Core Part II: The individual and the law

1. Your rights and responsibilities

RIGHTS

 Principles of freedom or entitlement

 Inalienable
o A person cannot to give up these rights nor can any other person or organisation
take these rights away
o Cannot be taken away except with the authority of law
 Freedom to act or refrain from an act

The nature of individual rights

 Individual rights outline what is owed to a person or the freedoms that a person can
exercise through a legal system

CLAIM RIGHTS v LIBERTY RIGHTS

Claim:

 Claim rights are those that an individual can exercise, but these rights imply that OTHERS
have a duty to the person who wants to exercise the right
 For example: A person buys a washing machine with a 12-month warranty. If the product
breaks down, the owner has a CLAIM RIGHT and the manufacturer has a duty to
repair/replace the product

Liberty:

 Liberty rights give the person claiming the right freedom to be able to do/not do something
without there being an obligation on anyone else to do/not do something
 For example: Right to walk on the street. A person has no obligation to do this, nor is there
any obligation to NOT do this

The types of rights:

Customary

 Rights to which an individual may feel entitled to because of custom or social practice
o For example: A man allowing a woman to go first through a doorway – woman may
feel entitled to this
 Not enforced by the law

Moral

 Ethical rights
 Rights to which an individual feels they have an entitlement to because of a moral or ethical
principle
o For example: Car indicating to park in a space, driver feels they have a moral right to
park there but spot is stolen; driver feels as if rights have been infringed
 Not enforced by the law
Legal

 Entitlement given to a person

 Enforced and protected by the law
 Protected by international law but is only effective with the cooperation of the domestic
gov’t
 Can also give rights to the various sources of law:
o Common law
 Made by judges
o Statute law
 Primary source – made by parliament
o The Constitution
o International law

Australian citizenship Commented [RL1]: Closely linked to Constitutional rights

 Citizenship is considered the basis for having legal rights

 Number of rights in which and indvl is entitled because he/she is an Australian citizen:
o Right to vote
o Right to stand for public office
o Right to apply for work in the Aus’t public/defence services

Constitutional

 Rights individuals are guaranteed by the Aus’t constituion

 For example:
o Right to vote
o Right to move freely from state to state
o Right to freedom of religion

Domestic

 Those that people have within their own nation

 Identical to citizenship + constitutional rights

International

 Deemed to apply to all people regardless of their nationality or the type of political system
or gov’t that exists within their own nation
 Are human rights
o For example: Freedom from slavery

OTHER RIGHTS (fix up later)

 Criminal law: Provides substantial protections for the rights of citizens

 Social and cultural rights: Those that relate to the right to live with dignity
 Civil and political rights: Aim to protect rights and enforce responsibilities from the local to
the global level
 Consumer laws: Provide for the rights for consumers against sellers and importers

Without people abiding by their responsibilities, it is difficult for rights to be maintained.

SUBKNOWLEDGE: Responsibilities
 Responsibilities are duties or obligations that itizens must carry these responsibilities out so
society can function in an orderly fashion
 In non-legal sense it is the responsibility of a citizen to behave in an appropriate manner to
allow the society to function peacefully
 In legal sense, citizens have many different responsibilities or duties
 Failure to perform these responsibilities can result in sanctions (punishments) being
imposed

Examples:

 Preamble to the Australian Citizenship Act 2006 (Cth)

o States citizens must pledge their loyalty to Australia and its people, respecting their
rights and liberties, and obeying laws of Australia
 Department of Immigration and Citizenship website lists the responsibilities of an
Australian citizenship as:
o Obeying the law
o Voting in federal/state/territory elections and referendums

2. Resolving disputes
The roles of the federal and state police and other law enforcement agencies
 The police are responsible for enforcing criminal law
 Each state and territory have their own police force (excl. the ACT), responsible for
enforcing state law within its own geographic jurisdiction
o The federal police (AFP) ARE the ACTs state police
 The federal police have a similar responsibility

The role of the federal police

 The AFP (Australian Federal Police) sees itself as building a more secure future for Australia
and its global partners
 Deals with many issues on a national scale such as counter-terrorism, national security and
border security
 Also, may focus on cooperating with police agencies within Aus’t and from overseas in
preventing transnational crime

Other issues:

Policing

 Provides a police service for the Australian Capital Territory (ACT)

 Deals with border security, counterterrorism, and targets organised crime associated with
air traffic (e.g. drug transportation)

Child protection

 The AFP has a significant role in child protection, esp. in terms of keeping children safe
online
 Makes presentations to schools in areas such as cyber bullying, sexting, e-security, etc.
Crimes against the Commonwealth

 AFP has a major role in resolving disputes that arise from crimes against the
Commonwealth of Australia
 Crimes include:
o Major fraud
o Drug trafficking
o Electronic crimes
o Counterfeit crimes

Fighting terrorism

 AFP works with gov’t representatives and the states and territories on the National
Counter-Terrorism Committee (NCTC) to:
o Contribute to the security of the Aus’t community
o Resolve issues that threaten the safety of all Australians

Prevention of human trafficking

 The global trafficking of men, women and children into the sex industry and illegal labour
markets has been an issue for many years
 Since 2003, the gov’t has implemented strategies to address the variety of crimes related to
human trafficking
o Such as how Aus’t discharges its responsibilities to the UN Convention against
Transnational Organized Crime 2003, a treaty signed by Aus’t in 2002

Intellectual property crime

 There has recently been a significant increase in the theft of intellectual property (IP)
 Main types of theft:
o Pirating of music and DVD properties
 AFP is attempting to target this by:
o Raising awareness of IP crime
o Building partnerships with industries and agencies to combat IP crime

The role of the state police

 All states and the NT have their own police forces which have jurisdiction within their
state/territory borders
 The police force of the ACT is provided by the AFP

Role of the NSW Police Force

 Is the largest police force in Aus’t and one of the largest in the English-speaking world!
 The force aims to protect the community and resolve disputes by:
o Preventing, detecting, and investigating crime
o Maintaining social order
o Performing and coordinating emergency and rescue operations
 BUT the main role is: to enforce the Crimes Act 1900 (NSW)
 Also deals with major crimes including:
o Murder
 o Assault
o Robbery (with or without and firearm or weapon)

The roles of other enforcement agencies

 As well as police forces, there are several OTHER law enforcement agencies that contribute
to resolving disputes in Aus’t
 Many of these have been established by statute to regulate certain aspects of the law.

Two examples of federal and state law enforcement agencies are outlined in the following two case
studies…

Australian Securities and Investments Commission (ASIC)

 ASIC is an independent federal gov’t organisation that has the responsibility of regulating:
o Aus’t companies
o Financial markets
o Businesses dealing with investments, insurance, superannuation
 Has the legal responsibility of enforcing the Australian Securities and Investments
Commission Act 2001 (Cth)
 Is Aus’ts corporate, markets and financial services regulator.

Independent Commission Against Corruption (ICAC)

 The Independent Commission Against Corruption (ICAC) was established by the NSW Gov’t
in 1989 in response to growing community concerns about the integrity of public
administration in NSW
 The role of the ICAC is to set out the Independent Commission Against Corruption Act 1988
(NSW)
 Major roles include:
o Investigating and exposing corrupt conduct in the NSW private sector
o To actively prevent corruption through advice and assistance

Resolving disputes between individuals

Alternative dispute resolution
 Alternative dispute resolution (ADR) refers to a variety of processes ranging from direct
negotiation between the parties in dispute to situations where a disinterested or impartial
negotiator assists with resolution
 This type of process is an ‘alternative’ to having the dispute resolved in the more formal
setting of a court
 Also, is LESS EXPENSIVE!

There are several different ADR processes!

Negotiation

 Direct negotiation involves key players in a dispute discussing the situation with each other
to try and come to an agreement that suits everyone.
 Particularly suitable where the parties want to resolve the dispute themselves
 Advantages
 Parties can resolve the dispute by
making the decisions themselves
 Maintains the best possible
relationship between the parties
 Confidentiality
Disadvantages
 Dispute resolution may not result
 Negotiating skills may not be sufficient
to reach agreement

Mediation

 An ADR process where an independent third party assists the people in dispute to try to
resolve the issue
 Involves identifying the issues in dispute along with possible options, alternatives, and
resolutions for the disputing parties to consider
 Mediator has no role in deciding the outcome
 Cannot offer any opinion or advice about the issues
o Must be neutral

Advantages
 Parties can resolve the dispute
themselves
 Preserves pleasant relationships
between the participants
Disadvantages
 Mediator has no power to resolve
dispute
 Does not work where communications
between parties is poor
 Does not work where there is an
imbalance of power

Conciliation

 ADR process where an independent third party assists the people in dispute to try and find a
resolution
 Expert tries to get parties together and come up with a possible resolution
o Takes an active role
 Unlike mediation, a conciliator may have professional expertise in the subject matter
o But it is not the conciliator’s role to make a judgement or decision for the dispute

Advantages Disadvantages
 Parties can access expert advice on the  Conciliator has no power to resolve
facts in the dispute dispute

Arbitration

 May be voluntary, court ordered, or required as a part of a contract or external dispute

resolution arrangement
 A much more formal and structured process whereby the parties present arguments and
evidence to an independent third party – the arbitrator, who makes a binding
determination
 Major difference between arbitration and other ADR processes: there is a much greater
need for parties to produce evidence and facts
o Usually a process of the last resort in ADR
 Advantages Disadvantages
 Dispute will be resolved because an  Usually is the last resort of the process
arbitrator will make a binding decision of an ADR
 Less costly than a court
 Evidence can remain confidential

Tribunals
 Usually established to deal with a specific area of law such as the NSW Civil Administrative
Tribunal
 Designed to be fair, informal, efficient, quick, and less costly than the more formal court
system
o Quicker, cheaper, easier
 Many tribunals deal only with matters involving disputes between individuals and the state
 Not many deal with disputes between individuals only
 ONE tribunal that does is the NCAT
 Services of lawyers is not often required, and individuals can represent themselves
 SIMILARITIES between tribunals and courts:
o They are both independent, being part of the judicial arm of the gov’t
o Both are open to the public
o Both must be open and transparent – achieved by providing reasons for their
decisions

The NSW Civil Administrative Tribunal

 The NSW Civil and Administrative Tribunal (NCAT) is the one-stop shop for specialist
tribunal services in NSW
 Was established under the Civil and Administrative Tribunal Act 2013 (NSW)
 Deals with a broad and diverse range of issues, for example:
o Tenancy disputes; resolving residential tenancy issues disputes between landlords
and tenants in NSW
o Building works
o Decisions on guardianship and administrative review of gov’t decisions.

Courts
 Proceedings in criminal courts involve disputes between individuals and the state
 Proceedings in civil courts mainly deal with disputes between individuals only
o Can also be a dispute between an individual and a business
o Usually involves one person seeking a remedy/compensation from another to
settle a dispute between them
 Courts are presided over by judges who have been appointed from a legal background
 Judges must comply with court rules and the processes of the adversary system

Resolving disputes with the state

Non-legal methods
 Many minor concerns with the decisions of gov’t depts can be resolved through negotiation
 Often the cause of such minor disputes is an inadvertent error by a person in the gov’t dept
 More serious problems may need to be dealt with in other ways:
Media
 Puts pressure on the gov’t
 Raises awareness to a particular issue
o Often brings on critical pressure to bear even the highest levels of gov’t
 Example: Haneef case
o Accused of terrorism
o Freedom was denied
 Example: Farmers/drought
o Pressuring gov’t to pay farmers more and give them better drought resistant
resources
 But this may be biased

Members of parliament
 Represent the people
 MPs can assist their constituents in conflicts with gov’t depts
o They raised issues in parliament
 If the issue is significant enough it can be raised in the meetings of the party in the
parliament
o The gov’t has the power to change laws
 Example: VRE
o 12 patients contracted a superbug….

Trade unions
 Work to protect the rights of workers and bargain on their behalf with employers
 They represent their members in tribunals in underpayment, unfair dismissal, WHS, strike,
lobbying

Interest groups including non-government organisations

 Non-government organisations (NGOs) are organisations that have no affiliation with the
gov’t
o Instead they rely on the support of the individuals and other organisations

Examples:

Human Rights Interest Groups

 Not affiliated to any gov’t dept

 Make submissions to the gov’t
 Engages in debate
 Promote human rights
o Example: NSW Council for Civil Liberties
 Aims to bring about equal rights for all people
 Attempts to influence public debate and gov’t policy on a range of human
rights issues

Tenants NSW

 NGOs for tenants

 Includes social/public housing, boarders, and residential parks
Environmental Interest Groups

 Example: Greenpeace
o Non-violent action to force solutions to environmental problems
o Raise awareness
o Does not accept money from gov’t

Legal methods
Internal reviews Commented [RL2]: Continue. This is unfinished as fuck.
 Internal review: the gov’t dept will have in place a process for reviewing the decision Ask for help as this is confusing as fuck.

within the department itself

In NSW the following process applies;

 If a person applies for a review of a decision they must write to the administrator, asking for
reasons for their decision
o The person/body who made the original decision
 No later than 28 days after the decision, the admin must give reasons for the decision
 Set out evidence on which it was based, and…
 Explain the reasoning processes that led them to make the decision

These requirements are set out in the Administrative Decisions Tribunal Act 1997 (NSW)

External reviews:
 These reviews of the actions of gov’t depts and agencies exist when they are outside those
agencies

Judicial review Commented [RL3]: Judges, courts

 Taken before a court

The court will:

 Order that a decision be set aside

 Order that proceedings be halted
 Direct an administrative officer to take some action

Judicial review involves a court considering the process by which the decision was made – it focuses
on the lawfulness of the decision-making process

 They do not change the decision. Instead, they comment/ask:

o Has it achieved procedural justice or ‘natural fairness?’
 Was it bias free? Was it fair and reasonable? Etc.

EFFECTIVENESS

Factors which help effectiveness Factors which lessen effectiveness

  Decision is thoroughly scrutinised
 Can result in a more considered
decision
 The individual must have standing Commented [RL4]: Only a person who is a legally
 Can be very expensive recognised interest in a decision/matter can bring an action
 Can take a long time – slow in arriving
to a result
 Can be daunting – indvl v. state

Ombudsman
 The Ombudsman (may be M/F) is an independent person who investigates complaints
made by citizens
o Complaints about state or federal government (and some private) departments and
agencies

Commonwealth Ombudsman

 Investigates complaints made by citizens about federal gov’t depts and agencies
 Citizens who feel that they have been treated unfairly by a gov’t agency can complain to the
Ombudsman
o At a federal level, the Ombudsman deals with issues such as immigration, defence,
social services, etc.

New South Wales Ombudsman

 Role is to ensure that gov’t depts are aware of their responsibilities to the public, and that
they act reasonably and comply with the law when carrying out their duties
 The Ombudsman encourages and helps agencies to develop their complaint mechanisms

EFFECTIVENESS

Factors which help effectiveness Factors which limit effectiveness

 No associated costs to make a  Sometimes can take a while – time
complaint – cost effective  Agency being reviewed does not have
 Formal recommendations to the gov’t to act on the recommendations made
can result in improved administrative by the Ombudsman
processes
 No-one can override the decisions of
the gov’t depts/agencies
 Cannot impose penalties

Statutory bodies
 A body set up by gov’t to consider evidence and make judgements in some field of activity
 Some of these agencies are:

Australian Human Rights Commission

 An independent statutory body that leads the promotion of human rights in Aus’t

It:
  Can investigate and resolve complaints of breaches of human rights
 Holds public inquiries into human rights issues of national importance
 Provides advice to parliaments/gov’t on legislative developments related to human rights
 Is responsible for administering a range of federal human rights laws
o Human Rights and Equal Opportunity Commission Act 1986 (Cwlth)
o Racial Discrimination Act 1975 (Cwlth)
 Covers racial discrimination in employment, accommodation, etc.

EFFECTIVENESS

Factors which help effectiveness
Factors which limit effectiveness Commented [RL5]: I don’t even fucking know.
 Very little protection of human rights
in Australia’s constitution
 Does not have the power to make
legally binding decisions
 Matter must be taken before a court to
be finally resolved

Independent Commission Against Corruption (ICAC)

 Established in 1988
 A public authority completely independent of the government and directly accountable to
the NSW Parliament
 Aims to “protect the public interest, prevent breaches of public trust, and guide the
conduct of public officials”
o (According to the website)
 Main role is to investigate and prevent corruption on administration and on the
community

EFFECTIVENESS

Factors which help effectiveness Factors which limit effectiveness

 Can initiate an investigation without a  Not all investigations may result in
complaint being made prosecutions
 Has a wide range of investigative
powers

Royal commissions
 A special inquiry set up by parliament (NSW or Commonwealth) to inquire into any matter
of public importance
 Parliament sets out the terms of reference
o These are the matters the Royal Commission is to look into and may be given special
powers to
  Commonwealth Royal Commissions are set up according to the Royal Commissions Act
1902 (Cwlth)
 The more serious Royal Commissions can take quite a long time
o (e.g. the RC into the NSW Police Service)

EFFECTIVENESS

Factors which help effectiveness Factors which limit effectiveness

 Often very effective in publicising  Very expensive to run – proposed 2-
problems and issues in relation to the year RC into the banking industry is est.
area of inquiry to be over $53M
 May help achieve justice for indvls.

3. Contemporary issue – the individual and technology

Impacts of technology on the individual
Internet

 More access = more power = more legal issues

 A lot of it is unregulated (e.g. spam emails and fraud)
 Across different jurisdictions

Recording Technologies

 Convenient and simple to use (e.g. courts, police body-cams)

 Privacy issues

DNA Technology

 Can help with investigating crimes

 Difficult to prove the criminal act and are misinterpreted

__________________________________________________________________________________

Privacy

Google maps

 Privacy issue
 Criminals can use it to ‘look behind’ walls and plan their crimes
 People who are shot can be seen all around the world

CCTV

 Can reduce the amount of crime

 Deterrence
 Situational crime prevention

Case Study: 2009 Bus drivers

 Each gov’t bus had cameras to deter misbehaviour on the bus

 However, one camera was situated so it pointed to and recorded only the bus driver
  Drivers complained that this camera was being used to ‘check-up’ on them
o They were afraid of being for very minor matters – privacy infringement
 Gov’t responded by ensuring cameras recorded fairly – must only be used for the purpose
of which it was recorded

Legal implications
 Common law – laws created through the decisions of judges – is often the first to respond
 Statute law will be amended, or new laws created to deal with the technological changes

Example: The Workplace Surveillance Act 2005 (NSW)

 Employers are prohibited from using surveillance of their employees except where the
employees have been given prior notice
 Surveillance of change rooms, toilets and showers in a workplace is completely forbidden
 There are regulations on employers from blocking emails and Internet access of employees

Difficulties with enforcing rights

 Technology can infringe on the following rights:
o Recognition as a person can be denied through identity-theft
o The right to own property
o Right to privacy and freedom of expression
 Two major problems:
o Technology is developing too quickly/rapidly
o Technology raises the issue of geographical jurisdiction
 Crimes Act 1900 (NSW)
o Section 308 was amended
o Difficulty in tracking hackers, securing cooperation with other countries, difficult to
secure store sensitive information

FUTURE DIRECTIONS

 Currently there are very few treaties which deal with technology
o World Intellectual Property Organisation
 Developed by UN
 Developed by WIPO Copyright Treaty 1996
o Council of Europe’s Convention on Cyber-crime
 First int’l treaty which deals with cyber-crime, fraud, child pornography
 2006 – encouraged nations to pass laws on racist and hateful posts on the
internet – improved int’l cooperation