requires a large number of supporters and positive media coverage. - *\#metoo movement or the \#blacklivesmatter demonstrations or even the Pride marches.* **Advantages:** - Likely to gain media attentions - the larger and the more positive, the better - Serves an educative function - builds awareness of a need for change **Disadvantages:** - Can be disruptive and violent, leading to negative media attention, having the opposite effect - Time-consuming and difficult to organize      **Use of Courts: Details** - The bringing of a case to the courts to seek a new interpretation of a Law. - Provide the case meets the right conditions, individuals may use the courts to change the law through **statutory interpretation** or **precedent**. - Decisions of the court can change the way in which the law impacts on society. - Individuals with \'*locus standi*\', so a standing, can initiate a case, however, individuals may be deterred from going to the Courts. - The High Court can also find an Act of Parliament to be *ultra vires.* - *An exampled of this is the Mabo \'terra nullius\' case.* **Advantages:** - Decisions can come into force immediately - Decisions can be made on the law alone, and are not subject to political pressures. **Disadvantages:** - Requires someone with standing to bring a case - Expensive and time-consuming, risky for a plaintiff to bring a matter to the Courts   Graphical user interface, text, application Description automatically generated     **4.2.8 - Role of the media in Law reform** *Essential Question: What role does media play in law reform?*   **Traditional Media: Details** - Television (journalism), radio, newspapers, magazines and other print media. - It plays an important role in informing the public of other members of the community\'s views on issues, and also aids in informing members of Parliament on the views of the community. - Often used in conjunction with methods - can be used to encourage and publicize other political actions, such as demonstrations. **Advantages:** - Can reach a large audience - Serves an educative function - Easily accessible to all age groups **Disadvantages:** - Can be biased - Can become easily saturated   **Social Media: Details** - Facebook, Twitter, Instagram and other activism websites. - Similar to traditional media in its ability to inform and persuade others. - Also allows for more individualised calls to action, such as coordinating protests and petitions, encourage individuals to lobby their local member of Parliament. - Used by politicians to communicate directly with the pubic, allowing two-way communication. **Advantages:** - Can reach a large audience - Serves an education function - Accessible 24/7 media cycle **Disadvantages:** - Can be an echo chamber and easily saturated - Quality of information may vary   **An example to use in Questions relating to the influence of media on Law reform: Four Corner Episode - A Bloody Business (2011)** - Episode that investigated the cruel treatment of cattle being exported from Australia to Indonesia. - Created a large amount of public pressure to greater regulate the cattle export industry - highlighted an issue that people weren\'t previously aware of (educative action) - The government response was the introduction of stronger compliance regulations for exporters (reform to policies an laws surrounding this issue).        **4.2.9 - The role of the VLRC in Law reform** *Essential Question: What role does the VLRC play in law reform?*   **What is VLRC:** - VLRC stands for Victorian Law Reform Commission - It is an independent body responsible for conducting research into existing legislation, assessing whether or not it is effective and recommending changes to the law, to the Victorian Parliament. - Also research proposed laws, to gauge whether it is likely to be effective, appropriate and accepted by the majority of the community. - Aims to ensure that the legal system meets the needs and aspirations of the Victorian Community. - Enabled by the *Victorian Law Reform Commission Act 2000*. - If Parliament lacks time and resources, it can refer investigations to the VLRC. - The VLRC was established in 2001 to investigate the need to change laws and provide the Government with **impartial advice** and **recommendations** for change. - While VLRC was created and funded by the Vic Parliament, it acts as an independ