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legal studies > PART 2:The Individual and the Law > Flashcards

PART 2:The Individual and the Law Flashcards

1
Q

what are rights

A

rights are moral or legal entitlements which cannot be taken away from you

unless rights are protected by the law you aren’t protected from breaches of that right

i.e human rights

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2
Q

what are international rightsq

A

international rights are rights that apply to everyone across the world

human rights are soft law because they aren’t enforceable

i.e right to life, right to freedom of speech, right to marry

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3
Q

what are national rights

A

national rights are rights that we have as citizens of a nation

-political rights: rights we have as members of a nation to participate in its functioning
i.e
right to vote, right to be a politician, right to apply for an Australian passport.

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4
Q

what are constitutional rights

A

constitutional rights are rights that we are entitled to under the Australian constitution

i.e the right to vote(rights often overlap)(for example this case with national rights)

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5
Q

what are legal rights

A

legal rights are rights that we are entitled to under the law.
Unless rights are protected by the law you aren’t protected from breaches of that right

i.e right to life, right to marriage

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6
Q

what is the bill of rights

A

legislation or constitutional which sets out the different rights we’re entitled to

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7
Q

does australia have the bill of rights

A

no in Australia our rights are covered by normal legislation and common law

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8
Q

what are responsibilities

A

responsibilities are the legal or moral obligations that you have to another person, or other people generally

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9
Q

what are legal responsibilities

A

citizens have a responsibility to behave in a manner that enables the peaceful functioning of society, and to be loyal to Australia as a nation

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10
Q

what is the relationship between rights and reponsibilities

A

your rights are protected, and in return, you have a general responsibility to be a model citizen

i.e right to be not be assaulted, means that you also can’t go around assaulting other citizens(push and pull situation)

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11
Q

what happens when their is a conflict between rights and responsibilities

A

i.e right to freedom of speech but we have a duty to be a good citizen, and not to create conflict

in these cases, the law trumps all(always follow the legislation)

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12
Q

rights are useless unless they’re protected by the law

A

yes

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13
Q

what is the role of state police(NSW police force)

A

the role of state police(nsw police force) is to protect individuals within their borders against crime

specifically, they enforce the Crimes Act 1990(NSW)
-the crimes act 1900(NSW) is a heavily updated statute law to keep up with new developments

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14
Q

what are the three jobs of the state police(new police force)

A
  1. the state police prevent crimes
  2. the state police investigate crimes
  3. the state police arrest and prosecute offenders
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15
Q

what is the three jobs of the federal police

A
  1. they enforce federal crimes set out in federal statute
    i.e crimes that cross borders(state or national) are covered by the federal police
    i.e
    drug trafficking
  2. child protection online
    things like cyberbullying, online grooming of young people(internet crimes)
  3. prevent crime
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16
Q

where does the federal police operate in australia

A

it operates Australia wide

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17
Q

what is the ASIO

A

Australian Security Intelligence Organisation

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18
Q

what is the main role of the ASIO

A

the main role of the ASIO is to gather information to pass on to government departments and police

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19
Q

what are Australian Border force role

A

it involves custom work alongside the federal police to prevent cross-border crimes

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20
Q

what is the role of the ASIC(australian securities investment commission)

A

the ASIC polices white collar crime or financial crime, and the activities of participants in the financial market

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21
Q

outline the roles of law enforcement agencies

A

they prevent, prosecute and investigate crimes, sometimes they deal with child protection and sometimes deal with drug possession homicide.

Main role
No matter whether federal or state all these bodies of agencies are to enforce the law and protect our legal rights as citizens

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22
Q

what is private law

A

private law regulates the relationship between individuals or between private corporations

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23
Q

what are alternative dispute resolution’s role in resolving disputes(ADR)

A

informal defintion(arguing it out)

alternative dispute resolution refers to a series of different means of resolving issues alternative to legal remedies

the key feature of ADR is about discussion, whereas courts and tribunals are about judgement

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24
Q

what are tribunals role in resolving disputes

A

informal definition(phone a friend)

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25
Q

what are courts role in resolving disputes

A

informal defintion(pulling out the big guns)

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26
Q

what is the key feature of ADR

A

discussion

27
Q

why are parties often forced to go into adr first

A

because its less formal and less expensive

28
Q

what are the 4 different types of ADR processes

A

mediation
conciliation
negotiation
arbitration

29
Q

what is negotiation in the ABR process

A

two individuals or parties try to come to an agreement over a chat with no third party present if that doesn’t work out they go to mediation

(like a chat)

30
Q

what is mediation in the ABR process

A

mediation is where two individuals or parties try to come to an agreement over a chat with an independent mediator if this doesn’t work then it goes to conciliation

(chat with a third party present)

31
Q

what is the mediator’s role in mediation

A

the mediator keeps the peace and encourages the discussion between parties

32
Q

what is conciliation in the ABR process

A

two individuals or parties try to come to an agreement with an independent mediator who gives advice

(chat with an independent mediator who gives advice)

33
Q

whats the difference between mediation and conciliation

A

the mediator is able to give advice(who are normally professionals in the matter of dispute)

i.e fights over hedges will have the mediator be a gardener or an environmental lawyer

if this doesn’t work it goes to arbitration

34
Q

what is arbitration in the ABR process

A

it involves two individuals or parties trying to come to an agreement with an independent mediator who can make a binding determination

-meaning as well as giving advice they can decide the outcome

(chat with an independent mediator who makes a legally binding determination)

35
Q

what are tribunals

A

tribunals are a less formal setting to present your case than courts, through more formal than ADR

-you don’t need a lawyer so it’s a lot cheaper and generally quicker
key feature:
the key distinguishing feature of a tribunal from a court is that they’re generally specialised(set up particularly for an industry or a type of dispute)the roles

i.e the Nsw civil and administrative tribunal is the main tribunal operting in Nsw to resolve disputes between individuals and have subsumed(taken some) roles of smaller tribunals

i.e
covers consumer disputes, administrative law, commerical disputes

36
Q

what is a key feature of a tribunal

A

key feature:
the key distinguishing feature of a tribunal from a court is that they’re generally specialised(set up particularly for an industry or a type of dispute)the roles

i.e. the Nsw civil and Administrative Tribunal (NCAT) is the main tribunal operating in NSW to resolve disputes between individuals and has subsumed(taken some) roles of smaller tribunals

i.e
covers consumer disputes, administrative law, commercial disputes

also another example
the Dust Diseases Tribunal (DDT) set up to deal with asbestos cases

37
Q

what are courts

A

courts are the highest decision-making authority to present your case before

key feature
civil courts deal with private disputes and impose financial penalties as opposed to jail time, compensating people for wrongdoings done to them

38
Q

what is the key feature of courts

A

key feature
civil courts deal with private disputes and impose financial penalties as opposed to jail time, compensating people for wrongdoings done to them

doesn’t involve the state

39
Q

what is the acronym for the ADR process

A

NMCA

40
Q

what is NMCA in the adr

A

negotiation
mediation
conciliation
arbitration

41
Q

how effective is the media in resolving disputes

A

media entities are effective because they have more money than individuals, more influence than individuals, and showcase the views of society as a whole

the media can exert pressure on the government for change by providing greater exposure of the problems for individuals

(it basically names and shames the people)

42
Q

how effective is members of parliament in resolving disputes

A

members of parliament are representatives elected by their local area to act according to the will of the people

members of parliament are effective because they are better placed to understand the way the state works and navigate it than an individual

this is done through raising the dispute of an individual to the government on their behalf

(important spokes people bringing awareness)

43
Q

how effective is trade unions in resolving disputes

A

trade unions are organisations of workers grouped on their type of employment
i.e teachers union, nurses union

trade unions are able to make collective movements to disrupt the system and call for change

trade unions are effective because they have a lot more resources and expertise in resolving disputes than one individual

i.e increase in supperannuation

(effective beacuse of large numbers)

44
Q

how effective are interest groups(ngos) in resolving disputes

A

interest groups, or NGOs(Non-government organisations) are charities and general lobby groups that are usually smaller and less formalised in structure

NGOs are effective because they have greater expertise in the area of their specialisation than most other groups and individuals

they use this expertise to lobby the government for change based on export reports

i.e. Green peace deals with environmental rights

(effective cause of the expertise)

45
Q

what are the 4 non legal methods of resolving disputes

A

members of parliament

trade unions

media

interest groups (NGOs)

46
Q

what are non legal methods of resolving disputes

A

it involves the media, members of parliament, trade unions and interest groups(NGOs).

in large groups, with powerful people, or resources behind them, individuals can successfully go against the state and get justice without using the law(informal)

47
Q

what’s the difference between non legal methods and legal methods

A

the main difference is that the legal means of resolving disputes actually resolve the disputes, they come to an outcome that is enforceable by law
[shortened]
legal means of resolving disputes are enforceable by the law

legal means making orders to do certain things specifically aimed at resolving disputes

legal means tend to be more time consuming, more formal and more expensive

48
Q

how effective is the internal review in resolving disputes

A

an internal review of a decision is a complaint to the department that made the decision in the first place for review

the department is the specialist in the relevant area so they’re the best to make the relevant decision

i.e someone applies for a visa from the department of immigration, and if they reject you, you will complain back to the department of immigration

49
Q

what is the process of internal review

A
  1. reasons requested
    reasons are requested from the original decision maker for the original decision
  2. reasons provided
    reasons are provided by the original decision maker who is required to provide them, setting out their logic, within 28 days of the decision being made
  3. complaint made
    a complaint is made based on the reasoning being deficient in some way
  4. decision reviewed
    decision reviewed afresh(by someone else) by a new decision-maker within the same department
  5. new decision provided
    a new decision is provided, determining whether the original decision was good, and providing reasons for their new decision
50
Q

what is the steps for internal review

A
  1. reasons are requested
  2. reasons provided
  3. complaint made
  4. decision reviewed
  5. A new decision is provided
51
Q

what is internal review

A

an internal review of a decision is a complaint to the department that made the decision in the first place for review

52
Q

what is an external review?

A

an external review of a decision is making a complaint to a new independent organisation or department for review

53
Q

what is administrative and other tribunals

A

these bodies are specifically set up to review administrative decisions of government agencies

key features

informal
no legal representation
no rules of evidence
can consider more factors than the court(more time efficient, lower cost)

they can only review decisions where legislation has specifically allowed them to

54
Q

what is judicial review

A

judicial review is getting a judge to review a bad decision in court

usually confined to the Supreme Court and the federal court

they can only review decisions to see whether it was made legally(can’t review on merits)

they basically decide if the decision maker did the right thing not whether the outcome was just

there are 4 grounds of checking for judicial review

procedural fairness
outside of power
error in law
unreasonable

55
Q

what are the 4 grounds for judicial review

A

procedural fairness
- looking at bias, whether the plaintiff got to say anything, or make their case

outside of power
- i.e if the department decides to grant someone an immigration visa, the courts can decide it is not within their power (i.e the taxation department giving away visa grants)

error in law
made an error of law, looking at the wrong legislation
i.e. looking at the migration act instead of the taxation act

unreasonable
- deciding if the reason was legally unreasonable(totally absurd)

56
Q

how effective is the judicial review in resolving disputes

A

while decisions are enforceable and big remedies can be awarded, not everyone can afford to go to court.

57
Q

what is the commonwealth ombudsman

A

these bodies are specifically set up to deal with complaints

commonwealth ombudsman deals with complaints about federal government departments and agencies and aim to make the government more accountable

there are many ombudsmans
i.e defence force ombudsmand, taxation ombudsmand

ombusmans
key features
its informal
investigates at will
no rules of evidence
make reports on their findings
- they can comment and make
recommendations on unreasonable or
oppressive legislation

however their reports and recommendations are not enforceable and can be ignored

58
Q

what are the key features of the ombudsman

A

kind of like a tribunal

key features
it’s informal
investigates at will
no rules of evidence
make reports on their findings
- they can comment and make
recommendations on unreasonable or
oppressive legislation

59
Q

what is a distance of the ombudsman?

A

their reports and recommendations are not enforceable and can be ignored

60
Q

what is the nsw ombudsman

A

The bodies specifically set up to deal with complaints

deals with complaints about the NSW government department and agencies
i.e complaints on local governments, police, community services

61
Q

what are statutory bodies

A

statutory bodies are set up under legislation specifically to review the decisions of government bodies

3 statutory bodies include

Australian Human Rights Commission (AHSC)
-looks at whether the conduct of Australian government departments and agencies is in line with the protection of human rights
-they can comment on bad practices
i.e they deal a lot with discrimination

Independent Commission Against Corruption (ICAC)
-is an independent body(separate from the government) reviewing allegations of corruption within the government
i.e Eddie Obeid in an illegal leasing deal of properties
(weeding out the bad eggs)

Royal Commission
-under the royal commission act 1902(Cth) the federal government can decide to investigate into anything they deem a problem
i.e generally issues of widespread concern in society

62
Q

what is an internal review

A

an internal review of a decision is making a complaint to the department that made the decision in the first place for review

this is effective because they are the specialist in the relevant area

must have a valid reason

63
Q

what is an external review

A

an external review of a decision is making a compliant to a independent organisation or department for review

legal studies (2 decks)

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