Unit 1 Flashcards
1
Q
What is the role of individuals in achieving social cohesion and protecting the rights of
individuals?
A
Individuals help achieve social cohesion by abiding by the law and working together to challenge disharmony
2
Q
What is the role of laws in achieving social cohesion and protecting the rights of
individuals?
A
Laws help achieve social cohesion by providing guidelines for expectable behaviours and provides the sanction if someone infringes on an individuals rights.
3
Q
What is the role of the legal system in achieving social cohesion and protecting the rights of
individuals?
A
The legal system helps achieve this by creating the laws as well as sanctioning those who infringe on an individuals rights
4
Q
What are the principles of justice?
A
fairness, equality, access
5
Q
what is fairness?
A
Fairness refers to having impartial and just legal processes and hearings
6
Q
what is equality?
A
Equality refers to everyone being treated without advantage or disadvantage before the law
7
Q
what is access?
A
Access refers to being able to use the legal system to solve disputes, as well as to understand your rights.
8
Q
What are the characteristics of an effective law?
A
the law must be enforceable, reflect societies values, be stable, clear and understood, and it must be known
9
Q
the law must be enforceable
A
there must be a way to punish individuals when they break the law
10
Q
reflect societies values
A
people are more inclined to abide by the law if it reflects their beliefs and values
11
Q
the law must be stable
A
the law can not be constantly changing otherwise people will not be able to keep up with what the law is and are therefore, less inclined to follow it
12
Q
Must be clear and understood
A
a law must be written in a manner that that anyone can understand
13
Q
must be known
A
a law must be publicised in some ways because individuals can not know all laws.
14
Q
what is a legal rule?
A
a legal rule is created and enforced by legal authorities. A legal rule must be followed by all members of society and you will receive a legal punishment if you break the law
15
Q
what is a non-legal rule?
A
Non-legal rules are created by private individuals and groups and only a specific group of people need to follow it. If somebody breaks a non legal rule they will not receive a legal punishment and the police do not enforce these rules.
16
Q
what is social cohesion?
A
Social cohesion is the willingness of all members of a society work together to survive and prosper
17
Q
How does civil law protect the rights of individuals?
A
You have the right to be protected from false statements that might damage your reputation and the right to a promise made in a contract between 2 or more parties
18
Q
What is civil law?
A
civil law is the area of law that outlines the rights and responsibilities of individuals, groups and organisation in society. Civil law also regulates with private disputes.
19
Q
What is burden of proof (civil)
A
Burden of proof refers to the responsibility of the plaintiff to provide enough evidence to find the alleged defendant liable on the balance of probability
20
Q
standard of proof (civil)
A
Is the degree or extent in which the plaintiff has to prove to be found liable on the balance of probability
21
Q
purpose of civil law
A
to protect individuals rights, achieve social cohesion, provide an avenue to seek compensation, provide a means to seek compensation
22
Q
How does civil law achieve social cohesion
A
provides guidelines for acceptable behaviour so there is a standard within society. Without these guidelines the standard cannot be met therefore, abusing the rights of individuals.
23
Q
How does civil law provide an avenue to seek compensation?
A
individuals can seek compensation for a breach of civil law through courts, tribunals, dispute resolution bodies
24
Q
how does civil law provide a means to seek compensation
A
when a persons rights have been infringed, civil law provides a way to return the harm as far as possible back to the position they were in before the harm occurred.
25
types of civil law
negligence, trespass, defamation, family, contract, nuisance
26
what is breach?
breaking or failing to fulfil a duty or obligation
27
what is causation?
the direct relationship between one event and another event, where event 1 was the reason that event 2 happened and event 2 would not have happened without event 1
28
what is loss?
A plaintiff can only obtain a legal remedy if it can be proven they they suffered loss or harm.
29
types of loss
economic, property, personal injury, pain and suffering, loss of amenity (loss of enjoment of life)
30
what is limitation of actions?
The restriction on bringing a civil law claim after the allowed time
For all civil claims there is a time limit within which a wronged party can sue the wrongdoer. Once that time period has passed then the defendant can use the defence that the plaintiff is too late to obtain any remedy.
31
limitation of action-breach of contract
6 years
32
possible plaintiffs to a civil dispute
the aggrieved party, other victims, insures
33
what is an aggrieved party
is the person whose rights have been infringed and who has suffered loss.
34
what are other victims
a plaintiff can be a person who has indirectly suffered a loss or damage as a result of the actions of another party. eg. a person may suffer loss and damage as a result of the death of a family member.
35
what are insurers plaintiff
are individuals or companies that enter into an insurance policy with a person and under the policy the insurer agrees to provide insurance in certain circumstances. The insurance policy usually provides the insurer with the right of subrogation, the right of the insurer to act on the behalf, taking legal actions in their name
36
possible defendants
the wrongdoer, employers, person involved in the wrongdoing, insures
37
the wrongdoer
the individual or company that the plaintiff has sued that has directly caused them loss or damage.
38
employers
an employer of an employee who is the wrongdoer may become a defendant because of the principle of vicarious liability, meaning that somebody is held responsible for the actions of another.
39
person involved in the wrongdoing
a person may be involved in the wrongdoing if they encouraged the wrongdoing, directly or indirectly a party to the wrongdoing, conspired with others to cause the wrongdoing
this is known as accessorial liability meaning that a person can be held liable for the loss or harm suffered by another party because they were directly or indirectly involved in causing the harm or loss
39
person involved in the wrongdoing
a person may be involved in the wrongdoing if they encouraged the wrongdoing, directly or indirectly a party to the wrongdoing, conspired with others to cause the wrongdoing
this is known as accessorial liability meaning that a person can be held liable for the loss or harm suffered by another party because they were directly or indirectly involved in causing the harm or loss
40
insurer defendants
it may be possible for the plaintiff to sue the insurer of the person who has caused loss or damage/.
41
what is negligence
A type of tort that involves a breach of duty of care, causing loss or harm.
when a person is negligent in civil law the person has failed to take reasonable care that was due to another. A person is obliged to take care when it is reasonably foreseeable that other people could be harmed by their actions or omissions.
42
rights protected by negligence laws
Protects individuals right to be safe from harm- harm to the person or harm to their property
negligence aims to protect people from wrongful conduct by others, where a person acts recklessly or with complete disregard for another person
43
elements to establish negligence
duty of care, breach of duty of care, causation, injury, loss, or damage
44
what is duty of care
A person has the legal obligation to be cautious and careful keeping others in mind when doing anything that could potentially harm them.
45
a person owes a duty of care if...
the risk was foreseeable, the risk was significant or not insignificant, a reasonable person in the same circumstance would have taken precautions to eliminate any risk of harm
46
breach of duty of care
a breach of duty of care occurs when a person does not take all the care that they should. The duty is breached when someone fails to do what a reasonable person would have done.
To determine if a reasonable person would have done it:
the likely risk of harm, the likely seriousness of the harm, the burden of taking the precautions to avoid the risk of harm, the social utility (benefit or worth) of the activity that creates the risk of harm
47
causation
a plaintiff must prove that the injury or loss they suffered was caused by a breach of duty of care and that the loss would not have occurred if not for the duty of care being broken
48
What is loss?
a plaintiff can only seek a remedy through the law of negligence if it can be proven that they suffered injury, loss or damage (even if its minor). The injury, loss or damage can be physical, mental or damage to property
49
What is limitation of actions?
A limitation period is the time period in which a civil claim must be made
50
calculation of time
the start of the limitation periods for negligence claims depends on the type of injury suffered by the plaintiff:
general negligence claims- the date the loss or damage was suffered by the plaintiff
for actions involving disease or disorder- starts from when the plaintiff first knew they had the disease or disorder caused by the defendant
51
death or personal injury claims
the limitation period for death or personal injury is whichever expires first:
12 years from the date of the conduct of the defendant that caused the death or injury
3 years from the date on which the cause of action was discoverable
52
child abuse
in 2015 the Victorian Parliament passed legislation amended the limitation period for certain actions involving child abuse. The legislation removed limitation periods for child abuse to allow survivors to bring civil action regardless of the time that has passed since the abuse occurred.
53
possible defences to negligence
contributory negligence, ‘violenti non fit injuria’ (assumption of risk)
54
contributory negligence
contributory negligence is a formal defence to negligence that claims that the defendant contributed to the harm by the defendant. If the defendant can prove that the plaintiff is partly to blame for the harm done then the amount of damages will be reduced.
55
‘violenti non fit injuria’
‘violenti non fit injuria’ is Latin for ‘to a willing person injury is not done’ Meaning that the plaintiff accepted the dangers of a known and understood risk either expressively or by implication. This is voluntary acceptance of the risk of injury.
56
possible impacts of negligence on the plaintiff
loss of life, permanent physical incapacity, serious physical injury, emotional impact of the breach, loss of wages and livelihood, unemployment, effect on mental health
57
possible impacts of negligence on the defendant
loss of business- consequence of the publicity of the claim
public humiliation, physical injury- a result of contributory negligence, legal costs and remedy, need to sell assets- consequence of high damage award
58
common law development of negligence
common law established the tort negligence in the case Donoghue v Stevenson. The common law principle allows a plaintiff to take legal action on the grounds that a defendant did not act in a way to protect the interests of their ‘neighbour’
59
Statute law development of negligence
In Vic part x of the wrongs act is the main legislation that governs negligence claims.
60
What is actus reas?
An element of crime that refers to the guilty act committed
61
what is mens rea?
An element of a crime that refers to a guilty mind
62
How does criminal law promote social cohesion?
it defines and prohibits the types of behaviours that are unacceptable (crimes) and outlines the consequences (sanctions) for people who commit these behaviours.
63
What is a crime?
A crime is an act or omission that is against an existing law. harmful to individuals or punishable by law.
64
Purposes of criminal law
protect individuals, protect society, promote justice, protect property
65
relevant crimes to protect individuals
murder, manslaughter, rape
66
relevant crimes to protect property
trespassing, theft
67
relevant crimes to protect society
drug offences, terrorism
68
how does criminal law promote justice
Having the state enforce criminal law helps prevent victims of a crime, and their family and friends, from taking the law into their own hands and imposing their own punishment
68
how does criminal law promote justice
Having the state enforce criminal law helps prevent victims of a crime, and their family and friends, from taking the law into their own hands and imposing their own punishment
69
How does criminal law protect individuals
by establishing crimes and processes to deal with people who commit these crimes
70
how does criminal law protect property
Criminal law protects privately owned and public property. This includes protecting land and the environment, and personal property
71
how does criminal law protect society
protects the community as a whole by setting standards and making it clear what behaviour is not tolerated by the community and the legal system
72
what is the presumption of innocence?
The right of the accused to be presumed not guilty unless proven otherwise
they’re innocent until proven guilty beyond reasonable doubt
73
standard of proof criminal
To prove someone is guilty beyond reasonable doubt is the standard of proof.
So, for the accused to be found guilty, this standard must be met (or surpassed)
74
burden of proof criminal
It is the Prosecutions responsibility to prove that the accused is guilty beyond reasonable doubt
The Prosecution holds the burden of proof
75
elements of a crime
actus reas and mens rea
76
What is the age of criminal responsibility
the minimum age a person must be in order to be charged with committing a crime
77
why is there an age of criminal responsibility
There is a minimum age as some people are considered too young to form the intention to commit a crime
78
what is the minimum age of criminal responsibility
under 10 years of age
79
can children aged 10-13 be charged with a crime
they can be charged if the Prosecution can prove against doli incapax and knew that their actions were wrong
80
What is doli incapax
doli incapax means that no child in the age of 10-13 and under can not form a mens rea and know hwat they are doing is wrong
81
Types of offenders or victims
cyber crime, hate crime, organised crime, juvenile crime, white collar crime
82
What are indictable offences
Serious crimes generally heard and determined in the higher courts (county and supreme) before a judge and jury
83
what are summary offences
minor crimes heard and determined in the Magistrates’ Court by a magistrate eg speeding
84
example of indictable offence
murder, rape
85
example of summary offences
speeding, parking fines
86
when can an indictable offence not be heard summarily
if it is punishable by more than 10 years imprisonment or a fine greater than 1200 penalty units or without the consent of the accused
87
why would the accused consent to having their indictable offence charges heard summarily
These hearings are generally cheaper and quicker
An accused may receive a lesser punishment - there is a limit on the maximum term of imprisonment a magistrate can impose (two years for a single offence and five years for multiple)
88
what is a principle offender
Is the person who directly committed the crime
89
how is someone involved in a crime
If they directly help plan and encourage someone to commit a crime or if they help and encourage knowing another crime will have to occur or make an agreement with someone to commit a crime
90
what is an accessory
a person who knowingly assists another person who has committed a serious indictable offence after the fact to avoid being prosecuted.
91
types of unlawful homicide
murder, manslaughter, infanticide, child homicide, culpable driving causing death.
92
what is murder
the unlawful homicide of another human being with malice aforethought who is over the age of criminal responsibility and of a sound mind
93
what is malice aforethought
intention to kill or cause serious injury
94
elements of murder
the killing was unlawful, the victim was a human being, the accused was over the age of discretion, the accused caused the victims death, the accused was of a sound mind, there was malice aforethought
95
possible defences to murder
self defence, mental impairment, duress, unwilling intoxication
96
common law role in developing murder
the definition and elements are found in common law
97
statute law role in developing murder
the penalty and defences to murder are found in section 3 Crimes Act 1958 (Vic)
98
impacts of murder on the victim and family
loss of life, disruption to family life, trauma, grief and loss, funeral costs, loss of household income, loss of trust in law and order
99
impacts of murder on the community
cost of publicly funded medical treatment, need for coronial services, increased need for police, fire and emergency services, loss of workplace productivity
100
impact of murder on the offender
guilt or shame, legal costs, negative influences as a result of exposure to prison
101
Sources of law
statute law and common law
102
Statutory interpretation
refers to when the courts have to give meaning to laws in cases like Deing v Tarola
103
precedent
a legal principle established in a legal case and is followed by the courts in cases when teh material facts are similar
104
types of precedent
binding or persuasive
104
features of the relationship between parliament and the courts
ability to influence parliament, statutory interpretation, codification, abrogation
105
codification
When they make laws that confirm a precedent established in court.
106
abrogation
when parliament changes or overrides common law.
107
ability to influence parliament
courts are able to influence changes in statute laws through comments (obiter dictum) made during cases.
108
Reasons for Court hierarchy
specialisation, appeals, doctrine of precedent, administrative convenience
109
specialisation
allows courts to develop expertise in dealing with the types of cases that come before them
each court has a unique jurisdiction they can specialise in the types of cases that they hear
110
appeals
allows for the opportunity to appeal lower court decisions to a higher court.
111
doctrine of precedent
precedent is the process of law making in courts, which relies on a higher court making a decision which is then binding on the lower courts.
parties can use this to help predict a likely outcome of a case
112
administrative convenience
there are more Magistrates' Courts in the state then county or supreme. by having a hierarchy less serious cases can be heard in the Magistrates' and more complex cases to be heard in higher courts.
Allows for efficiency and convenience in the way cases are heard
113
Structure of Victorian Parliament
bicameral structure- two houses
the governor (kings representative)
The legislative council (upper house)
The legislative assembly (lower house)
114
structure of commonwealth parliament
bicameral structure- two houses
governor
senate
house of representatives
115
house of representatives
represents the people, introduces and passes bills reviews passed by the Senate
There is representative (or seat) for each electorate in Australia – electorates are divided up by population
Government is formed here (i.e. the party with the majority of seats)
Currently 151 seats
Representatives are elected for three years
116
the senate
Represents the states and territories, introduce and pass bills, and review bills passed by the House of Representatives
76 Senators – 12 for each state and two for each territory
State senators are elected for six years, and territory senators for three
Often called the house of review and the states’ house
117
legislative assembly
introduces and passes bills, reviews bills passed by the Legislative Council
Government is formed here (i.e. the party with the majority of seats)
Currently 88 seats – one for every electoral district
Representatives are elected for four years
118
legislative council
Introduce and pass bills, and review bills passed by the Legislative Assembly
40 seats – five members per regions
Elected for four years
