Individual And The Law

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The Individual And The Law

Success criteria:

1. Understand the 5 sources of law in Australia

2. Understand the influence of British Law on Australia

3. Understand the concept of common law/precedent.

Common Law

When the British came to Australia and declared ‘terra nullius’, they enacted an international law called the ‘Doctrine of Reception’. What this means is that British law immediately came into effect in Australia. Our colonies therefore didn’t start with blank law, they inherited British parliamentary law and common law – in fact the entire British system.

We therefore inherited the British system which balanced ‘equity’ and ‘common law’ in their court system.

When the Normans invaded England in the 11th Century, they attempted to establish one law – a ‘common law’ – throughout the whole country.

They sent out travelling judges who would apply the same decisions to court cases all around England. Over time though, this system became so standardised that it was not listening to the individual situations of each case. By the 15th Century, this system was so unfair, people were appealing their case to the king. He therefore set up a separate court that applied the principle of equity (hearing each case on its own merits). Eventually the two courts were merged, but the principle of equity was said to take priority over common law. This is the system we inherited.

Learning intentions:

Learn about the process of creating precedent

Learn the features of a precedent

Success criteria:

Understand how precedent is created

Understand the relationship between precedent and legislation

Understand the difference between binding and persuasive precedent.

Read the R v Zecevic case and answer the 5 questions at the bottom of the page. You can complete this individually or in a group of your choosing.

Which bits of legislation are relevant?

What criteria does the legislation establish

he/she believes - His actions demonstrated fear

he/she believes the conduct was necessary - The victim had stabbed him, he knew the victim owned a gun, and the victim left to go where the gun was stored. Therefore this led him to believe he had no other choice.

he/she believes the conduct was necessary to defend themselves - Well, based on the fact the other man had a gun (which he had seen), and he BELIEVED the man was going to get it, he genuinely felt it was necessary to use his own gun in self-defence.

Did Zecevic fulfil this criteria?

Give a reason, based on the facts of the case, and the criteria from the law.

What potential problems arise?

How do you prove what a person believes?

What was going on here?

As a judge, you were reading the legislation and interpreting what it meant. You then have to look at the ‘facts’ of the case and apply the law. This might mean a judge attempting to define what certain words mean - for example, what does ‘reasonable’ mean.

For example, in the R v Zecevic case, the judges qualified the phrase in the law that said a ‘person must believe that their actions where necessary to defend themselves’, by saying, the belief must be what a reasonable person would accept.

Judges therefore must look back at dozens of old precedents and attempt to apply the relevant ones to their case. If the precedent is binding, they MUST follow it, whether or not they like it. The only way a judge can avoid following a binding precedent is by ‘distinguishing’ their case - saying it has different circumstances.

Success criteria 1:

Understand the relationship between legislation and the courts - what is the role of the court?

SC 2

Understand the difference between the adversarial and inquisitorial court systems

Inquisitorial Courts - In this system, the judge plays a very active role in the court proceedings. They are responsible for gathering all evidence and testing it - if the judge doesn’t look at that evidence, then it is never considered in the trial. They have a large amount of power over the process of the trial and the outcome of the trial. This system is used in parts of Europe and in Indonesia. Some specific Australian courts, such as the Coroner’s court, operate from this system.

SC 3

understand the variety of courts we have, the role of each, and where they sit in our court Hierarchy.

Legislation

Legislation is created by parliament (which is democratically elected). Our Federal parliament creates laws which relate to all of Australia, where each state then has authority over other certain issues in their state. Both the NSW and the Federal parliament and Bicameral, meaning they have an upper and a lower house of parliament. The person in power (Prime Minister) is the leader of the party with the most seats in the lower house of parliament. In order to pass legislation, it must first be passed by the lower house (House of Representatives) and must then be approved by the upper house (The Senate). As we discussed in class, the HoR is based on population, which means the larger states have many more representatives in this house, but the Senate gives each state equal representation.

Once a ‘bill’ (a draft piece of legislation) has been passed by both houses, it must go to the Governor General, who, as the representative of the Queen, gives ‘royal assent’ (formally agrees) to the legislation. Once the Governor General signs the bill, it becomes ‘enacted’ or passed into law.

Because the parliament is elected by the people, this ensures that the laws they are creating are in line with what the people want (reflecting widely held values). If parliament begin to create laws that voters are unhappy about, they risk being voted out of government at the next election.

Delegated legislation here is a special type of legislation. It can be created without going through this normal democratic process, and can simply be created by unelected bodies. Examples include:

Regulations - made by a Governor for example

Ordinances - laws made for Australian territories

Rules - made for government departments

by-laws - made by local councils.

Because Delegated legislation doesn’t follow the usual democratic process, these bodies can only make laws about very specific things. This prevents potential corruption. The parliament will pass a law outlining exactly what they can make delegated legislation about.

Potential issues:

Raising the drinking age to 21

Success Criteria:

Understand the ALARM Matrix

Understand the nature and purpose of the Constitution as a source of Law

Be able to distinguish between the the division of power and the separation of powers.

Name and Define (WHAT)

The Constitution is the basic rules which govern the nature and structure of how our system of government and laws apply.

Describe (WHAT)

Created in 1901 when Australia federated. It was created by an act of the British parliament, and it formally created an Australian federal parliament.

Explain significance (WHY)

It was created to outline how the new federal government should operate and what powers it would have. It also put in place a system of ‘checks and balances’ to prevent corruption.

Analyse (HOW)

It needed to clearly define what areas of power the States had, and what areas of power (jurisdiction) the Federal government had. The separation of powers, listed in section 51 of the constitution clearly outlines what powers the federal government has (Exclusive powers) and what powers the state governments have (residual powers).

Critically Analyse (HOW WELL)

Classification of Law:p. 60

Public Law:

Criminal Law - Criminal Law is a system of rules which when broken, he/she/they are punished. Its purpose is to maintain order and ensure safety within a society. Each Australian state has its own rules and laws to deal with criminal behaviour. Each state has their own legislation regarding criminal behaviour, but the actions and punishments covered by these laws are the same. The state has this responsibility as offences affect the whole community not just the individual. The common law plays a significant role in Australian jurisdictions. In NSW, the main criminal statute is the Crimes Act 1900 and parts of this act have been reviewed and changed to reflect changes in society.

Constitutional Law - Constitutional Law is part of Public Law that focuses on the rules governing the executive, legislative and judicial functions of government. The Australian Constitution divides legislative power between the Commonwealth and the states by conferring on the Commonwealth Parliament with the power to make laws with respect to particular topics. If a law violates the rules contained in the Australian Constitution, the case must go to the High Court of Australia, which has the role of deciding cases of special federal significance including challenges to the constitutional validity of laws.

Administrative Law- Administrative law is the area of law that deals with government powers and decisions made by government bodies . It is based on the English model. Administrative law exists to ensure the accountability of the administrative actions and decisions made by the government and its departments. It’s a body of laws that regulates government decision making, it cannot be used to challenge government dealings. In Australian, administrative law is complicated due to the different levels of government. An individual must be aware of which government body was responsible for the action before he or she can challenge it.

The process of challenging a government decision includes:

Internal review

External review

Judicial review

Private Law:

Contract law: a contract is an agreement or promise between two or more parties that is concerned with the recognition of this agreement and the actions taken to enforce it.

When a contract is breached, it will typically lead to ‘damages’ to one or both parties. One or both parties can then pursue a civil case and ‘sue’ the other party to recover their damages. This is normally a monetary amount.

If one party of the contract is doing something they are NOT supposed to do, the judge can order an injunction (formal notice to stop doing something).

If one party is NOT doing something they ARE SUPPOSED TO DO, then a judge can order a specific performance.

Tort Law:

Tort cases deal with situations in which someone has done something to interfere with the rights of someone else. Torts are civil wrongs that occur when someone breaches or fails to fulfill a duty that he or she owes to someone. The breach of a contract is also a civil wrong, but the difference between tort and agreements is that with agreements, there is already a legal relationship between parties at the time of the wrong whereas in torts there is no legal relationship prior to the wrong. All torts entitle the alleged victim to take legal action against the alleged perpetrator in a civil court and claim compensation. There are many different types of torts that arise from different types of activity.

These include:

-negligence

-nuisance

-trespass to land

-false imprisonment and

-defamation

Property Law: Property law is a wide area of law which governs relations involving things/ interests that can be owned and that have a commercial value. This includes physical objects as well as less tangible interests such as shares. One of the more important aspects of property law is real property law which refers to actual land and anything on that land. Property rights are legal rights to possess, use or benefit from something.

Members of the Legal Profession

Judge

Magistrate

Preside over Intermediate and Superior Courts

Will typically hear indictable offences or more serious civil matters

In criminal cases they operate with a Jury (verdict), the judge still runs the trial, and still determines punishment

Preside over Inferior courts

Will typically hear summary offences or less serious civil matters

2 year maximum punishment

Operate without juries. They therefore decide verdicts and punishments

Barristers and Solicitors

Both of these are fully qualified legal professionals, however, they play different roles. Solicitors are typically the first point of contact for a person seeking legal advice, and they mainly operate in legal matters outside of a court room (family law, real estate, contract law etc.). Barristers however, are specialists who operate in one area of law and specialise in dealing with court cases.

Home learning activity - finish notes on the other people in a court room (jury, witnesses, court officer and judge’s associate).

Read and understand the difference between a common and civil law system (p 72 actual).

Law Reform

Law reform is the process by which our government seeks to change our law in order to improve it. This may relate to the effectiveness or the relevance of the law. This process is by no means quick or easy, but is essential.

Why do we have to change our law? Think of some examples

Could we achieve a perfect law that was completely functional and stayed?

Agencies of law reform:

The groups or organisations below are those that research current legal issues and pressure the government to make changes to legislation in order to create more effective laws.

Australian Law Reform Commission (ALRC)

Created in 1975, the ALRC is a federal ‘independent statutory body’. This means it was created by law (by a statute/piece of legislation), but it is independent of the government. Even when governments change, it will continue to stay the same which means it can fairly and impartially research legal issues and make recommendations to the government.

The Attorney-General can refer issues to the ALRC, and will give ‘terms of reference’. These are guidelines for exactly what they are to inquire into. They often focus on how federal legislation can improve, but they also focus on ensuring that Commonwealth, state and territory laws are working together where possible.

Once it has researched an issue, and heard from relevant experts and groups, it will create a report with recommendations of how to change the law. The government can then accept these recommendations or ignore the report if it chooses to do so.

NSW Law Reform Commission (NSWLRC)

Operates exactly the same way that the ALRC, but just on a state level. However, for the last 2-3 years this commission has been shrinking and increasingly seems as though it will cease to exist soon.

Parliamentary Committees

Either house of parliament can establish a ‘committee’ to investigate into a current area of law and then given advice to parliament. There can be Senate Committees, House of Representative Committees or Joint Committees (members from both houses together). These can either be created temporarily to look into one issue, or parliament can create more permanent ‘standing committees’ and then refer any issue to that committee. As with the ALRC, they are given ‘terms of reference’ that outline what they are to investigate.

Once finished, they will publish a report that is formally entered into parliament.

The Media

While the media has no power to directly change the law, they are often heavily involved in publicising legal issues and generating public outrage which will in turn pressure the government to change the law. The media can also be highly critical of new laws which can in turn affect public perceptions of the government. In order to keep voters happy, the government will often listen to the pressure of the media.

Non Government Organisations

Sometimes called ‘charities’ or ‘not for profits’, these organisations are independent of the government. They often have a particular focus area that they care about, and might work to help improve certain issues. They can sometimes work with the government to enact that law (for example, they might work in unemployment or housing services). Given that they often work in these fields, as experts they might provide advice to the government when it is seeking to reform the law. They might also pressure the government when it does not recognise the existing issues in the law. Unfortunately, they are easily ignored.

Lobby Groups

These are organisations with a particular interest or point of view. They typically seek to lobby the government (pressure through repeated requesting or submissions) from their perspective on certain issues. Key examples include the Business Council of Australia, Australian Christian Lobby and the Gay and Lesbian Rights Lobby. They can force the government to reform the law if they bring attention to real legal issues. They may use the media to promote their cause.

Mechanisms of Law Reform

Courts

- can change the law through creating precedents. These can interpret legislation and sometimes clarify exactly how legislation would apply in real life. This may be as little as interpreting what a single word like ‘reasonable’ might mean.

Sometimes, courts hear issues where there is no legislation. In this circumstance, the precedent created will be the only law related to that issue until parliament creates a new piece of Legislation in that area (legislation overrides precedent)

The High Court can also choose to overturn precedent when they choose to. They are the only court not bound to follow existing precedent in their decisions.

Parliaments

- they are the most major law reformer in Australia. They can amend (change), delete or create new legislation as they see fit. They may listen to expert opinions, or any of the above agencies of Law Reform in the process of changing a law, but ultimately a government will change what they want to change. Typically, they will change laws in line with what Australians want, so that they can maintain enough votes to stay in government.

International Law - can also have influence over Australia. Usually speaking, due to state sovereignty, the Australian parliament can choose whether or not to follow international law. The only exception to this would be if the United Nations created binding ‘resolutions’ on its member nations (including us). In this circumstance, we would be bound to follow the decision of the UN unless we withdrew our membership.

Rights and Responsibilities

Rights are the entitlements which people are granted either under law or through moral/ethical obligations.

Responsibilities are obligations which a person should follow for the good of another person. These may be mandated through law, or may be drawn from ethical/moral values.

Relationship between rights and responsibilities

Where one person has a right, others around them have the responsibility to uphold this. For example, if one person has a right to safety while driving a car, other drivers have a responsibility to uphold this by controlling their car, ensuring they are not under the influence of drugs etc.

However, this relationship may be indirect. People have the right to have free education. In order for this to occur, the government must uphold this, but they are unable to do so unless citizens pay their taxes.

Where are our rights and responsibilities protected?

Legislation (statute law) is where the majority of our rights are listed, but also, many of our responsibilities. Our legislation is often influenced by rights which come from international law.

Our Constitution does protect a very limited amount of rights. The other key source of rights is the Common Law. Many of our rights are held in precedent. This is helpful because it is responsive, but it can be very difficult to define these rights.

Some questions:

Do all rights apply to all people?

Some rights apply to all people at all times, these are human rights. But other rights, are limited to certain people, based on characteristics about them (age, gender, race, circumstance).

Can a right be taken away from a person?

Law enforcement bodies

All enforcement bodies are organisations (normally a branch/department of the government) who are responsible for directly or indirectly making people follow the law.

NSW Police

WHAT:

NSW Police are a branch of the government who are responsible for enforcing law. They have no power to create law, simply to ensure that the community follows the existing laws.

WHY

The police seek to primarily enforce criminal law in order to ensure that the community is ordered and safe. Using the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the police are granted special powers to enforce criminal laws such as the Crimes Act 1900 (NSW).

HOW

Police are granted a number of powers including powers to search and detain, powers to enter and search property, as well as the seizure of property. Police can also arrest and question suspects which can subsequently lead to the police laying formal charges against a person. Using these powers, police seek to prevent criminal action and to arrest and charge those who have already breached criminal laws.

In your table groups - are there any issues you can already see?

Community v Individual - Certain police issues can highlight a tension between criminals rights and community safety. They are primarily concerned with upholding the community’s right to safety.

Resource efficiency (Time and Money)/responsiveness -

Accessibility - The police are typically quite accessible to deal with criminal issues.

Protection of Rights - There is a potential for corruption within the police. Criminals have very clear rights in the arrest and interrogation process.

Enforceability - Typically, they do have clear powers of enforcement. One key area they fail in is the issue of cybercrime.

Equality/equity - The police have very clear codes of conduct which seek to create equality in the way people are dealt with. Through the creation of community safety, it seeks to generate a more equal power balance in society.

Using this article - htttp://www.skynews.com.au/news/national/nsw/2016/05/04/baird-s-terror-laws--recipe-for-police-abuse-.html - Baird’s terror laws recipe for police abuse.

Answer the following questions:

How do these powers change the enforceability in order to allow police to carry out their purpose?

How does this enforcement increase affect the protection of rights?

Do you believe these laws poses an unacceptable risk to society’s rights?

Having looked at the NSW Police, it is important to understand that there are several law enforcement bodies that will have some level of jurisdiction in NSW. They might have different areas of responsibility, or different levels of authority, but they will all have some ability to enforce the law in NSW.

In discussing this, read the textbook pages 145-147 and for each of the agencies below consider its similarities and differences to the NSW Police force:

Federal Police: Australian Federal Police the federal police agency of the Commonwealth of Australia, set up to enforce the federal laws and to protect the interests of Australia both domestically and internationally

Similarities -

Responsible for enforcing.

Both enforce criminal laws to ensure community safety.

Both target terrorist activities.

Tend to have very similar powers of enforcement.

Difference -

Are responsible for enforcing federal law and criminal law where crimes cross state boundaries.

Is to prevent and detect crimes against Commonwealth law within Australia, and in certain circumstances, by Australians overseas.

Focus on international operations.

Federal Law: terrorism, human trafficking and sexual slavery, cybercrime and family matters.

Operate under federal jurisdiction.

Division Of Powers.

Can be involved in internationally matters.

Different geographical locations.

ASIO: Australia’s security service, to guard against activities such as espionage (spying), sabotage, politically motivated violence and attacks on our nation’s defence systems.

Similarities -

Defending and protecting the nation.

Purpose is to protect Australian society from harm or unwanted conflict.

Also possess special powers to enforce the law.

Gather information that will help the federal government and other law enforcement agencies, such as the AFP, to prevent and thwart attacks on Australia.

Differences -

Operate as a federal body (therefore having federal jurisdiction)

Their purpose is slightly distinct. Less involved in direct law enforcement for common matters, and more involved in intelligence gathering.

Facilitate cooperation with other governments bodies (government departments, police or other law enforcement)

Australian Crime Commission: The Australian Crime Commission (ACC) is a Commonwealth statutory body working nationally with other federal, state and territory agencies to counter serious and organised crime.

Similarities -

Both have a statutory body working in state area.

Protection of civilians and individuals of society.

Combined with other law enforcements.

Resolving Disputes

Dispute Resolution Mechanisms - starts on page 149 actual of text.

Name

ADR

Description

Alternative dispute resolution (ADR) uses a variety of methods to resolve disputes between parties without involving court processes. Resolutions include, negotiation,mediation, arbitration and conciliation.

Purpose

The purpose of ADR is to give opposing parties a chance to resolve their problem without having to go to court and spend considerable amounts of time and money. Also allowing them to have more control over the proceedings.

How does it work?

ADR works through the process of having different stages including negotiation, mediation, arbitration and conciliation. Negotiation is where the parties involved get a chance to stress their concerns and come to a mutual agreement without a third party being involved. Mediation and conciliation are similar processes in the sense that both involve a third party. Mediation is where a third party just listens, doesn’t provide advice on the matters or impose a decision on the parties. Conciliation is where a third party involved doesn’t make the decision but he may advice the participants, the conciliator is responsible for managing the process and may be a legal practitioner or professionally qualified in the subject matter.

Arbitration is where the third party involved makes the decision for the parties, which has a binding agreement.

Effectiveness?

The effectiveness of the process is that it takes it to a personal level in the sense that it provides parties a chance to mutually come to an agreement without going to court and having legal implications. The process allows the participants to have a fair outcome, and restore relationships. As well as this, it is not enforceable as if for example one party refuses to comply with the decision, there is no punishment therefore limited enforceability.

Name

2. Court proceedings (LEC as well)

Description

A legal proceeding is any activity that seeks to invoke the power of a tribunal in order to enforce a law. Specifically in regards to the Land and Environment Court of NSW (LEC), a specialist court with a wide jurisdiction.

Purpose

The court utilises a third party’s conclusive decision in interpreting and enforcing the law regarding the legal dispute. Specifically environmental law for LEC.

How does it work?

A person desiring judicial review must have standing: that is, he or she must be directly affected by the issue. There would be huge costs associated with judicial reviews if they could be ordered by any interested persons, whether they were directly affected or not.

If judicial review finds a decision flawed in one or more ways, the remedies that courts can issue will depend on the nature of the error that was made by the decision-maker.

Effectiveness?

The effectiveness of court proceedings is almost solely a dependant of the enforceability of the law. However the money and time taken to go through said process makes it resource inefficient. It also creates fairness by providing justice to the individual who wins. It is also ineffective in that it is not as effective in eliminating issues, so much as just skimming the surface. For instance, as with LEC, suing your neighbour for $10,000 over a tree and then living by them for years to come.

Name

3. Media

Description

The media is known as a non legal method of challenging state power

Purpose

To report an issue, usually to bring attention to the issue and can often influence the government to make a change to a policy decision

How does it work?

The media is a source of information and a means of communication. By means of common interest websites, people can get together physically, online or both to discuss situations where public o cers have allegedly acted unjustly.

Effectiveness?

Allows the community and the individual to pressure for a change or to reverse a policy decision. If the issue gains enough attention, then the law can be efficient in making a change , although if the issue does not gain enough attention to the issue, then the law may not be efficient in making a change

Name

4. Members of Parliament

Description

Members of state and federal Parliaments (MPs) are elected by voters to represent a particular area or electorate.

Purpose

To represent a particular area or electorate

How does it work?

They are elected by voters. Due to Australia’s democratic nature the voters are citizens or general people on the electoral roll in Australia.

Effectiveness?

MP’s can be regarded as effective as they are representatives from each of the states of Australia, together representing the whole community of Australia and acting as spokespeople.

MP’s are accessible as all citizens within an electorate are able to contact the office of their representative and speak to their MP about an issue that may trouble them.

Due to the fact that MP’s act as spokespeople for each state, it can be argued that all people’s rights are catered for or protected, however this may not always be the case as the party that is governing may not be the party that the minority of Australia voted for, and they may not hold the same values etc as the minority.

The process of choosing MP’s exhibits equality as democracy allows all people on the electoral roll to influence who becomes the governing party, this is regardless of an individual’s wealth or level of education or any other factor that would .

All people from each state are represented equally by their MP so in that a sense of equality is present, however realistically not all individuals’ problems are always catered for.

Name

5. Trade Unions

Description

People unite to form trade unions made up by different industries

Purpose

Their purpose is to protect the rights and conditions of employment. They propose change to conditions of work in a way that favours their employees. They can give advice on work issues, protection from discrimination and harassment and provide equal opportunity and pay for men and woman.

How does it work?

Trade union are approached by members of a workplace to help protect their rights. All trade unions can come together directly bargain with the government to gain more/ better rights within their workplace

Effectiveness?

The effectiveness is to protects right of people, Equal opportunity for man and woman, Easy access, resource efficient because it’s easier to join and easier to contact them.

Name

6. Internal reviews

Description

When government departments review their own decisions, procedures or behaviour.

Purpose

To review their decisions, procedures or behaviours, which furthermore resolves disputes.

How does it work?

People from that government department internally investigate their decisions, procedures or behaviours.

Effectiveness?

Very cost effective, but can be ineffective in terms of practical outcomes if the people conducting the review have been involved with a decision that is inappropriate or incorrect.

Name

External reviews

Description

When an internal review fails, a person can seek to have an independent third party review the decision of a government body. This can be an administrative review, which will go through the NSW Civil and Administrative Tribunal, or a judicial review, which will go through the courts.

Purpose

External reviews seek to provide an impartial third party opinion on the fairness of the decision making process. NCAT is designed as a much more accessible version of court proceedings which allows it to hear cases more readily, while still giving a more enforceable outcome than options such as ADR.

How does it work?

The individual making the claim has the choice to go to a tribunal for an external review, or privacy bodies or to lodge full court proceedings for a judicial review. Tribunals are similar to courts, however, you do not require a lawyer (in fact they are discouraged), rules of evidence are much looser, proceedings are less formal and it is MUCH quicker and cheaper to access.

Effectiveness?

External reviews are effective as they are accessible to all individuals. They allow individuals to seek a second opinion in the case that they are being discriminated against or are being treated unfairly. Ultimately, administrative reviews attempt to be the best of both worlds - higher enforceability to the outcomes, yet remaining resource efficient (quick and cheap) as well as accessible to the average person (they don’t need lawyers and can understand proceedings).

Name

Ombudsman

Description

Could be translated as ‘citizens defender’ or ‘representative of the people’.

Some of the main areas of complaint received by the office involve:

̄ delivery of community services

̄ child abuse and neglect

̄ the operation of the police force.

Purpose

Acts as a formal external control, with legal power to investigate complaints made by citizens. Private and public sector agencies providing public services can use the ombudsman’s office to deal with complaints against them or their officers e.g. government and non-government schools, child care and residential care.

How does it work?

Any citizen can make a complaint to the ombudsman, but it must be in writing. If a complaint is made in writing, the ombudsman’s office will investigate and assess whether the complaint is justified. If it sees that the complaint is justified, the ombudsman will make recommendations for rectifying the problem.

The ombudsman does not have the power to impose any punishment or fine on a government agency or department, but make recommendations to the department in question or to the NSW Parliament.

Effectiveness?

All complaints are taken seriously, but are only followed through if a prima facie case exists – that is, if the complaint would raise concern ‘on first view’. Such concern could only exist if there were witnesses to an event or if a citizen had very strong and irrefutable evidence.

Its at no charge, and issues are resolved by an independent and impartial authority, and processes are made clear. The ombudsmen operate based on the principles of fairness, equity and peoples rights.

Name

Statutory bodies

Description

Statue bodies are authorities created by statute for public purposes. Statute bodies are comprised of the Anti-Discrimination Board of NSW, Commission of inquiry and Independent Commission Against corruption (ICAC).

Purpose

The statutory bodies listed above can investigate complaints and disputes of certain types.

Anti- Discrimination Board of NSW:

Their role is to promote principles and policies of equal opportunities throughout NSW, this then ensures that the people are protected from discrimination.

Commission of inquiry:

They investigate serious matters at both state and federal level.

Independent Commission Against corruption (ICAC):

ICAC investigate alleged corruption in the government, while protecting the interest of the public

How does it work?

Anti- Discrimination Board of NSW:

They work on advising the government, while providing and advising inquiry services in order to advise people about their rights and responsibilities.

Commission of inquiry:

When a large problem occurs the police will instruct a commission to deal with the issue. At the end of an inquiry the commission will produce a report containing recommendations, this may include recommending criminal prosecution of individuals.

Independent Commission Against corruption (ICAC):

The Independent commission Against Corruption Act 1988 (NSW). It does not have the power to prosecute offenders. However, at the end of their investigation it can report to parliament that corrupt behaviour has occurred.

Effectiveness?

Anti- Discrimination Board of NSW:

This helps individuals rights and responsibilities be protected, as established in the Anti discrimination Act 1977 (NSW). It is considered fair as it protects those in need, while prosecuting individuals.

Commission of inquiry:

They do not have the jurisdiction to prosecute offenders, however in order to make sure individuals committing the wrong are prosecuting the information is handed to the government so that they can handle the matter. Overall this is seen as effective as it deals with the issue that commission had witnessed and then it is suppressed by the government.

Independent Commission Against corruption (ICAC):

It is considered effective as it protects the rights of the public and as a result ICAC will then pass on the information to the Director of Public Prosecutions to handle the matter further and then suppress it.

Overall Statutory bodies play a vital role in protecting the public from issues that may rise.

Sample paragraph on the NSW Ombudsman

Learning Intention

Further develop our ALARM skills

Further develop our ability to assess the effectiveness of non-legal responses.

Focus on including evidence.

Success Criteria:

Have you developed a sound understanding of what the ombudsman is and how they work?

Do you feel more confident in writing ALARM paragraphs.

To Start:

Question - Assess the effectiveness of the NSW Ombudsman as a mechanism for resolving disputes.

What is the Ombudsman? (1 sentence)

The NSW Ombudsman is an independent parliamentary officer who acts as an independent watchdog for various NSW government departments and some private sector agencies. They act in a non-legal capacity.

What is their role (why do they exist?) (2 sentences)

They are responsible for ensuring the organisations under their jurisdiction follow fair decision making processes as a part of their conduct. They therefore will hear complaints about an agency and assess the processes involved. These complaints may involve govt departments, councils, statutory authorities or public officials.

How do they carry out this role? (How do they work)

The NSW Ombudsman can therefore conduct investigations into complaints and provide recommendations for improvement, either in specific cases or in broader issues of performance.

These investigations have no enforceable outcomes, they are recommendations.

What legislation do they operate under?

The Ombudsman derives the majority of powers to review government agencies from the Ombudsman Act 1974 (NSW). They also have additional powers to review specific issues, such as the complaints about the police, granted under the Police Act 1990 (NSW).

Google an example of their work (case example)

The NSW Ombudsman can therefore conduct investigations into complaints and provide recommendations for improvement, either in specific cases or in broader issues of performance.

These investigations have no enforceable outcomes, they are recommendations.

What legislation do they operate under?

The Ombudsman derives the majority of powers to review government agencies from the Ombudsman Act 1974 (NSW). They also have additional powers to review specific issues, such as the complaints about the police, granted under the Police Act 1990 (NSW). One particular example is Operation Prospect which explored a police bugging scandal between 1998-2002. As seen in the SMH article ‘Nick Kaldas and former ombudsman in open warfare over police bugging inquiry’, the NSW Ombudsman has significant limitations in its effectiveness. The lack of enforceability in the ombudsman decision, means that government agencies have little incentive to follow its recommendations. This, therefore limits their ability to ensure an individual’s right to procedural fairness. Despite their significant accessibility and their ability to resolve complaints in a timely and cost effective manner (when compared to court proceedings), ultimately their limited powers of enforcement result in an ineffective dispute resolution process. Therefore while they may have some success in resolving minor disputes, ultimately they cannot force government departments to change their practice.

Controlling the Internet

We have a problem...

While the internet brings a significant amount of benefit to the nature of our society, it is causing a number of large issues in our society (as well as globally). Your job is to provide a solution to this crisis! In order to do this you will need to do some individual research on:

1. What are some of the particular issues that the internet is causing?

Privacy: Invasion of Privacy, Public Records, Workplace Privacy, Employer & ISP Monitoring, Data Collection, Data Retention, Data Breaches, The Right to be Forgotten, E-Mail & Chat Room Privacy, Web Site Privacy Policies, Behavioral Marketing, Flash Cookies, Device Fingerprinting, Privacy & Children, Metadata, Border Searches, FISA & the USA PATRIOT Act, the NSA, FISA Court, PRISM, XKeyscore, EU Privacy Directives;

Free Speech Defamation, SLAPPs, Gripe Sites, Revenge Porn Sites, Mugshot Sites, Blogs & Vlogs, Obscenity & Pornography, Harassment & Hate Speech, Prior Restraint, Repression, Student Speech, CDA, Anonymous Speech, Commercial Speech, Expressive Conduct;

Social Media: Misuse, Ownership, Coerced Access, the Courts;

Cybercrimes: Spam, Phishing, Identity Theft, Spyware & Malware, Cyberstalking, Cyberbullying, Computer Trespass, Wardriving, Virtual Crime;

Intellectual Property: Copyright, Trademark, Patent, Trade Secrets, Creative Commons, Linking, Framing, File-Sharing, Fair Use, Public Domain, Work-Made-For-Hire, DMCA, VARA, Domain Name Disputes, Keyword Advertising, America Invents Act;

Business & the Internet: Internet Taxation, Internet Interstate Commerce, Web Contracts, e-Discovery, Corporate Securities, Crowdfunding, Reg A, Reg D;

Also: Cloud Computing; Digital Currency; Right of Publicity; Web Accessibility; Net Neutrality; Online Reputation Management; Social Media Monitoring; Podcasts; Geofiltering; Digital Journalism; Hyper Local Web Sites, Digital Estate Planning; Sexting; E-Books and many more subjects.

2. What are the impacts of these issues? (think societal, monetary, moral impacts etc.)

Privacy: Invasion of Privacy, Public Records, Workplace Privacy, Employer & ISP Monitoring, Data Collection, Data Retention, Data Breaches, The Right to be Forgotten, E-Mail & Chat Room Privacy, Web Site Privacy Policies, Behavioral Marketing, Flash Cookies, Device Fingerprinting, Privacy & Children, Metadata, Border Searches, FISA & the USA PATRIOT Act, the NSA, FISA Court, PRISM, XKeyscore, EU Privacy Directives;

Free Speech Defamation, SLAPPs, Gripe Sites, Revenge Porn Sites, Mugshot Sites, Blogs & Vlogs, Obscenity & Pornography, Harassment & Hate Speech, Prior Restraint, Repression, Student Speech, CDA, Anonymous Speech, Commercial Speech, Expressive Conduct;

Social Media: Misuse, Ownership, Coerced Access, the Courts;

Cybercrimes: Spam, Phishing, Identity Theft, Spyware & Malware, Cyberstalking, Cyberbullying, Computer Trespass, Wardriving, Virtual Crime;

Intellectual Property: Copyright, Trademark, Patent, Trade Secrets, Creative Commons, Linking, Framing, File-Sharing, Fair Use, Public Domain, Work-Made-For-Hire, DMCA, VARA, Domain Name Disputes, Keyword Advertising, America Invents Act;

Business & the Internet: Internet Taxation, Internet Interstate Commerce, Web Contracts, e-Discovery, Corporate Securities, Crowdfunding, Reg A, Reg D;

Also: Cloud Computing; Digital Currency; Right of Publicity; Web Accessibility; Net Neutrality; Online Reputation Management; Social Media Monitoring; Podcasts; Geofiltering; Digital Journalism; Hyper Local Web Sites, Digital Estate Planning; Sexting; E-Books and many more subjects.

3. How do we currently attempt to control the internet?

Once you have answered these questions, we will come together into groups to share your answers. You will then form a committee to propose a new internet control scheme. Your job is to design a way of effectively controlling the internet. Some of your considerations should be (but are not limited to)

1. Who will be responsible for this?

2. What level of control do you want? (what is permissible, what is not)

3. What potential issues might you face?

4. How will you actually do the controlling?