LEGAL NOTES - MODULE TWO

1. YOUR RIGHTS AND RESPONSIBILITIES

● THE NATURE OF INDIVIDUAL RIGHTS

Rights are the entitlements that people have by legal or moral authority. They refer to a way that people
should be treated. In most cases, the treatment must be fair, respectful and equal.
A person has a right to do something or possess something as a result of simply being human; hence the
expression ‘human rights’.
E.g. natural rights, legal rights, sociocultural rights

Responsibilities are legal or moral obligations that a person may have to another person; to a group or to the
state, society or other people generally.
There are responsibilities to act in particular ways, as well as responsibilities to refrain from certain acts
E.g. legal and statutory responsibilities, respecting others, parents responsible for kids, civil duty, care for the
environment etc.

LEGAL BASIS OF RIGHTS

For a right to have a legal basis, it must be protected by law and thus be enforceable. In Australia, legal rights
are derived through our Constitution, statute and common law.

CONSTITUTION:
Express rights are those such as the right to freedom of religion
→ Such rights stop future governments from banning a religion or forcing citizens to follow any one religion

Implied rights such as the right to freedom of speech need to be ‘read between the lines’ and are not
expressly written in the Constitution

STATUTE:
Example of rights protected by statute are the rights not to be excluded or restricted on the basis of race or
ethnic origin and physical or mental disability

These rights are contained in the Racial Discrimination Act 1975 and the Disability Discrimination Act 1992

Case: Scarlett Finney:

· 1997 Finney had a disability (spina bifida) → her parents applied for her to be enrolled at the Hills
Grammar School
· The school refused the application because they could not accommodate for her ‘needs’
· The issue was whether it was unjustifiable under Antidiscrimination Laws to refuse Scarlett’s
application
· The school had failed to carry out a proper investigation of the requirements to accommodate Scarlett
· Weighing up all the facts; the school was able to make adjustments to services and facilities that was
not unjustifiable
Criminal Law:
- Right to be innocent until proven guilty (social media can undermine this principle and jeopardise the
possibility of a fair trial e.g. Chris Dawson)
- Right to be silent
- Right to have your interview taped (otherwise it is your word against someone else and it is easier to
detect change in evidence)
- Right to be charged within a certain time frame (Went from 4 to 6 hours to lay formal charges and 14
days for terrorism charges)
- Right not to have your prior record before the court (adversarial system meaning only evidence from
that case can be heard and convict you)

COMMON LAW
Other rights have their origins in common law; that is, by the decisions of the courts and judges
E.g. the High Court has ruled that individuals have the right to a fair trial, which includes legal representation
paid by the state in serious criminal trials

Common laws and rights:

- Residual freedom
- Fair hearing - procedural fairness, no bias, right to have your matter heard/speak, to have evidenced
tested etc.
- Legal representation for serious indictable offences

Consider how Law can take away some rights:

- Right to be free - conscription
- Right to enjoy the use of a legal product - cigarette smoking restrictions
- Right to associate - prevention of bikie gangs
- Right to know your charge within a certain time frame - retaining suspected terrorists for extended
periods of time without charge

INTERNATIONAL LAW
- UN Declaration of Human Rights (UDHR)
- International Covenant on Civil and Political Rights (ICCPR)
- Covenant on Economic Social and Cultural Rights (CESCR)
- All three together are called the international Bill of Rights

● RELATIONSHIP BETWEEN RIGHTS AND RESPONSIBILITIES

- Rights and responsibilities are related in some ways
- Where citizens have particular rights, the state has a responsibility to protect those rights and ensure
that they are not violated by individuals, groups or the state itself
- Where the members of a group have legal responsibility to do something, the group has a right to expect
it
ARGUMENTS FOR AND AGAINST BILL OF RIGHTS:

FOR
Australian law gives insufficient protection to
fundamental freedoms, and a bill of rights would
enshrine those rights
A bill of rights would make our current laws more
cohesive and accessible, rather than being ‘locked
up’ in past judgements and statutes
We are becoming increasingly internationalised and
need to be aware of international laws. A bill of
rights would bring Australia in line with other
countries
A bill of rights would allow Australia to meet its
international obligations more effectively
A bill of rights would protect the rights of minorities
The High Court’s interpretation of ‘implied rights’ in
the Constitution is too limited: we need a document
explicitly setting out our rights
AGAINST
Rights are already protected by statutes and the
common law
A bill of rights makes little practical difference in the
protection of rights
Enabling judges to strike down laws made by
parliament that are inconsistent with a bill of rights
would be undemocratic
Rights written in a bill of rights can become outdated
very quickly in a rapidly changing world
A bill of rights would actually restrict rights, because
once defined, a right is limited by the words in which
it is expressed
The judiciary would become too political if there
were a bill of rights

Rights and responsibilities conflict:

Case Study – Geoffrey Rush
· Defamed against by female co-star which ruined his reputation
· False claims about him touching her on set / during intimate scene
· She went to the journalists (Syd. Daily Telegraph) however evidence contradicted the truth
· How do we express our thoughts without being charged for defamation?

2. RESOLVING DISPUTES

- THE ROLES OF THE FEDERAL AND STATE POLICE AND OTHER LAW ENFORCEMENT AGENCIES

NSW police - Enforce Police Act 1990

- Works with community to reduce violence, crime and fear
- Prevent, detect, investigate crime
- Road safety
- Social order
- Emergency and rescue operations
Australian Federal - Strategies to prevent and disrupt crime
Police (AFP) - Cybercrime and cyber safety
- Child protection
- Countering terrorism
- Violent extremism
Australian Customs - Immigration and citizenship
 and Border - Travel and crossing the border
Protection Service - Import, export and buying online
- National security
- Criminal justice
- Transport security
- Multicultural affairs
- Emergency management
- Cyber security
Australian Taxation - Collect revenue
Office (ATO) - Administer GST
- Superannuation
- Custodian of the Australian Business Register
Australian Criminal - National criminal intelligence agency
Intelligence - Work with law enforcement partners → improve national ability to respond to
Commission (ACIC) crime
Environment - Issue environment protection licences
Protection Authority - Pollution – reduction programs, investigative reports, clean-up
(EPA) - Impose fines
- Education and awareness programs
Australian Security - Counter terrorism and communal violence
Intelligence - Threats to border integrity
Organisation (ASIO) - Security advice to government and business
- Espionage, foreign interference, malicious insiders

The police and other law enforcement agencies utilise their special powers to investigate crimes, and
prevent law-breaking behaviour, to maintain law and order in society.

- RESOLVING DISPUTES BETWEEN INDIVIDUALS:

⎻ alternative dispute resolution (ADR)

- Alternative dispute resolution uses a variety of methods to resolve disputes between parties without
involving a court process
- ADR allows the participants not only to save time and money, but also to have more control over
proceedings
- Cheaper and quicker than court procedures

Negotiation: discussion between two or more parties with the aim of reaching a mutually beneficial outcome
→ as only involves the two parties, it is usually low cost.

Mediation: involved parties meet to discuss the issues and attempt to reach a compromise. Overseen by an
impartial third party who helps parties negotiate disagreement
→ mediator does not provide advice or impose a decision on the parties
Conciliation: similar to mediation, neutral and independent third party who helps the parties to negotiate
their disagreement and come to a decision that they both find acceptable
→ third party more experienced, helps the parties identify the issues, consider alternative options to solve the
dispute and reach an agreement - can advise the parties but do not make decision for them, and
recommendations are not legally binding
→ parties can have own legal advice too

Arbitration: is a formal process, in which an independent third party is brought in to determine how the
dispute is to be resolved
→ legally binding

Community Justice Centres (CJC): deal with disputes within family (including youth conflict), workplaces,
neighbourhoods and communities.
→ aim to resolve disputes through mediation.

Why someone would prefer alternative dispute resolution rather than taking the other party to court?
· It is quick (no waiting list), convenient (mediations are held at a location near you), its voluntary as
well as confidential.
· Mediation is a safe and informal environment for people to talk to each other and sort out their
problems.
· Mediation can help everyone involved to understand the issues and see things from a different
perspective.
· Community Justice Centres help people resolve disputed quickly and for free.
· 80% of cases in mediation at CJC's result in resolution.

⎻ courts
- If the individual involved in a dispute can’t be solved by alternative methods, it needs to be taken to
litigation.
e.g. Land and Environmental Court (LEC) – interprets environmental law and deals with land disputes;
incorporates ADR into proceedings; same status as Supreme Court in NSW

⎻ tribunals
- Less formal and expensive method to courts
- No legal representation
- Person presiding over it will have specialist expertise rather than legal training
e.g. NSW Civil and Administrative Tribunal (NCAT)
 - RESOLVING DISPUTES WITH THE STATE:

CHALLENGING STATE POWERS → Areas where governments may make decisions that affect individuals or
groups of people
- Issues around immigration
- Issues of tax
- Issues around employment
- Issues around health
- Environment and planning
- Issues around education

⎻ non-legal methods
Media - Letters, email, TV, Social media radio etc.
- Informs the community about a decision which can place pressure on
the government to change a decision
E.g. children were released from detention in Nauru due to media
pressure, highlighting the impact of detention on them - Four Corners
- Royal commission → children being released from detention

Members of parliament - Represent the interests of local individuals

- Citizens within an electorate can contact the office to speak about their
MP with issues
E.g. John Howard lost his position as he didn’t attend to the needs of
his electorate

Trade unions - Industry based - education, retail, health, hospitality

- Aim to protect workers rights - including work conditions and pay
- They negotiate workplace agreements around pay and conditions (e.g.
they negotiated paid parental leave in 2011)
- They can act on behalf of an employee when an unfavourable decision
or action is taken by an employee
- They can recommend a strike as ‘last resort’ to seek changes in working
conditions

NGO’s - People can join organisations which bring together those who share the
same political goal in terms of changing state power
- ‘Getup’ - who use social media to garner support for change e.g. recent
election → support to get Tony Abbott out of parliament

EFFECTIVENESS OF NON-LEGAL MEASURES

They are effective because they highlight an issue/draw attention to an issue which can lead to a
greater/broader understanding of the impact of the decision
 ⎻ legal methods
LEGALLY CHALLENGING STATE POWER:
1. A government body/agency makes a decision against you e.g. you license is revoked
2. The Government Information Access Act 2007 entitles an aggrieved person find out reasons for a
decision made by a government body affecting you
3. Seek an internal review of the decision - the department will review the decision i.e. the original
decision maker will reconsider

If no change:
4. External review of a decision:

Administrative and other · Review decisions of Government agencies completely

Tribunals · Time efficient, low in cost, less formal
· Don’t allow legal representation
e.g. NCAT
The Courts · Appeals must be made on legal grounds
· Court will not reconsider facts (procedural fairness upheld)
· Review administrative decisions / actions
The Office and Ombudsmen · Representative of the people
· Investigates both public bodies and private agencies that serve a public
purpose
· Makes recommendations
NSW Statutory Bodies Independent Commission Against Corruption (ICAC):
· Citizens can complain against corrupt behaviour of people in public
office
· Can only make recommendations NOT impose punishments

Australian Human Rights Commission

NSW Anti-Discrimination Board

5. International external review process

Human rights treaties → human rights council hears individuals complaints
e.g. Toonan v Australia, discrimination on the grounds of homosexuality → led to change in LAW in
Tasmania

3. CONTEMPORARY ISSUE: THE INDIVIDUAL AND TECHNOLOGY

TECHNOLOGY AND THE LAW

● WHAT ARE SOME OF THE CHALLENGES OF USING THE INTERNET IN TERMS OF REGULATING ITS USE?
- Anonymity of the internet
- The reach it has in people’s lives
- The rapid pace of change in terms of technological advancements
● CYBER CRIME
Cybercrime Impact
Hacking/Attacks on Unauthorised access or hacking, malware,
computer systems denial of service attacks
Case Study: ANU Hacking Incident – hold
Uni to ransom, release information to
public
Online scams Spam is electronic junk mail - unsolicited
including email spam messages sent by forms of
and phishing telecommunication without the recipients
consent
Online child sex abuse Live streaming results in no record
Penalties are not severe (2-5 years)
Reliant on intelligence information
Prohibited and illegal People may purchase illegal products online Under the Broadcasting Services Act
content e.g. weapons, drugs and body organs. These publication of certain information is
are accessed through the dark web which
Current regulation
Cybercrime amended the Criminal
Code as well as the Crime Act -
created offences pertaining to data
where computers are operated
under the Commonwealth
government
Under the Crimes Act NSW - s308
offences regarding hacking
The Australian Communications and
Media Authority (ACMA) enforces
Australia’s anti-spam laws and
provides advice to businesses to
avoid spam attackers
It is a breach of the Trade Practices
Act to engage in conduct that is
likely to mislead or deceive
consumers
It is an offence to access, possess,
distribute, produce, advertise or
make available child pornography or
child abuse material
Procure, groom or engage in sexual
activity with a person <16 years of
age
Send indecent communication to a
person <16 years of age
Relevant sections of the Crimes Act
NSW
Continuing detention orders
Sex offenders register
Ankle tracking bracelets
illegal
 are not accessible through normal search
engines

Identity theft Occurs when a criminal gains access to your
personal information to steal money or gain
other benefits.
Fact: more than ¾ of Australians have had
their identity stolen which has cost around
1.6 billion to the economy
Under federal law the is NO specific
law against identity theft - there are
numerous statutes about using
illicitly acquired personal
information - including dishonestly
gaining personal financial
information

● PRIVACY ISSUES

The Privacy Act 1988 contains the privacy principles covering federal government agencies and relate to the
handling of people's personal information e.g. health, social security, insurance and taxation

In 2000, there were amendments to the Act so now private entities are regulated in the way they use private
information

The Privacy Act allows you to:

- Know why your personal information is being collected (MyHealth)
- Have the option of not identifying yourself
- Ask for access to your personal information
- Stop receiving unwanted direct marketing
- Ask for you personal information to be corrected
- Make a complaint about an entity covered by the Privacy Act, if you think they have mishandled your
personal information