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Legal unit 2 > Sanctions/Civil law/Protection of rights in Australia > Flashcards

Sanctions/Civil law/Protection of rights in Australia Flashcards

1
Q

Imprisonment

A
  • Seen as last resort. Only order imprisonment where there is no alternative.
    e.g. murder
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2
Q

Community corrections order (CCO)

A
  • Offender in the community
    Conditions:
  • Undertake medical treatment or other rehab
  • live or not live at a address
  • no contact with certain individuals
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3
Q

Fine

A

Is a court order to pay a monetary penalty. A fine can be a payment plan or apply for an extension of time.
One penalty unit (VIC) = $181.74

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4
Q

D -

A

deter-
to stop the wrongdoer from reoffending again and to make an examples to others in the community

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5
Q

D -

A

Denounce-
To make society’s disapproval of the conduct

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6
Q

P -

A

Protect-
Ensure the safety of the community

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7
Q

P -

A

Punish-
To punish the offender

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8
Q

R -

A

Rehabilitation-
Help the offender to learn the error of their ways and teach them a lesson on what not to do

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9
Q

Mitigating offences

A

Lessing the severity

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10
Q

Aggravating offences

A

Increases the consequences

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11
Q

Mandatory conditions - cco

A
  • must not leave Victoria without permission
  • Report to a community corrections center
  • must not commit an offence punishable by imprisonment during the period of the order
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12
Q

Optional options - cco

A
  • Be supervised, monitored and manage by a corrections worker
  • abide by a curfew
  • live (or not live) at a specified address
  • Not enter, remain within, or consume alcohol in licensed premises
  • Unpaid community work conditions
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13
Q

Koori Court
- Describe

A

Is for Aboriginal and Torres Strait Islanders who have taken responsibility and pleaded guilty to a criminal offense

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14
Q
  • Eligibility
A

Aboriginal and Torres Strait Islanders

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15
Q
  • Process
A
  • Accused must elect to go to Koori
  • Have a hearing/ trial
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16
Q
  • Effectiveness of the Koori court
A
  • Most likely to receive a custodial sentence
  • Koori court promotes all principles of justice- fairness, equality and access
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17
Q

How does the Koori Court promote the principles of justice

A

Access -
Fairness -
Equality -

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18
Q

Civil law - Mediation

A
  • Involves a trained, independent mediator, who meets with the parties and helps them to negotiate with each other in order to resolve their dispute.
  • It is confidential and will only work effectively if all parties are willing participants.
  • It is voluntary and involves a face-to-face meeting.
  • The mediator is there to control discussions and does not make suggestions or try to put forward solutions.
  • They structure the meeting in such a way as to allow the parties to discuss and consider the issues in dispute and, in particular possible situations.
  • The mediator does not make or impose a decision - it is up to the parties themselves to reach their own agreement.
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19
Q

Conciliation

A
  • People in dispute will sometimes benefit from advice to assist them in coming to an agreed resolution of their dispute. This can be achieved through the dispute resolution process known as conciliation.
  • Like mediation is a process in which the parties concerned agree to meet with an independent, trained person to discuss the issues in dispute.
  • The conciliator is usually a specialist or has experience in the field of the dispute and so can offer constructive guidance as to how the parties might consider setting the dispute themselves.
  • Is confidential and both parties are prepared to work towards a resolution
  • No decision being made for the parties
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20
Q

Arbitration

A
  • At times, the parties need a formal process where a decision is made for them, rather than by agreement between them.
  • People may agree to arbitration and on their choice of arbitrator, but often one person will apply for arbitration and the other person is obliged to participate.
  • This process involves the parties in dispute presenting their case and evidence to the arbitrator. The arbitrator makes a determination and the parties are bound by the arbitrator’s decision.
  • Is compulsory
  • Is more formal
  • A decision is made for the parties in arbitration
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21
Q

Strengths

A
  • Have a trained professional
  • Confidential
  • Decision is made
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22
Q

Weaknesses

A
  • Either legally binding or not
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23
Q

Main types of dispute resolution bodies

A
  1. Mediation
  2. Conciliation
  3. Arbitration
24
Q

Tribunals

A

A special court or group of people who are officially chosen, especially by the government, to examine (legal) problems of a particular type

25
Q

Ombudsmen

A
  • An ombudsman is a person appointed by, but independent of, the government.
  • They are, generally speaking, given the power to investigate complaints and publish recommendations in respect of certain areas of government, the public service and industry, and they may also act on behalf of consumers.
  • The services offered include receiving a person’s complaint and taking up the issues raised, on the person’s behalf, with the provider in an effort to resolve the dispute
26
Q

Complaints Bodies

A
  • Consumer Affairs Victoria was created to deal with the many varied disputes and complaints to do with consumer affairs. It deals with a broad range of inquiries and complaints concerning businesses, housing and accommodation,
    shopping, and the purchase, sale and rental of cars.
27
Q

Victorian Civil and Administrative Tribunal

A
  • The Victorian Civil and Administrative Tribunal (VCAT) provides fair, efficient and affordable justice for the Victorian community. We do this by making decisions about a wide range of cases or by helping people to resolve disputes.
28
Q

The Mental Health Tribunal

A
  • Under the Mental Health Act 2014 (Vic), the MHT has the main function of ruling whether criteria for ‘compulsory mental health treatment’ apply to a particular person. The tribunal may make a treatment order for a person if all
    the criteria in the legislation apply to that person.
29
Q

Victims of Crime Assistance Tribunal

A
  • To receive applications by victims of violent crime (committed in Victoria) and to provide financial assistance to those victims.
  • A claim to VOCAT can assist victims by providing financial aid for present and possible future expenses directly flowing from a crime.
30
Q

Dispute resolution strengths

A
  • Tribunals are usually more specialised than courts and the
    proceedings are less formal.
  • In many instances the rules of evidence and procedure are not
    allowed.
  • Tribunal personnel do not wear wigs and robes.
  • This informality means that people feel less intimidate and find it easier to express themselves.
31
Q

Dispute resolution weaknesses

A
  • There may be restricted right of appeal against a decision so people can not have their cases reviewed.
  • The formality of the courts provides each individual with an equal opportunity to represent their case. The less formal atmosphere of a tribunal may allow a more confident party to dominate.
  • Some tribunals do not allow legal representation so people who are
    less familiar with their rights may be disadvantaged.
32
Q

Determine Liability

A
33
Q

Decide on the remedy

A
34
Q

When are civil juries used

A

The role of the jury in both criminal and civil trials is to determine questions of fact and to apply the law, as stated by the judge, to those facts to reach a verdict. In criminal trials, the jury’s role is to determine guilt or otherwise. In civil trials, the jury’s role is to decide fault and damages.

35
Q

Composition of a civil jury is

A

Made up of six members, is to decide whether the plaintiff has established their claim.

36
Q

Define remedy

A

A remedy is the way a court will recognize a plaintiff ’s right.

37
Q

What are the different types of damages

A

DAMAGES - Compensatory - Specific
- Exemplary General
- Nominal Aggravated
- Contemptuous

38
Q

Distinguish between restrictive and mandatory injunctions

A

Restrictive injunctions are claims and certain types of loss that have restrictions imposed on damages ordering a person to refrain from undertaking an action, where a mandatory injunctions is ordering a person to do a particular act, such as performing their part of a contract they have breached.

39
Q

effectiveness of damages

A
40
Q

effectiveness of injunctions

A
41
Q

define tribunal

A

A body established to settle certain types of dispute.

42
Q

duty of care

A

a moral or legal obligation to ensure the safety or well-being of others

43
Q

What is a right

A

A power or privilege held by the general public as the result of a constitution, statute, regulation, judicial precedent, or other type of law.

44
Q

the four main ways that Australia protects rights

A

1.
2.
3.
4.

45
Q

Statute law

A

Statute law rights are rights made and can be amended through the legislative process by members of parliament.

46
Q

Common law

A

The Common Law is the law created by decisions of judges, which act as binding precedents for later decisions.

47
Q

Australian Constitution

A

It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the Australian government’s three constituent parts, the executive, legislature, and judiciary

48
Q

What ways does the Constitution protect rights?

A
49
Q

Define Ultra Vires

A

acting or done beyond one’s legal power or authority.

50
Q

Express rights

A
  1. Right to freedom of religion (section 116)
51
Q

Express rights

A
  1. Right not to be discriminated against based on state of residence. (section 117)
52
Q

Express rights

A
  1. Free interstate trade (section 92)
53
Q

Express rights

A
  1. Right to trial by jury for Commonwealth indictable offences(section 80)
54
Q

Express rights

A
  1. Right to acquisition of property on just terms (section 51(xxxi))
55
Q

Rights in the constitution can either be express rights or implied rights. What is meant by the term implied rights

A

Provide the public with some constitutional protection from the excessive power of the executive government and the parliament.

56
Q

Distinguish between express rights and implied rights

A

Express rights are clearly and explicitly outlined in the text of the Constitution. Implied rights, however, are not clearly outlined in the Constitution but are suggested or inferred in its text.

Legal unit 2 (3 decks)

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