Core part II: The Individual and the Law Flashcards
rights
legal entitlements that people have by legal and moral authority. It refers to the way that people should be treated in a fair, respectful, and equal way.
responsibilities
legal or moral obligations that a person may have to another person, group, state, or society.
where can rights be found
Constitution, statute law, common law
the two types of rights found in the constitution
express rights, implied rights
express rights
civil and political rights that are clearly and absolutely outlined, making it easily enforceable and therefore difficult to change found in the Australian Constitution
implied rights
civil and political rights that can be inferred from the constitution rather than being clearly stated, making them less easily enforceable.
eg. freedom of speech is implied in the constitution
5 explicit rights in the constitution
- vote
- protect against acquisition of property on unjust terms
- trial by jury
- freedom of religion
- prohibition of discrimination on the basis of state of residency
rights and statute law
All statutes have the capacity to protect rights including the:
Racial Discrimination Act 1975 (Cth) which makes racial discrimination in certain contexts unlawful in Australia
Disability Discrimination Act 1992 (Cth) makes it unlawful to discriminate against a person in many areas of public life because of their disability
rights and common law
some rights have their origins in common law including:
Dierrich v The Queen (1992) which established a de facto requirement for the provision of legal aid to defendants in key criminal trials.
moral rights
rights that may be argued from different viewpoints, and may not be upheld by those who have a responsibility to respect that right (non enforceable)
legal rights
rights that fall under categories based on the constitution, statues and common law
bill of rights
a list of the most important rights to citizens of a country to protect against right infringement from public officials and private citizens, Australia doesn’t have a BOR
Australian Human Rights Commission
fixes human rights abuses such as discrimination by taking on complaints
role of NSW police
- prevent, detect, investigate crime
- maintaining social order
- performing/coordinating emergency situations
role of Australian Police Force
- enforce common criminal law
- combat serious and complex crime
- protects Commonwealth interests from criminal activity domestically and internationally
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) AKA LEPRA
outlines the powers that police have been given to carry out their roles, has been amended several times
examples of police abuse of powers
Adam Salter: four police officers charged with lying about the shooting death of mentally ill man Adam Salter in 2009
Roberto Curti: 21-year-old student died shortly after a prolonged police chase where multiple police used handcuffs, batons, physical force and 14 taser shots, even though he wasn’t doing anything wrong
dispute
a case involving an unresolved conflict between two parties. They can occur between individuals, individuals/groups and the state
stages of disputes
negotiation (less relevant), mediation, conciliation, arbitration
main benefit of alternate dispute resolution
cheaper and less formal than court, faster
negotiations
any form of dialogue to resolve disputes and/or produce an agreement on further courses of action
mediation
ADR designed to help 2+ parties in the presence of a mutual 3rd party to reach agreement, mediator doesn’t make decision
conciliation
ADR where a conciliator is used who takes an active role in advising the parties, and suggesting solutions. Conciliator doesn’t make decision.
arbitration
ADR where disputing parties present their cases before an arbitrator that makes a binding decision on the parties.
Youth justice conference
Alternate for court for young people where the offence won’t be listed on a criminal record. Young offenders have to face the victim, and defendants speak for themselves in front of police and support staff. It allows for young people to have a say in creating an outcome plan, and nothing is made public. Defendants and victims have the rights to knock back decision.
Benefits of mediation
- free and don’t need a lawyer
- faster than court
- everyone gets a say
- looks beyond just legal issues (relate)
Mediation can help with disputes regarding
- neighbours
- families
- businesses and consumers
- money and debt
- communities and associations
Defamation
The act of making statements that damage another person’s reputation in the community. Individuals are legally protected from defamation
Types of defamation include
- slander (spoken)
- liable (written)
Self-determination
The right of people to determine their political status and how they will be governed.
Eg. Self determination with indigenous whilst Whitlam came to power
non-legal methods of changing state power
media, trade unions, members of Parliament, interest groups and NGOs
legal methods of changing state power
internal review, external review, privacy bodies, courts
NSW statute bodies
ICAC (independent commission against corruption)
Ani-discrimination board (state)
national and intl. bodies
Australian HR commission (fed)
UN
