1. Your Rights and Responsibilities, 2. Resolving Disputes

What are rights

Legal entitlements or permissions and they outline how people should be treated; fairly, equally and respectfully

Why do people have rights?

Simply because they are human (Human rights)

Give an example of a human right in our legislation

Disability Discrimination Act 1992 (Cth)

Students with disabilities have the right to attend their local public school

What are responsibilities?

Legal or moral obligations to others, society or the state

Can be duties to act or duties to avoid certain actions

i.e parents have a legal/moral responsibility to care for kids

What is tortious

Refers to wrongful acts that breach a duty of care and cause harm (tort)

What are express rights and give an example

Clearly written in the Australian Constitution and cannot be overridden by legislation or court decisions

eg. Section 116 - Freedom of religion

What are implied rights and give an example

Not explicitly written but inferred from the Constitution’s language and structure

eg. freedom of political communication

What is the charter of rights

Also called the Bill of Rights

A formal legal document stating key rights of citizens

Does Australia have a charter of rights

No

What is the Australian Constitution’s role in the legal basis of rights

Provides express rights and implied rights

Courts cannot override these rights

What is statue law’s role in the legal basis of rights and give an example

Laws passed by Parliament protects rights

Eg. Racial Discrimination Act 1975 (Cth) - protects against race-based discrimination

What is common law’s role in the legal basis of rights and give an example

Rights established by court decisions

Eg. Dietrich v R (1992) - right to fair trial and legal aid

How does statute law influence the legal basis of responsibilities and give an example

Legal responsibilities are known as obligations or duties

Eg. Education Act 1900 (NSW) - parents must ensure children are educated; the state must provide public education

How does common law influence the legal basis of responsibilities and give an example

Based on precedent, with a key concept of duty of care
Eg. Donoghue v Stevenson (1932) - duty of care in product safety

What is the distinction between moral and legal rights

Legal rights come from:

• The Australian Constitution

• Statutes

• Common law

Moral rights:

• Based on personal or societal values

• Not enforceable

• May differ between cultures or individuals

• Eg. right to fidelity in a relationship is a moral exception, not a legal requirement

Laws often reflect community morals, but not always

Give an example

Same Sex Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)

What countries have a charter of rights

United States (Bill of Rights)

United Kingdom (Human Rights Act 19998)

New Zealand (Bill of Rights Act 1990)

Since Australia does not have a charter of rights, how are our rights protected

Through statutes, common law and limited constitutional express rights

Arguments for charter of rights

1. Current laws don’t offer adequate protection for fundamental freedoms

2. A charter would make laws more cohesive and accessible

3. Align Australia with human rights standards

4. A charter would help protect the rights of minorities

5. Would help Australia meet international standards

6. High Court interpretations of implied rights are too limited - explicit rights are necessary

Arguments against charter of rights

1. Rights are already protected through statute and common law

2. A Charter may not improve rights protection in practice

3. Allowing judges to override laws could be seen as undemocratic

4. Rights defined in a Charter could become outdated

5. Rights may be restricted by the exact wording used in the Charter

6. Risk of judiciary becoming political

What is the relationship between rights and responsibilities

For every right you have, you have a corresponding responsibility

Role of the Australian Federal Police

• Federal criminal law (eg. drug importation, people smuggling)

• Criminal law where it crosses state boundaries

• Federal police enforce the criminal law of the state within the state’s borders

• Role of the AFP has changed significantly

• AFP is a key player in maintaining Australian security

• Operation Ironside (successful operation) ANOM

Role of the State Police

Role is to work with the community to reduce violence, crime and fear:

• Preventing, detecting and investigating crime

• Monitoring and promoting road safety

• Maintaining social order

• Performing and coordinating emergency and rescue operations

What are other law enforcement agencies

• Australian Border Force

• Australian Criminal Intelligence Commission

• Australian Security and Intelligence Organisation (ASIO)

• State Rail Authority

• Environmental Protection Agency (EPA)

• Australian Competition and Consumer Commission (ACCC)

Why has alternative dispute resolution been developed

• Disputes between individuals occur frequently but differ in importance and complexity

• Courts can be expensive and time-consuming (inaccessible)

What are the different types of ADR, from least serious to most

Negotiation

Mediation

Conciliation

Arbitration

Tribunals

Court

What are the characteristics of negotiation

• Involves taking the issue through with the parties involved with the goal of reaching a mutually accepted resolution

• Doesn’t involve lawyers and requires compromise

• Resolved quickly and cheaply but decision is not binding (legally)

What are the characteristics of mediation

• Parties use an impartial third party to guide the parties to an agreement

• Mediator doesn’t make decisions and usually confidential

• Outcome is not legally binding

• Eg. Community Justice Centres

What are the characteristics of conciliation

• Conciliation is similar to negotiation except that a conciliator may provide advice to help the parties identify the issues

• Can be more expensive than mediation but still cheaper than court

• Decision not legally binding

What are the characteristics of arbitration

• Arbitration is a formal and structured process where the parties present arguments and evidence to the arbitrator

• Arbitrator’s decision is legally binding

• Mechanisms for appeal available

What are the characteristics of tribunals

• Tribunals are established mainly to deal with a specific area of law such as the NSW Consumer, Trader and Tenancy Tribunal (CTTT)

• They are designed to be fair, informal, efficient, quick and less costly than the more formal court system

If an individual cannot resolve a dispute by alternative methods, they will need to take the matter to

litigation

What are different types of dispute with the state

• Contract

• Policy decisions

• Administrative decisions

What are non-legal methods of resolving disputes with the state

• Media

• Members of parliament

• Trade unions

• Interest groups, including non-government organisation

Give an example of the media resolving a dispute with the state

• Policy decision: In 2016, the decision to amalgamate NSW local councils was reversed due to public outcry in the media

Effectiveness of media in resolving disputes with the state

• Quite effective in raising awareness

• Sometimes prompt action

• Effectiveness depends on political impact and the nature of decision

• Social media is becoming influential

• Limited use in achieving success for an individual

• May only be helpful if others are affected

• If an individual’s situation is not newsworthy, media won’t bother

• Can be one-sided

Effectiveness of members of parliament in resolving disputes with the state

• MPs are usually accessible

• Extremely cost and time effective

• More private than the media

• Limited by political will, influence of MP

• Self interest and future support (potential) - good motivator

What are trade unions and what is their role in dispute resolution

• Work to protect the rights of workers in particular industries and can bargain on their behalf in negotiations with employers, to maintain fair wages and conditions

• Can campaign to change government decisions that impact on the working conditions of their members

Effectiveness of trade unions in dispute resolution

• Very effective and quite powerful

• Role really limited to industrial matters

• Effect great change through strike action eg. green bans in the 1970s which saved heritage properties from development

• Legal restrictions on strike action means less effective now influence has weakened as union membership declining

What are interest groups (including NGOS) and how can they resolve disputes with the state

• Groups of independent people from the government, with a common interest in a particular issue

• Involved in challenging government decisions, raising awareness and encouraging public support

What is the effectiveness of interest groups (including NGOS) in resolving disputes with the state

• More focused on challenging government policy over individuals

• Protest action garners attention

• Effectiveness depends on profile of dispute/interest group

• Larger NGOs more successful

What are legal methods of resolving disputes with the state

Internal and external review

What is an internal review

occurs when the decision is reviewed by the department or agency that made the decision

What is an external review

occurs when the decision is reviewed by an independent body/organisation

What is the effectiveness of internal review

• Quick, easy accessible

• Minimal cost

• Relatively informal

• Form of quality control

• Reviewer already familiar with processes

• Possible bias

• Possible inconsistency across time/space

External review of specific decisions can take a number of forms including

Administrative review

Judicial review

Other forms of external review of government activity

Ombudsman

Australian Human Rights Commission

Independent Commission Against Corruption

Royal Commissions

What is administrative review

involves consideration of the merits of the decision (i.e was the decision the right or best one given the facts) and carried out by various tribunals

An application for administrative review cannot be made until an internal review has been conducted

What is the effectiveness of administrative review in solving disputes with the state

• Generally quite accessible

• Not too expensive, if resolved

• Although external, can still have benefit of specialist knowledge in specialist tribunals

• Even a favourable outcome may not achieve justice

• Could be unfair if unrepresented applicant is up against government department funded lawyers

• Appeals can cost

What is judicial review

• Involves a court considering the process by which the decision was made (i.e was the decision made lawfully?)

• Does not consider whether the decision is wrong or right and will not change decision, but may order its reconsideration

Once consideration of judicial review is

• ultra vires (beyond the powers) of the decision maker, another is if the decision is in accordance of procedural fairness

What courts conduct judicial review and at what level

Supreme and Land and Environment Court at state level

Federal Court and Federal Circuit Court review federal government decisions

What is the effectiveness of judicial review in resolving disputes with the state

• Quite effective in that decision is thoroughly scrutinised

• Result in a more considered decision (JA?)

• Individuals must have standing (legally recognised interest in matter)

• Very expensive and daunting (individual v. state)

• May not result in favourable decision (but a more lawful one)

• Impacts (i.e loss of health, employment) can achieve justice for most vulnerable

What is ombudsman

• An independent person who investigates complaints made by citizens about state or federal government (and some private) departments and agencies

• A NSW and Commonwealth Ombudsman; federal deals with disputes involving immigration, defence, social service, etc…

• Encourage and help agencies develop complaint mechanisms and make reports to Parliament

What is the effectiveness of ombudsman

• Most complaints are resolved without formal report

• Time consuming

• No associated costs to make a complaint

• Formal recommendations to government improve administrative processes

• No one can override decisions of government departments/agencies cannot impose penalties

What are statutory bodies which resolve disputes legally

Australian Human Rights Commission

Independent Commission Against Corruption

Royal Commissions

What is the AHRC and what does it do

• An independent statutory body whose mission is to lead the promotion and protection of human rights in Australia

• Responsible for administering a range of federal human rights laws and investigates breaches of human rights

Effectiveness of AHRC

• The Commission finalised 1987 complaints and conducted 1128 conciliation processes of which 848 complaints (75%) were resolved

• Number of unresolved disputes indicates a major limitation

• If disputes are not resolved then all AHRC can do is make a recommendation to Attorney General via report

• Matter must go to court to be finally resolved

What is ICAC and what does it do

• ICAC was established in 1988, a public authority completely independent of the government and directly accountable to the NSW parliament, ICAC’s main functions are:

- Investigate and expose corrupt conduct in the NSW public sector

- Actively prevent corruption through advice and assistance

- Educate NSW community and public sector about corruption

Effectiveness of ICAC

• Very effective at investigating and exposing corruption

• Has had an educative role and many agencies had acted on recommendations

• Acknowledged as effective but under resourced

• Calls for a federal anti-corruption watchdog but no action

• Continued corruption suggests prevention aim not being achieved

• Justice only achieved if corrupt individuals convicted and punished

• Wide powers of ICAC mean evidence used to find corruption often inadmissible

• Has been criticised for going beyond powers

• Overall - very good at what it does

What are Royal Commissions and what do they do

• A special inquiry set up by Parliament to inquire into any matter of public importance

• Parliament sets out the terms of reference i.e the matters the Royal Commission is to look to, and may be given special powers’

• Once the investigation is finished, commission produces a report that is tabled in Parliament

What legislation sets up royal commissions and give an example of one

•  Royal Commissions Act 1902 (Cth)

• Eg. Royal Commission into Aboriginal Deaths in Custody (1987-1991)

Effectiveness of royal commissions

• Very effective in publicising problems and issues in relation to the area of inquiry

• Very expensive to run - a proposed two year royal commission into the banking industry is an estimated cost of over $53 million

• Effectiveness depends on the extent to which recommendations are implemented - varies eg. Despite great changes in Indigenous policy in the last 25 years, the number of Indigenous deaths in custody has not declined, that being said, the actual rate per 100 prisoners has declined