prelim exam Flashcards
1
Q
right definition
A
entitlements people have by legal or moral authority
2
Q
responsibilities defintion
A
legal or moral obligations people have by other people or to a group, state or society
3
Q
nature of individual rights
A
- rights are something we are entitled to
- legal rights explicitly stated in law can be enforced by the courts
- moral and customary rights are not legally enforceable although they are expected
4
Q
types of rights
A
- moral
- customary
- legal
5
Q
moral rights
A
based on personal principles and religious convictions - reflecting the moral views of society
6
Q
R v Blaue
A
case: Blaue stabbed the victim several times after they refused his sexual advances. the victim required a blood transfusion to survive however they were Jehovah’s witness
issue: was he still responsible for the death?
decision: yes
reasoning: it cannot be argued that a religious belief is unreasonable
7
Q
customary rights
A
- rights a community has developed over time
- eventually incorporated into law
8
Q
legal rights
A
- any right based on the constitution, legislation or common law
- may be conferred in parliament or court
- developed from a combination of moral and customary rights
9
Q
Dietrich v The Queen 1922
A
could not be tried unfairly because he was poor and couldn’t afford legal aid
10
Q
domestic law
A
Domestic law is the governing of behaviours and conduct of individuals and organisations within a country. It is enacted and adjudicated by the three main organs of the nation, the legislature, executive and the judiciary.
11
Q
international law
A
International law governs the behaviour and conduct of states, but is not created by any particular body. Instead, it is made up of treaties, conventions, customs, peremptory norms and other formal agreements between states.
12
Q
state definition
A
independent entity that has a defined territory, permanent population and effective government
13
Q
sovereignty definition
A
state has the authority to make rules for its population
14
Q
criticism of international law
A
International law relies on the cooperation of countries. This can be a problem as countries have different customs and may ignore some of these laws.
15
Q
sources of international law
A
- customs
- treaties
- declarations
- legal decisions
- legal writing
16
Q
customs as a source of international law
A
Based on long standing traditions or practices e.g. treatments of prisoners of war
17
Q
treaties as a source of international law and types of treaties
A
- Treaties can be either bilateral (between two nations) or multilateral (between many states).
- The more states that sign a treaty the more powerful it becomes. Treaties only become binding on a state when that state ratifies it.
18
Q
treaty definition
A
is an international agreement concluded between states and governed by the guidelines of international law.
19
Q
declaration definition
A
are also international instruments. These are formal statements of a party’s position on a particular issue.
20
Q
are declarations legally binding
A
Declarations are not legally binding under international law. E.g. Universal Declaration of Human Rights.
21
Q
who makes legal decisions in the UN
A
UN judicial body that deals with disputes
International Court of Justice (ICJ) which is part of the UN, is the judicial body
Precedent does not apply t
The International Criminal Court (ICC) and the European Court of Human Rights (ECHR) also contribute to international law.
22
Q
legal writing as a source of international law
A
Scholarly writings have a large influence, interpreting treaties and solving disputes
23
Q
role of the un
A
- The UN’s main objectives are to maintain global peace and security
- to develop good relations between states based on recognition of equal rights and each state’s right to govern its own political, economic and social development
- and to promote cooperation in solving international problems
24
Q
why is the UN important
A
The UN has been central to the protection of human rights and to developing a legal framework to address terrorism, drug trafficking, the clearing of landmines, and protection of the environment.
25
international rights include...
1. civil and political rights
2. economic, social and cultural rights
3. environmental rights
4. peace rights
collective right for self determination
26
civil and political rights examples
1. anti-discrimination
2. rights of children
27
economic, social and cultural rights examples
1. equal pay for equal work
2. forming and joining trade unions
3. strike
4. adequate living standards
5. education
6. best physical and mental health attainable
28
environmental rights examples
1. demands of indigenous communities who have seen their land confiscated and or polluted
2. demands of developing countries for a right to pollute and squander resources like developed countries have
3. huge public opinion against environmental degradation
29
peace rights examples
1. ecologically sustainable use of resources and energies
2. restriction on nuclear power
3. removal of nuclear weapons
4. prohibitions on chemical and biological weapons
30
collective right for self determination examples
1. sovereignty of indigenous peoples
2. utilising certain laws
3. control to certain parts of land
31
common law in protecting human rights
- limited in its protection of human rights as it can be overturned by parliament
- common law is important in protecting human rights in australia
- concept that people cannot be denied natural justice is important in establishing the right to a fair trial in australia
- presumption of innocence
32
statute law human rights legislation
1. racial discrimination act 1975 (cth)
2. sex discrimination act 1984 (cth)
3. australian human rights commission act 1986 (cth)
4. disability discrimination act 1992 (cth)
5. anti-discrimination act 1977 (nsw)
33
how to alter the constitution
referendum
34
human rights contained in the constitution
1. religious freedom - s116
2. right to vote - s24
3. right to property - s51(xxxi)
4. right to compensation for property acquired by the commonwealth - s51 (xxxi)
5. right to jury trial for indictable offences against the commonwealth - s80
6. freedom of movement between states - s92
35
aim of a charter of rights
- the aim is to restrict the power of future parliament to reduce or infringe on certain rights
36
arguments for a charter of rights
- high community support
- redress the inadequacy of existing human rights protections
- reflects australian values
- protects the marginalised
- improves accountability of the government
- improves australia's international standing in relation to human rights
37
arguments against a charter of rights
- no better human rights protection guaranteed
- excessive cost
- judges become involved in making political decisions as a result
38
nsw police force mission
work with the community to reduce violence, crime and fear.
39
what do nsw police enforce
- crimes act 1900 (nsw)
- road transport (general) act 1999
40
police code of practice
1. powers to stop, search and detain people
2. powers to enter and search property, and seize property
3. powers to arrest, detain and question suspects
4. the way in which suspects and others are treated by police
41
police aim to protect by:
1. preventing, detecting and investigating crime
2. monitoring and promoting road safety
3. maintaining social order
4. performing and coordinating emergency and rescue operations
5. traffic control
6. communications
7. intelligence analysis
8. anti-terrorist negotiation
42
afp
- the nature of the afp and what is required of it has changed significantly in recent years
- used to be a small agency but now has a broad range of responsibilities
- key player in australian security
43
what the afp enforce
- crimes act 1914 (cth)
- criminal code 1995 (cth)
44
issues faced by the afp
- terrorism
- human trafficking
- sexual servitude
- cyber-crime
- peace operations
- protection
- transnational crimes
45
australian customs and border protection services (what they do and key areas of concern)
- deal with the security of australia’s borders
- work closely with the afp
- key areas of concern:
- immigration
- quarantine family law
- drug importation
46
what do they do: criminal intelligence commission (ACIC)
- create a national intelligence picture of crime
- target serious and organised crime
- deliver information and services to front line policing and law enforcement
- provide crime and justice research to address crime in australia
- improve the national ability to respond to crime and criminal justice issues by connecting, discovering and understanding information
47
australian security intelligence commission (issues it deals with)
- counter terrorism
- counter espionage
- border integrity
- protective security
48
negotiation
- talking through issues with the parties with the goal of reaching a mutually accepted or beneficial outcome
- usually doesn’t involve lawyers
- requires compromise
- not legally binding (unless they sign a contract or confidentiality agreement)
49
mediation
- neutral third party to facilitate discussions and guide parties to an agreement
- mediator
- doesn’t impose / make decisions or provide advice
- usually confidential (benefit over sexual harassment claims to avoid brand damage)
- not legally binding (unless they sign a contract or confidentiality agreement)
50
mediation in community justice centres deal with:
- neighbours
- family, relationships and children
- work and employment
- business and consumers
- money and debt
- communities and associations
51
characteristics of mediation in community justice centres
- is free
- has no waiting lists
- is held in a venue near you
- lets everyone have their say
- is confidential
- is more likely to preserve the relationships of the people involved in the conflict
52
conciliation
- the Australian Human Rights Commission receives complaints that are resolved through conciliation
- it is informal and flexible, matters may be settled by over the phone, letters or face to face conciliation conference
- conciliation is very similar to negotiation except that a conciliator may provide advice to help the parties identify the issues (a negotiator/mediator will not provide advice)
- it is often used in construction, workplace and discrimination disputes where the conciliator has relevant industry experience and skills
- can be more expensive than mediation but is cheaper than resorting to court
- not legally binding (unless they sign a contract or confidentiality agreement)
53
arbitration
- used with mediation and conciliation have failed
- most formal dispute resolution process
- similar to a court process but still quicker and cheaper
- refer the issue to an independant third party for determination
54
main differences between arbitration vs conciliation and mediation:
- the people in dispute need to agree before the process that the arbitrator's decision will be binding and enforceable
- there is a much greater need to produce evidence or facts
- there may be one arbitrator or a group of arbitrators to hear your dispute
- the arbitrator may be a specialist in the subject matter of the dispute or have legal qualifications
- at the end of the process the arbitrator will make a decision for the parties
- if the arbitrator makes a decision you aren’t happy with, you may be able to appeal to a court or higher authority however this requires you to point out a particular problem with the decision such as bias
55
tribunals pros
- less formal and cheaper
- tribunal members usually have legal training
- legal representation isn’t required nor allowed in some cases to ensure justice is more accessible and affordable
56
NCAT (NSW civil and administrative appeals tribunal) facts
- established 1 january 2014
- consolidates the work of 22 former tribunals into a single tribunal
- has a timely, transparent and cost-effective internal appeals mechanism to enable prompt review of most tribunal decisions
57
divisions of NCAT
1. administrative and equal opportunity division
2. consumer and commercial division
3. guardianship division
4. occupational division
58
NCAT administrative and equal opportunity division
reviews administrative decisions made by NSW Government agencies and resolves discrimination matters
59
NCAT consumer and commercial division
resolves a wide range of everyday disputes such as tenancy and other residential property issues, and disputes about the supply of goods and services
60
NCAT guardianship division
determines applications about people with a decision making disability and who may require a legally appointed substitute decision maker
61
NCAT occupational division
reviews decisions by government agencies about licensing and complaints concerning professional conduct and discipline
62
why go to ncat rather than a court?
- Online lodgement of application
- Cheap filing fees
- Quick
- Alternative dispute resolution
- Self-representation
- No costs orders
- Less intimidating
63
examples of cases NCAT take
- Electrical products failing outside the manufacturer’s warranty period
- Cars, caravans
- Holiday disasters and disappointments
64
types of dispute with the state
- contract
- policy decision
- closing down a hospital or building a light rail network
- administrative decision
- deny a license application
- refuse centrelink payment
- permission to renovate a house
65
media (non-legal dispute resolution) definition and example
- media includes: television and radio stations, newspapers, social media, the internet
- example (policy decision): in 2016 the decision to amalgamate many NSW local councils caused significant upset. consistent media attention to the issue over 18 months had a significant role in the government reversing its decision
66
media (non-legal dispute resolution) effectiveness
- It can be quite effective in raising awareness.
- It can sometimes prompt action (good investigative journalism can accomplish a great deal).
- The effectiveness can depend on political impact and the nature of decision.
- Social media is becoming increasingly influential.
- It may be of limited use in achieving success for an individual.
- It may only be helpful if others also affected.
- If an individual’s situation isn’t newsworthy, the media won’t bother.
- Can be one-sided
67
methods of solving disputes between individuals
3. negotiation
4. mediation
5. conciliation
6. arbitration
1. NCAT
2. Tribunals
68
non-legal methods of resolving disputes with the state
1. media
2. members of parliament
3. trade unions
4. interest groups
69
members of parliament (non-legal dispute resolution) role
- as a citizen you are able to contact your local member of parliament (state or federal) to assist with any issue you have regarding government decisions
- it is an important role of members to provide assistance to people regarding issues with government
- members can assist, take action on behalf, represent people or refer them to someone who can
70
members of parliament (non-legal dispute resolution) effectiveness
- MPs are usually quite accessible
- Extremely cost and time effective
- It is more private than media
- It may be limited by political will, as well as influence of MP
- Self interest and potential future support - good motivator to assist
71
trade unions (non-legal dispute resolution) role and example
- work to protect the rights of workers
- bargain on behalf of workers
- maintain fair wage and fair condition
- campaign to change government decisions that negatively impact their workers
- example:
- campaigning the fair work commissions decision to cut sunday rates however they were unsuccessful
72
trade unions (non-legal dispute resolution) effectiveness
- Can be very effective as quite powerful
- Role really limited to industrial matters
- Has been able to effect change through strike action e.g. ”green bans” in the 1970s which saved numerous heritage properties from being demolished for development
- Legal restrictions on strike action means would be less effective now
- Influence has weakened as union membership has declined
73
interest groups (non-legal dispute resolution) examples
1. greenpeace: environmental protection
2. amnesty international: human rights
3. nsw council for civil liberties: civil and political rights
4. bravehearts: child protection
74
legal methods of resolving disputes with the state
1. internal reviews
2. external reviews
- administrative review
- judicial review
- ombudsman
3. privacy bodies
4. the courts
5. NSW statutory bodies
6. national and international bodies
7. royal commissions
75
internal reviews
- In NSW, government departments can review their own decisions and behaviour
- This may cost money
- This may be ineffective if the people conducting the investigation are involved in an inappropriate decision
76
internal reviews effectiveness
- Quick, easily accessible
- Minimal cost
- Relatively informal
- Form of quality control
- Reviewer already familiar with processes
- Possible bias
- Possible inconsistency across time/space
77
administrative review (external reviews)
- method of external review which involves consideration of merits of the decision (was the decision the right or best one given the facts?)
- carried out by various tribunals (some specialise in particular types of decisions)
- at federal level it is carried out by a range of tribunals including the australian competition tribunal and AAT
78
administrative review (external reviews) effectiveness
- Generally quite accessible
- Not too expensive if resolved
- Although external, can still have benefit of specialist knowledge in specialist tribunal
- Even a favourable outcome may not achieve justice – see the case of Gary Kurzer who suffered physically, emotionally and financially after years of conflict over an incorrect taxation assessment
- Could be unfair if unrepresented applicant is up against government department funded lawyers
- Appeals can cost (further appeals on matters of law would go to the Federal Court)
79
judicial review (external reviews)
- court considering the process by which a decision was made - was it fair and reasonable, did it follow principles of natural justice, was it within the power of the
decision maker to make that decision? i.e. was the decision made lawfully?
- the court does not consider whether the decision was correct
- the court won’t change the decision but may order the decision maker to reconsider it
- consider whether or not the process was in accordance with procedural fairness
- at federal level, under the Administrative Decisions Judicial Review Act 1977 (Cth), the Federal Court and Federal Circuit Court can review federal government decisions.
80
judicial review (external reviews) effectiveness
- It may be quite effective in that the decision is thoroughly scrutinised – does this keep administrators accountable?
- It can result in a more considered decision – does this achieve greater justice?
- The individual(s) must have standing
- Can be very expensive (see the Gary Kurzer case)
- Can be daunting individual vs the state
- Process may not result in a more favourable decision (although a more lawful one)
- This can lead to other impacts such as loss of health, employment due to stress of process
- It can achieve justice for most vulnerable. Read the article based on UK experience, but Australia is likely to be similar.
81
ombudsman (external reviews) effectiveness
- Most complaints are resolved without a formal report
- It can sometimes take a while
- There are no associated costs to make a complaint
- Formal recommendations to government can result in improved administrative processes
- No one can override the decisions of the government departments/agencies
- Cannot impose penalties.
82
privacy bodies (external reviews)
- The privacy act 1988 (cth) gives you the right to complain if you think the commonwealth government agency has mishandled information about you e.g. Health
- If you think your privacy information has been misused, you can request an internal review or complain to privacy NSW
83
the courts (external reviews)
- Law courts can review administrative actions
- The court can undertake judicial review; which means courts with relevant jurisdiction can review government decisions if they were lawfully made eg. Evidence
- A person asking for a judicial review must have a standing (directly affected by the issue)
84
what remedies can be issued if a judicial review finds a decision is flawed
1. prohibition
2. injunction
3. mandamus
4. certiorari
85
prohibition
An order that stops a decision from being made or implemented
86
injunction
An order that prohibits the decision-maker from implementing an invalid decision, or compels the performance of a duty in decisions where mandamus is not available
87
mandamus
An order that compels the decision-maker to perform certain types of public duties that have not been performed
88
certiorari
An order that reverses a decision that has already been made
89
independant commission against corruption (NSW statutory body to legally resolve disputes with the state) introduction
- established in 1988
- public authority completely independent of the government
- directly accountable to the nsw parliament
- aims to protect the public interest, prevent breaches of public trust and guide the conduct of government / public officials
90
independant commission against corruption (NSW statutory body to legally resolve disputes with the state) main functions
- investigate and expose corrupt conduct in the NSW public sector
- actively prevent corruption through advice and assistance
- educate the NSW community and public sector about corruption and its effects
91
independant commission against corruption (NSW statutory body to legally resolve disputes with the state) what they do:
- public inquiries
- research
- can recommend prosecution
- conducts education and training
92
independant commission against corruption (NSW statutory body to legally resolve disputes with the state) effectiveness
- The ICAC has been very effective at investigating and exposing corruption in many cases
- Has had an educative role and many agencies have acted on recommendations e.g. BOS - All My Own Work program – result of investigation into HSC take home assessment tasks (Operation Bligh)
- Continued corruption suggests prevention aim not being as well achieved
- Justice only achieved if corrupt individuals convicted and punished; cannot occur if evidence not sufficient or admissible (Obeid’s famous taunt was based on an element of truth)
- Wide powers of ICAC mean evidence used to find corruption often inadmissible
- Overall – very good at what it does.
93
national and international bodies (external reviews to resolve disputes with the state legally)
- They recognise the inherit value of each person, regardless of the background. They are based on principles of dignity, equality, mutual respect
- They deal with age discrimination, children rights, family violence, rights and freedom
- The united nations deal with human rights through human rights council and UN human rights committee
- The committee rules on individual complaints relating to conventions (agreement all countries sign)
94
australian human rights commission (national body - external review - legal methods - dispute resolution)
- established by the human rights and equal opportunity commission act 1986 (cwlth)
- is responsible for administering a range of federal human rights laws
- can investigate and resolve complaints of breaches of human rights
- holds public inquiries into human rights issues of national importance
- provides advice to parliaments/government re policy and legislative development
- also have an educative role
95
australian human rights commission (national body - external review - legal methods - dispute resolution) effectiveness
- during 2016-2017 the commission finalised 1987 complaints and conducted 1128 conciliation processes of which 75% were successfully resolved (high level of effectiveness)
- however, the number of unresolved disputed indicates a major limitation of AHRC as a legal method
- although it can investigate complaints and organise for them to be conciliated if they are not resolved then ultimately all they can do is make recommendations to the attorney-general
- the matter must go to court to be finally resolved
96
royal commissions (national body - external review - legal methods - dispute resolution)
- special inquiry set up by parliament (either NSW or commonwealth) to inquire into any matter of public important
- set up according to the royal commissions act 1902
97
royal commissions (national body - external review - legal methods - dispute resolution) well known inquiries
- The Royal Commission into the NSW Police Service which ran from 1995-1997
- The Royal Commission into Aboriginal Deaths in Custody (1987–1991)
- The Royal Commission into Institutional Responses to Child Sexual Abuse (2013–2017)
98
royal commissions (national body - external review - legal methods - dispute resolution) outcome
once the investigation is finished, the commission produces a report that is tabled in parliament. the report contains findings and recommendations
99
royal commissions (national body - external review - legal methods - dispute resolution) effectiveness
- often effective in exposing problems and issues in the area of inquiry
- very expensive to run - proposed two year royal commission into the banking industry is estimated to cost over $53 million
- outcomes are also expensive - cost of redress for child sex abuse victims estimate at $4.3 billion over 10 years
- effectiveness depends on the extent to which recommendations are implemented
100
100 yayyyyyy
slayness
