Legal exam 2 reform

Donoghue v Stevenson

she found a snail in her ginger beer and sued for liability. it spread across the world for companies responsibility to ensure safe products.

ALRC

A statutory body but independent from the government. They make recommendations on reform.

ABC raid by AFP

AFP raided ABC for releasing military secrets of the war crimes committed by Australians. This case brought up questions about what is more important national security or peoples right to information.

Mabo v Queensland [1992] HCA

Challenged terra nullius and won Native title act (1993)

Israel Folau case study

Rugby Australia cancelled his 4 million dollar contract, after he tweeted homophobic statements. This decision was criticised as an infringement on his freedom of speech and religion, so he fought the dismissal. The case was settled.

Parliamentary committees weaknesses

• No deadline

• Subject to political bias

• Bureaucracy

Parliamentary committees strengths

• Minority parties included

• Greater representation of minority interests

• Smaller groups

• Expert groups

• Targeted evidence

• Devoted time specific issues

Human rights legal basis

• Universal Declaration of Human Rights (1948)

• International Covenant on Economic, Social and Cultural Rights (1976)

• International Covenant on Civil and Political Rights (1976)

Human rights

Legal entitlement inherent to all human beings, cannot be extinguished/discriminated (legally).

Cultural Relativism Weaknesses

• Doesn’t outline set rights

• enables exploitation of vulnerable populations

• Countries with dominate cultural contexts within nation

• continues negative traditions

Cultural Relativism strengths

• State sovereignty

• promotes inclusivity between nations and recognises cultural influences

Cultural Relativism

Believes that human rights will differ based on varied beliefs, values, and cultural context

Universalism Strengths

• Promotes non-discrimination, anti-prejudice, and equality

• Easily understandable,

• theoretically easier to hold accountability

Universalism weakness

• Western hegemony

• ignores cultural context

• Expects everyone to come to an agreement internationally

• Almost impossible to enforce

Universalism

Holds that human rights should be universal and inextinguishable, regardless of context.

Name the gun law legislation

National Firearms Agreement (1996)

Legal infringements in Robodebt

• Used income averaging

• Reverse onus of proof

• collected 751m from vulnerable people illegally

• They were advised that to go forward legislation would have to change

Positivist Law responsiblities

Defined, mandated and enforced by law

Positivist law rights

• Constructed by society and recognised by the state

• If it cannot be protected and enforced by state institutions it is not a legal right.

Positivist law Principles

• Law is a man-made construct

• Morality and law are seperate

• Legal rights are only those recognised by the state unrelated to morality

Natural Law responsibilities

Individuals have natural duties

Natural Law Rights

Stems from an inherent sense of justice and morality

Natural law principles

• Law has a moral content and is tied to an inherent right vs wrong.

• If man made law is unjust, it is not true law

• Natural rights can be derived from this.

Gun reform timeline

1. Port Arthur mass murder

2. Australians realised how dangerous guns can be and lobbied for reform

3. John Howard’s addresses parliament and advocates for change

4. Liberals had a double majority

5. passed law reform of guns for a big buy up

6. Australia has the strictest gun laws

Common law reform

Judges making decisions that become precedent. an example is Dietrich vs The Queen (1992).

Dietrich vs The Queen (1992).

Dietrich was not given access to legal representation, the case gave way to the dietrich principle which established the right to legal representation

Legislative change

Easiest form of law reform because legislation is where law comes from, involves amending bills or removing by passing through both houses

Parliamentary Committees

Small groups formed in Parliament for specific purposes. Ate formed through legislation

Royal commission

Is the highest for of inquiry on matters of public importance, they have summons power. Only inquire into matters relating to the responsibilities of the commonwealth and of public interest.

Why do we need law reform

because the law lags behind society

pressure groups

• Specific, use coercive techniques to affect and influence policy

• Always political in nature

• Generally lobbying firms

Law reform

The process of examining existing laws and advocating for change in order to make the legal system more modern

Conditions of law reform

Social values, new concepts of justice, and new technology

Liberalism

Values individual rights and concerns itself with the individual not the collective.

Collectivism

Values collective rights not individual rights

Conservatism

To conserve traditional values

Constitutional literalism

Interpreting the constitution within the context of the time it was written. They believe that the constitution is fixed and static legal document with specific meaning.

Judicial Activism

Judges given the ability to interpret the constitution and set precedent for future cases.

Limits of the law

The law always lags behind society which is why reform is so important

Non-Government methods

Royal commision, ALRC, common law, and pressure and interest groups

Aus Law reform commission

Statutory body but independent. An advisory body. Makes recommendations on reform

Right

Entitlements that people have by legal or moral authority

Right examples

Freedom of speech is an implied right

Moral rights

Dependent on the culture and religion of the individual, could be binding in a community, but aren’t legally enforceable.

Natural Law

There is a higher morally superior law that transcends human made law,

Positivist Law

The only real law is from official institutions

Responsibilities

Legal or moral obligations a person may have to another group, the state, or other people generally.

Relation of rights and responsibilities

Where citizens have particular rights, the state has a responsibility to protect those rights

Correlation of rights and responsibilities examples

As students with disabilities have the right to attend their local school, school principals have the responsibility to enable this and provide reasonable accessibility adjustments

Pressure and interest groups

• Group of citizens who aim to influence public policy, and often public opinion

• promote political involvement

• uphold democratic rights of free speech assembly and association

• influence not control

Interest groups

Broader term, people united by a common interest, not always politically linked.