Legal Units 1&2 exam prep

Human rights

Basic freedoms or standards that promote and uphold the dignity of all people, and re guaranteed by a moral sense of duty or by the law

Humans’ rights commission

a set of moral and legal guidelines that promote and protect a recognition of our values, our identity and ability to an adequate standard of living

How human rights have developed

• in 1901 woman couldn’t vote and it was changed in 1902

• First Nations weren’t considered Australian until 1967

• same sex marriage not recognised till 2017

International treaty

Legally binding agreement between countries or intergovernmental organisations, in which they undertake to follow the obligations set out the agreement and include them in their own local laws

What must happen for Australia to be bound by a treaty?

they must specifically pass statute law to approve and adopt the various rights outlined in the international treaty

Universal Declaration of Human Rights

An international document that outlines basic rights and fundamental freedoms to which all humans are entitled

Rights from Universal Declaration of Human Rights

1. All people are born free and equal in dignity and rights

2. everyone is entitled to the same rights and freedoms

3. no one should be subject to slavery, torture or cruel or degrading treatment or punishment

4. Everyone has the right to life, liberty and security of person

Convention on the Elimination of all forms of Discrimination against woman

Aims to protect human rights of woman, promotes implementation of laws and systems that ensure woman are equal under the law and not discriminated against on the basis of their sex

Three main ways rights are protected in Aus

• - Statute law

• - Common law

• - The Australian Constitution

Charter of Human Rights

Document that sets out the basic human rights and/or freedoms of the citizens in a particular state or territory

Human rights outlined in the charter

1. Right to life

2. Right to protection from torture and cruel, inhuman or degrading treatment

3. Freedom of movement

4. Freedom of thought, conscience, religion and belief

5. Right to take part in public life

General limitation clause

allows public authorities to restrict human rights in situations where it is reasonable and justified in order to uphold a free and democratic society

Strengths of protecting human rights though statute law

• - Parliament can create new legislation and amend existing statutes to incorporate further human rights, particularly as the views and values of the community change

• - Statutes are often detailed and precise and protect human rights specifically rather than being implied

• - Human rights contained in statutes are generally enforceable and need to be recognised by government organisations

• - Parliament has the ability to pass laws quickly if there is a need to promptly protect additional human rights

Weaknesses of protecting human rights though statute law

• As the supreme-making body, parliament can amend statutes to restrict or cancel existing human rights

• Parliament can include exemptions, limitations or restrictions in statutes, so protected human rights are not always absolute

• statutes don’t always enable a person to be awarded anything if their human rights are breached

• human rights protected by statute law aren’t as well protected as human rights contained in a constitution

Common law

is a law that has been established and developed over the years through decisions made by judges in state and federal courts

common law rights

freedoms established by judges when deciding on a case

Rights protected by common law

• right to silence

• right to fair trial

• right to legal representation

• right to transgender people to marry

Ultra vires

Latin term meaning ‘beyond the powers’, a law made beyond the powers of parliament

Codification

to collect all law on one topic together into a single statute

Abrogation

to abolish or cancel law

How Australian constitution protects human rights

• through express rights

• through implied rights

Express rights

Are rights stated in the Australian Constitution, they are entrenched, meaning they can only be changed by a referendum

implied rights

rights that are not expressly stated in the Australian Constitution but are considered to exist through interpretation by the High Court

Universal declaration of human rights (1984)

to respect and promote the achievement of the basic human rights and freedoms outlined in thr UDHR

UDHR broadly sets out

• the right of all people to take part in the government of their country, either directly or through freely chosen representatives

• the will of the people shall be ‘the basis of the authority of the government’, and that the people will have the opportunity to express these wishes through the right to vote

people disqualified from voting

• people who are incapable of understanding the nature and significance of voting due to being of ‘unsound mind’

• people found guilty of the criminal offence of treason or treachery

• person who is serving a prison sentence of three or more years

Laws that govern and protect the right to vote in Australia

• Sections 7 and 24- requires houses of parliament to be ‘directly chosen by the people’

• The High Court has been required to interpret the meaning to resolve cases

Reform

making changes/improvements to an existing system to make it more effective, fair or efficient

Conflicting issues and possible reform- Lowering the voting age

• Options- not compulsory or no fines but compulsory voting

• Human Rights Law Centre- support lowering it, allowing young people an opportunity to express their views and whom governs the country

What happened in the Roach vs Electoral Commissioner (2007)

• They determined whether an Act of Parliament that banned prisoners from voting breached the Australian Constitution

• In 2006 an Amendment changed it, allowing no one imprisoned to vote

• Roach challenged the constitutional validity of both Acts in the High Court with assistance of the Australian Rights Commissioner

• In 2007 Act was declared unconstitutional and invalid

Constitutional validity

refers to whether a law is legally valid under the Australian Constitution

Roach vs Electoral Commissioner

In simple terms the High Court ruled that the principal of representative government protects the right of the people to choose members of the Commonwealth Parliament

Fairness

Meaning all people can participate in the justice system and its processes should be impartial and open

Equality

Meaning people should be treated in the same way, but if same treatment cause disadvantage or disparity then adequate measures should be implemented to allow all to engage with the justice system without disparity and disadvantage

Access

All people should be able to engage with the justice system and its processes on an informed bias

Dispute resolution methods

They are a way to obtain an outcome in a civil dispute that does not involve a court or tribunal making a binding decision on the parties

Mediation

Joint problem-solving process in which the parties in dispute sit down and discuss the issues what they disagree on, present their side of the case and try to reach an agreement through negotiation

mediator

An independent third party who does not interfere or persuade but helps parties in a mediation as they try to settle the matter, needs to have good people skills and excellent conflict resolution skills

Legally binding

parties are bound by the promises they make at arbitration

Conciliation

Method of dispute resolution that uses an independent third party to help the disputing parties to reach a resolution

Conciliator

independent third party who helps parties reach an agreement that ends the dispute between them, they can make suggestions and offer advice as they’re usually someone with specialist knowledge, but parties must reach the decision themselves.

Strengths of mediation and concilitation

• decision made during is likely to be accepted as reached decision themselves

• less formal setting then a courtroom, less confrontational

• unbiased third party

• confidential

• saves money and time

weaknesses of mediation and conciliation

• not binding unless parties enter under terms of settlement

• one party may dominate another, mainly if one party doesn’t have legal representation

• third party has no power to order parties to come to a decision

• both parties have to be willing to participate

Arbitration

an arbitratior istens to the parties and makes a binding decision on the them, this is known as an arbitral award

Arbitrator

independent third party appointed to settle a dispute during arbitration, they’ve got specialist knowledge in disputes and make legally binding decisions, arbitrators come from The Victorian Bar. This is more formal than mediation and conciliation but less formal than court

Strengths of arbitration

• Often conducted privately

• Less formal than courts allowing parties to feel more at ease

• cheaper than going to court

• it is legally binding

• independent third party has expertise in the law

• private and confidential

Weaknesses of arbitration

• parties are limited to particular remedies

• more formal then mediation and conciliation but less formal than courts

• legal representation is usually used, so more expensive

• no control over outcome

• takes more time for decisions to be made

• not always available

Purpose of tribunals

to provide individuals with a low cost, efficient and speedy method of dispute resolution

difference between courts and tribunals

the cost of having a dispute resolved at a tribunal can often be much less than the cost of resolving the dispute in court, but a court can hear all types of cases but tribunals cannot

Victorian Civil and Administrative Tribunal (VCAT)

• ‘one-stop-shop’ for parties and deals with a broad range of civil disputes, including small civil disputes, residential tenancy disputes, discrimination claims, and guardianship issues

• it provides Victorians with a low-cost, accessible, efficient and independent tribunal that delivers high-quality dispute resolution

• Applicant (makes application) and the respondent (other party)

Ombudsmen

• provide individuals and small businesses with an independent, timely and accessible dispute resolution service to resolve disputes in relation to certain agencies and industries

• in general, they hear things to do with local governments and electrical and water companies

• provide a fair free way of handaling complaints and resolving disputes

• if the dispute is not resolving fast enough some have the power to make a binding decision

Complaints body

• complaints about provisions of goods and services or decisions made by certain bodies

• provide free complaints and dispute resolution service so Victorians can access dispute resolution bodies

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complaints body vs ombudsmen

• they’re both designed to hear complaints from individuals and small businesses about services and goods provided to them

• complaint bodies generally don’t have the power to conduct a hearing or make binding decisions on the parties

Consumer Affairs Victoria (CAV)

may conciliate disputes between consumers and traders, tenants and landlords about the provision of goods and services, and about rental properties

Strengths of tribunals, complaint bodies and ombudsmen

• lower cost prices than courts, often resolve dispute for free

• complaints are resolved between a month and six months

• informal

• independent and impartial

• specialised in particular industry or law

Weaknesses of tribunals, complaint bodies and ombudsmen

• some services aren’t free

• some find it difficult to find the right service for them

• large complex claims have a limited amount of money they can be awarded

Jurisdiction

lawful authority of a court, tribunal or other dispute resolution body to decide legal cases

On the balance of probability

standard of proof in civil disputes, requires the plaintiff to establish that it is more probable then not their claim is true

Counter claim

separate claim made by the defendant in response to the claim

Case management

method used by courts and tribunals to control the progress of legal cases more efficiently and effectively, generally involves person presiding over the case making orders and directions in the proceeding

Appeals

an application to have a higher court review a ruling

Remedy

a way in which a party can right the wrong that has occurred to the party who has suffered loss

Original jurisdiction

power of a court to hear a case for the first time

Magistrates’ court

• claims up to $100,000

• no appellate jurisdiction

County court

• unlimited amount of money on claims

• no appellate jurisdiction, unless given under specific Act of Parliament

Supreme court- court of appeal

• no original jurisdiction

• appeals from county court and magistrates’ court

Supreme court- trial division

• unlimited original jurisdiction

• appellate jurisdiction on question of law form magistrates’ court and from VCAT

Strengths of courts as dispute resolution bodies

• judges impartial

• court hierarchy courts are specialised helping ensure fairness and expertise

• they’re formal

• court hierarchy allows for appeals

Weaknesses of courts as dispute resolution bodies

• can be difficult to understand

• legal representation makes it expensive

• people disadvantaged without legal representation

• formalities of court result in parties being stressed, intimidated and nervous

Jury

• independent group of people chosen at random to determine questions of fact in a trial and reach a decision, they consider facts of a case and decide who is in the wrong

• state pays for jury in civil trial

• there are 6 jurors

• imprisonment or ppl on remand, particular occupations and circumstances making it difficult for juror to attend cannot do jury duty

• unanimous verdict- all jury members are in agreement

• majority verdict- all but one of the members of the jury agree

• nor required to give reason for decision

People who may face additional difficulties when interacting with the civil justice system

first nations, people of low socioeconomic status, young people and people in regional, rural and remote areas

Issue experienced by First Nations people

• denial of rights, cultural violations resulting in ongoing distrust and lack of confidence in the civil justice system. they don’t view courts or tribunals as a safe place bc of intergenerational trauma

• differences in respect, prefer to explain in storytelling

• elders are highly respected

Issues faced by people of low socioeconomic status

• inability to access legal services bc of cost and lack of funding, lack of understanding about law or legal system

• intellectual disabilities

Issues faced by young people in the civil justice system

• less than 25 yrs old

• age relates communication barriers, lack of knowledge abt legal system and lack of resources

• lack financial resources, access to technology, family or friend support or life skills

Issues faced by people living in regional, rural and remote areas

• lack of access to legal services, technology and courts

• access to justice is inadequate

• physical attendance, meaning having to travel long distances adding costs and delays

Remedy

• a way in which a court can right a wrong that has occurred to the plaintiff

• restore the party, as much as possible, who has suffered loss or injury to the position they were in before the loss or injury occurred

Damages

• an amount of money to be paid by the defendant to the plaintiff in satisfaction of a claim made by the plaintiff

• compensatory, specific, general and aggravated

Compensatory damages

• amount of money awarded to a plaintiff for harm, injury or other losses suffered, includes general, specific and aggravated

Special damages

awarded to the plaintiff for the loss that can be calculated exactly, for example, medical bills

General damages

awarded to the plaintiff for pain and suffering, cannot be calculated exactly because they include considerations of the extent of the plaintiff’s emotional suffering and loss of enjoyment

Aggravated damages

awarded to the plaintiff if court believes defendant’s conduct injured plaintiff’s feelings by causing humiliation and insult

Injunctions

• type of civil remedy where the court makes an order for the defendant to undertake an action or do something in an attempt to restore the plaintiff to their original position

• restrictive and mandatory

Restrictive injunction

stops someone from doing something; for example, a person could apply for this to stop a building from being destroyed if it was in the interest of the nation to preserve it

Mandatory injunction

injunction is sought when a person wishes to compel someone to do a particular act; for example, to remove something from their land

what do laws identify

different behaviours and actions that are considered acceptable or unacceptable for individuals in the community

what can laws do

protect society and our safety, right to live free from discrimination, right to freedom of expression and movement

two main sources of law in Australia

statute law- parliament and common law- courts

statute law

law made by parliament, also known as Acts of parliament or legislation

bicameral parliament

parliament with two houses, two separate groups of people who together make laws

two houses in VIC parliament

Legislative assembly lower house and legislative council upper house

two houses in the commonwealth parliament

house of representatives and the senate

common law

laws made by judges through decisions made in cases

what are the three federal courts

high court, federal court and family court

main VIC courts

supreme court, county court and magistrates’ court

main role of courts

to resolve disputes

make laws as part of their determination of cases

remedy

any order made by a court designed to address a civil wrong or a breach, should provide a legal solution for the plaintiff for a breach of the civil law by the defendant

plaintiff

party who makes a legal claim against another party in court

damages

amount of money one party is ordered to pay to another party for loss or harm suffered, most common remedy

civil law

Area of law that defines rights and responsibilities of individuals, groups and organisations in society and regulates private disputes

Upholds rights by enabling a party who has suffered harm or loss bc of a breach of their rights to seek a remedy

Provides guidelines for acceptable behaviour- what’s right and wrong

Protects the rights of individuals