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Human Rights
Entitlements and liberties that are applicable to all human beings regardless of ethnicity, sex, religion or other identifying features
Civil & Political Rights
Right to vote
Right to privacy
Right to freedom of speech
Right to strike
Right to life
Freedom from torture
Economic, Social & Cultural Rights
Right to work
Right to education
Right no to be discriminated against.
Right to own property
Right to adequate food, housing and sanitation.
Meaning of “Human Rights”
Human rights are essentially basic fundamental entitlements that exist in order to maintain a cohesive and functioning society.
The Development of Human Rights-convention and treaty
A binding (though sometimes flexible) agreement between two or more countries. While each nation retains sovereignty, ratification and legislation are often required, as seen in the UN Convention on the Rights of the Child (1989).
The Development of Human Rights-Declaration
A non-binding, aspirational agreement between two or more countries. Ratification and legislation may be pursued but are not mandatory.
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (1948) is a landmark document affirming the inherent rights of all individuals, setting a global standard for human dignity, freedom, and equality, and influencing international human rights laws and policies.
Protecting rights
To protect rights, countries must sign the agreement, then ratify it (formally approve it), and finally legislate by creating national laws to enforce the rights outlined in the agreement.
How are human rights protected in Australia?
In Australia, human rights are protected through the Australian Constitution, legislation (such as anti-discrimination laws), common law (court rulings), and international agreements that Australia has signed and ratified, which guide protections within the country.
the constitutional protection of rights
The Australian Constitution protects rights by: Express Rights - Specifically written rights, like the right to religious freedom and trial by jury. Implied Rights - Rights interpreted by courts, such as freedom of political communication. These protections limit government powers and uphold individual freedoms.
Express rights
Freedom of religion, Trial by jury, Protection against discrimination based on state residence, Acquisition of property on just terms, Right to vote in federal elections
Implied Right
Freedom of political communication (interpreted by courts).
Structural rights
Rights protected by the Constitution’s design, like the separation of powers and representative government, which help uphold democracy and individual freedoms.
How does the charter protect rights
The Charter of Human Rights and Responsibilities protects rights by requiring public authorities to uphold key freedoms, equality, and justice in their actions and decisions.
Human rights issue in Aus
A key human rights issue in Australia is Indigenous land rights. This concerns the right of Indigenous Australians to claim and protect their traditional lands, which is essential for cultural identity, self-determination, and heritage preservation.
Statute law (made by parliament and can change by parliament)
Statute law is legislation enacted by Parliament that can be created, amended, or repealed by the same body, allowing for changes in the law to reflect societal needs and values.
Common law
Common law refers to law created by judges when resolving a dispute, in circumstances where there is no applicable law, or the existing law is unclear.
Voting age
The voting age in Australia is 18 years old. This is the minimum age at which citizens can register to vote and participate in federal, state, and local elections.
age of criminal responsibility
The age of criminal responsibility in Australia is 10 years old. However, there are variations across states and territories, with some jurisdictions implementing additional protections for young offenders.
Negligence
Laws relating to Negligence aim to ensure that people who owe reasonable duties of care to each other do not breach those duties. If they do, they are responsible for any loss suffered as a result.
Duty of Care
The obligation to take reasonable care to avoid causing harm to others.
Breach of Duty of Care
A breach of a duty of care occurs when a person does not take all the care they should. The duty is breached (broken) when the defendant fails to do what a reasonable person would have done.
Causation
The plaintiff must prove that the injury or loss was caused by the breach of duty of care.
Remoteness of Damage
The breach must be a significant cause of the damage suffered by the plaintiff.
Reasonable Foreseeability
Determines if a person should have anticipated that their actions could cause harm to others.
Established Categories
Categories where a duty of care is presumed, such as doctor to patient and manufacturer to consumer.
Defendant
Party defending against a claim for an alleged breach of civil law.
Vicarious Liability
When an employer is held responsible for the actions of an employee.
Plaintiff
Party initiating a civil claim against the defendant for a breach of civil law.
Class Action
A civil proceeding where 7 or more people have claims against the same person.
Loss
Harm suffered, including financial, property, injury, pain
Limitation of actions
Legal time frame to initiate a civil claim
Standard of proof
Degree to prove facts in court, 'balance of probabilities'
Breach
Failure to meet a legal obligation
Remedy
Court order to enforce or correct a civil breach
Injunction
Court order to prevent or compel an action
Damages
Monetary compensation for losses or harm. There is Aggravated, specific, general damages
Contract laws
Law aims to ensure that people who make promises under a contract (agreement) stick to those promises, or else compensate the other party to the contract if they fail to comply with it.
Wills
Legal documents outlining asset distribution after death
Nuisance
Laws relating to Nuisance recognise that people should have a right to enjoy and use their land, or public land, free from interference or annoyance. Their purpose is to ensure that people can enjoy this right, by establishing guidelines on what counts as an interference or annoyance.
Defamation
Laws relating to defamation aim to ensure that a person’s reputation is not harmed because of false statements that are made about that person.
Contributory Negligence
Contributory negligence is a failure by a person, typically a plaintiff, to take reasonable care for their own safety, which adds to the harm the person suffers.
Assumption of risk
Voluntary assumption of risk is a defence to negligence in which it is claimed the plaintiff accepted and was aware of the risks inherent in the activity.
IMPACT OF NEGLIGENCE ON THE PLAINTIFF
• Loss of life – This could occur in a workplace setting. For example, an employer fails to maintain machinery so that it is in good working order which causes a fatal accident.
• Permanent physical incapacity – This could require the use of personal carers for the remainder of the person’s life. For example, a person contracts salmonella from the consumption of poorly prepared food and permanently loses physical capacity as a result.
• Serious physical injury – This could require treatment such as surgery and physiotherapy. For example, a customer who trips on a slippery floor and breaks a leg as a result.
• Emotional impact of the breach – This could manifest as fear of certain places or engaging in social situations. For example, a person develops a fear of medical procedures after a negligent experience.
• Loss of wages and livelihood – This could be a consequence of requiring surgery or treatment. For example, a person is unable to return to work for a certain time after surgery.
• Unemployment – This could be a consequence of physical injury or mental health issues. For example, an electrician is unable to return to work after losing physical capacity.
• Effect on mental health – This could include conditions such as depression or anxiety. For example, a person develops mental health issues as a result of being unable to return to work.
IMPACT OF NEGLIGENCE ON THE DEFENDANT
• Loss of business – This could be a consequence of the publicity of the claim. For example, a restaurant or café that was sued as a result of the death or injury of a customer from consuming contaminated food.
• Public humiliation – This could be a consequence of the publicity of the claim. For example, the defendant might suffer public humiliation as a result of an adverse finding in court.
• Physical injury – This could occur in cases of contributory negligence or a counterclaim. For example, the defendant might also have suffered loss, injury or damage as a result of the conduct of the plaintiff.
• Costs – This could occur when the defendant loses the case. For example, the defendant might be ordered to pay the legal costs of the plaintiff, causing financial hardship.
• Need to sell assets – This could be a consequence of a high damages award. For example, the defendant might be forced to sell assets to meet the costs of the damages amount.
But for test
The ‘But for test’ is a legal test of causation that aims to determine whether a party would have suffered harm/injury if not otherwise for the actions of another party.
Statuary limitations
a personal injury claim such as negligence= 3 years
breach of contract= 6 years
Defamation=12 months
Burden of proof
The responsibility to prove the allegations made.
The burden is held by the plaintiff who is bringing the claim.
Wrongdoer
It is often the case that the plaintiff will sue the person or company that has directly caused the loss or damage to the plaintiff (often called the wrongdoer), being the person who is alleged to have caused harm to the plaintiff.
Sometimes there may be two wrongdoers, and both of them may become liable for loss or damage suffered by the plaintiff.
neighbour principle
The 'neighbour principle' is a legal concept that suggests individuals should avoid actions that could harm people who are closely and directly affected by those actions. It was established to help determine when a duty of care is owed in negligence cases.
Specific damages
Damages that can be accurately calculated.
E.g Lost wages, medical bills, replacement/repair of property
General damages
Damages that cannot be accurately calculated.
E.g Loss of enjoyment of life , pain + suffering
Aggravated damages
an ‘extra’ award of damages to further compensate the plaintiff for humiliation/hurt caused by an actions of the defendant.
Civil Remedies
Primary purpose = restore the injured party to their original position
Another purpose = to compensate for injury, loss or damages
IMPACT OF NEGLIGENCE ON THE PLAINTIFF
• Loss of life – This could occur in a workplace setting. For example, an employer fails to maintain machinery so that it is in good working order which causes a fatal accident.
• Permanent physical incapacity – This could require the use of personal carers for the remainder of the person’s life. For example, a person contracts salmonella from the consumption of poorly prepared food and permanently loses physical capacity as a result.
• Serious physical injury – This could require treatment such as surgery and physiotherapy. For example, a customer who trips on a slippery floor and breaks a leg as a result.
• Emotional impact of the breach – This could manifest as fear of certain places or engaging in social situations. For example, a person develops a fear of medical procedures after a negligent experience.
• Loss of wages and livelihood – This could be a consequence of requiring surgery or treatment. For example, a person is unable to return to work for a certain time after surgery.
• Unemployment – This could be a consequence of physical injury or mental health issues. For example, an electrician is unable to return to work after losing physical capacity.
• Effect on mental health – This could include conditions such as depression or anxiety. For example, a person develops mental health issues as a result of being unable to return to work.
IMPACT OF NEGLIGENCE ON THE DEFENDANT
• Loss of business – This could be a consequence of the publicity of the claim. For example, a restaurant or café that was sued as a result of the death or injury of a customer from consuming contaminated food.
• Public humiliation – This could be a consequence of the publicity of the claim. For example, the defendant might suffer public humiliation as a result of an adverse finding in court.
• Physical injury – This could occur in cases of contributory negligence or a counterclaim. For example, the defendant might also have suffered loss, injury or damage as a result of the conduct of the plaintiff.
• Costs – This could occur when the defendant loses the case. For example, the defendant might be ordered to pay the legal costs of the plaintiff, causing financial hardship.
• Need to sell assets – This could be a consequence of a high damages award. For example, the defendant might be forced to sell assets to meet the costs of the damages amount.
Elements required to establish liability
For a claim in defamation to be successful, five elements must be proven in court on the balance of probabilities:The matter is defamatory, The matter is false, The matter is about the plaintiff, The matter has been published to a third party, The matter has caused, or is likely to cause,serious harm to the plaintiff's reputation
The matter is defamatory
What is an imputation?
*Allegation
*inference
=of undesirable behaviour
The matter is false
What does it mean to be “substantially true”?
Something is “substantially true” in defamation law when it is true in essence or not materially different from the truth.
The matter is about the plaintiff
Does the plaintiff have to be expressly named? Explain.
No, the plaintiff does not have to be expressly named as long as they can be sufficiently identified from the context of the claim. Courts require that the plaintiff is identifiable either directly or indirectly through the details provided in the case.
The matter has been published to a third party
What does this really mean?
When the matter has been published to a third party, it means that the information has been communicated to someone other than the plaintiff and defendant.
List the things that can constitute “published”.
Things that can constitute "published" include:
Spoken words
Written statements (e.g., books, articles, letters)
Digital communications (e.g., emails, social media posts, blogs)
Broadcasts (e.g., television, radio)
Visual representations (e.g., pictures, cartoons)
Gestures or non-verbal signals
The matter has caused, or is likely to cause,serious harm to the plaintiff's reputation
Who decides this?
A judge decides if the matter has caused or is likely to cause serious harm to the plaintiff's reputation.
When is this decided?
This is decided during the preliminary stages of the defamation case or during the trial.
What happens if this element is not satisfied?
If this element is not satisfied, the defamation claim will be dismissed.
What is considered when deciding if this element has been satisfied?
Factors considered include:
The nature of the statement.
The context in which it was made.
The extent of publication.
The reputation of the plaintiff before the statement.
The impact on the plaintiff's personal and professional life.
Substantial Truth
the majority of the statement was true, with only small/inconsequential inaccuracies
Contextual truth
in context (when considered or part of the entire statement). The statement does not damage the plaintiff reputation
Mandatory injunctions
an order to do something
Restrictive injunctions
an order preventing something
Principles of justice
These sentencing principles reflect all three the key principles of fairness, equality and access
Fairness
All people can participate in the justice system and its process should be impartial and open.
Contributions to achieving fairness in Civil system
The burden of proof lies with the plaintiff, the standard of proof is on the balance of probabilities, and the defendant has the opportunity to present their case
Equality
Everyone should be treated equally, and if equal treatment creates disparity or disadvantage, appropriate measures must be taken to ensure fair access to the justice system for all.
Contributions to achieving equality in Civil system
Court procedures are applied equally to both parties engaged in a civil dispute, The rule of law prevents any community members from being exempt from the law, and An independent judge and/or jury adjudicates civil disputes
Access
All people should be able to engage with the justice system and its process on an informed basis. There is knowledge based access, financial based access, geographic based access
Contributions to achieving access in Civil system
The availability of translators, class actions, and remedies awarded in a civil dispute
Conciliation
Conciliation is a dispute resolution method where an impartial third party helps disputing parties reach a mutually acceptable agreement, often used by institutions or bodies. Conciliator can make suggestions.
Mediation
A process where a neutral third party helps disputing parties reach a voluntary agreement. Mediator cannot make suggestions, VCAT uses mediation
Arbitration
A private dispute resolution process where a neutral third party, called an arbitrator, makes a binding decision to resolve a conflict outside of court.
Judicial Decision
The determination by a court of competent jurisdiction on matters submitted to it
Conciliation important info (don’t memorise but know)
A conciliator is an impartial third party who listens to both sides, suggests a resolution, but doesn't enforce an agreement. The parties make the final decision, and the agreement is only legally binding if made into a court or tribunal order. Conciliation is used in CAV, VCAT, the Equal Opportunity Commission, and pre-hearing conferences in the Magistrates' Court. Courts, VCAT, CAV, Private use can use conciliation
Strengths + weaknesses of conciliation (don’t memorise but know)
Strengths:
Both parties are heard and can control the outcome.
Agreements are more likely to be followed.
Conciliators have expertise.
It's cost-effective, fast, and confidential.
The process is cooperative and doesn't need legal representation.
Weaknesses:
The conciliator can only suggest, not enforce, a solution.
The agreement isn't legally binding unless made part of a court or tribunal order.
Success depends on both parties' willingness to compromise.
If unsuccessful, it can prolong the case and increase costs.
Conciliation when appropriate and when not appropriate (don’t memorise but know)
Appropriate:
When there is a continuing relationship
If both parties are willing to compromise
Admission of responsibility exists and issue is the remedy
confidentiality/ privacy is wanted
If a court sends parties
Not appropriate:
X. Highly emotional issues
X. Previous violence/threats/ broken agreements
X. If a party is unwilling to [participate
X. If a power imbalance exists
X. If the matter is urgent
Mediation important info (don’t memorise but know)
Mediators are impartial 3rd parties who help parties identify and clarify issues and facilitate discussions on possible solutions without suggesting them. The parties make the final decision, and the process is not legally binding or governed by formal rules of evidence. Mediation is used in VCAT, dispute settlement centers, family mediation centers, neighborhood justice centers, and court mediation schemes. Courts, VCAT, CAV, Private use can use mediation
Strengths + weaknesses of mediation (don’t memorise but know)
Strengths:
Cheap
Do not need legal representation
Fat
Win-win solution
Parties are encourages to resolve own dispute
Informal
Greater likelihood of lasting agreement
More cooperative and less competitive than court
Confidential-not open to public courts
Weaknessess
No binding
Agreement depends on willingness of both parties to compromise
Too informal-stronger party may dominate
Mat not be appropriate for issue
Limited public scrutiny-therefore limited checks that parties are treated fairly
mediation when appropriate and when not appropriate (don’t memorise but know)
Appropriate:
When there is a continuing relationship
If both parties are willing to compromise
Admission of responsibility exists and issue is the remedy
confidentiality/privacy is wanted
If a court sends parties
Not appropriate:
X. Highly emotional issues
X. Previous violence/threats/broken agreements
X. If a party is unwilling to participate
X. If a power imbalance exists
X. If the matter is urgent
Arbitration important info (don’t memorise but know)
An arbitrator is an impartial 3rd party who listens to both sides, suggests settlement options, and ensures equal treatment. Unlike court rules, arbitration isn’t bound by formal evidence rules, but it is legally binding. Parties may have legal representation, and if they can’t agree, the arbitrator decides. It is more formal than mediation but less so than court and is used in magistrate courts, for claims under $10,000 (sometimes by a court registrar), privately, and can be referred by VCAT. Courts, VCAT, CAV, Private use can use arbitration
Strengths + weaknesses of arbitration (don’t memorise but know)
Strengths:
Bindinging decision
Usually fast
Arbitrator is usually experiences in area of law
Can offer processes and solutions that courts cannot (e.g apologies)
Formal procedure but less formal than courts
Limited costs
Weaknesses:
Can be expensive-if l;egal representation is used
win/lose scenario
Appeals are very limited
Not always a fast process
arbitration when appropriate and when not appropriate (don’t memorise but know)
Appropriate:
If both parties agree
If it is stipulated in an existing contract
If in magistrates court and claim is less that $10,000
If a binding decision is wanted
If parties want confidential/private decision
If parties wish “present” evidence
Not appropriate:
X. If a party doesn't agree to method
X. If a party would prefer a court resolution
X. Have their day in court
X. Prefer strict rules of evidence and procedure
How do conciliation, mediation, and arbitration uphold justice?
They uphold justice by ensuring fairness (impartial facilitators), equality (equal opportunity to present cases), and access (affordable and timely dispute resolution).
VCAT
VCAT, also known as The Victorian and Administrative tribunal was established in 1998, consolidated most existing tribunals into a single "one-stop shop" for resolving disputes.
VACT 5 divisions + lists
The Victorian civil and administrative tribunal is divided into 5 divisions. Each division consists of a number of lists: Civil division, Planning & environment division , Residential tenancy division, Human rights division, Administrative division and the lists: Civil claims list, Planning & environment list, Residential tenancy tenancies list, Human rights list, Guardianship list
VCAT important info (don’t memorise but know)
VCAT provides a low-cost, efficient, and accessible alternative to courts, handling a wide range of civil and administrative disputes, including domestic building disputes, with a less formal process involving mediation, conferences, and hearings, and offers the option to use legal representation.
Ombudsman/Complaints bodies
Ombudsman and complaints bodies investigate and resolve public grievances against organizations or government agencies, providing an independent, free, and impartial dispute resolution service.
Ombudsman/Complaints bodies important info (don’t memorise but know)
Ombudsman are independent authorities established by parliament that provide a free service to handle complaints about government departments or private businesses. They investigate, encourage resolution, and can sometimes make binding decisions, often intervening after parties have attempted to resolve the dispute themselves.
Consumer Affairs Victoria (CAV)
Consumer Affairs Victoria (CAV) is a government body providing free services to protect consumer rights, resolve disputes, and ensure fair trading in Victoria.
Consumer Affairs Victoria (CAV) Important info (don’t memorise but know)
Consumer Affairs Victoria (CAV), funded by the government and part of the justice department, educates the public on consumer law, advises the government, investigates unsafe products, and resolves consumer-business and tenant-landlord disputes. CAV offers free conciliation services but only if parties have first tried to resolve the dispute.
Role of the victorian courts (civil) pt 1
Courts provide access to impartial adjudicators, such as judges, justices, or magistrates, who are unconnected to either party. They also offer trial by jury, with 6 jurors, if requested and paid for by a party. Courts are the only venue for class actions.
Role of the victorian courts (civil) pt 2
Courts provide access to legally binding outcomes, enforceable by law, and a system of appeals through a hierarchy of lower and higher courts.
Role of the Victorian Courts (Civil law) pt 3
Courts allow for the timely resolution of disputes, ensure procedural fairness, and contribute to the development of common law.
To what extent do the Victorian Courts achieve the principle of Access?
The Victorian Courts achieve access through impartial adjudication and jury trials, but high costs and delays can still limit accessibility.
Composition of a civil jury
Eligible individuals must be over 18, Australian citizens, on the electoral roll, and not disqualified or ineligible.
What is the difference between being ineligible and disqualified?
In the context of a civil jury, being ineligible means a person does not meet the basic eligibility criteria (e.g., not on the electoral roll), while being disqualified means they are barred from serving due to specific legal reasons (e.g., a criminal conviction).
Note 
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