Module 6 Main Points PDF

Module 6 Main Points - Module 6.1 Main Points - Traditional criminal law aims to completely prohibit behaviours seen as harmful by the community (although attitudes may change over time) - Regulatory law, however aims not to completely prohibit but to control activities and is...

Module 6 Main Points - Module 6.1 Main Points - Traditional criminal law aims to completely prohibit behaviours seen as harmful by the community (although attitudes may change over time) - Regulatory law, however aims not to completely prohibit but to control activities and is used to control many commercial activities with the full intention that these things continue but subject to controls e.g. building dwellings, fishing, logging, mining etc - Criminal penalties are principally incarceration or a fine, however fines are also used to enforce regulatory controls. In these latter cases they may imposed through a civil process rather than a criminal one - The police are primarily responsible for enforcing criminal law, other types of officers are usually responsible for enforcing regulatory controls e.g. rangers, environmental protection agency, ASIC, ATO etc - Discretion is a very important concept to understand as it applies in nearly all governmental control activities, and is particularly prominent in policing. - In addition to police in some instances intelligence services, border security and armed forces also have extensive enforcement powers - The positive aspect of discretion is efficiency, the negative aspect is the risk of discrimination - Discretion allows enforcement agencies and individuals to set priorities, overlook minor and trivial matters and sometimes to engage in negotiations - Various crown law officers represent the government in various dealings including commercial dealings and litigation - There are a range of court officers other than judges and magistrates that perform functions for the court including clerks, sheriffs and bailiffs Module 6.2 - ### Rights, interests, obligations and duties ### Module 6.2 Main Points - Our legal system recognises a range of rights, interests and obligations. - We lack a constitutionally entrenched bill of rights so there are not a lot of explicit rights - The common law legal system recognises that we have a general right to do anything that is not prohibited by law and that does not - obligations such as paying taxes, registering motor vehicles etc - Interests are generally legally recognised entitlements that individuals have, property interests are the most obvious form of interests due to the property centred nature of our legal system - The judicial role of the courts includes the resolution of disputes, primarily through the recognition of the rights interests and obligations of the parties and the enforcement of those in a dispute - There is an important difference between criminal procedure which is punitive and civil procedure which is usually restorative as between the parties - Our system is said to be adversarial because cases only come before the courts due to being initiated by one of the parties (in the case of criminal prosecutions, that party is the state) 6.3 - ### Litigation ### Main Points Module 6.3 - Litigation is the process by which one party requires another party to attend court for resolution of a dispute (or a prosecution) - Different kinds of disputes originate in different courts depending on their jurisdiction. Minor criminal and civil matters usually begin in a magistrate's court, there are also specialist courts e.g., the family court - Prosecution is the way that criminal cases commence and proceed. Prosecution is conducted by the state through police or state prosecutors, results in a criminal trial in which the criminal rules of procedure, evidence and the requirement to prove guilt beyond reasonable doubt applies (standard of proof) - Civil cases are initiated by a plaintiff (who may be an individual a corporation or a representative of the govt) the responding party is called a defendant. In an appeal they may be called appellant and respondent. - The rules of procedure are evidence are different (more relaxed) and standard of proof is only required 'on the balance of probability' so the parties have an equal burden of proof - Juries are a feature of trials for serious criminal offences within the common law system, the jury's role is to decide issues of fact, principally the guilt of the accused. The judge conducts the trial, enforces procedural rules and decides the sentence - In trials without a jury (minor criminal trials and most civil trials) the judge or magistrate determines both issues of fact and law. 6.4 Access to Justice - ### Law and Justice ### Main points Module 6.4 - The idea of justice is important for the legitimacy of law, although few people would really believe they can be completely co-extensive - Procedural justice is achieved through the equal application of the law in all situations, but this may not deliver substantive justice because people's situations may be different (e.g., punishing a shipwreck survivor for cannibalism) - In an unequal society the rigid application of rules can work further injustice (e.g., laws that punish the homeless) - One of the main sources of unequal outcomes is unequal access to justice which can come about as a result of: - Costs and wealth - Education levels - Cultural unfamiliarity - Language barriers - Disabilities - Racism - Various attempts to respond to embedded inequality include: - Legal aid (underfunded and complex) - Community legal centres - Pro bono work by lawyers 6.5 - ### Legal practitioners in the legal profession Main points module 6.5 - In order to become lawyers individuals must obtain suitable university qualifications, complete a legal practice course, perform a required number of hours of professional work experience and finally be accepted by the Court as a fit and proper person - The profession is divided in to solicitors and barristers - Solicitors are 80% of the profession and are the main point of contact for the general public - Solicitors owe duties to the court, including not to mislead the court, so technically a solicitor cannot assist you to plead not guilty if you have disclosed your guilt to them - Solicitors also have the benefit of significant professional privilege to not disclose the details of their dealings with clients - Barristers are a specialist type of lawyer that is usually only engaged to conduct litigation and appear in court, or to provide expert legal opinion. 6.6 Alternative institution and processes Module 6.6 Main points - Tribunals tend to be less formal and less adversarial, and they determine disputes more quickly and cheaply. - Tribunals tend to have specialist knowledge and are more likely to use mediation and other alternative processes to resolve disputes - Conciliation is a process in which parties to a dispute, with the assistance of a dispute resolution specialist (the **conciliator**), identify the issue in dispute, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content or the outcome of the dispute, but does not have a determinative one - Facilitated negotiation is a process in which the parties, after having identified the issues to be negotiated, utilise the assistance of a facilitator to negotiate the outcome. Facilitated negotiation is similar, although more structured than, mediation - Arbitration is a process in which the parties to a dispute present arguments and evidence to a previously agreed upon **arbitrator**, who makes a determination on the matter 6.7 Changing the law Module 6.7 Main Points Law is inseparable from culture and politics and so legal change is influenced by many things including: - - - - - - Political parties and elections can act as a focal point for proposals for or resistance to change (e.g., climate action) - Some change is more bi-partisan and often occurs through bodies like law reform commissions, and parliamentary ctee processes where agreed changes to laws can take place - Change can also occur as the result of social change activism in the community (e.g., saving forests) or conversely as a result of the power of vested interest lobbies (e.g., mining industry) ###