The Legal Maze

Foreword by Justice

Kenneth Hayne

8th edition

Jim OuliarisBianca CrawfordLeanne NewsonJules Aldous

The Legal Maze VCE Units 1 & 2

ISBN: 978 1 4202 3259 2

ii The Legal Maze

First edition published 1994 (reprinted once) Second edition published 1997 (reprinted twice) Third edition published 1999 (reprinted three times) Fourth edition published 2002 Fifth edition published 2005 by VCTA Publishing (reprinted twice) Sixth edition published 2008 Seventh edition published 2010 This eighth edition published 2013macmillan education australia pty ltd 15–19 Claremont Street, South Yarra 3141Visit our website at www.macmillan.com.auAssociated companies and representatives throughout the world.Copyright © Jim Ouliaris and Bianca Crawford 2013All rights reserved. Except under the conditions described in the Copyright Act 1968 of Australia (the Act) and subsequent amendments, no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the copyright owner.Educational institutions copying any part of this book for educational purposes under the Act must be covered by a Copyright Agency Limited (CAL) licence for educational institutions and must have given a remuneration notice to CAL. Licence restrictions must be adhered to. For details of the CAL licence contact: Copyright Agency Limited, Level 15, 233 Castlereagh Street, Sydney, NSW 2000. Telephone: (02) 9394 7600. Facsimile: (02) 9394 7601. Email: [email protected] Library of Australia Cataloguing-in-publication entryAuthor: Ouliaris, Jim.Title: The legal maze VCE units 1 & 2/Jim Ouliaris and Bianca Crawford.Edition: 8th editionISBN: 978142022592 (pbk.)Target Audience: For secondary school age.Subjects: Law–Australia–Textbooks.Law–Australia–Study and teaching (Secondary)–VictoriaOther authors/contributors: Crawford, Bianca; Newson, Leanne; Aldous, JulesDewey number: 349.94Publisher: Lucinda Joura Project editor: Eve Sullivan Editor: Susan Keogh Illustrators: cartoons by Paul Lennon Cover and text designer: Dim Frangoulis Photo research and permissions clearance: Jan Calderwood Typeset in ITC Slimbach Book 9.5/11.5pt Cover image: istockphoto.com./Hande Guleryuz Yuce Indexer: Karen GillenPrinted in MalaysiaInternet addresses: At the time of printing, the internet addresses appearing in this book were correct. Owing to the dynamic nature of the internet, however, we cannot guarantee that all these addresses will remain correct.Warning: It is recommended that Aboriginal and Torres Strait Islander peoples exercise caution when viewing this publica-tion as it may contain images of deceased persons.

ISBN: 978 1 4202 3259 2

ContentsForeword ............................................................................................................... viiIntroduction .......................................................................................................... viii

Unit 1 Criminal law in action

Chapter 1

Law and society 2The legal maze ......................................................................................................... 4The legal system ...................................................................................................... 4What is the difference between legal and non-legal rules? ........................................... 8Why do we need laws? ............................................................................................. 9Characteristics of an effective law ............................................................................11Criminal law and civil law ...................................................................................... 12Case file Driving over the speed limit ................................................................................18

Chapter 2

Law-making: parliament and subordinate authorities 24The sources of law ................................................................................................. 26Parliament ............................................................................................................. 26The structure of parliament..................................................................................... 28What does parliament do? .......................................................................................31Case file Changing the culture of Melbourne’s party-goers ............................................39Delegated law-making .............................................................................................41Legislation and the role of courts ............................................................................ 47Strengths and weaknesses of parliament as a law-maker .......................................... 49

Chapter 3

Criminal law 56The need for criminal law ....................................................................................... 58Sources of criminal law .......................................................................................... 60Principles of criminal liability ................................................................................. 60Types of crimes ...................................................................................................... 63Case file Crime statistics ......................................................................................................64Case file Homicide profiles .................................................................................................72Case file Knife-related crime ...............................................................................................81Defences to crimes ................................................................................................. 89

Chapter 4

Police powers and individual rights 100The role of the police............................................................................................. 102Police powers ........................................................................................................104Right to silence ..................................................................................................... 105Police questioning .................................................................................................106Searches ............................................................................................................... 107Making an arrest ...................................................................................................108Custody .................................................................................................................111Police cautioning ....................................................................................................111Fingerprints .......................................................................................................... 112Forensic procedures ............................................................................................... 113Case file Murder investigation ..........................................................................................115Identification parades ............................................................................................ 118Telecommunications interception ........................................................................... 118

ISBN: 978 1 4202 3259 2

iv The Legal Maze

Chapter 5

Sanctions and the effects of crime 124Criminal sanctions 126Types of criminal sanctions 126Case file Corrections statistics: quick reference 128Case file Prison populations: an international comparison 140Effectiveness of criminal sanctions 143Case file Are our courts soft on crime? 146Impact of crime 150Victims of crime 150Victims Support Agency 153Victim impact statements 153Effects on the community 156

Chapter 6

The courts and crime 170The court hierarchy 172Case file Family Violence Court Division 176Who’s who in a criminal case 182Case file Careers in the legal system 185

Chapter 7

The criminal trial 194The Victorian Charter of Human Rights and Responsibilities Act 2006 196The adversary system of trial 199Strengths and weaknesses of the adversary system 202Pre-trial criminal procedures 203The criminal trial 208The jury system 210Advantages of the jury 214Disadvantages of the jury 215Jury offences 215Case file Focus on jury directions 216Difficulties in gaining access to the law 219Legal aid services 221Increased community awareness 224Case file Unequal before the law 225

Unit 2 Issues in civil law

Chapter 8

The courts and civil law 236The need for civil law 238Law-making by judges and courts 239Case file The snail in a bottle and an embarrassing itch 242Case file Finders keepers? 245Interpretation of legislation and precedent 248

Chapter 9

Civil disputes 254Civil law 256The law of torts 256Case file Frivolous? Believe it or not . . . 261Case file Negligence in Australia 262Case file Defamation online: crossing the boundaries 270

ISBN: 978 1 4202 3259 2

Contents v

Chapter 10

Civil law in action 284The court hierarchy and civil cases 286A civil court action 289Civil trials 291Case file Lights out at Beacon View 292Remedies in civil actions 297Enforcement of civil orders 299Dispute resolution methods 299Difficulties in gaining access to the law 304

Chapter 11

Focus on contract law 312Contract law 314Terms of a contract 318

Chapter 12

Focus on family law 324What is a family? 326Marriage 327Domestic relationships 333Case file I do: a time for recognition? 335Divorce 340Violence in family relationships 352Child abuse 358Causes of child abuse 359The law relating to child abuse 359Mandatory reporting 361Case file A case for change 362Adoption 368

Chapter 13

Focus on consumer protection laws 378Rights and responsibilities of consumers 380Consumer protection 380Consumers and common law 382Credit and the National Consumer Credit Code 382Consumer responsibilities 383Consumer dispute settlement methods 383Consumer awareness 385Case file Shopping on the internet 385

Chapter 14

Focus on wills and inheritance 390Laws relating to wills and inheritance 392Dying intestate 392Making a will 396Death of a testator 402Role of the executor 403Wills and inheritance 404

Chapter 15

Focus on sport and the law 408Sport and the law: more than a game 410Contracts and sport 410Law-makers and sport 417Sporting tribunals and courts 420Sporting injuries and compensation 423Sporting competitions and criminal charges 427Discrimination and sport 427Drugs in sport 433Sport and sponsorship 436

ISBN: 978 1 4202 3259 2

vi The Legal Maze

Chapter 16

Focus on tenancy law 440Residential Tenancies Act 442Types of tenancy 442Commencing a tenancy 443Tenancies outside the Act 444Discrimination 444During a tenancy 445Case file Fair go for rural tenants 447VCAT Residential Tenancies List 449Caravan parks 450

Chapter 17

A question of rights: a case study approach 454What are human rights? 456International human rights 456Human rights in Australia 460Charter of Human Rights and Responsibilities 462Rights, violations and individuals: bringing a case to court 465Case study 1: Indigenous Australians’ rights—Mabo 465Case study 2: Right to a fair trial and legal representation—Dietrich 470Case study 3: Right to vote—Roach 473Case study 4: Rights in marriage—R. v. L 477

Glossary 482Publisher acknowledgments 488Index 492

ISBN: 978 1 4202 3259 2

ForewordThe legal system is a defining characteristic of Australian society. It is the framework for Australia’s system of government and for the organisation of our society. It forms part of our history. It provides mechanisms for how we address the challenges of the future.

For students and practitioners of law, the mechanics of the legal system can be difficult and complex. That is hardly surprising. The problems the legal system deals with are difficult and complex. It is the difficulties and complexities that provide both the law’s challenge and its fascination.

But what gives the subject its central importance, and its never-ending interest, is that law is about society and about people. The achievements and disappointments of the legal system record our efforts, as a society, to maintain a nation based on ideals of justice and the rule of law.

Learning about the law and its role in society is very important to the individual student and to society as a whole. I offer my best wishes to all students of the law.

K. M. Hayne, ACJustice of the High Court of AustraliaCanberra

Kenneth Hayne was appointed to the High Court of Australia in September 1997. He graduated with degrees in Arts and Law from the University of Melbourne and as a Bachelor of Civil Law from the University of Oxford. Elected Rhodes Scholar for Victoria in 1969, he joined the Victorian Bar in 1971, and was appointed Queen’s Counsel for Victoria in 1984. Justice Hayne was appointed a judge of the Supreme Court of Victoria in 1992. He practised in State and Federal courts principally in commercial, constitutional and general civil matters. Justice Hayne was appointed a Companion in the General Division of the Order of Australia in 2002.

Author acknowledgmentsTo my family—Dimitra, Michael and Labrini—without your love, support, patience and sacrifice this book would not be possible. To the legal eagles at Canterbury Girls’ who continue to challenge me to be an effective Legal Studies teacher, a big thanks!Jim OuliarisA big thank you to my husband Ashley, for his unwavering support and encouragement during the writing of this book and my work in general. To my family, I thank you again for your help and to my fabulous students at Haileybury – you make my job very easy!Bianca Crawford

Jules Aldous and Leanne Newson acknowledge the work and creative input of Grant Aldous into previous editions.

ISBN: 978 1 4202 3259 2

viii Introduction

IntroductionAbout this bookThis eighth edition of The Legal Maze has been revised and updated to reflect the Victorian Curriculum and Assessment Authority (VCAA) VCE Legal Studies Study Design. It deals with all areas of study, learning (or unit) outcomes, key knowledge and skills for each unit.

The book expands on the course in vital and exciting ways. Recent changes in the law have been incorporated and new case files have been included to highlight contemporary legal issues. The case files give teachers flexibility in their approach by providing:● extended case studies as examples of issues that can be discussed in class● case study material that can be used as the basis for assessment tasks.

It is not necessary to study the details of all the case files. Teachers should use the case file materials for their own courses stuctures, or as an extension for students within the class.

Numerous types of activities are integrated throughout the text including Check your understanding, Apply your understanding, case studies and Thinking critically and creatively.

Key terms are listed at the beginning of each chapter and highlighted. They are also often displayed in the margin where they are first mentioned in the text. A glossary of all key terms is included at the end of the book. Text summary notes have been included in the margin to assist students in making revision notes.

The book is not a course of study. Although a number of activities have been incorporated, students are not expected to complete every task. They need to look beyond the textbook into the real world, their own community, for further examples of the law in operation.

To the teacherThe Legal Maze covers the requirements of the revised Legal Studies Units 1 and 2 Study Design issued by the VCAA. Both units provide students with an overview of the legal system with specific reference to criminal law and civil law. At the beginning of each chapter we have identified the learning intention for each lesson. At the start of every lesson place up on the board your learning intentions, that is:● what your intention is for this lesson: what do you want students to learn?● why they should learn it in the first place and do they understand the success

criteria?● what you will cover.● How you check for understanding or how students will recognise when they have

succeeded.Other ways to do this may be to place the learning intention on the worksheet. Learning intentions assist students in two ways:● students to take more responsibility for their own learning● students know and understand what they are going to learn

The textbook draws from recent examples and provides a range of activities integrated throughout each chapter. The VCAA Study Design instructs teachers to select assessment tasks from the list within each outcome. There are many examples of activities integrated in case files or various ‘Apply your understanding’ activities where students can apply their knowledge. The ‘Check your understanding’ activities include tasks that test a range of knowledge and skills where students can assess their comprehension and understanding of an area of study.

Articles in this book without a byline were written by the authors in conjuction with a journalist.

Apply your Understanding includes a range of higher order thinking tasks

Teacher clarity and learning intent

ISBN: 978 1 4202 3259 2

Introduction ix

The VCAA and Legal Studies exams have moved towards questions that test analysis and evaluation. A range of activities cover this in ‘Apply your understanding’. Each chapter ends with ‘Thinking critically and creatively’, a range of innovative activities designed to extend students’ understanding of the topic and test their overall knowledge.

The Legal Maze has made excellent use of news articles and related media to support a clear understanding of the issues related to these units and provide examples that demonstrate the concepts. Glossaries, tables, images and related statistics are provided throughout the text as valuable resources that enable students to organise content covered throughout the year. The Legal Maze also makes effective use of relevant cases and legislation to assist students in understanding the theory.

To the studentCongratulations on choosing VCE Legal Studies. We know you will enjoy learning about the legal issues. Your textbook, The Legal Maze, will give you a comprehensive guide to the law using a range of recent examples, case studies and changes. Each chapter will provide you with activities that not only provide interest but that also challenge your understanding of the nature of criminal and civil law.

This textbook can also be used as a useful guide to promote further study. It provides many resources and web links as a stepping stone to examine issues further.

OutcomesUnit 1 focuses on the criminal justice system. This unit provides an overview of the legal system and a detailed examination of aspects of criminal law. Activities provided throughout this section reflect the case study approach consistent with the requirements of the study design.

This book satisfies the VCAA Study Design outcomes in Unit 1: Criminal law in action:

● Outcome 1—On completion of Area of Study 1: Law in society, the student should be able to explain the need for effective laws and describe the main sources and types of law in society.

● Outcome 2—On completion of Area of Study 2: Criminal law, the student should be able to explain the key principles and types of criminal law, apply these key principles to relevant cases, and discuss the impact of criminal activity on the individual and society.

● Outcome 3—On completion of Area of Study 3: The criminal courtroom, the student should be able to describe the processes for the resolution of criminal cases, and discuss the capacity of these processes to achieve justice.

A different approach is required in Unit 2 of the course. Civil law and procedure must be studied by all students and at least one area of law must be selected for study. In studying and completing this unit, students analyse contemporary law, as well as assess its ability to reconcile conflicting attitudes in promoting social cohesion.

There are four VCAA Study Design outcomes in Unit 2: Issues in civil law:

● Outcome 1—On completion of Area of Study 1: Civil law, the student should be able to explain the principles of civil law, law-making by courts, and elements of torts, and apply these to relevant cases.

● Outcome 2—On completion of Area of Study 2: The civil law in action, the student should be able to explain and evaluate the processes for the resolution of civil disputes.

● Outcome 3—On completion of Area of Study 3: The law in focus, the student should be able to explain one or more areas of civil law, and discuss the legal system’s capacity to respond to issues and disputes related to the selected area(s) of law.

● Outcome 4—On completion of Area of Study 4: A question of rights, the student should be able to describe an Australian case illustrating rights issues, and discuss the impact of the case on the legal system and the rights of individuals.

Using the internetThe symbol at left refers to relevant internet resources. Students are encouraged to use this technology in their learning and research activities.

Thinking critically and creatively can be used to summarise each chapter

What you should aim to achieve

This icon is used to refer you to relevant internet resources.

ISBN: 978 1 4202 3259 2

x The Legal Maze

AssessmentThere are three outcomes in Unit 1: Criminal law in action and there are four outcomes in Unit 2: Issues in civil law. It is envisaged that all areas of study and assessment will encompass these outcomes. Individual Legal Studies teachers have considerable choice on how to report levels of achievement as this is based on school policy. Teachers may use grades, descriptive statements or other indicators, providing students are aware of the nature of the task before completion. When determining assessment for Units 1 and 2 it is important create student activities and tasks that incorporate both the key knowledge and key skills listed for each outcome. The elements of key knowledge and key skills should not be assessed separately.

Students learn in a variety of ways and teachers should use a range of tasks to allow students the opportunity to demonstrate their knowledge and skills. These assessment tasks must be completed primarily in class and within a limited timeframe and should be a part of the regular teaching and learning program.

Students’ performance should be based on a selection of assessment tasks over a semester and throughout the year. If choice is provided then the teacher must ensure that the tasks are of comparable scope and demand. A wide variety of assessed tasks can be used for Units 1 and 2. Teachers should also read the VCAA Legal Studies Course outline.

The Legal Maze Teacher ResourcesDesigned to save time and improve student outcomes this resource is a comprehensive guide to The Legal Maze, seventh edition. It incorporates a range of practical and easy-to-use teacher and student worksheets, crossword puzzles, word searches, guidelines for organising mock trials in classrooms and a list of important law-related websites.

The teacher resources, developed for both beginning and experienced teachers, were created by the Head of Curriculum at Canterbury Girls’ Secondary College and accredited De Bono trainer, Jim Ouliaris.

Each teacher resource has been designed with the VCAA Legal Studies Study Design in mind. ● a legal studies teaching calendar of all areas of study, including recommended

assessment tasks

● a summary of outcomes and course topics

● worksheets to support student learning

● current examples and case studies with student activities

● activities to engage students in higher order thinking

● summaries of legal content for revision.

1Criminal law in action

ISBN: 978 1 4202 3259 2

Chapter1

Law and societyThis chapter will assist you to identify the need for rules and to recognise the significance of law in your life. After reading the chapter and undertaking the activities, you should be able to demonstrate the following key knowledge:

● the difference between legal and non-legal rules● the need for laws● the characteristics of an effective law● the distinction between criminal law and civil law.

Characteristics of an effective law

KnownUnderstoodAccepted

StableConsistentEnforced

Accessible

The need for rules

Criminal law Civil law

Legal rules (laws) Non-legal rulesClubs

AssociationsSchoolsFamiliesFriends

Types of laws

Functions of rules

Reflect values

Regulate conduct

Resolve disputes

Provide for change

ISBN: 978 1 4202 3259 2

Key terms civil law Laws regulating the behaviour of private individuals

criminal law Laws concerned not only with the rights of individuals directly involved but also with the welfare of society as a whole

legal rules Laws created by institutions within the legal system and enforced by the legal system

non-legal rules Rules established within a group but not laws generally enforceable in the community

norms Social expectations within social groups

social cohesion Where members of a community live together with peace, order and harmony by recognising that all people have rights and responsibilities and providing a means to resolve conflicts

ISBN: 978 1 4202 3259 2

4 The Legal Maze

the legal mazeA maze is a type of puzzle made up of an intricate web of passages. The challenge of a maze is to work your way through it and find the exit. There are many parallels between a maze and the legal system. In a maze the individual is presented with a number of paths to follow. At each turn there are decisions to be made. Which path to follow? Which way to turn? The legal system can be seen in the same way. We call this complex system ‘the legal maze’.

The law sets out basic rights and responsibilities that provide us with pathways through this maze. Whaetever path we choose, there will be times when we are faced with conflicts. We will need to make decisions about the type of action we should take. We will be presented with a range of responsibilities—driving a car, leaving home, starting work, renting a home, getting married—all of which have legal implications.

To work our way through the legal maze we need to understand our rights and responsibilities, the different roles of the courts and tribunals, criminal law and civil law, sanctions and remedies.

the legal systemThe decisions we make and the actions we take in the legal system have very real consequences and we have to live with them. For this reason it is important to have a basic understanding of our rights and responsibilities, and of how the legal system functions so that we can make the right decisions when it is necessary.

Non-legal rulesRules can be either legal rules (laws) or non-legal rules. Non-legal rules apply to a group of individuals, but not to society as a whole. The members of the group agree to be bound by the rules, which do not have the force of law. The easiest way to understand this is by looking at some examples.

As a toddler, you became aware of what was safe or dangerous or right or wrong through the rules set down by your parents. These rules may have been enforced by praise for ‘good’ behaviour or some form of punishment for ‘bad’ behaviour. You quickly learnt that there were consequences that resulted from breaking rules.

Even though you are now older, your family probably still has some household rules that you are expected to follow. These rules may relate to the time you must be home at night or to telling someone where you are going when you go out. Household rules are rarely written down but they are binding on individual members of the family. Although these rules may be important for the smooth functioning of the family, they are not legal rules.

All sporting and non-sporting games have rules. Sometimes the rules of a game may be quite complex and written down in a rulebook or code. These clearly defined rules set out the type of action individual players may take and how the winner is eventually determined.

Churches and other institutions have rules that establish the expected behaviour of individuals. For instance, churches establish moral or religious codes of behaviour. These rules can guide us in making a decision about what is right or wrong.

Schools also have written rules setting out the expected behaviour of students. These rules may relate to the time classes start, behaviour in class or the type of uniform worn. Your school may also set punishments that will be imposed if you do not abide by the rules.

Laws set out our basic rights and responsibilities.

Rules can be either legal rules or non-legal rules.

Non-legal rules apply to a particular group but not to society as a whole.

ISBN: 978 1 4202 3259 2

Chapter 1 Law and society 5

Excerpts from the Referees’ code of conductA Code of Ethics and Conduct is to provide members with an indication of the standards expected. These include:

1 You shall carry out your duties as a referee without fear or favour, and maintain the highest standards of integrity and honesty.

2 You will continually be observed and judged, even when away from the immediate vicinity of clubs or grounds. Conduct yourself with dignity, and do not act in such a manner as to bring yourself, your colleagues, or Football Federation Victoria into disrepute.

3 Maintain your best at all times, on the field, at training, at meetings, socially. Standards of conduct of anything less are self-defeating and unacceptable.

4 Ensure that you are at the expected level of fitness to fulfil your duties at the required standard.

There are also rules of social behaviour. These rules set down the way people are expected to cooperate in certain situations. They are usually developed by custom and non-legal rules. The examples in this section are of non-legal sets of rules: a code of conduct for soccer referees and the AFL Coaches’ Code of Conduct.

Non-legal rules are often a very strong influence on behaviour, although they may vary from one group to another or change with time. For example, rules of etiquette (particularly those concerned with eating) are well developed in most cultures. It may be that within your group of friends there are rules about supporting each other or keeping in contact. These rules are called norms—the normal, expected way of behaving that is understood by the group.

5 Ensure that your knowledge of the laws and rules of competition is up-to-date and thoroughly understood, including any recent amendments.

6 Allow sufficient time to properly meet your appointment (i.e. arrive a minimum of 45 minutes prior to the scheduled start of the game).

7 Limit your comments to fact, not opinion, when dealing with club officials, players, etc. Opinions will be misinterpreted and misconstrued, and rebound in a way that you did not intend.

Source: Refereeing Members’ Code of Ethics and Conduct, Football Federation Victoria

The referee hands out a yellow card during the round three A-League match between Melbourne Victory and Adelaide United, Etihad Stadium, 2012.

ISBN: 978 1 4202 3259 2

6 The Legal Maze

An umpire awards a controversial free kick to Michael Johnson of the Fremantle Dockers and the Essendon Bombers at Patersons Stadium, Perth, April 12, 2013

Excerpts from the AFL Code of Conduct for CoachesI understand that as an integral component of my accreditation, I must maintain a standard of behaviour and conduct in the best interests of the game and the players/staff in my care. In representing myself in an honest manner, and without bringing the coaching profession or the Game into disrepute, I will endeavour to uphold the following to the best of my ability:

1 I will respect the rights, dignity and worth of all individuals within the context of my involvement in Australian Football, by refraining from any discriminatory practices including, but not limited to, on the basis of race, religion, gender, ethnic background, special ability/disability or sexual orientation, preference or identity.

2 I will abide by and teach the AFL Laws of the Game and the Rules of my Club and League/Association.

4 I will be supportive at all times and I will refrain from any form of personal or physical abuse or unnecessary physical contact with the players in my care.

8 In recognising the significance of injury and sickness, I will seek and follow the physician’s advice concerning the return of injured or ill players to training

9 I will endeavour to keep informed regarding sound principles of coaching and skill development, and of factors relating to the welfare of my players.

10 I will at all times display and teach appropriate sporting behaviour, ensuring that players understand and practise fair play.

11 I will display and foster respect for umpires, opponents, coaches, administrators, other officials, parents and spectators.

12 I will ensure that developing players are involved in a positive environment where skill learning and development are priorities and not overshadowed by a desire to win.

13 I reject the use of performance-enhancing substances in sport and will abide by the guidelines set forth in the AFL Anti-Doping and Illicit Drugs policies.

Source: AFL Coaches’ Code of Conduct

ISBN: 978 1 4202 3259 2


Apply your understanding Group work Non-legal rulesIn groups of three or four, copy and complete the following table of non-legal rules. Identify three rules in each category.

Category of rules

Who must obey the rules?

Who makes the rules?

Who enforces the rules?

Who interprets the rules?

Family rules

Sports rules (e.g. basketball)

Restaurant rules (etiquette)

School rules

Peer rules (friends)

Other rules (e.g. social club, dance, church, good manners)

Legal rulesLegal rules can be expressed as laws. Laws assist in defining our rights and responsibilities. By establishing our rights, the law ensures that all individuals are free to act. By establishing our responsibilities, the law imposes limits on the actions of individuals that may infringe upon the rights of others. Defamation laws are a good example of laws that try to balance the right to freedom of speech with the responsibility to ensure that public statements do not damage the reputations of others.

Legal rules include criminal law and civil law.When thinking about the term ‘law’, most people identify examples of criminal law.

Articles in newspapers or programs on television give you some understanding of criminal law. Crimes such as murder, theft or rape are widely reported by the media but the law is not only concerned with criminal behaviour. The law also deals with other aspects of our relationships with each other. For example, civil law deals with the agreements made between individuals (contract law) and with ownership of property. You may have heard of cases whereby a person may go to court to obtain compensation for injuries suffered as a result of another person’s carelessness. This is an area of civil law known as negligence. There are also family laws that govern how and when people may marry or how and when people may divorce.

ISBN: 978 1 4202 3259 2

8 The Legal Maze

What is the difference between legal and non-legal rules?

All rules are concerned with establishing codes of behaviour for people. They do this in three ways.● Rules may demand that we behave in a certain way. For example, school rules may

compel all students to wear a uniform. Similarly, legal rules can compel us to behave in a certain way. For example, road laws state that we must drive on the left-hand side of the road.

● Rules may place restrictions on our behaviour. For example, the rules in your family may state that you have to be home by a set time at night. Similarly, legal rules can restrict the behaviour of individuals in the community. For example, the traffic regulations set speed limits that motorists are expected to observe.

● Rules may prohibit certain types of behaviour. For example, some religions may prohibit work on the Sabbath or holy day. Legal rules also prohibit behaviour that may be considered dangerous to others. For example, the law prohibits most forms of violence.

There are a number of important differences between the operation of legal and non-legal rules. These key differences are found in the answers to the questions in the table below.

Apply your understanding Group work Legal rulesIn groups of three or four, copy and complete the following table of legal rules. Identify three rules in each category.

Category of rules





Road safety

Trespass

Individual rights

Homicide

Marriage and divorce

Other rules

ISBN: 978 1 4202 3259 2


1.1 Differences between legal and non-legal rules

Legal rules Non-legal rules


Legal rules deal with the conduct of individuals in society. Legal rules apply to all members of the community.

Non-legal rules apply to select groups in the community. For example, the rules of a sporting club apply only to the members of the club. We can decide to be part of the group and to abide by its rules, or we can opt out.


Legal rules (laws) can only be made by four groups: parliaments, subordinate authorities, local councils and courts.

Individuals or groups (such as parents, teachers, the church or a team captain) make non-legal rules. Sometimes these groups can be quite formal: for example, sporting bodies, such as the Australian Football League.


The consequences of breaking legal rules may be the imposition of a sanction, such as imprisonment or a Community Corrections Order. If we violate another person’s civil rights we may be required to pay damages.

Legal rules are enforced by the court system or by tribunals. Law enforcement agencies and the courts enforce criminal laws. When a conflict occurs between individuals concerning their rights under civil law, a court or a tribunal may be asked to resolve the dispute.

Usually we obey rules because we know that if we break a rule there will be unpleasant consequences. Perhaps the most hurtful consequence of breaking a rule is to be ostracised or socially embarrassed.

Courts do not enforce non-legal rules. Sporting clubs, for example, may set up their own decision-making bodies to resolve disputes. These bodies do not have the same powers as legal courts and tribunals.


The meaning of a legal rule can only be interpreted by a judge or magistrate in a court, or by a member of a tribunal.

Non-legal rules can be interpreted by a variety of people. For example, the umpire formally interprets the rules of a netball game. The rules of a game of marbles may be informally interpreted by the group playing the game.

Why do we need laws?The main function of law is to maintain social cohesion; in other words, having a community where people are able to live with each other in a peaceful manner. The law enables us to live together by recognising our rights and those of others. The law places responsibilities on individuals to ensure that their actions don’t hurt others. The law also provides ways to resolve disputes when they do happen.

For the law to work, we need organisations with the authority to make the law. We also need ways of ensuring that people obey it. The different bodies and procedures developed by our society to create and enforce the law are part of what we call the legal system. A legal system is a system of rules made by recognised bodies or developed through recognised means, and enforced in a manner acceptable to the community.

Functions of the lawThe main function of the law is to provide a framework in which the community can exist in freedom and harmony. At its most general level, the law defines clearly the kind of community the majority of people want.

The law reflects community valuesThe law recognises the political values of the community. In Australia, the law requires that we are governed by democratically elected parliaments. The law also sets out the powers to be exercised by each of these parliaments.

Laws enable us to live together by recognising our rights and providing a means to resolve conflicts.

Laws reflect the values of the community.

ISBN: 978 1 4202 3259 2

10 The Legal Maze

The law reflects the social and moral values of the community. For example, the values that the community places on the ideals of equality are recognised in our anti-discrimination laws.

Laws also reflect the economic values of a community. Laws control the conduct of businesses, which to some extent ensures the freedom of the marketplace. Laws attempt to ensure that trading is generally carried out cooperatively. Laws provide that individuals are treated fairly in their dealings with others. For example, the Fair Trading Act 1999 (Vic) establishes rights of consumers. In recent times the law has moved into areas such as changes to technology and protection of the environment.

The law establishes codes of conductTo achieve a peaceful and cooperative community, the law needs to set down boundaries of acceptable conduct. Many specific laws are made to guide people’s behaviour. These specific laws include both criminal and civil law. For example, criminal law prohibits specific acts, such as murder, theft and rape.

The law resolves disputesThe law must establish ways to resolve disputes when they arise. It is the role of courts and tribunals to interpret and apply the law. These bodies operate with the aid of other organisations, such as the police. Laws have been developed to describe how the courts will carry out their functions and, where a criminal offence has been committed, the law lays down the sanction that may be appropriate.

The law provides for changeFinally, laws need to be able to meet the changing needs of society. The types of laws we have today are very different from those that existed early last century. For example, the motor car was a novelty then and there were few laws to regulate who could drive a car or how fast. Today the motor car is the main form of transport throughout Australia. As a result of the increased number of vehicles, we need a number of laws to govern their use, their ownership, and even their impact on society.

Laws set out the boundaries of acceptable behaviour.

Laws provide the means to resolve disputes.

Laws provide for peaceful change.

Apply your understanding Class discussion Values and the lawThere have been a number of changes to the law recently. Identify the type of value (social, moral, economic, political, technological or environmental) in the following examples. Discuss and justify your responses to the class.

Change to the law Value(s)

Smoking is no longer permitted in pubs and clubs

Cyberstalking on the internet is illegal

Under hoon laws, drivers’ vehicles could be impounded, forfeited or destroyed if they were charged with dangerous driving

Water and energy conservation assist us in being more effective global citizens

All immigrants wishing to take out Australian citizenship must complete a citizenship test

It is illegal for anyone to tattoo or perform scarification on anyone under the age of 18 years

Trading or selling goods and services on Anzac Day or Easter Sunday is limited by the law

It is illegal to vilify or defame someone on racial and religious grounds

ISBN: 978 1 4202 3259 2


Characteristics of an effective lawJust because a law has been made does not mean that it will be enforced or will effectively control the behaviour of individuals. How can we judge whether a law is effective? In order for a law to be effective it must satisfy the following criteria.● The law must be known. Knowledge of the law means that we are less likely to break

the law. This does not mean that we need to know every law ever made in Australia—that would be impossible—but we do have a duty to know the law as it relates to our activities. Remember, according to the law, ‘ignorance [of the law] is no excuse’.

● The law must be easy to understand. To be easily understood, the law needs to be written in a way that most people in the community can understand what it means and see how it affects them as citizens. The law must clearly set out rights and responsibilities.

● The law must be acceptable to the community. In order for the law to operate effectively it must also be acceptable to the majority of people. If people do not accept the law they will not obey it. The law will be seen as acceptable if it reflects the morals and values of the community.

● The law must be stable. The law cannot be constantly changing. If the law was constantly changing, individuals could not be expected to know what the law is. This does not mean that the law should never change—it should change to meet the changing needs of society. Although the law must be stable, it must also be sufficiently flexible to overcome problems that may occur in the future, or to change to meet new needs.

● The law needs to be applied consistently. In most cases, a law is considered unfair if it is not applied consistently from one case to the next. Individuals should be able to see how the law has been applied in the past to judge how it may be applied to their situation.

● The law must be enforced. If the law is to regulate behaviour, then it must be capable of being enforced.

● The law needs to be accessible. By providing access to legal knowledge and avenues for dispute resolution, people have the opportunity to exercise their rights and responsibilities.

Fining the homeless—what’s the point?A 64-year-old homeless man, unemployed and an alcoholic, has accumulated $100 000 worth of fines. In the past five years he has faced court for 371 minor offences, including drinking in a public place, travelling without a valid ticket and begging. He is just one of the many homeless people accumulating large fines for minor street offences. Although begging in Victoria is illegal, it is not an uncommon sight in our city streets. Is the law on begging effective?

ISBN: 978 1 4202 3259 2

12 The Legal Maze

Apply your understanding Group work Characteristics of an effective lawIn groups of three or four, apply the criteria of an effective law to the following examples. Draw up a table similar to the one below and use the following scale as a starting point for discussion. You will need to justify your response according to your scale.

Shopping centres, pubs and clubs are now smoke free

Tick the appropriate response

All criteria present

Criteria partially present

Criteria not present

Known

Understood

Accepted

Stable

Consistent

Enforced

Accessible

Here are two other examples to which you can apply the above criteria.● It is an offence to stalk someone on social media.● Hoon laws keep the community safe.

Criminal law and civil lawThe two main areas of law we will look at in this book are criminal law and civil law. Unit 1 will focus on criminal law in action and Unit 2 on issues in civil law.

Actions against:

Contract law

Torts, such as negligence, trespass, nuisance and defamation

The Constitution

Family law

Industrial law

Consumer protection law

Crimes against:

The person

Property

The community (public)

Morality

The legal system

The state


Legal rules

ISBN: 978 1 4202 3259 2


1.2 The key differences between criminal and civil law


Criminal law is concerned with the protection of the community as a whole and punishment of offenders.

Civil law is concerned with the protection by the law of the private rights of the individual.

When an individual breaks the criminal law they will be prosecuted by the state (represented by the police or Director of Public Prosecutions).

People who feel that their rights have been infringed by others may sue to obtain a remedy. The outcome of the case can be seen in terms of liability or responsibility.

The court will establish guilt or innocence beyond reasonable doubt.

On the balance of probabilities, the court will determine whether a person’s rights have been infringed.

The court will determine an appropriate sanction, such as imprisonment, a fine or a community-based order.

When an individual suffers damage due to the actions of another, civil law aims to restore the injured party to their former position by providing a remedy, such as a monetary award.

A single event may involve criminal law and civil law. When a car crash occurs, there may be criminal and civil consequences. If it is the result of one driver breaking the criminal law by driving under the influence of alcohol, they will be regarded as a risk to the community. A criminal prosecution will take place and they will be sanctioned. This action does not resolve all the conflicts that could arise from this event.

What about the damage to the car and the suffering of the other driver or passenger? These issues relate to the private civil rights of the individual. The law provides the innocent driver or passenger with the right to take legal action to obtain compensation from the driver responsible for the accident.

In the illustration, both criminal law and civil law are involved. Criminal law provides the basis for the prosecution of the drunken driver, while civil law provides the other driver with the right to sue for damages. The two actions take place independently. To resolve the conflict, the criminal offence will be investigated by the police (provided that it is reported) and the civil action will be initiated by the injured party.

Personal injury 1(The driver at fault)

• TransportAccidentCommission?

• Effectofalcohol?

Witness• Evidenceincourt

Alcohol if consumed• Proofofintoxication?

• 0.05?

• Effectoncivillitigation?

Vehicle damage 1(Car and driver at fault)

• Insurance?

• Theeffectofalcohol?

Vehicle damage 2(Car and driver not at fault)

• Insurance — claim against other driver?

• Civilaction?

Personal injury 2• Lossofincome?

• TransportAccidentCommission?

• Medicalcosts?

Driving offence• Effectoncivillitigation?

ISBN: 978 1 4202 3259 2

14 The Legal Maze

Check your understandingLegal and non-legal rules1 Define the following terms and give three examples of each:

a a legal ruleb a non-legal rule.

2 Read through the codes of conduct for soccer referees and AFL coaches. Describe the importance of abiding by a code of conduct.

3 Write a short paragraph outlining two similarities and two differences between legal and non-legal rules.

4 Explain the function of law in our society. Identify the characteristics of an effective law and provide an example for each.

5 Suggest ways in which the law can provide for change.6 Draw up a T-table with the headings ‘Criminal law’ and ‘Civil law’, similar to the

one below. Using the diagram of the car accident, describe the civil and criminal consequences of a car accident. Identify some other consequences that are not present in the diagram.

Civil and criminal consequences of a car accident


7 Outline the activities that may occur in a ‘normal day’ in the life of a VCE student. Identify some of the legal rules affecting these activities. Using the rules you have identified, give examples of legal rules that fall into these groups:c rules that reflect community valuesd rules that establish codes of conducte rules that provide a means to resolve disputes.

Apply your understandingCase study AbsenteeismConsider the case study below, then answer the questions that follow.

A day off schoolSarah and Jessica were both Year 11 students. They had decided to take the day off school in order to avoid taking a Legal Studies test they had not studied for. Sarah’s parents had told her previously that if she failed another test she would be grounded for one month.

Instead of going to school, the two girls headed to the shopping centre in the next suburb as there would be less chance of them being seen there. They intended to go shopping and see a movie. Because the two of them had little money, they decided to sneak into the movies through the back door. Approximately halfway through the movie, Sarah’s mobile phone started to ring loudly and they were told to be quiet by other movie-goers. Sarah answered the phone and talked loudly to her friend who rang to see why Sarah was not at school.

>>

ISBN: 978 1 4202 3259 2


After Sarah finished her phone call, she and Jessica decided to leave the movie and go shopping. They headed to the cosmetics counter. Sarah saw a lipstick she liked. After checking that no-one was looking, she popped the lipstick in her pocket and then they quickly left. They headed to the food court.

Sarah went and bought them both sushi and drinks. Jessica went to find them a table. Once she had sat down, Jessica put her feet up on the other seat and took a marker pen from her bag and started to write on the table. After eating their food and drawing some portraits of their teachers on the tabletop, the pair headed off to the tram stop, leaving their food wrappers on the table.

Both took out their myki tickets and pretended to scan them and took their seat in the back row. The driver was not really paying attention as he was watching the road so he failed to notice the two had not scanned on. The driver continued to drive the tram and headed towards the next stop.

1 Explain the difference between legal and non-legal rules.2 Identify three legal and three non-legal rules from the case study.3 Identify the possible sanctions (penalties) for each of the legal and non-legal rules

broken.

Concept map Classroom rulesUsing a graphic organiser such as a concept map, develop a set of rules that would enable your class to run smoothly. Start with the central topic ‘Classroom Rules’ and on each branch record the responses to the following questions:● What types of rules would you need?● How would you make these rules?● How could you change these rules?● How would you enforce these rules?Where possible use pictures, symbols, colours or highlighters for different topics.

Group activity Lost 2015Divide into groups of five and give each member of your group a number from one to five. The following roles will be allocated to each person according to their number. This can be done at random or from top to bottom:● 16-year-old student● 32-year-old parent with a three-month-old baby● 35-year-old lawyer with HIV● 40-year-old nurse● 78-year-old boat captain.Your group has been shipwrecked on a deserted island. The island has coconuts and limited fresh water. You can catch fish. You have salvaged the following stores from the wreck: one mosquito net, one torch, one box of matches, one knife, one spear gun, one bottle of shampoo and one can of peaches.1 Develop a list of jobs that will need to be done immediately if the group is to survive.

How will you organise who is to complete each job?2 How will your group make decisions about the actions they will need to take to survive?3 What rules will your group need and how will these rules be enforced?4 What conflicts may develop between the members of the group? How might you

resolve these conflicts?5 What would your group do in the following situations?

a The 16-year-old says that they should not have to collect food for everyone.b The nurse is allergic to mosquito bites so does not let anyone else use the

mosquito net.>>

ISBN: 978 1 4202 3259 2

16 The Legal Maze

c The parent with the three-month-old steals the can of peaches and eats them.d The lawyer accidentally drops the box of matches in the sea.

6 After 14 days it becomes obvious that you will not be rescued and that there is not enough water on the island to support five people. What principles would assist these people to survive on the deserted island?

7 Justify the purpose of having rules in this community. Is the rationale the same for society? Explain.

8 What would make rules effective for this group and for society as a whole?

>>

Annotated visual display Rules and laws1 Your year level wants to organise an alcohol-free school formal to be held one night in

your school hall. Find out what rules and laws would apply.a Are there any laws about the type of entertainment, closing time, serving of

refreshments and food, and insurance? Will you need to apply for any permits from the local council?

b What rules does your school make about the use of school buildings?c How will security be organised?

Will others be allowed to attend? If so, what rules apply to them?

d What other rules would you need? How would you enforce these?

2 Design an annotated visual display illustrating the different types of rules that may be involved in organising a dance. Your annotated visual display should do all of the following:a Classify the relevant rules as

legal or non-legal rules.b Provide a brief explanation of the

purpose of each rule or law.c Present a brief statement of the

difference between legal and non-legal rules.

d Explain the effect of the law on the lives of individuals.

ISBN: 978 1 4202 3259 2


Case study Witchcraft

Read the article below, then answer the questions that follow.

tradition rules on ‘witchcraft’ lawsACCORDING to villagers and Papua New Guinea law, East Sepik Province villager Augustine Pohou was killed by black magic.

Two men were jailed for a year by a district court for killing Pohou with sorcery. The court ruled that the two men took his spirit from his body, killed it, and returned it to his body, leaving Pohou physically alive but spiritually dead.

A week later Pohou became physically ill and died in hospital. Pohou’s family confronted the two men—paid $27 by a third man—who admitted killing him by sorcery. Their one-year sentences were the maximum available under the Sorcery Act 1971.

The Act accepts that people in some regions believe in sorcery and makes the use of sorcery a criminal offence. The Act, in an attempt to reconcile Western law with traditional Papuan beliefs, allows courts to consider the use of sorcery in criminal cases. It does not accept the validity of sorcery—its use is criminal—but accepts that people, both perpetrators and victims, believe in sorcery.

Papua New Guinea has a history of witchhunts and brutal deaths. Four women accused of causing a fatal road accident were tortured with hot metal rods until they confessed to witchcraft. They were then murdered. In another recent case, 15 women were hacked to death with machetes for allegedly practising witchcraft.

In one province of PNG the number of witch killings is estimated at 200 a year. Exact figures are difficult—witnesses rarely speak to authorities. The resurgence of

black magic can be attributed to two factors. There has been an AIDS epidemic in PNG. Many villagers do not understand why Western medicine cannot stop people dying from AIDS and are looking to the old beliefs in magic to explain the epidemic. There has also been an increase in marijuana use in some regions.

Violence against alleged sorcerers by superstitious clans has not been confined to the highlands provinces. Allegations of witchcraft have spread to urban centres and a woman from the highlands province of Chuave was recently hacked to death in the Port Moresby suburb of Six-Mile because she was suspected of being a sorcerer.

There is little that the police can do to investigate these killings. Such cases are extremely difficult to bring to court. People are scared of giving evidence and many accept the assaults and killings as part of their culture that recognises the power of sorcery.

1 How does the Sorcery Act 1971 reflect the needs of society in Papua New Guinea?2 What are the characteristics of an effective law? Do you think that sorcery law in

Papua New Guinea is effective?3 What factors do you think limit the effectiveness of this law?

ISBN: 978 1 4202 3259 2

18 The Legal Maze

Case file

Driving over the speed limitIn Victoria traffic offences can apply to drivers, motorcyclists, cyclists, pedestrians, rollerbladers or skateboarders. These offences can include speeding, driving under the influence of alcohol or drugs (including refusing to take an alcohol or drug test) and careless or dangerous driving.

Cameras Save Lives is a program developed by the Department of Justice to reduce the number of drivers who speed and to explain how red-light and speed cameras work. In the 12 months ending on 30 June 2012, there had been 1 181 709 speeding infringements issued from mobile and fixed cameras at intersections and on highways. This equates to 3237 fines per day.

1.3 Number of speeding infringements issued (July 2011 to June 2012)

OffenceFixed camera systems (intersection and highway systems)

Mobile camera system Totals

Exceed speed by less than 10 km/h

476 461 462 672 939 133

Exceed speed by 10 km/h but less than 15 km/h

90 935 80 580 171 515


31 208 29 146 60 354


3 073 2 499 5 572


1 453 970 2 423


770 488 1 258


392 241 633

Exceed speed by 45 km/h or more

516 242 758

Exceed speed by more than 20 km/h in 110 km/h zone

N/A 63 63

TOTAL 604 808 576 901 1 181 709

A number of speed limits apply throughout Victoria. The law places the responsibility on the motorist to pay close attention to road signs so speeding does not occur. As a general rule, 50 km per hour is the speed limit in built-up areas. Speed limits can vary depending on special conditions such as service roads, school zones or shopping centres (40 km per hour) and in these places the limit is displayed on signs.

www.camerassavelives.vic.gov.au

ISBN: 978 1 4202 3259 2


If a driver is caught for excessive speed and pleads guilty to this offence, then their licence is automatically suspended. Excessive speed is defined as 25 km per hour or more above the speed limit, or more than 130 km per hour. If the speeding was less than these limits, then a magistrate has the discretion to choose whether or not to suspend their licence.

A driver caught speeding not only incurs a fine, but they also are given demerit points. This system was set up to penalise drivers for unsafe driving. Learner permit or probationary license holders cannot have any more than five points in a one-year period or 12 points over three years. Full licence holders cannot have 12 points in any three-year period. Table 1.3 shows the demerit points for different levels of speeding.

‘Ignorance of the law is no excuse’, so it is not a defence for a motorist to say that they were honestly mistaken about the speed limit or did not know what speed they were travelling at. In some cases a driver may have a good reason for speeding. For example, they may need to avoid urgent danger, or they may have had a seizure at the wheel. For offences of less than 10 km per hour over the speed limit, the police have the discretion to issue a warning providing the motorist accepts responsibility. The result is that the driver does not have to go to court and can still drive. This warning only applies to a driver if they have not been given a speeding or traffic fine or official warning within the last two years and if they hold a current licence.

As a general rule a driver will be given an on-the-spot speeding fine. Every driver has the right to challenge and dispute a speeding fine, but this must be done in writing and within a specified time frame, usually four weeks. The police then have 12 months to issue a charge and summons, and a court date will be set. At the hearing the driver has the opportunity to tell their side of the story. This matter will be left to a magistrate to decide, including any appropriate penalty.

1.4 Speed limits

Demerit point offences Number of points

Exceed speed limit by 45 km/h or more (12 month suspension) – also subject to Hoon Laws

8

Exceed speed limit by 35 km/h or more but less than 45km/h (6 month suspension)

6

Exceed speed limit by 25 km/h or more but less than 35km/h (1 month suspension)

4

Exceed speed limit by 10 km/h or more but less than 25km/h 3

Exceed speed limit by less than 10 km/h (Police discretion may apply) 1

Note: If a driver has exceeded the speed limit by 45 km per hour, then Hoon Laws also apply. If it is the driver’s first offence, then their car is

impounded or immobilised for 30 days. If this is their second time, then their car will be impounded for up to three months. If it is their third time,

then the driver may lose their vehicle forever.

Source: VicRoads, Victorian Government

www.vicroads.vic.gov.au

ISBN: 978 1 4202 3259 2

20 The Legal Maze

Apply your understandingCase study Driving over the speed limit

Read the case file ‘Driving over the speed limit’, then answer the following questions.

1 What do you consider to be the purpose of the laws on speeding?2 To what extent do these laws reflect community values, establish codes of

conduct and provide a means to resolve disputes?3 Describe how the characteristics of an effective law are demonstrated with

laws relating to ‘driving over the speed limit’.4 Describe three advantages and three disadvantages of having laws to regulate

speed limits.5 Excessive speed is a problem in our community. Suggest some possible

solutions to this problem.6 One suggestion to reduce the incidence of speeding by young drivers is to

increase the driving age to 21. Evaluate the advantages and disadvantages of this solution.

7 If the government issues more than 3237 fines per day, then this works out to be a lot of money. Where and how should this money be spent?

8 What is the penalty for someone who is speeding 45 km/h over the speed limit? Is this excessive? Discuss.

9 The case file identifies some good reasons for speeding. Can you think of any others?

10 Why are police given the discretion to issue a warning? Is this fair?11 Log onto this website and find the camera locations in your area. Discuss if

these are the most appropriate places to reduce speeding in your area.

Written response A criminal or a civil case?Read the article below, then present a number of reasons why a particular event can result in both a criminal prosecution and civil action.

D’arcy ordered to pay $180,000NICK D’ARCY shattered his own Olympic dreams the day he shattered Simon Cowley’s face just hours after he had been selected to represent Australia in Beijing in 2008. … In the New South Wales District Court, Judge Anthony Puckeridge awarded compensatory and aggravated damages of $135,000, then added expenses Cowley has had to pay or will pay for injuries, including a broken jaw, broken nose and broken eye socket, bringing the total to $180,942, to which further interest will have to be added. …

>>

www.cameras savelives.vic.gov.au.

ISBN: 978 1 4202 3259 2


Folio and report Laws in our societyCollect 10 articles that illustrate the operation of laws in our society. Choose from newspapers, magazines or journals. You may also select articles from internet news services. Each article should discuss a case concerning Australian law. For each article prepare a report that:● records the title, source and date of the article● gives a brief summary of the issues raised in the

article● identifies and explains why the issue relates to

criminal or civil law● identifies the court that is hearing or will hear the

case● names the key participants (if their names are stated)

in the article, such as the witnesses, judge and defendant

● justifies why such a rule is needed (use the characteristics of an effective law and discuss which one it represents)

● explains whether the law is effective (use the functions of the law to discuss its effectiveness).

Here is an example of how to set out a folio and report from the D’Arcy case

ReportRecord the title, source and date of the article

‘D’Arcy ordered to pay $180,000’, The Age, 19 July 2011

Give a brief summary of the issues raised in the article

Nick D’Arcy was ordered to pay Simon Cowley compensatory and aggravated damages as well as medical expenses and loss of earnings totalling $180 942. Australian swimmer Nick D’Arcy was charged and convicted of assault of his fellow swimmer Simon Cowley in 2008. D’Arcy pleaded guilty to recklessly causing grievous bodily harm and received a 14-month suspended jail sentence.

Identify and explain why the issue relates to criminal or civil law

Simon Cowley sought compensatory and aggravated damages as a result of trespass to the person, primarily aggravated assault.

>>

D’Arcy pleaded guilty in 2009 to recklessly occasioning grievous bodily harm and was given a suspended sentence of 14 months and two weeks. Cowley sued D’Arcy for compensatory damages, aggravated damages and exemplary damages …

D’Arcy said Cowley reached out and, thinking another assault imminent, D’Arcy lashed out blindly. D’Arcy admitted to using excessive force, but said he had no intention of harming Cowley.

Judge Puckeridge rejected D’Arcy’s defence because his statements to police on the night and evidence of independent witnesses did not back it up.

Cowley said outside court that he could now get on with his life. ‘The judge found that Nick was not acting in self-defence and that’s what we were looking for, and that is what was proven in court,’ he said. ‘This whole issue of the civil case was never about the money.’

Source: The Age, 19 July 2011

D’arcy ordered to pay $180,000

ISBN: 978 1 4202 3259 2

22 The Legal Maze

Identify the court that is hearing or will hear the case

New South Wales District Court. The equivalent court in Victoria is the County Court.

If stated, name the key participants in the article, such as the witnesses, judge and defendant

Simon Cowley (plaintiff), Nick D’Arcy (defendant), Judge Anthony Puckeridge

Justify why such a rule is needed (use the characteristics of an effective law and discuss which one it represents)

The law acts to promote a cohesive society by establishing codes of conduct. If the law is to regulate behaviour, then it must be capable of being enforced. In this case the law makes it clear that it is not acceptable to harm another individual. The law allows individuals to claim compensation for harm caused by another. Nick D’Arcy’s actions caused Simon Cowley to suffer a range of injuries, including a broken jaw, broken nose and broken eye socket.

Explain whether the law is effective (use the functions of the law to discuss its effectiveness)

The action that Simon Cowley took to claim compensation was very effective. Laws reflect the values of the community and it is unacceptable to assault others without consequence. Not only did Nick D’Arcy pay compensation but he was also convicted of aggravated assault. This case sends a message to the community that the consequences for criminal behaviour can also have a financial impact.

Extension activity Rules and lawsChoose 10 incidents from the cartoon below. For each incident you have selected, describe what appears to have happened, what the conflict is about, how it can be resolved, and the people or groups involved.

ISBN: 978 1 4202 3259 2


thinking critically and creatively about the chapter

Chapter 1The following activities have been designed to develop a broad range of analytical, critical and creative thinking skills and abilities.

Low

-ord

er t

hink

ing

to

hig

her-

ord

er t

hink

ing Remembering Create a list of A to Z words associated with legal and non-

legal rules. Be creative and fill in as many as you can.

Legal Non-legal

Understanding Develop a definition of non-legal rules that includes many examples.

Applying What do criminal and civil law have in common?

Analysing What could this picture have to do with the characteristics of an effective law?

Evaluating Suggest five possible changes to our community attitudes in the next 20 years. How might this influence the law?

Creating Invent five new creative ways of overcoming crime.

Date post:	31-Dec-2016
Category:	Documents
Upload:	ngotuyen
View:	228 times
Download:	2 times

The Legal Maze

Documents