Legal Studies: 2019 Preliminary HSC Notes - Legal Studies 2019 Basic legal concepts • meaning of law • customs, rules and law • values and ethics • characteristics of just laws • nature of justice: – equality – fairness – access • procedural fairness (principles of natural justice) • rule of law • anarchy • tyranny define law: a system of rules that are created and enforced through social or governmental institutions to regulate behavior of society distinguish between customs, rules, laws, values and ethics: Law: a set of rules imposed on all members of a community, which are officially recognised by the community. Rules: regulations that society should abide by, they can still be punishable if broken but not as severe as breaking a law. Customs: established patterns of behaviour among people in a society or group. Relationship between rules, customs and laws practice response: Whenever people have lived together in groups, they have developed rules to govern their behaviour and thus maintain the smooth running of activities. These rules were based on the traditions, customs and values of the group. These rules have penalties attached if members of the group fail to follow them. Groups usually put someone, or a small group, in charge to enforce these rules and the associated penalties this has then formed into laws. In modern times, this became the government. Natalie Russell 1 Preliminary HSC Notes - Legal Studies 2019 Values: Important and lasting beliefs or ideals shared by the members of a culture about what is good or bad and desirable or undesirable Ethics: moral principles that govern a person's behaviour or the conducting of an activity. Laws - Obeyed by all citizens of society Made by law-making body Enforced through courts Breach results in jail time, fines etc Rules - To be obeyed by specific group in society Made by individual groups Enforced by leaders of group Consequences of breach is at the discretion of the group leader Is there a difference between laws and rules? The difference between laws and rules is vast, rules are regulations set by a certain group leader for a group of society to follow, if these rules are broken you can still be punished but not as harshly as breaking a law. For instance a rule is something such as a school implementing a dress code for the school. The group of society, who are students must abide by this rule if the rule is broken students are likely to be asked to change or receive a warning; this rule is set to ensure the school society are equal and the same. On the contrary a law is implemented and created by a lawmaking body such as parliament or judges (statute law and common law). These laws are regulated by authorities like the police and are officially recognised by society, an example of a law is to not discriminate against others in the workplace or school because of ethnicity or disabilities, this comes under the Anti-Discrimination Act 1977 (NSW). This law is set in place to ensure no body is discriminated against based on their appearance or cultural background, this means that a school principal can not discriminate against a child with a disability and must let them enrol. Students learn to: Describe the characteristics of just laws and the nature of justice - Just laws: just laws should be based on the notion of equality, these laws must be enforceable i.e. the police can enforce them, the laws must be acceptable to the majority of citizens, these laws must be discoverable meaning that members of the public need to have access to these laws and they must not be retrospective which means it can not take effect, in point of time, before it was passed by higher authority. - Must be known to society Natalie Russell 2 Preliminary HSC Notes - Legal Studies 2019 - How it affects society Utilitarian (useful) - Your background → should not dictate - Legal aid Information available Can not bring in a law but back date it Nature of Justice: the nature of justice refers to the access, equality and fairness of justice. Access: - Laws must be known → information - Legal aid - not matter finance. E.g. state lawyer - Everyone is covered by the law → no one is above the law - Understand your rights and obligation Fairness: - It is expected that all laws are fair to ALL citizens - Same opportunity for everyone Equality: - Strives for equality - Takes into consideration dis/advantage - Vulnerability - E.g. racial discrimation act - E.g. (R v LMW) 1999 → capability of the 10 year old The role of the legal system is to ensure that everyone has access to the law and that the law provides equality, fairness and justice to all members of society These concepts identify just & unjust laws. Fairness = justice for all Justice = relates more to the law What is legal aid?: - Legal aid is the assistance in legal advice, services such as lawyers Remedies to improve legal aid: Natalie Russell 3 Preliminary HSC Notes - Legal Studies 2019 - More resources Information on your rights Better funding for state representative lawyers Practice Question: Why is access to the law important? - There are many important factors to the access of law but the main importance is so that society can know their rights and obligations and can access legal aid even if they don’t have the financial funds to do this. If society didn’t know their rights and obligation then society is more likely not to receive legal aid if needed. Students learn to: Define and investigate procedural fairness and the rule of law Procedural fairness: The body of principles used to ensure fairness and justice of the decision-making procedures of courts; in Australia, it generally refers to the right to know the case against you and to present your case, the right to freedom from bias by decisionmakers and the right to a decision based on relevant evidence. Practice Question - Why do people obey the law? people within a society like to have rules and laws because they create order. Laws help each person to feel a sense of security - the law is clear about what is expected of them as citizens and what they can expect from others. As the law is based on customs, it also helps to reinforce the values of most members of society. In principle, the law embodies the concept that what each individual believes is important has the same importance to the larger group . Laws also function to protect all members of society . They tell society what actions are allowed and those that are not permitted. Laws apply sanctions to those found guilty of a crime and may act as a deterrent to those who might otherwise commit a crime. Laws enable people to resolve disputes, as they empower the police force and the courts to enforce and administer the law. Rule of law: - no one is above the law, including those who make the law. This means that the groups and individuals who are involved in the legal system - such as legislators and judges who make, administer and interpret the laws; the police who enforce Natalie Russell 4 Preliminary HSC Notes - Legal Studies 2019 - the law; and the lawyers who represent and advise people on the law - are all answerable to the same laws as every other citizen. The rule of law means that everyone is subject to the same laws. Students learn to: define anarchy and tyranny: Anarchy: the absence of laws and government Tyranny: rule by a single leader holding absolute power in a state Sources of contemporary Australian law common law British origins, including: development of common law equity, precedent - adversarial system of trial • court hierarchy: - jurisdiction of state and federal courts statute law Natalie Russell 5 Preliminary HSC Notes - Legal Studies 2019 ● role and structure of parliament ● legislative process ● delegated legislation The Constitution ● division of powers ● separation of powers ● role of the High Court Aboriginal and Torres Strait Islander Peoples’ customary laws ● diverse nature of customary laws ● spiritual basis, significance of land and water ● family and kinship ● ritual and oral traditions ● mediation and sanctions ● relevance to contemporary Australian law International law ● differences between domestic and ● international law ● state sovereignty ● sources, including: – international customary law – instruments (declarations and treaties) – legal decisions, writings ● role of: – United Nations – courts and tribunals – intergovernmental organisations – non-government organisations ● relevance to contemporary Australian law 3. Classification of law ● public law – criminal law – administrative law – constitutional law ● private law (civil law) – contract law – tort law – property law ● criminal and civil court procedures including legal personnel Natalie Russell 6 Preliminary HSC Notes - Legal Studies 2019 ● common and civil law systems 4. Law reform ● ● ● • conditions that give rise to law reform including: changing social values, new concepts of justice, new technology agencies of reform including law reform commissions, parliamentary committees, the media, non-government organisations mechanisms of reform including courts, parliaments, United Nations and intergovernmental organizations 5. Law reform in action Native Title - Terra nullius the roles of the High Court and federal parliament major native title decisions - legislation • outline the origin of common law - Legal processes and practices used in Australia today are based on the model developed in England. When the British came to Australia in 1788, they brought with them the law that applied in Britain, known as common law . Contemporary Australian law has evolved from both common law and statute law. Common law refers to laws created in court; that is, decisions made by judges. ● examine the hierarchy and jurisdiction of state and federal courts Local → District → Supreme → Appeal → Federal → High Local Court: - Deals with minor criminal matters e.g. paying fines, disputes with neighbours. Minor civil disputes ($5000-60,000). District Court: - Deals with serious criminal charges e.g. larceny, manslaughter, types of assault and drug importation. Deals with civil cases up to $750,000 and has appellate jurisdiction. Natalie Russell 7 Preliminary HSC Notes - Legal Studies 2019 Supreme Court: - Has criminal jurisdiction of issues such as murder, attempted murder, kidnapping and conspiracy charges. Deals with appeals from lower courts and Cth prosecutions for breaches of corporation’s law. Civil matters, no monetary jurisdiction, with hearing matters such as defamation and professional negligence. Federal Court: - Jurisdiction includes bankruptcy and industrial matters, summary criminal offences. deals with civil disputes dictated by federal law, excluding family matters. High Court: - The highest court in the judicial system in Australia that was established under section 71 of the constitution. - It deals with appeals from federal, supreme and family court and interpretation of constitutional laws. ● outline the role and structure of parliament and the legislative process Parliament is a body of elected representatives. - It debates proposed legislation, passes or rejects it and amends legislation. All states except for Queensland have a bicameral parliament which means they have two houses. - The Senate is the upper house and the House of Reps. is the lower house. Ministers are those who have special responsibilities in each department and are elected by the prime minister who is the leader of the government. Cabinet: Made up of ministers who make decisions on policies and laws to be drafted for consideration by parliament. Executive Council: Governor/Governor-general, as well as selected ministers, make up this body. They enable legislation to be put into operation. Legislative Process Natalie Russell 8 Preliminary HSC Notes - Legal Studies 2019 1) 2) 3) 4) 5) Bill is introduced into parliament - by minister or via a private members bill) First reading (read aloud in parliament) Second reading (read again -- more detail Committee stage: parliament can debate bill Third reading + vote - If voted no: amendments or bill is thrown out - - If voted yes: goes to senate → steps 1-5 repeated If bill is passed it needs the Governor-General's assent → bill is made public Describe the function of delegated legislation Delegated Legislation: It is legislation made by non-parliamentary bodies that deal with laws considered to be of lesser importance. Function: is it allows the Government to amend a law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation can be used to make technical changes to the law, such as altering sanctions under a given statute. Students learn to: Explain the difference between division and separation of powers Division of Powers: The split of powers into federal and state governments - - Section 51 of the constitution outlines the legislative powers of the federal government including things such as marriage, military matters and external affairs. Section 52, however, sets out the exclusive powers of the federal government. Residual powers: anything that is left over/ not explicitly stated in the constitution - such as education and transports are the powers of the state. Any powers shared by the federal and state governments such as banking and insurance are known as concurrent powers. Natalie Russell 9 Preliminary HSC Notes - Legal Studies 2019 Concurrent: powers of a federal system of government shared by both the federal government and state Separation of Powers: Divvying up law-making power between the three pillars of government Legislature → - parliament: people who make the law i.e. legislation Made up of elected representatives Judiciary → - Federal courts: primarily high court Interpret the law and ensure all laws made are in line with constitution Keep a check on the power of legislature - and strike down laws Executive → - Top of parliament - made up of cabinet (MPs + Ministers) + public departments Responsible for delegated legislation Explain the difference between division and separation of powers - The division of powers is the split of powers into federal and state governments; section 51 and 52 of the constitutions outline the powers in which the federal government can deal with whilst anything left over and not explicitly stated are called residual powers are given to state/territory governments. These powers deal with powers such as transport and education whilst the separation of powers are the power divided into three governmental pillars; legislature, judiciary and executive. Legislature) is made up of the Queen (represented by the Governor-General), the Senate and the House of Representatives makes and amends the law. Judiciary is made up of the High Court and other federal courts and makes judgements about the law and lastly the Executive, The Executive is Natalie Russell 10 Preliminary HSC Notes - Legal Studies 2019 made up of the Queen (represented by the Governor-General), Prime Minister and ministers they put the law into action. Students learn to:examine the role of the High Court in the interpretation of the constitution The interpretations of the constitution dictate what areas the Commonwealth can legislate on and what areas belong to the states. In addition, the high court outlines how each section of the government can exercise its powers and places limits on such powers. Initially the High Court would put forth decisions that would favour the states. But over time a broader approach has led to a shift in the legislative balance between the states and the Commonwealth. Aboriginal and Torres Strait Islander Peoples’ customary laws • examine the characteristics of Aboriginal and Torres Strait Islander Peoples’ customary laws Spiritual basis for the law → significance of land and water · Mediation and Sanctions Natalie Russell 11 Preliminary HSC Notes - Legal Studies 2019 · Family and Kinship · Rituals and Oral Traditions of the Law - Aboriginal and Torres Strait Islander customary law is quite difficult to define due to its diverse and exclusive nature. Each nation has their own set of laws that are in relation to their specific way of life. There are common aspects but aren’t necessarily the same. Cambridge describes it as ‘Principles and procedures that have developed through general usage according to the customs of a people or nation or groups of nations.’ Common consequences for breaches include: · Sanctions and punishments: applied for murder and religious violation · Conciliation: elders of a tribes meet with those involved in conflict and create a suitable resolution through discussion · Mediation: for minor offences where all members of the conflict discuss and negotiate • outline the extent to which Aboriginal and Torres Strait Islander Peoples’ customary laws have been integrated into Australian law Aboriginal and Torres Strait Islander law has been integrated into Australian law through the acknowledgement of native title acts. Native title acts often sit above other laws so that it is always valid. international law - distinguish between domestic and international law and examine the impact of state sovereignty Domestic International Natalie Russell 12 Preliminary HSC Notes - Legal Studies 2019 - Laws within a country that applies to those residing in country Laws made by government or sovereign Laws include statutes and common law - Applies to nations and ‘transnational jurisdictions’ Laws include treaties and formal agreements International customary law relates to accepted norms Differences International Law Domestic Law (Australia) Application Treaties apply only to those nations Applies to all within Australia’s who agree to be bound by them, but jurisdiction (territorial waters and international customary law applies to Australia’s territories) all nations Enforcement International courts and tribunals exist, but they are complex and their jurisdiction can be limited by nationstates Creation Treaties are made through negotiations Made by parliaments (statute between nations. Customary law) or the rulings of judges international laws develop over time (common law) Law enforcement agencies and institutions exist such as the police and the courts to enforce the law State sovereignty A state, in the legal sense, is an independent entity that is recognised by other states on an international basis. In order to be a state, a place must have: ● a defined territory ● a permanent population ● an effective government Natalie Russell 13 Preliminary HSC Notes - Legal Studies 2019 ● the capacity to enter into international negotiations - - - - the state has the authority to make rules for its population and the power to enforce these rules. International law governs the relationships between states . International law enables states to participate in trade and commerce and provides mechanisms for the maintenance of peace and security and the reduction of conflict. International law also covers fundamental human rights, making it illegal to do such things as torture political prisoners or commit genocide . One of the main criticisms of international law is that it lacks the power to enforce the constraints contained in this law. There are many examp les around the world of states breaching international law, especially in the area of human rights . International law could not prevent genocide in Rwanda in the 1990s and has not prevented crimes against humanity committed in the Darfur region of Sudan since 2003 or those of the Syrian civil war (continuing at the time of writing) . international law is different from domestic law. States are powerful entities and to force another state to take a particular course of action can have implications for the international community. As a result, international law relies on countries consenting to cooperate in the enforcement of these laws. law is adhered to not simply because it can be enforced, but because it is generally accepted by the whole community. As the world is made up of diverse cultures with different values, not all countries will agree with all international laws and may ignore a law if they feel that it is not in their national interest to do so. examine the sources of international law - customs → based on long-established traditions or common practices followed by many states to the point that they are accepted as being fair and right by the international community. For example, customary international law regulating war had been in existence for a long time before The Hague (1989) and the Geneva Conventions (1864, 1906, 1929, 1949) explicitly Natalie Russell 14 Preliminary HSC Notes - Legal Studies 2019 outlined rules governing the conduct of states in conflict such as the manner in which prisoners of war and civilians were to be treated. - declarations → Declarations are international instruments that state and clarify the parties' positions on particular issues, but do not impose legally binding provisions that must be followed. A famous example is the Universal Declaration of Human Rights (1948) - Treaties → a treaty is 'an international agreement concluded between states in written form and governed by international law' → Treaties can be either : bilateral - between two nations; for example, the Agreement between the Republic of Indonesia and Australia on the Framework for Security Cooperation (the Lombok Treaty, 2006'), concerning their common security and respective national security; or multilateral - between many states; for example, the Charter of the United Nations (1945), which established the United Nations and its organs and agencies. - - Each country that is a signatory to this treaty has a seat in the General Assembly and participates in UN processes. The more states that signed a treaty , the more powerful that treaty will be. Treaties are used to make specific laws and to control conduct and cooperation between and within states legal decisions and legal writings → the Statute of the ICJ as a means of determining the rules of international law. Scholarly legal writings may be drawn upon for the purpose of interpreting treaties or determining their application in international disputes • describe the role of the various organisations involved in international law Natalie Russell 15 Preliminary HSC Notes - Legal Studies 2019 United Nations: - The UN is the primary organisation involved in international law, with its main objective being to maintain global peace and security. - The UN’s International Law Commission is the main body that is in charge of creating international law. The general assembly discusses and makes recommendations on international law. - The Security Council is in charge of maintaining peace and security. Courts + Tribunals: The International Court of Justice (ICJ): - Deals with legal disputes between nation-states and advisory proceedings often attended by the Security Council or the General Assembly. The ICJ can only address issues if nation-states involved accept the jurisdiction of the court. The International Criminal Court (ICC): - The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with crimes of concern to the international community Such as genocide, war crimes, crimes against humanity and the crime of aggression. Intergovernmental Organisations: - organised groups that represent nation-states that pursue a mutual interest. They are created with the purpose to resolve conflicts and deal with difficult issues within states. In addition, some make collective decisions on international issues such as refugees and wealth. - An example of an IGO is the European Union which is an economic and political partnership established on the premise of issues such as human rights and trade. NGOs: Natalie Russell 16 Preliminary HSC Notes - Legal Studies 2019 - NGOs are not for profit organisations that aren’t affiliated with any sort of government. They predominantly hold a charitable status and are established by everyday individuals with a common goal. They are often affiliated with the UN as the UN charter states the NGOs can have consultative status with the UN social and economic council. NGOs aid significantly in the international rule of law reform processes. Most generally provide information on specific fields and create reports on policy recommendations. They also aid in the monitoring and management of international agreements. • examine how international law impacts on and is incorporated into Australian law - - International Law is increasingly being incorporated into Australian domestic law due to the treaties and conventions which Australia engages in. Such as the Commonwealth Racial Discrimination Act 1975, Convention on the Elimination of All Forms of Racial Discriminationint and the Commonwealth Sex Discrimination Act 198 When a signatory signs a treaty, they are obligated to incorporate aspects of the treaty into their relevant domestic law. Any domestic laws that contradict laws outlined in the treaty are overruled by the Federal Government’s ruling. Classification of law • outline different types of law Natalie Russell 17 Preliminary HSC Notes - Legal Studies 2019 Private Public Tort Administrative Constitutional Criminal · Crimes against person/s or property · Drug offences · White collar crimes · Traffic offences · Public order offences · Crimes against state/sovereign · Nuisance · Negligence · Defamation · Trespass Property Contract • compare the purpose of different types of Law - In civil matters, the dispute is between two or more parties with no relation to the state. Criminal matters, however, are between the accused and the state as it is believed the actions of the accused affects the whole state. - Civil law relates to the rights of private individuals in legal discourse. The main function of civil law is to regulate people’s private relationships with each other, promoting fairness and addressing any violations. - The main function of criminal law is to maintain public safety and order within society. Criminal offences are deemed to be of harm to the whole of society, not just the specific victim, therefore the state has the responsibility to act. - Natalie Russell 18 Preliminary HSC Notes - Legal Studies 2019 • distinguish between civil and criminal court procedures Civil · Between two or more parties, no relation to state. One party brings case to court · Features plaintiff and defendant · Onus is on plaintiff to prove case · Balance of probabilities Criminal · · · · Prosecutor and defendant State brings case to court Onus is on prosecutor Beyond reasonable doubt • identify the role of legal personnel involved in the court process 1. Judges and Magistrates: They preside over court cases and hand down rulings 2. Judge’s associate: Judge’s confidential secretary 3. Barristers and Solicitors: Represent parties in court 4. Witness: Gives evidence relevant to the case 5. Court Officer: Administers oaths, in charge of witnesses and organisation of courtroom 6. Court Reporter: Record court proceedings 7. Jury, Media, Plaintiff and Defendants • compare and contrast common and civil law systems Civil Law Common Law Natalie Russell 19 Preliminary HSC Notes - Legal Studies 2019 · Originated from Roman law · Developed through custom · Code of law that are applied and interpreted Derived from specific court rulings · Used universally Law reform examine the conditions that give rise to law reform Changing social values: - The law must be reflective of society’s values and ethics. - Due to this, the law is constantly changing in order to stay relevant and have society comply with it. - An example would be same-sex marriage. New concepts of justice: - When the law is unable to deliver just outcomes, law reform is required to establish new forms of justice. New technology: - Technology is constantly evolving and the law must adapt in order for it to be inclusive of all issues. Privacy and ‘birth technologies’ are examples. describe the role of agencies involved in law reform ALRC: - Australian Law Reform Commission reviews Commonwealth laws and advises the government on how the law can be changed to be reflective of society’s exigencies. - They also ensure that proposals and recommendations do not infringe on human rights and international obligations. Natalie Russell 20 Preliminary HSC Notes - Legal Studies 2019 - Generally, they create reports and introduce to the federal government through the attorney general. The report doesn’t have to be taken into consideration. NSWLRC: New South Wales Law Reform Commission is similar to ALRC but relevant only on a state level. - The NSW government will give the NSWLRC issues to investigate. - The commission will evaluate the issue to identify whether reform is required. If so, the commission will conduct extensive research and consult the public on the issue before establishing a report. The report is then given to the state government to discuss. Parliamentary Committees: - These committees are often established by both houses of parliament primarily due to the houses not possessing the time required to address a certain issue. In addition, they scrutinise government activity. - They are often asked to undertake an inquiry in regard to specific issues. They investigate and identify ways in which the issues can be solved or managed. examine the operation of the different mechanisms of reform Courts: - The rule precedence is generally in application in regard to law reform. Any laws edited by a higher court must legally be obeyed all courts that sit below it. Parliaments: - - Law reform is done through the passing of a bill through both houses. Bills are debated by differing parties and are usually passed if introduced by the party in power. Parliament is the branch of government that creates laws so it will always play a major role in law reform processes. United Nations and NGOs are also mechanisms of law reform. Law reform in action Natalie Russell 21 Preliminary HSC Notes - Legal Studies 2019 Terra Nullius International law recognised only three ways of claiming sovereignty, one of the being through the establishment of terra nullius. It means land of no of one and allowed for the British to occupy Australia. In occupying Australia, the British established their own way of life along with their own set of laws. Native title claims were difficult to prove under these laws. British settlers began to colonise and completely neglected the Indigenous people and failed to acknowledge their relation to the land. Under terra nullius the Indigenous had to prove that they were the traditional owners of the land and had an ongoing connection with it. High Court and Native Title The National Native Title Tribunal investigates claims made by Aboriginal and Torres Strait Islander in regard to native title. The federal court will determine whether native title exists and if anyone disagrees with the federal court they then approach the high court. Federal Parliament and Native Title Parliament enacts legislation to protect the land rights of Aboriginal and Torres Strait Islander people. Native Title Decisions - Mabo The Mabo land rights case was the catalyst for the establishment of native title legislation. Furthermore, it gave recognition to the Indigenous inhabitants of Australia. Mabo was able to prove uninterrupted occupancy of the island and ensure that the islands which his nation occupied wouldn’t come under QLD law. In doing so the Native Title Act 1993 (Cth) was established that: · · · Provided recognition and protection for native title Established a mechanism for determining native title Set standards for future cases dealing with native title Wik The WIk and Thayorre people launched a case against the QLD government, claiming native title to land being used under pastoral leases. The Federal Court ruled that the existence of pastoral lease (gov. owned the land) trumped native title. The case then went to the High Natalie Russell 22 Preliminary HSC Notes - Legal Studies 2019 Court which revealed that under the law pastoral leases and native title could co-exist but if conflict would arise, native title would become invalid. As a result, the Native Title Amendment Act 1998 (Cth) was created. The main provisions are: · · · Extinguished native title claims on land that was privately owned prior to 1994 When native title exists alongside a pastoral lease, the pastoralist is allowed to use the land for primary production without having to consult people who have native title interests Tough tests imposed to determine native title (prove continuous occupation of land) Effectiveness of Law Reform · · · Amendments recognise rights of native titleholders as well as current landholders Overturning of Terra Nullius Respect towards native title Part II: The individual and the law Your rights and responsibilities - Identify the types of rights to which individuals are entitled LEGAL RIGHTS Positivism: the view that rights can only be granted by lawful authority Natural law: the view that there is a higher law than that of kings and parliaments. It may come from Gods or other basic principles. Natalie Russell 23 Preliminary HSC Notes - Legal Studies 2019 outline the responsibilities of citizens within a society - Australian citizens have an obligation to: obey the law; defend Australia should the need arise; and. vote in federal and state or territory elections, and in referenda. explain the interrelationship between rights and responsibilities Rights and responsibilities are related in some ways. Where citizens have particular rights, the state has a responsibility to protect those rights and ensure that they are not violated by individuals, groups or the state itself . Where the members of a group have a legal responsibility to do something, the group has a right to expect it. For example, school principals have the responsibility to allow a disabled student the right to attend the local school by making arrangements such as wheelchair access, teacher support and training Resolving disputesoutline the roles of law enforcement agencies The police State and Territory police - Responsibility involving upholding the law, preventing and investigating crime, and providing community protection . In addition, police services manage emergency incidents, enforce road and traffic rules, and deal with missing persons reports. Other aspects of state policing include assisting with mediation in family and neighbourhood disputes, particularly those involving domestic. violence. The application and enforcement of apprehended violence orders (AVOs) restricting the movements of some individuals in relation to others is another part of the job of the state police . Federal police - The Australian Federal Police (AFP) is responsible for enforcing federal law and criminal law where crimes cross state boundaries. - A key role is the prevention and detection of crimes with in Australia against Commonwealth law. - police may also deal with Australians overseas. Crime legislation enforced by the AFP includes the Crimes Act 1914 (Cth) and the Criminal Code 1995 (Cth). Offences include drug importation and distribution, and crimes relating to Natalie Russell 24 Preliminary HSC Notes - Legal Studies 2019 Commonwealth entities (e.g. bribery of Commonwealth public officials). The powers of the AFP are set out in the Australian Federal Police Act 1979 (Cth) Australian Border Force - facilitating the lawful passage of people and goods, investigations, compliance and enforcement in relation to illicit goods and immigration malpractice; and onshore detention, removals and support to regional processing arrangement Australian Criminal Intelligence Commission - It works at a national level with other federal, state and territory agencies to combat serious and organised crime. In New South Wales, the Australian Crime Commission (New South Wales) Act 2003 (NSW) was passed to enable the full operation of the ACC in NSW. - Similar legislation was passed in the other states and territories, effectively bringing the Australian Crime Commission Act 2002 (Cth) into state or territory law. - The ACIC has a number of important functions, involving both intelligence and investigative roles: - collecting and analysing criminal intelligence data giving advice about National Criminal Intelligence Priorities (NCIPs) to the ACC Board - managing criminal intelligence systems such as the Austral ian Criminal Intelligence Database - investigate federally relevant criminal activity and forming task forces; for example, Strike Force Tuno 11 Australian High Tech Crime Centre Its role is to address serious and complex crimes involving: computer technology such as online fraud, mule recruitment , - offensive and prohibited internet content. - ‘Technology-enabled crime' includes crimes committed directly against computers and computer systems Australian Security Intelligence Organisation - is to gather information that will help the federal government and other law enforcement agencies, such as the AFP, to prevent and thwart attacks on Australia. ASIO's role is expanding; it employs approximately 1500 people. ASIO's Natalie Russell 25 Preliminary HSC Notes - Legal Studies 2019 information is used by 75 government departments, police and senior decisionmakers. identify and examine methods of resolving disputes between individuals Alternative dispute resolution uses a variety of methods to resolve disputes between parties without involving court processes. ADR allows the participants not only to save time and money, but also to have more control over proceedings. Negotiation - Negotiation means discussion between two or more parties with the aim of reaching a mutually beneficial outcome. It involves consideration of the other party's views, and often some degree of compromise . Mediation and conciliation - - - Both processes involve a neutral and independent third party who helps the parties to negotiate their disagreement and to come to a decision that they both find acceptable The mediator does not provide advice on the matters or impose a decision on the parties . In conciliation, the third party also helps the parties to identify the issues, consider alternative options to solve the dispute and reach an agreement. In contrast to a mediator, the conciliator may advise the parties, although he or she does not make a decision for them . A conciliator may be a legal practitioner or professionally qualified in the subject matter of the dispute . Arbitration - formal process, in which an independent third party (the arbitrator) is brought in to determine how the dispute is to be resolved. - useful when the subject matter of the dispute requires an expert and/or when a court -like procedure is desired, but with a greater degree of confidentiality. Natalie Russell 26 Preliminary HSC Notes - Legal Studies 2019 - It is used when a contract specifies arbitration for resolution of any disputes arising, in industrial relations matters, and in tenant and landlord disputes. Courts If the individuals involved in a dispute cannot resolve it by way of alternative methods, they will need to take the matter to litigation. - example of a court that deals with disputes between individuals is the NSW Land and Environment Court (LEC) Tribunals - offer a less formal and expensive method of dispute resolution than the court system. - Individuals do not normally need legal representation - it is often not even permitted and the person presiding over the tribunal may have specialist expertise rather than specific legal training. - compare and contrast disputes between individuals and those between individuals and the state Disputes with State No. of methods by which state power or government decisions and policies can be challenged. Some non-legal and others involve formal and legal channels. - These disputes are a way of challenging state power, decisions, policies & disputes Disputes between individuals can be resolved using various legal (formal) and nonlegal (informal) methods. Disputes between individuals and the state can also be resolved using formal and informal methods. The state does not have unlimited or arbitrary power. assess the effectiveness of methods of resolving disputes • distinguish between non-legal and legal methods of enforcing rights and resolving disputes Non-Legal Legal - individual Legal - state Natalie Russell 27 Preliminary HSC Notes - Legal Studies 2019 - Media - ADR - judicial/internal review - Interest groups + NGOs - Negotiation - Royal commission - MP’s - Mediation - Tribunals - Protests → strikes → - Conciliation - Ombudsmen - Courts/ Tribunals - Statutory bodies workplace • assess the effectiveness of dispute resolution processes in achieving justice for and between individuals Contemporary issue: The individual and technology explain the difficulties with enforcing rights - In cyberspace, there are few barriers between individuals and potentially harmful content. In addition, people who have grown up with the internet and are comfortable using it and other forms of digital technology may be less cautious than those who have adapted to it and adopted it at a later point in their lives. Natalie Russell 28 Preliminary HSC Notes - Legal Studies 2019 assess the role of law reform in addressing emerging technological issues and enforcing rights - - The Australian Law Reform Commission has recommended the development of a statutory tort of breach of privacy, and other reforms to take account of new technology. In 2008, the Australian Law Reform Commission (ALRC) produced a report called For Your Information: Australian Privacy Law and Practice, in which it recommended extensive changes to privacy laws and practices to take account of new technology, as well as a way that individuals can bring a civil action for serious breach of privacy. discuss the legal implications of the use of technology and its impact on the individual. - - Advances in technology have brought many benefits but also problems. The use of new technology creates moral and ethical problems and conflicting attitudes in society. The complexity of the issues and the pace with which technology changes mean that legislators have difficulty making laws that can keep in control of these changes. Technology affects all areas of society, forcing changes in a range of laws. Advances in computer technology have resulted in a new brand of cyber crimes such as computer fraud, computer hacking, email spam, pornography (especially when it relates to children) and stalking online. But it doesn’t just limit itself to computer related crimes. The new wave of digital recording devices create issues with privacy and Natalie Russell 29 Preliminary HSC Notes - Legal Studies 2019 Part III: Law in Practice Women: Outline the historical roles and attitudes towards the contemporary issue - - For many years, the attitude that women are different from men and inferior in significant ways has been reflected in the laws and policies of many countries, including Western societies. Women's working lives involved domestic duties such as rearing children, preparing food, sewing and various other tasks in the home. This position was strongly influenced by biology. As most women were always bearing children (no reliable and safe contraception was available), they were left at home, dependent on their male partners. Natalie Russell 30 Preliminary HSC Notes - Legal Studies 2019 Explain the events that highlight problems faced by the contemporary issue. Education, training and workforce participation: - Historically, women who wanted to enter professions had many barriers to overcome, some of which persist today. - The formal education that most young girls received was usually short in duration and assumed a future as a homemaker. - In the 19th century, there seemed no pressing reason for young women to complete their secondary education, let alone go to university. - Those women who were able to attend university to study subjects such as law and medicine did so in the knowledge that even if they passed their exams, they would not be given degrees and were effectively barred from practising in their chosen field . - Passage of the Women's Legal Status Act 1918 (NSW) opened the way to recognition of women's right to enter professions . Many women who had successfully completed their degrees were able to do so, and some were elected to parliament in the 1920s Promotion - Despite the success of women in various education institutions, women do not have the same success in terms of gaining a promotion. - The NGO Chief Executive Women has attempted to “facilitate greater representation of women at senior levels of Australian business, government and non-profit sectors.” - Since 1985, women have been graduating from university at higher rates than men (see previous lesson), yet men are nine-times more likely of making it to senior executive ranks than women in large corporations. Equal Pay ➔ The push to achieve equal pay has usually come from non-legal methods which have then been translated into legal responses. ➔ The Commonwealth Conciliation and Arbitration Commission (now known as the Fair Work Commission) introduced the concept in 1969 and granted equality in 1972 known as the Equal Pay Case. ➔ Only 18% of adult female employees obtained equal pay under this ruling because women and men were usually under different award agreements. Natalie Russell 31 Preliminary HSC Notes - Legal Studies 2019 ➔ A key mechanism in the push for equal pay has been the Australian Council of Trade Unions (ACTU). ➔ (2012) FWAFB 1000 Equal Pay Case. Marriage: - - In the past, when a woman married she effectively lost the legal ident ty she had as a single person . The law did not recognise the existence of the woman within the marriage, as her legal identity became that of her husband's . They were regarded as unito caro , which meant 'one flesh' By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage The right to own property A married woman lost all control over any personal property she owned at the time of marriage, and also any she acquired during the marriage. If she owned any real property, it came under her husband's control, but remained hers for the purpose of inheritance. - This situation continued until the Married Women's Property Act was passed in 1870 and 1872 in the UK, and later a similar act was passed in New South Wales, the Married Persons (Property and Torts) Act 1901. These Acts gave women greater control over their personal property. The right to vote - For women everywhere, the right to vote (suffrage ) has always symbolised the fundamental right of all members of a democratic society. until the early 20th century, this right was not generally available to women . The right to vote was also an important symbol of women's struggle for equality . In Britain, it was Emmeline Pankhurst who was the driving force behind the suffragette movement. Suffragette marches on parliament grew in size from approximately 300 in 1906 to 4000 in 1907. They chained themselves to pylons and gates and disrupted many political meetings. Natalie Russell 32 Preliminary HSC Notes - Legal Studies 2019 Describe the legal and non-legal responses to the contemporary issue Legal Responses International Law: - - - - The main treaty that addresses discrimination against women around the world is the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) . It was opened for signature in 1979 and entered into force in 1981. The preamble of CEDAW acknowledges that the Charter of the United Nations and the Universal Declaration of Human Rights affirms that all human beings are born free and are equal in dignity and rights . It also acknowledges that under human rights treaties, states have responsibilities to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights'. The Convention contains 30 articles. Articles 1- 16 set out the main rights of women . Articles 17- 22 outline the powers and responsibilities of the Committee on the Elimination of Discrim inat ion against Women, the body set up to monitor the implementation of the treaty. Articles 23--30 set out the provisions governing the formal operation of the treaty. Domestic law: - Legislation protecting women from discrimination exists at both state and federa l levels in Austra lia. Discrimination means treating someone unfairly because of some characteristic. Natalie Russell 33 Preliminary HSC Notes - Legal Studies 2019 - - - Discrimination on the basis of sex may be considered to include discrimination because of someone's marital status or because she is pregnant or likely to become pregnant. There are two types of sex discrimination: direct discrimination and indirect discrimination Direct discrimination is a more blatant form and is more easily identified; for example, where male employees are offered first choice for extra overtime ahead of female employees. Indirect discrimination is usually harder to detect. It occurs when there is a procedure, rule or practice that , on the face of it, is the same for everyone and not discriminatory, but when carried out actually discriminates against a particular group of people. Sex Discrimination Act 1984 (Cth) - Some but not alI provisions of the Convention on the Elimination of All Forms of Discrimination Against Women were implemented in Australian law through the Sex Discrimination Act 1984 (Cth). - The Act aims to eliminate discrimination on the basis of sex, marital status or pregnancy in a number of key areas such as employment; education; the provision of goods, faci lities and services; accommodation and housing; insurance; and superannuation. - The Act explicitly included sexual harassment as a form of discrimination in employment and education and makes this behaviour illegal. Anti-Discrimination Act 1977 (NSW) The broad-based Anti-Discrimination Act 1977 (NSW) makes unlawful discrimination on the basis of sex, race, marital status, disability, responsibility as a carer, sexuality and age. It also establishes the Anti-Discrimination Board, which is part of the NSW Attorney General's Department. Workplace Gender Equality Act 2012 (Cth) - The principles of equal opportunity in the workplace reflect the right to equitable access to jobs, career paths, training and staff development and equitable conditions of employment. - ensuring equal access in all areas of employment, including recruitment, transfer, promotion, training and development, information access, management and Natalie Russell 34 Preliminary HSC Notes - Legal Studies 2019 - supervision of staff and conditions of employment, with all selection based on merit (the best person for the job) recognition and respect for the cultural and social backgrounds of staff and customers. The Act's objectives reflect the idea that in a just and fair world there should be an equitable spread of both sexes in management and support jobs across all industries. At present this is not the case. Government agencies Office for Women - Its primary role is to provide policy advice to the Minister for Women, and to ensure that government and Cabinet decisions about legislation, policy and budgetary matters are made with a view to their effect on women. - OfW also administers programs to combat issues such as domestic violence and sexual assault, represents the Australian Government at national and international forums on women's issues, and has primary responsi biIity within the government for Australia's obligations under CEDAW. Women NSW - It advises the state government and works with other government agenc ies and non-government organisations to develop programs and policies with positive consequences for women. - The Office also has responsibility for Domestic Violence Prevention : to lead and manage government policy relating to the prevention of domestic and family violence Non-legal responses Legal mechanisms have been put in place to overcome the historical and cultura l barriers that women still face. There are also some very effective informal measures that keep the issues of women on the political agenda. Trade unions In the early part of the 20th century, unions were against women's full participation in the workplace. - As women were paid less than men, unions did not want a situation where employers were able to exploit this cheap labour and force men out of jobs. Today, unions are strong advocates for the rights of women in the workplace . The Austral ian Council of Trade Unions (ACTU) lists the following achievements to which the union movement has contributed: • the principle of equal pay for equal work • women's parental leave • improved child care Natalie Russell 35 Preliminary HSC Notes - Legal Studies 2019 • universal superannuation • anti-discrimination and affirmative action (equal employment opportunity) legislation - A challenge still facing the ACTU is the fact that the major unions in Australia have a much lower percentage of women at the executive level than among the general membership. The ACTU campaigned for paid maternity leave, which it believes is a fundamental human right and a necessary measure to address the discrimination and disadvantage suffered by women who choose to become parents Lobby groups - There are non-government organisations (NGOs) throughout Australia that promote issues important to women . - A well-known NGO is the Women's Electoral Lobby (WEL), - WEL is dedicated to creating a society where women's participation and their ability to fulfil their potential are unrestricted, acknowledged and respected and where women and men share equally in society's responsibilities and rewards'. Evaluate the effectiveness of legal and non-legal responses to the contemporary issue. Effectiveness of responses - The law is constant ly evolving through legislation and the courts to reflect the changi ng values of the society it is meant to regulate. - Over the past 30 years, women in Australia have seen landmark legislation passed addressing the issues they face, especially in the workplace. In spite of the many improvements that women have fought for and achieved, there are still many areas that require constant vigilance and persistence in order for change to occur . The UN Convention on the Elimination of All Forms of Discrimination Against Women (CE DAW) was a significant step forward in highlighting the issues and getti ng states to commit to ending discrimination against women. States can choose to comply with or ignore their international obligations and usually act out of economic or political self-interest in determining their course of action. - CEDAW is one of the treaties most ignored by states. - Those states that have signed the treaty have included many reservations , which allow them to refuse to comply with certain parts of the treaty. Natalie Russell 36 Preliminary HSC Notes - Legal Studies 2019 - Hence, CEDAW is not able to declare a state to be in violation of the treaty where it has entered certain reservations. The committee can only continue to encourage states to review their current reservations . The Treatment of Women in the Australian Defence Force review, released in August 2012, revealed that one in four women in the defence forces had experienced some form of sexual harassment and this cont inues to be an ongoing cultural challenge today. It may be some time before such entrenched cultural attitudes towards women are overcome. Due in large part to states' reservations, there are still many areas where women experience discrimination and violations. Natalie Russell 37
