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Legal > Exam s2 > Flashcards

Exam s2 Flashcards

1
Q

Principles of justice:

A
  • Fairness
  • Equality
  • Access
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2
Q

Principles of justice: Fairness

A
  • There should be fair legal processes and a fair hearing or trial.
  • People deciding the dispute should be impartial and unbiased
    The parties in a legal case should have an opportunity to:
  • Know the facts of the case
  • Present their side of events.
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3
Q

Principles of justice: Equality

A
  • People should be equal before the law and have the same opportunity to present their case as anyone else, without advantage or disadvantage.
  • No person or group should be treated better or worse because of a personal characteristic.
  • Processes should be free from bias
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4
Q

Principles of justice: Access

A
  • All people should be able to understand their legal rights
  • Pursue their case
  • Access to institutions and people that provide legal information, advice, representation and information about a person’s rights.
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5
Q

Institutions that enforce criminal law:

A
  • Police

- Delegated bodies

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6
Q

Institutions that enforce criminal law: Police

A
  • The role of the police is to serve the community and the law, and to enforce criminal law.
    Victoria Police’s role in enforcing criminal law is to:
  • Talk to victims or witnesses
  • Question possible subjects
  • Examine crime scene(s)
  • Arrest accused persons
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7
Q

Institutions that enforce criminal law: Delegated bodies

A
  • A delegated body is an authority or agency given power by parliament to make and/or enforce laws.
    E.g. WorkSafe Victoria is a delegated body given authority by the Victorian parliament to enforce criminal laws
    Ensures the health, safety and welfare of employees and other persons at work.
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8
Q

The role of a jury in a criminal trial

A
  • A trial by jury is a trial in which an impartial group of randomly selected people hears evidence and hands down a verdict.
  • A jury of 12 is required in criminal cases in the County Court and the Supreme Court where the the accused pleads not guilty
  • Juries are never used in the Magistrates’ Court, in appeals or when an offender has pleaded guilty
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9
Q

The jury in a criminal trial must:

A
  • Decide whether the accused is guilty or not guilty by the standard of proof of beyond reasonable doubt in a criminal case
  • Must first try to reach a unanimous verdict
  • Majority verdict (11/12) is accepted for some offences and if not reached there is a hung jury where the accused has not been found guilty or not guilty and will be tried again
  • A jury does not need to provide reasons for the verdict they reach.
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10
Q

Strengths of the Jury system

A
  • Jurors are independent of the political and legal system and impartial, ensuring equality and fairness in their decision
  • Verdict reflects the values of the community
  • Ensures fairness by requiring the jury to deliberate based on the evidence and facts, not on independent research or investigations.
  • Spreads the responsibility rather than it being made by one person (the judge) so the decision is more likely to be fair and correct
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11
Q

Weaknesses of the jury system

A
  • Procedural fairness is questioned in the jury’s decision as jurors do not give reasons for their decision and deliberations occur behind closed doors
  • Ordinary members of the public may not be able to understand the complicated evidence and come to the right decision
  • Jurors may be influenced by skilled lawyers or by the emotional elements of a trial.
  • Jurors may have biases
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12
Q

Police powers and individual rights

A
  • Powers must be balanced against the rights of individuals.
  • If institutions are given too much power, individuals may be treated unjustly.
  • If institutions are given too few powers, crime prevention and law enforcement may be impossible.
  • Arrest
  • Bail
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13
Q

Police powers and individual rights: Arrest

A
  • Police have the power to arrest an individual after a crime has been committed
  • Police can arrest individuals without a warrant in certain situations
  • Individuals have rights during an arrest such as the right to stay silent and the right be informed of the reason for the arrest
  • Ensures a balance between the power of arrest and the rights of an individual
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14
Q

Police powers and individual rights: Bail

A
  • The right to bail and the right to apply for bail are balanced by powers given to the prosecutor to oppose bail, and to the person deciding on bail to refuse bail or impose certain conditions
  • Bail must be refused in certain circumstances like for committing murder
  • Bail can be granted or refused by a court, a bail justice or a police officer.
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15
Q

The purpose of sanctions:

A
  • Punishment
  • Deterrence
  • Denunciation
  • Protection
  • Rehabilitation
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16
Q

The purpose of sanctions: Punishment

A
  • Punish the offender
  • Allows the victims and their families to feel a sense of retribution without taking the law into their own hands
  • -> Crime would increase and impacts on social cohesion
  • Imprisonment is the most severe punishment in our society
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17
Q

The purpose of sanctions: Deterrence

A
  • Discourage the offender and others in society from the same or similar offences in the future by imposing a severe enough penalty to demonstrate the serious consequences of committing the crime
    General deterrence:
  • Discourages people in general from committing the crime
    Specific deterrence:
  • Aimed at stopping the particular offender who is being sentenced from repeating the offence
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18
Q

The purpose of sanctions: Denunciation

A
  • The court may impose a sentence that is harsh enough to show its disapproval when deciding on an appropriate sanction for a crime
  • Designed to convey the message that this type of criminal behaviour will not be tolerated by the courts
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19
Q

The purpose of sanctions: Protection

A
  • Seeks to ensure the safety of society by imposing a sanction that prevents the offender from harming again
  • A horrendous crime, lack of remorse and an offender’s callous attitude indicates that they should be removed from society for as long as possible
  • -> a term of imprisonment
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20
Q

The purpose of sanctions: Rehabilitation

A
  • Treats the underlying causes of offending
  • Crime rates and prison costs will escalate if offenders cannot change their ways
  • Provides offenders with education, training, assistance and support
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21
Q

Types of sanctions:

A
  • Fines
  • Community correction order
  • Imprisonment
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22
Q

Types of sanctions: Fines

A
  • The offender pays the state a monetary penalty, expressed as penalty units from 1-3000
  • Purpose of fines are to punish the offender, deter the offender from committing further crimes and deter the community
  • If an offender defaults on a fine, the offender can be arrested
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23
Q

Types of sanctions: Community Correction Order (CCO)

A
  • A sanction that allows an offender to remain in the community while serving the sanction
  • Purposes of CCOs are to punish, rehabilitate and protect
  • A CCO can only be imposed if the offender consents to the making of a CCO and the offence is punishable by more than 5 penalty units
  • Cannot be imposed on someone who has committed a ‘category 1’ or ‘category 2’ offence
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24
Q

Types of sanctions: Imprisonment

A
  • The most serious sanction and involves the removal of the offender out of society and into a jail.
  • Purposes are to protect the community, punish the offender, deterrence, denunciation and rehabilitation
  • If there is more than one sentence the court needs to specify if this is to be served concurrently or cumulatively
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25
Q

Factors considered by judges in sentencing:

A
  • Mitigating factors

- Aggravating factors

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26
Q

Factors considered by judges in sentencing: Mitigating factors

A 
- Factors that may reduce the seriousness of the offence or the offender’s culpability. 
Examples: 
- Nature and gravity of offence
- Early guilty plea 
- Lack of prior offending
- Remorse
- Offender acting under duress 
- Prospects of rehabilitation
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27
Q

Factors considered by judges in sentencing: Aggravating factors

A
  • Factors that increase the seriousness of the offence and the offender’s culpability.
    Examples:
  • Use of violence or explosives
  • Offence taking place in front of children
  • Offender being motivated by hatred or prejudice
  • Nature and gravity of the offence
  • Previous offending
  • Impact of the offence on any victim
  • Injury, loss or damage as a result of the offence
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28
Q

Factors considered by judges in sentencing: Nature and gravity of the offence

A
  • If the offending is on the low end of the scale, this may persuade the court to impose a sentence much less than the maximum penalty
  • If the offending is on the high end of the scale, the court will view a higher sentence as more appropriate.
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29
Q

Factors considered by judges in sentencing: Previous offending or lack of

A
  • If the offender has not offended before, it may demonstrate a one-off incident or a lack of criminality.
  • If the offender has engaged in previous offences, the sentence may be increased.
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30
Q

Factors considered by judges in sentencing: Impact of the offence on any victim

A
  • If the victim has significantly suffered as a result of the offence, the victim can file a victim impact statement which will be read during sentencing.
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31
Q

Factors considered by judges in sentencing: Early guilty plea

A
  • If the offender has pleaded guilty, and the earlier the guilty plea is, the court may impose a lesser sentence.
  • Resources and time saved by not having a trial, and the trauma and inconvenience saved for witnesses and victims.
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32
Q

Factors considered by judges in sentencing: Remorse

A
  • Remorse can be demonstrated through an early guilty plea, apologies to victims, early confessions or admissions or full cooperation with investigative agencies.
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33
Q

Aspects of sentencing practices in Victoria:

A
  • Sentencing practices in Victoria

- Therapeutic justice

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34
Q

Aspects of sentencing practices in Victoria: Sentencing practices

A
  • Victorian legislation in the past 10 years has reduced the sentences available to a court
  • Aim is to adopt a ‘tough on crime’ approach by imposing harsher sentences on offenders who commit serious offences such as murder and sexual offences involving children
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35
Q

Aspects of sentencing practices in Victoria: Therapeutic justice

A
  • A process used in the criminal justice system where underlying health and personal issues are addressed to prevent offenders from re-offending
  • Recognises that pure punishment is ineffective in changing behaviour and keeping communities safe
    E.g. Drug court
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36
Q

Aspects of sentencing practices in Norway

A
  • Imprisonment
  • Preventative detention for dangerous and insane offenders
  • Community sentence
  • Fines
  • Loss of rights
  • Death penalty is prohibited
  • Victim-offender mediation is used in sentencing
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37
Q

Aspects of sentencing practices in Norway: Imprisonment

A
  • Maximum term of imprisonment that can be imposed in Norway is 21 years
    Norway believes:
  • Removing freedom is enough of a punishment and that people should be able to live their life as close as possible how they live outside prison
  • Prisoners should be treated fairly to reintegrate back into society
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38
Q

Aspects of sentencing practices in Norway: Community sentence

A
  • Requires the person to undertake community service instead of a term of imprisonment
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39
Q

Aspects of sentencing practices in Norway: Fines

A
  • Consideration is given to the person’s financial position
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40
Q

Aspects of sentencing practices in Norway: Loss of rights

A
  • If an offender is unfit for a particular position or activity they may be deprived of undertaking this activity in the future
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41
Q

Alternative approaches to sentencing: Drug court

A
  • Established as a division of the Magistrates’ Court in 2002
  • Imposes a drug treatment order (DTO)
    The offender must:
  • Reside within an area serviced by the drug court
  • Plead guilty
  • Be within the jurisdiction of the Magistrates’ court
  • Dependent on drugs or alcohol that contributed to the offence
  • The offence was not sexual or involved bodily harm.
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42
Q

Drug treatment order (DTO)

A
  • A DTO aims to rehabilitate the offender by providing a judicially-supervised, therapeutically-oriented drug or alcohol treatment program.
    There are two parts to a DTO:
  • Treatment and supervision part: core conditions and program conditions
  • Custodial part: requires the Drug Court to impose a sentence of imprisonment of no more than 2 years
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43
Q

Effectiveness of the drug court

A
  • Benefits both participants and the community
  • A significant reduction in the rate of reoffending compared to those who were imprisoned
  • Significant improvement in the participants’ health and wellbeing
  • A cost saving over a two year period as a result of fewer imprisonment days
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44
Q

Methods used to resolve a civil dispute

A
  • Mediation
  • Conciliation
  • Arbitration
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45
Q

Mediation

A
  • Mediator, an impartial 3rd party helps the disputing parties reach a resolution
  • Mediator tries to empower the parties, even out imbalances and help people make a decision
  • Mediator does not need to be an expert in the relevant area of law
  • Parties can arrange a private mediation, court can refer parties in a court case to mediation before the final trial or hearing, parties in a tribunal case are referred to mediation to resolve the dispute before the hearing
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46
Q

Conciliation

A
  • Conciliator, the third party, makes suggestions about appropriate ways of resolving the matter
  • Parties make the final decision but it is not binding
  • Conciliator has specialist knowledge about the subject matter of the dispute
  • Parties in a dispute at VCAT are often sent to a compulsory conference which uses conciliation
  • The Family court of Australia often organises conciliation conferences between parties
47
Q

Arbitration

A
  • Arbitrator, the third party, listens to the parties and tries to help them reach an agreement
  • Arbitrator makes a binding decision on the parties if they cannot reach an agreement themselves
  • Arbitrator has knowledge of the subject matter of the dispute and the applicable law
  • Magistrates’ Court can use arbitration to resolve civil claims less than $10,000
48
Q

Mediation and conciliation: Strengths

A
  • Less formal setting and confrontational than a courtroom which alleviates stress
  • Matters are discussed confidentially and without publicity
  • Can achieve a ‘win-win’ solution where both parties feel satisfied, as opposed to a court making a decision where one party is successful and the other is not
  • Conciliator has specialised knowledge in the subject matter of the dispute
49
Q

Mediation and conciliation: Weaknesses

A
  • Both parties must be willing to participate in mediation or conciliation for it to be successful
  • Unless parties enter into terms of settlement, decisions reached are not binding on the parties
  • Mediators and conciliators have no power to order parties to come to a decision or attend
  • Mediation only: Mediator cannot give advice or offer suggestions
50
Q

Arbitration: Strengths

A
  • Decisions are binding on all of the parties, ensuring the parties are required to follow it
  • More informal than court processes which alleviates stress
  • Arbitrator has expertise in resolving these types of matters and making a binding decision
  • Often conducted privately so parties have flexibility in the way it is conducted
  • Cheaper than resolving the dispute through court
51
Q

Arbitration: Weaknesses

A
  • Available only where parties have agreed on arbitration or for small claims in the Magistrates’ Court
  • Parties have no control over the outcome, which will be imposed on them by a third party
  • Can be as formal and expensive as a court process as evidence is often gathered and legal representation is used
52
Q

Institutions that resolve civil disputes

A
  • Tribunals
  • Ombudsman
  • Complaints bodies
53
Q

Tribunals

A
  • Provide low-cost and efficient methods of dispute resolution
  • Obtain their power from parliament
  • Can make binding decisions on parties
  • Develop expertise in particular types of disputes
  • Cannot hear every type of dispute
54
Q

Example of a tribunal: VCAT

Victorian Civil and Administrative Tribunal

A
  • Provides low-cost, accessible, efficient and independent dispute resolution services
  • Enables cases to be heard and determined by an independent third party (mediator or conciliator)
  • Variety of locations in Victoria and online access
55
Q

Ombudsman

A
  • Independent, timely and accessible dispute resolution services to individuals in particular industries.
  • Limited ability to hear complaints.
  • Free
  • Resolves complaints by working with the two parties.
  • Every ombudsman is appointed by the government, though they act independently of the government
56
Q

Example of an office of ombudsman: Public Transport Ombudsman (PTO)

A
  • Investigates and resolves complaints about Victorian public transport related matters
  • Can require parties to attend conciliation
  • Cannot order compensation beyond $10,000
  • The complainant can choose whether to accept the decision of the PTO and they are bound by it.
57
Q

Complaints bodies

A
  • Free complaint and dispute resolution service so ordinary Australians have access
  • Obtained power through parliament
  • Focus on disputes about products or services sold by companies, not on individuals
  • No power to make a binding decision or conduct a hearing
  • Can take legal action against an entity that broke the law
58
Q

Example of a complaints body: Consumer Affairs Victoria

A
  • Enforces compliance with consumer laws
  • Provides consumers and traders, and landlords and tenants, with a dispute resolution process.
  • People can use CAV to exercise their consumer rights when they may have been infringed.
  • Helps any party that has been wronged seek compensation for loss they have suffered
59
Q

Institutions that resolve civil disputes: Strengths

A

Access:

  • Provides alternative methods of making complaints or resolving disputes other than through courts.
  • Ombudsman and complaints bodies are free and tribunals costs are lower than courts

Equality

  • Provides an avenue for individuals to resolve disputes with larger service providers and government agencies without fear of intimidation
  • Ensures procedural fairness by giving parties the opportunity to present their case

Fairness

  • Person assisting parties is independent and impartial
  • Often specialised in a particular industry or area of law
60
Q

Institutions that resolve civil disputes: Weaknesses

A
  • Many individuals are not aware of the ombudsman and complaints bodies that are available
  • An ombudsman or a complaints body has limited power to make binding decisions which may cause inconsistencies in the way matters are decided
  • No ability to award compensation or limited
  • Ombudsman and complaints bodies are specialised and can only hear certain types of complaints, giving no choice but to issue some claims in a court or tribunal
61
Q

Civil jurisdiction Magistrates’ Court

A
  • Original jurisdiction - claims up to $100 000

- No appellate jurisdiction

62
Q

Civil jurisdiction County Court

A
  • Original jurisdiction - unlimited

- No appellate jurisdiction, unless given under a specific Act of Parliament

63
Q

Civil jurisdiction Supreme Court (Trial Division)

A
  • Original jurisdiction - unlimited

- Appellate jurisdiction - appeals on a question of law from the Magistrates’ Court and VCAT

64
Q

Civil jurisdiction Supreme Court (Court of Appeal)

A
  • No original jurisdiction
  • Appeals from the County Court, Supreme Court (Trial Division) or VCAT when constituted by the President or a vice-president
65
Q

Strengths of courts as dispute resolution bodies

A
  • Judges are impartial, make decisions based on fact and law, not on bias
  • Judges and court personnel are specialised
  • Allows for a party to appeal a case.
  • Courts are able to make binding decisions
66
Q

Weaknesses of courts as dispute resolution bodies

A
  • Expensive, due to the need for legal representation and the costs involved in undertaking procedures such as discovery.
  • Formalities of the process can result in parties feeling stressed, intimidated or nervous.
  • Without legal representation (expensive), a party may be disadvantaged in presenting their case (unequal)
67
Q

When is a jury used in civil trials?

A
  • There is no jury in the magistrates’ court & appeal cases.
  • A jury is optional for civil cases in the county & supreme court.
68
Q

Composition of a civil jury

A
  • 6 jurors are randomly selected from the Victorian electoral roll.
69
Q

Role of the civil jury

A
  • Consider the facts of the case
  • Decides who is most likely in the wrong based on the balance of probabilities without providing reason.
  • May be required to decide on the amount of damages awarded.
  • Unanimous verdict (6/6)
  • Majority verdict (5/6) is also accepted.
70
Q

Strengths of the jury system

A
  • Independent of the legal & political system, ensuring equality & fairness in their decision.
  • Verdict reflects their values of the community
  • Required to deliberate based on the evidence & facts
  • Spreads the responsibility rather than one judge deciding
71
Q

Weaknesses of the jury system

A
  • Don’t give reason for their decision
  • Deliberations occur behind closed doors
  • May not be able to understand complicated evidence
  • Influenced by skilled lawyers & or emotional elements of a trial.
  • May conduct their own online investigation
  • Biases that may play a role in their deliberation even if they aren’t aware of them.
72
Q

Remedies

A
  • The purpose of remedies is to restore (as much as possible) the party who has suffered loss or injury to the position they were in before the loss or injury occurred.
73
Q

Types of remedies

A
  • Damages

- Injunction

74
Q

Damages

A
  • Compensatory damages
  • Exemplary damages
  • Nominal damages
  • Consumptuous damages
75
Q

Compensatory damages

A
  • Most common form of damages
  • Attempts to restore the party to the position they are in before the injury occured.
  • Specific/special damages: amounts that can be accurately or specifically measured (medical bills/loss of income)
  • General damages: amounts not identifiable/quantifiable. (loss of enjoyment of life or pain and suffering)
  • Aggravated damages: awarded to compensate the plaintiff further, if the court believes that the defendant’s conduct injured the plaintiff’s feelings by causing humiliation and insult.
76
Q

Exemplary damages

A
  • Court intends to make the defendant an example to the rest of the community.
  • Deter others from acting in the same way by the defendant paying a large amount of money
  • Known as punitive or vindictive damages
77
Q

Nominal damages

A
  • Awarded when the plaintiff only seeks a small amount of money because very little harm has been suffered
  • Plaintiff is suing for legal principles rather than monetary compensation.
78
Q

Consumptuous damages

A
  • A court or tribunal may feel that the plaintiff does not deserve to be paid damages, but legally has a right to damages
  • Court awards a small amount of money
79
Q

Effectiveness of damages

A
  • Depends on the facts of the case and the loss that has been suffered by the plaintiff.
    Some factors include:
  • What type of loss has been suffered?
  • Has the plaintiff suffered physical injury or irreparable damage?
  • Has there been loss of life?
  • How accurate is the estimate for future loss?
  • Are alternative remedies suitable?
  • Does the defendant have the capacity to pay?
80
Q

Injunctions

A
  • A court order that forces the defendant to do something or compels them to stop doing something.
  • Restrictive injunction - stopping someone from doing something
  • Mandatory injunction - compel someone to do a particular act
81
Q

Effectiveness of injunctions

A
  • Depends on the facts of the case and the loss that has been suffered by the plaintiff.
    Some factors include:
  • Has the defendant already caused too much damage?
  • Will the defendant stop the actions or may they do other things to cause the plaintiff loss?
  • Will the defendant comply with the injunction?
  • Will the plaintiff be returned to his or her position?
82
Q

Role of the Victorian courts: remedies

A
  • Determine liability

- Decide on the remedy

83
Q

Role of the Victorian courts: Determine liability

A

The court will determine liability by….

  • Providing specialisation and expertise
  • Manage the case
  • Hear appeals
  • The judge or magistrate (or jury if there is one) will consider all the evidence and decide whether the plaintiff, on the balance of probabilities, has established the case.
84
Q

Role of the Victorian courts: Decide on the remedy

A
  • If liability is established, the court is to decide on the remedy.
  • Either the judge or the jury may be required to assess damages (in defamation cases only the judge can do this).
  • The Court may hand down a written judgment.
85
Q

Ways in which rights are protected in Australia:

A
  • Statute law
  • Victorian Charter of Human Rights and Responsibilities
  • Common law
  • Australian Constitution
  • International declarations
  • International treaties
86
Q

Protection of rights: Statute law

A
  • Rights protected by Victorian and Commonwealth legislation
  • These rights are protected but not permanently guaranteed as parliament, the supreme law-making body can cancel an existing right that is protected by statute law.
    E.g. right to privacy, right to freedom of discrimination
87
Q

Protection of rights: Victorian Charter of Human Rights and Responsibilities Act

A
  • Sets out basic rights, freedoms and responsibilities for people in Victoria.
  • Requires Victorian Parliament, state and local government departments and organisations to act in a manner that complies with the Human Rights Charter.
    E.g. A fair hearing, right to silence,
88
Q

Protection of rights: Common law

A 
- Common law is court made law 
Examples: 
- The right to legal representation 
Judges are able to adjourn trials until an accused can access legal representation.
Example - Dietrich v The Queen  
- ultra vires 
- codification of common law rights
89
Q

Ultra vires

A
  • The courts can protect the rights of the Australian People by declaring Acts of Parliament invalid if they are made outside the Parliament’s law-making power.
90
Q

Codification of common law rights

A
  • Court judgements that establish human rights can be codified by parliament.
  • Parliament can pass legislation that confirms a human right.
91
Q

Strengths of common law in protecting rights

A
  • Courts are independent of parliament and can establish precedent free from political pressures
  • Courts can make decisions to establish rights in areas where parliament has not established rights
92
Q

Weaknesses of common law in protecting rights

A
  • Common law rights are not always easy to define or identify (as opposed to statutory rights)
  • Courts must wait for a case to come before them to be able to declare the existence of rights
93
Q

Protection of rights: Australian constitution

A
  • Express rights
    E.g. Right to freedom of religion
  • Implied rights
    E.g. Freedom of political communication
  • All rights protected by the Australian Constitution can be fully enforced by the High Court.
  • Any legislation that infringes upon rights can be declared invalid by the High Court
94
Q

Express rights

A
  • Rights that are explicitly stated in the words of the Constitution
95
Q

Implied rights

A
  • When interpreting the law the High Court can decide that a word or phrase implies that a right exists even if it is not explicitly stated.
  • Once a right is implied by the High Court, it can be confirmed in later cases.
96
Q

Express rights: Freedom of religion

A

The Commonwealth Parliament cannot pass a law that:

  • Declares a particular religion as the national religion
  • Requires people to recognise a religious ceremony or formality
  • Prevents people from practising their religion
97
Q

Implied rights: Freedom of political communication

A
  • The High Court has ruled in various cases that Australians have the right to freedom of political communication.
98
Q

Strengths of Australian Constitution in protecting rights

A
  • Express rights cannot be changed unless through a referendum
  • The implied freedom of political communication shows that rights can be implied or recognised by the High Court even though they may not be expressly written in the Constitution
99
Q

Weaknesses of Australian Constitution in protecting rights

A
  • Rights contained in the Constitution are difficult to change due to the referendum process. Rights may lag behind changes in community attitudes
  • Very few rights are expressly protected by the Constitution. The rights that are expressly protected are very limited in scope (e.g. the limited right to a trial by jury) and act more as a restriction on parliament than a positive right.
100
Q

International declarations

A
  • Australia has signed and ratified a number of international declarations.
    E.g. Universal Declaration of Human Rights which was established after the end of WW2 by the United Nations.
101
Q

International treaties

A
  • An international treaty is a formal document, signed by countries, in which they undertake to follow the law set out in the document and include it in their own local laws
102
Q

Universal Declaration of Human Rights (1948)

A
  • The declaration sets out the basic human rights that all nations, governments and people should strive to uphold and promote
    E.g. Right to life, liberty and security of person
    Right to be treated equally before the law
    Corresponding Australian legislation:
  • Crimes Act 1958 (Vic)
    Charter of Human Rights and Responsibilities Act 2006 (Vic)
103
Q

Eddie Mabo

A
  • Under Torres Strait Islander law he became his uncle’s son as he was adopted and could inherit Mabo land
  • Mabo dedicated his life to fighting for their traditional ownership of the island of Mer legally recognised
104
Q

Australia before/after colonisation

A

Before:
- Aboriginal and Torres Strait Islander peoples occupied Australia prior to British colonies arriving.
- They spoke their own language and had their own laws and customs
- An essential part of their laws and customs is a connection to the land.
After:
- The British claimed sovereignty over part of Australia and established a colony.
- The British courts applied terra nullius to Australia; the British regarded the land of Australia as nobody’s land.

105
Q

Mabo case

A
  • In 1982 Mabo and four other islanders filed a
    writ in the High Court of Australia claiming customary ownership of their ancestral lands of Murray Island, challenging terra nullius.
  • Without financial donations and grants, the case could not have continued.
  • Lawyers worked pro bono to assist Mabo.
106
Q

Mabo case in the High Court

A
  • The order of the Court declared that under Australian law, Indigenous people have rights to land, that these rights existed before colonisation and still exist today - the right is called native title.
107
Q

Conflicting attitudes in relation to the case

A
  • Not everyone was in favour of the High Court’s ruling and some reacted angrily, urging the Commonwealth Government to overturn it by legislation (eg. mining organisations)
108
Q

How the US protects rights

A
  • Bill of Rights

- International documents

109
Q

How the US protects rights: Bill of rights

A
  • A list of the rights of the American people
  • Consists of amendments
  • Enforceable by the US Supreme Court
  • Amendments can only be removed by changing the US Constitution
    E.g. Right to bear arms, freedom of speech
110
Q

How the US protects rights: International conventions and treaties

A
  • US protects a range of basic human rights by being a signatory to international human rights documents
111
Q

Possible reforms to the protection of rights in Australia

A
  • Introducing a national charter or bill of rights

- Australia is the only Western democracy that does not have a charter or bill of rights

112
Q

Arguments in favour of adopting a charter or bill of rights

A
  • Adoption would strengthen the protection of rights in Australia by clearly stating the basic rights of all citizens
  • Adoption would improve Australia’s international image.
113
Q

Arguments against adopting a charter or bill of rights:

A
  • Australia’s basic rights are already adequately protected by hundreds of Acts of Parliament at both state and Commonwealth levels.
  • Individuals who feel their rights are not protected by the law can try to influence the government to introduce a change in the law.
  • Australia has already adopted and ratified many major international treaties and optional protocols.

Legal (9 decks)

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