legal exam 3

Legal structures to implement the 4 day work week

• Constitution

• Fair Work Ombudsman

• Legislation

Family law jurisdiction

It is federal but has a branch in each jurisdiction

What are the possible challenges of the 4 day work week?

• workloads will be condensed into four days causing more pressure

• not realistic in all businesses

• Is expensive and could hurt small businesses

What does the four day work week look like?

Employees work four normal days using the 100:80:100 model

Define Civil law

An area of law which defines the rights and responsibilities of parties within a society, and regulates private disputes and interactions between them.

Purpose of Civil law?

protecting the rights and enforcing responsibilities of private parties

Difference between civil and criminal law

Civil law is a private dispute whereas criminal law is a crime against the public/state

breach

A failure to observe a law or legal obligation

causation

the casual relationship between actions and harm but for not the actions of D no harm would have occured to P.

loss

General term for harm experienced in civil law

limitation of actions

The time period within which wrong party can sue wrongdoer, governed in the ACT by the Limitations Act 1985 (ACT)

liable

Responsible by law, legally answerable

burden of proof

The obligation of a party to prove a case in court, resting with the party who initiates the legal action.

standard of proof

balance of probabilities

relationship between civil law and justice

holds big corporations accountable, protects vulnerable people. remedies as it restores the harmed parties to previous position. victim focused. rights vs wrongs without a crime.

main source of civil law in the ACT

Civil Law (Wrongs) Act 2002 (ACT).

History of torts

Comes from the english writ system, was kickstarted by the industrial revolution, through colonisation and English common law..

purpose of torts

punishment, compensation, and deterrence

4 elements of negligence

1. duty of care

2. breach

3. causation

4. harm

Duty of care

the legal responsibility of one party over anothers safety and wellbeing

Mediation

• Parties make final decision

• Does not give advice

• Process in which an impartial third person helps identify the issue and facilitate discussion of solutions

• both parties are willing

• not binding

conciliation

• A specialised third party who listens to both sides and suggests solutions

• not binding

• parties make decision

arbitration

• A specialist makes the decision in favour of one party

• binding

5 steps of contract law

1. Agreement

2. Intention

3. consideration

4. capacity

5. formality

Damages

money given to plaintiff

Compensatory damages

restore plaintiff to position before harm

Nominal Damages

Rights of plaintiff infringed but no actual loss small amount of money

Exemplary Damages

punitive damages, punish defendant as well as deterrence

Contemptuous damages

Plaintiff has a legal right for damages but not a moral right it so is only awarded a small sum is very rare

Injunction

to prevent defendant from doing harm

Restrictive

Stops someone from doing something

Mandatory

compels someone to do something

3 components of defamation

1. Published by a third party

2. Identifiable

3. causes harm

Family Law purpose

protect the members of family

3 requirements for legal marriage

1. Voluntary

2. For life

3. Between two people

Purpose of workplace law

ensure fairness and protect parties rights in workplace relationships

Current workplace law reform

right to disconnect, superannuation, publishing gender pay gap, multi employee bargaining, respect at work

What is the need for the 4 day work week

• People are experiencing mental health issues

• connected to work stress

• increased connectivity

• growing trends in flexible working arrangements

• employers do not know how to deal with high levels of burnout

Main sources of family law

Marriage Act 1961 (Cth)

Family Law Act 1975 (Cth)

Divorce

The legal dissolution of a marriage by official court decision. Have to live separately for 12 months before official.

child custody

• rights of the child are paramount

• Parents act in the best interest of the child

• Parental responsibility

Origins of family law

• Hyde v Hyde and Woodmansee defined marriage

• Constitution

Legal pluralism

Existence of multiple legal systems within one society

First Nations experiences of family law

• Colonisation

  • Destruction of community, due to murders that also caused intergenerational trauma and scepticism

• Assimilation

  • Removed autonomy and stolen generations

• Integration

  • Acknowledgement that different cultures exist, but not changes in practice

  • Equality rather than equity in policy making

• Recognition

  • Reuniting families from the stolen generations

  • right to raise children in community and with traditional values and practices

  • continuing trends for over removal of children, lacking structure for change

Recognition of Sharia law in Australia (for)

• Already operating unofficially

• Implemented in other countries

Recognition of Sharia law in Australia (Against)

• Diverse muslim population

• not treating Muslims equally

• Against women’s rights

• Separation of powers

• Separation of church and state

• Rule of law

Why would India embrace legal pluralism in a way that Australia would not?

• Different history with colonisation

• Gained independence

• Legally trained in British traditions

• Had several large groups of religions and was the easiest way to include them all

Origins of environmental law International

• Product of the creation of the UN

Origins of environmental law in Australia

• Bradford Corporation v Pickles [1895] nuisance torts

• originally based on agricultural needs

• big change came in the 60s and 70s

• Federal government responsibility

• State developed regulatory bodies over time to implement national laws

Importance of the Tasi Dams case

Section 51 of the constitution defined external affairs

Significance of Minister v Sharma

aimed to add a bit that makes them responsible for young people in the ​The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)

The role of court processes in environmental protection

• class action lawsuit

• Emphasis in precedent

The role of legislation in environmental protection

• Proactive

• democratic

• broad spectrum

• politically motivated

• brand new

Implications of Bruce Lehrrmann v Various Media orgs [2023}

• he is essentially liable for rape

Implications of Robert-Smith v Fairfax Media Publications Pty Limited (No 46) [2023] FCA 1630

• can have further criminal charges

• the media is allowed to report on it