Introduction
The ‘solutions’ suggested to Topics are often just ‘possible’ answers. Students
may come up with a range of other valid ideas in discussion and written work.
The activities were chosen to provide a range of issues related to the Topic and
to stimulate discussion. There are often different and equally valid
perspectives on a particular issues. Students should be encouraged to provide
arguments to support their stance on an issue in written answers.
As some of the research Activities are personalised, not all of them have been
provided with solutions.
Topic 1 Law and Society
Law and society
Activity Page 9
Classification of actions:
Writing graffiti on walls in public places
LAW
Wearing a suit and tie at the beach on the sand
CUSTOM
Parking in front of a fire hydrant where there are
No Parking Signs
LAW
No Smoking signs in restaurants in the eating areas
LAW
If you land on a snake, then you must come down the
Ladder
CUSTOM
Parking over time at a parking meter in the city
LAW
All children must get out of bed by 7.30 a.m. on every
Weekday
RULE
No boots with studs to be worn in the clubroom at any time
RULE
Young people should respect their elders
CUSTOM
Activity Page 10
1.
Examples of aspects that would affect daily life
•
•
•
•
•
•
•
No Parking Signs
School Crossing notice
Speed limits
Bus Zones
Keep off the grass
Private Property
No Junk Mail
•
•
•
Beware of the Dog (or the flesh eating monkey!)
Danger road works
Smoke free zone
Activity Page 10
2.
Dear diary – travelling to and from school – the laws that offer
protection:
Getting up
standards
alarm clock doesn’t work – product
Breakfast
consumer laws if breakfast food contains
unwanted Substances (product safety)
Washing.
Cleaning teeth
shampoo etc.
Consumer laws – toothpaste, soap,
Preparing for school School uniform – faulty manufacture –
product standards
Other activities
e.g. walking the dog before school – dog
must be on a lead (also laws that protect you from other dogs!)
Trip to school
Bus fare – conditions attached
Liability of parents when driving their students to School.
Activity Page 12
1.
Possible occasions when treated unfairly during school life:
•
•
Detention or a yard duty not deserved
Not chosen for a school event though you were considered the best by you
•
•
Bullied but this was not stopped by teachers
Schoolwork not graded appropriately
peers
Occasions when treated fairly:
•
•
•
•
deed
Chosen for a team (sports, debating etc) on merit
Awarded an appropriate grade/trophy when merited
Not singled out when whole group misbehaved – all treated the same
You did something wrong and the punishment was appropriate for the
2.
New school laws or school rules – some examples
Rule
Fairness or Equity
(building in deterrence)
Anti bullying rule anyone caught bullying receive same punishment
even if only first offence
Students not able to receive more than
Three detentions in a week so students still have time For homework
Programs on assertiveness for boys as well as Girls to redress gender
equity
3.
What influences cause the person to obey the law?
a.
Jennifer’s influence is peer group pressure
b.
Tony’s influences are acceptance that rules are
necessary, and fear of sanction
c.
Huong’s influences are parental influence, moral
influence and fearof sanction.
Research Page 13
Rights in ACT legislation included:
The Human Rights Act 2004 (ACT)
The HRA does not provide a right to sue for compensation when
human rights have been breached but provides for the ACT Supreme
Court to declare an ACT Act to be incompatible with a human right.
The Attorney General is then required to table a written response to the
declaration in the Legislative Assembly within six months.
The HRA establishes the position of the ACT Human Rights
Commissioner who has the following duties
• Reviewing the effect of ACT statute and common law on
human rights
• Providing human rights education
• When a matter involving human rights has come before the
courts the Commissioner has the standing to seek leave to intervene
Civil and Political Rights included in the bill
• Recognition and equality before the law
• Right to life
• Protection from torture and cruel, inhuman or degrading
treatment etc.
• Protection of the family and children
• Privacy and reputation
• Freedom of movement
• Freedom of thought, conscience, religion and belief
• Peaceful assembly and freedom of association
• Freedom of expression
• Taking part in public life
• Right to liberty and security of person
• Humane treatment when deprived of liberty
• Children in the criminal process – protection
• Fair trial
• Rights in criminal proceedings e.g. presumption of innocence
• Compensation for wrongful conviction
• Right not to be tried or punished more than once (same
offence)
• Retrospective criminal laws (e.g. person may benefit from a
reduced penalty)
• Freedom from forced work
• Rights of minorities (e.g. ethnic, religious or linguistic minority
– protection of culture, language and religion)
• Human rights may be limited – to reasonable limits set by the
Territory laws
Discussion Questions Page 18
1.
Why has religion had a significant part to play in developing
our laws?
A.
Religions have embodied rules based on morals such as
‘though shalt not
kill’. These were commonly accepted standards.
2.
A.
What do you consider to be the elements of a ‘just’ law?
Some possible elements:
Where the law treats everybody equally
Where ‘natural justice’ protects the rights of an accused person
The law provides for the redress of a wrong done to an
individual
3.
Is it appropriate for judges in courts to use old cases to decide
the outcome of cases in the twenty-first century?
A.
‘Yes’ answer:
Case law is based on precedents (previous decisions in past cases) that
can be applied consistently in a uniform manner and therefore bring
certainty and predictability.
Impartial, independent judges make case law decisions. The age of the
case used as a precedent is not important.
There are mechanisms available for judges to depart from precedent
when application of a precedent would not produce a just result.
A.
“NO’ answer:
If judges keep rigidly to precedent they can institutionalise injustice. If
judges are act conservatively when a case arises that suggests they
should depart from precedent then injustice will result.
There is often considered to be a lack of accountability for judges to
the community.
If a plaintiff (a person who sues – brings an action in court for
compensation) is not satisfied with a decision they can seek leave to
appeal but even granted leave, the process is very expensive and time
consuming.
Discussion Questions Page 18
1.
Why was the perspective of our early lawmakers that of the
white Anglo Saxon male?
A.
The free settlers in the early colonies in Australia were white
and only males
had the right to vote and the right to stand for
parliament.
2.
How have the successive waves of immigration to Australia
changed this perspective?
A.
The waves of immigration from other countries have resulted in
an ethnic mix of European and Asian peoples in Australia. As
the result of anti discrimination laws anyone from any background has
the right to stand or parliament and so bring new perspectives to the
individual state parliaments. An example in South Australia is the ‘No
Pokies’ independent Nick Zenophon.
Activity Page 19
Examples of the interrelationships and influence by each of the
following on other systems:
System
Economic system
Influence on
Legal system - $
allocated in
government budget
Banking laws
The legal system
Economic system –
as new laws are
introduced they may
have a $ cost
The defence system
Political system –
protection against
terrorism political
issue
Transport and
Communication
system
Economic system,
and political system
– demands of the
community
Political system – a
political issue
Health system
Education system
Political system –
again a political
issue
Influenced by
Defence system
requirements, Health
and education system
needs, and transport
and communication
needs
Political system –
representatives in
parliament - majority
party forms
government
Political system and
economic system - $
needed for defence
have to be approved
by government
Political system
whether a high
priority, migration and
population numbers
Economic system –
only a limited number
of $ available for
health needs
Economic system $
available
External influences include world politics, world trade, migration,
and any new foreign policies that influence Australia.
Discussion Questions Page 22
1.
Why is Parliament our sovereign lawmaker?
A.
also
Because it can pass laws that override judge made law and can
Revoke the powers given to delegated bodies to make
subordinate law such as regulations.
2.
law?
Should judges have the power to decide the meaning of the
A.
Yes. Parliament cannot make legislation for every situation, so
judges are
needed to resolve disputes where there is no written law
(Act or Statute). If a judge interprets the existing statutes in such a
way as to be contrary to parliament’s intention, then Parliament can
overturn the decision by amending the statute.
3.
Does the Executive hold the real power in day-to-day running
of the state?
A.
Yes. However, the Executive is answerable to parliament. The
day-to-day
running of the state is through the Government
Departments who use delegated powers granted to them by parliament
to make regulations. A Minister of the Executive is responsible for the
department and must answer to parliament.
Activity Page 22.
From the Media or Internet select three situations that show people in
conflict with the law.
As students will come up with many varied examples just ONE is
provided here as a guide.
Eugene McGee case (hit-run case or Kapunda Road case)
Main Facts
Eugene McGee collided with a cyclist (Mr Ian Humphrey) on the
Kapunda Road. He panicked and left the scene of the collision. Mr
Humphrey died as a result of the collision.
Two brothers (the Zismous’ claimed to have witnessed Mr McGee’s
Pajero being driven erratically before the accident.
Police did not interview Mr McGee until some two hours after the
event and his blood alcohol levels were never tested.
Mr McGee was initially acquitted on a charge of ‘causing death by
dangerous driving’. He was given a $3100 fine and a 12 month licence
disqualification on a lesser plea of driving without due care and failing
to stop and render assistance. This sentence fuelled public and media
outrage. Mr McGee’s defence had called expert witness (psychiatrist)
to attest to Mr McGee’s state after the accident – one of nervous shock
where he had blotted out events from his memory.
The government then established the Kapunda Road Royal
Commission to look into the matter and report to the state Governor.
How each of the three institutions of government have been
involved in the conflict
The Parliament passed legislation regarding traffic offences – Road
Traffic Act. The legislature also passed the Criminal Law (Forensic
Procedures) Act, which was not used by Sergeant Hassell, as he was
unfamiliar with its application.
The judge would have applied the Road Traffic Act to the situation.
The judge can only sentence according to the Act.
The Executive (government) was called upon by the media and public
and the victim’s family to investigate the lenient sentence.
The government established the Kapunda Road Royal Commission.
Royal Commissioner Greg James, QC (a retired NSW Supreme Court
Judge), conducted the enquiry into the handling of the case.
How people in the conflict have been assisted by any ONE of the
institutions.
The victims of the crime, Ms Di Gilchrist who was Ian Humphrey’s
partner and Mr Humphrey’s family were rendered assistance by the
government (executive) to be represented at the Royal Commission by
lawyers, Peter Humphries and Michael Birchall.
The issues that arose out of the conflict
Need to review police procedures regarding the taking of blood tests
after such hit and run incidents, and the handling of the crash scene.
The need to legislate for new offences such as drinking alcohol after
such an offence in order to affect a blood alcohol reading, fleeing a
crime in order to prevent evidence being obtained and possible
sanctions on a person’s insurance and licence if they flee.
The prohibiting of an ambush of prosecution by defence in springing
surprise expert witnesses without notice.
Discussion Questions Page 25
1.
Do South Australian laws adequately reflect the current values
of the community?
A. YES examples to support a yes answer include home invasion laws,
the Hoon laws, and laws reducing the number of Pokies machines in
hotels.
NO answer would look at those concerns of the community not
addressed:
For example the issues around human rights and detainees.
2.
Are Australian laws responsive to community concerns? Give
examples in your answer.
A.
Generally, yes, our laws are responsive to community concerns,
but sometimes there is a ‘time lag’ before the law catches up.
Example of quick response to community concerns: following a spate
of hoon activity the State Parliament legislated to deprive hoon drivers
of their car for a period of 48 hours if apprehended doing burnouts,
donuts and other hoon type driving.
Example of slow response – child support laws – the scheme
has been in place since 1988 – but only in 2005 have reforms to the
legislation been proposed to make child support more equitable.
Activity Page 26
Situation 1.
Social cohesion is affected by giving all adults the right to vote for
their representatives (equality in the community).
Right to vote.
Situation 2.
Social cohesion is affected by the upholding of marriage as the basis of
the family unit in Australia.
Right to be protected from bigamists (people who marry more than one
person unlawfully). Bigamy is a criminal offence.
Situation 3.
Social cohesion is affected by the community standards being upheld
(to be safe and protected from straying animals).
Right to sue a person and claim damages from a person who does not
keep wild animals fenced in.
Situation 4.
Social cohesion is affected by the community stance on product
standards so that they can have confidence in products.
Right to sue the manufacturer of a product if the product is unsafe or
unsuitable for consumer use.
Situation 5.
Social cohesion is affected by the community standard regarding
consumption of dog meat. Under laws passed in 2004 it is unlawfully
to kill or sell dog or cat meat. Such a practice is not culturally
acceptable to the majority of people in the community.
Right to know that what you are eating is not an unlawful product.
Situation 6.
Social cohesion is affected by the community value regarding
dangerous drivers.
Right to lay a complaint against a dangerous driver and also the right
to sue for damages caused from any accident involving dangerous
driving.
Activity Page 28
Classification of disputes.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Angelo
Peter
Rita
Rocco
SA v Cth
Walter
Penelope
Alice
Timothy & Tania
Jeremy & Paula
Public law
Public law
Private
Private
Public
Public
Public
Private
Private
Private
Criminal/international
Criminal
Contract
Negligence (tort)
Constitutional
Administrative
Industrial
Succession
Family
Property and possibly Contract
Review Questions Page 29
1.
Discuss the influence of religious codes and creeds on our laws.
A.
Codes were early sets of rules such as the Hammurabi code.
These were written rules that became laws for everyone to follow and
were enforced.
Creeds were sets of rules based on morality – on what the community
leaders thought were the ‘right things to do’. The Ten Commandments
is an example of a creed on which many of how laws are still based
today e.g. ‘thou shalt not kill’.
2.
Explain four laws that reflect our social values:
a.
marriage.
b.
Marriage Act sets out the requirements for a valid
Our Constitution guarantees freedom of religion.
c.
unlawful.
d.
3.
The Equal Opportunity Act makes discrimination
Laws related to ‘road rage’.
Identify the functions of law:
Social cohesion or social harmony through the upholding (by the
enforcement of laws) of shared beliefs and values.
Social progress through having laws that will enforce social cohesion
to uphold commonly held values, protect rights and sanction
unacceptable conduct. These values include the need to protect the
environment, the need to provide education for the next generation and
to provide for economic development to maintain and improve
standards of living.
4.
Explain any three areas of law where the law regulates
relationships.
a.
Family law regulates marriage relationships.
b.
Family law also regulates the relationship between
parents and their children, and also the Education Act.
c.
A range of laws regulates the relationship between
employers and employees e.g. Occupational Health and Safety
Act, Equal Opportunity Act.
5.
law?
How does the perspective of individuals and groups shape our
a.
Individuals in government and in the judiciary can bring
new perspectives to the law e.g. Justice Lionel Murphy and family law,
Bob Hawke’s Labor government tried unsuccessfully to introduce an
“Australia Card’ as a means of ID. The ID card is being revisited by
the Howard Liberal government because of the threat of terrorism.
b.
Groups can bring special perspectives to shape our law.
Pressure groups such as the ‘National Council of Single Mothers and
Their ‘Children’ and ‘Dads in Distress’ have had input into reforming
the Child Support laws.
6.
How does customary law differ from codified law?
Customary law consists of long-established traditions of behaviour that
have been accepted by society and may include religious practices.
This type of law is generally handed down by oral tradition.
Codified law in SA consists mainly of legislation. These are the written
Acts or Statutes that form the basis of our law together with written
regulations and by laws made under delegated authority from
parliament and approved by parliament. Judge’s decisions are also
written down and form the basis of case law.
7.
What is common law? Give examples.
Common law is also known as case law or judge made law. It
refers to the judgments of judges in courts and includes rules,
principles, values and procedures that have been developed over
centuries. It evolved from the decisions of judges that were recorded
and could be referred to in future cases. This is known as precedent.
Some examples of cases that have become precedents include the
famous ‘Snail in the bottle’ case where Mrs Donoghue sued the
manufacturer’s of a ginger beer product (Stevenson) because she
suffered toxic shock after consuming ginger beer in which there was a
decomposed snail. This case resulted in the right to claim against a
manufacturer for negligence.
Another example of a precedent is the Mabo case where the
High Court established the principle of ‘native title’ to give indigenous
people a right to seek a claim to native title over traditional lands.
8.
Who are our lawmakers? Give examples.
L = Legislature = Parliament
e.g. SA Parliament
E = Executive = Cabinet of Ministers
e.g. Wran
government in SA
J = Judiciary = Judges/Courts
e.g. Chief Justice
of Supreme Court of SA.
9.
Identify the types of laws made by our lawmaking institutions
and explain each with an example.
L
Legislature makes Acts or Statutes e.g. Road Traffic
Act
E
Executive makes regulations e.g. bag limits set by
Fisheries
Department
J
Judiciary – judges make precedents like that of
Donoghue v Stevenson (case of Snail in Bottle).
10.
Find an example of a change in society’s values that has led to
a change in the law at either state or federal level.
a.
Example at State level: introduction of penalties for
drink driving
b.
Example at Federal level: introduction of anti
discrimination law e.g.
Racial Discrimination Act
1975.
Topic 2
People, Structures and Processes
The Australian Federal System
Activity Box
Pages 37/38
(a) Identify the following elements on the coat of arms.
What features symbolise Australia’s federation?
• The Commonwealth or Federation Star with its seven points – one for State and one for the Territories
• The Shield with the six State emblems within it
What features symbolise Australia’s British heritage?
• British symbols in some of the State emblems eg Crown in the Victorian emblem
How are the States symbolised?
• The six State emblems inside of the Shield
What features symbolise Australia’s unique flora and fauna?
• The kangaroo and emu on each side of the Shield
With respect to the Australian Flag:
What is its official name?
• Australian Flag
• Changed relatively recently from the Blue Ensign
What features symbolise Australia’s federation?
• Federation Stare underneath the Union Jack
What features symbolise Australia’s British heritage?
• Union Jack in the first quarter
What features symbolise Australia’s British geographical location in the world?
• The Southern Cross which can only be observed in the southern hemisphere
Review Questions
Pages 38
1 What is the difference between a federal and unitary system of Government? Give examples of each system.
FEDERAL SYSTEM
• A national system of government where legislative power is shared between a sovereign central Parliament
and a number of sovereign State Parliaments. Each tier has its own separation of powers. Eg USA, Canada,
Australia
UNITARY SYSTEM
• A national system of government with only one tier of government, and no sovereign States eg UK, Japan, NZ
2
•
•
Briefly outline who the federal partners are in the Commonwealth of Australia and their roles.
The Cwlth, States and Territories
Local Government is created as a federal partner by the States
3
From your own research give three reasons why the six independent British Colonies in Australia decided
To federate in 1901.
Choices include:
• Free trade between the States
• A national defence force
• Uniform policies on immigration, communication networks, etc
Activity Box
Pages 41
1 Draw up a chart to identify which federal partner can exercise the following powers. Also, identify which
type of legislative power it refers to.
NOTE
Where ever local council is indicated it was originally a residual power of the States
Defence
Public education
Criminal law
Immigration
Garbage collection
Taxation
Mtce of pathways
Environment
Social security
Hospitals
Public libraries
Marriage/divorce
Importing weapons
Cats and dogs
Airports
2
Federal/Commonwealth
States
States
Federal/Commonwealth
Local government
Both federal and State
Local government
States
Both federal and State
States
Local government
Federal, but States make
laws within a marriage
Federal/Commonwealth
Local government
Federal/Commonwealth
exclusive
residual
residual
De facto exclusive
residual
concurrent
residual
residual
concurrent
residual
residual
Marriage concurrent
Divorce defacto exclusive
exclusive
residual
De facto exclusive
Draw up a chart to identify which federal partner would have passed the following statutes.
Also, identify which type of legislative power used by the parliament to pass them.
Road Traffic Act
Marriage Act
Customs Act
Family Law Act
Juries Act
Summary Offences Act
Air Traffic Control Act
Local Government Act
Supreme Court Act
Motor Vehicles Act
Corporations Act
South Australia
Federal/Commonwealth
Federal/Commonwealth
Federal/Commonwealth
South Australia
South Australia
Federal/Commonwealth
South Australia
South Australia
South Australia
Federal/Commonwealth
High Court of Aust Act
Health Act
Sale of Telstra Act
Parking Act
Federal/Commonwealth
South Australia
Federal/Commonwealth
South Australia
residual
concurrent
exclusive
specific
residual
residual
Defacto exclusive
residual
residual
residual
Specific with aid of
referral of powers
exclusive
residual
De facto exclusive
residual
3
Get a recent copy of The Advertiser……
It is usually common to find issues relating to (for example):
• State Government policies – exercise of State residual executive power
• Federal Government policies – exercise of Federal specific executive powers
• criminal cases – exercise of State’s residual powers
4
Consider a normal school day …..
Possible choices
FEDERAL
• National defence forces – ie national security
• decentralises democratic decision-making
• Had to pay GST on products purchased
STATE
• road traffic laws
• education laws
LOCAL GOVERNMENT
• parking regulations outside of the school
• collection of school’s garbage
Discussion Questions
Pages 42
1 Should the States and Territories be abolished to form a unitary system?
ARGUMENTS FOR
• decentralises democratic decision-making
• better able to meet regional demands
• prevents larger populated areas (eg NSW) dominating the decision making-process
ARGUMENTS AGAINST
• over-government and the costs associated with it
• duplicity of government services
• fragmentation eg different education systems in each state makes interstate mobility difficult for families
2
Should Australia have a new set of national symbols, such as a new flag?
Please note:
Before this would occur there would be a democratic process:
• select committee to review alternatives
• perhaps a national competition for members of public to submit their ideas
• people vote at a national plebiscite on a small range of alternatives
• elected MPs in Cwlth Parliament debate and pass a Bill with the new symbol
Review Questions
Pages 42
1 What are three main features of the Australian federation?
See page 39
• division of powers
• judicial review
• democratic constitutional alteration process
2
What is the division of powers?
See pages 39/40
DIVISION OF POWERS
• the sharing of legislative powers between Cwlth and States
• Powers the Commonwealth and/or States cannot exercise
3
Clearly define the following legislative powers? Give examples of each
See pages 40/41
4
What roles does the High Court of Australia perform in preserving the division of powers?
See page 39
• HCA has original jurisdiction to interpret the Aust Const to resolve constitutional disputes re the
division of powers
5
Briefly outline how the division of powers can be changed.
See page 39
• constitutional alteration by referendum
• referral of powers – States voluntarily surrender residual powers to the Cwlth
• High Court interpretation of Aust Con when resolving constitutional disputes
6
Explain why a knowledge of the division of powers is relevant to informed Australian youth.
Possible responses:
• so youth know who is responsible for providing a government service
Example
Federal Government should be lobbied re HECS
Rule of law
Activity Box
Page 44
1 Explain whether or not the following are exercises of power consistent with the rule of law:
(a) a nation makes the payment of taxation compulsory
(b)
(c)
(d)
(e)
• Consistent as taxation necessary to provide government services to protect rights
• A power consistent with constitutional law
a nation passes laws to make conscription into the army compulsory
• A defence power consistent with constitutional law
police detain suspected offenders for one month before laying a charge
• Inconsistent- denial of a fundamental legal right to the presumption of innocence
a simple vote of the Cwlth Parliament changes the wording in the Australian Constitution.
• Unconstitutional as it is inconsistent with section 128. Vote must be an absolute majority
the death penalty is reintroduced for serious crimes such as murder, genocide and crimes against
humanity.
• Could argue conflicts with basic fundamental inalienable right to life
Discussion Questions
1
Does Australia prates the rule of law?
ARGUMENTS FOR
• Constitutional law preserved by independent HCA re judicial review
• All resident adults have equal voting and other electoral rights
• General respect of fundamental rights, protected by the appellate process
ARGUMENTS AGAINST
• Minority groups do not have equal access rights with other sections of community
• Australia’s current policy on illegal immigrants
2
Should the elements prescribed in the rule of law be relaxed in times of national emergency, such
as wars and attacks by terrorists on civilian targets?
ARGUMENTS FOR
• extreme measures necessary to protect fundamental rights
• still subject to judicial review in High Court
ARGUMENTS AGAINST
• fundamental erosion of rights indefensible
• shows the fragility of the democratic process, ie society must be prepared to accept some social costs to
preserve fundamental democratic principles. That is, difficult to retrieve what is lost.
3
Only democracies can practice the rule of law. Discuss the validity of this statement.
ARGUMENTS FOR
• Can only have rule of law when fundamental democratic rights are protected.
ARGUMENTS AGAINST
• possible to have some degree of paternal autocracy, provided fundamental rights are protected
Review Questions
1
What is the rule of law?
See page 43
2
What essential elements must exist for the rule of law to exist in Australia?
See page 43
3
How does the rule of law stand in contrast to arbitrary government?
See page 43
• Dictatorships throughout history have tended to support the proposition that they infringe basic human rights
and freedoms.
4
How do parliaments and courts facilitate the rule of law?
PARLIAMENTS
• facilitates the democratic process by providing an elected forum for lawmaking
• can only make laws consistent with Aust Cons
COURTS
• facilitates the resolution of disputes in accordance with law and not arbitrary factors
• independent HCA acts as a “guardian of the Constitution” to ensure that parliaments exercise powers
consistent with the Aust Const
Separation of powers
Activity Box
Page 46
1 Draw up a chart to identify which branch and tier of government can exercise the following powers:
Make a statute
Conduct a trial
Make a parking reg
Arrest a suspect
Prosecute an offender
Supervise a prison
Sentence a person
Fly a RAAF jet
Federal and State
Parliaments legislative
Federal and state courts
judicial
State councils - executive
Make ministerial
speech
Conduct an election
Federal and state
executive
Federal and State
executive
State executive
Federal and state judicial
Federal executive
Collect taxes
Debate a Bill in Plt
Fix a local road
Teach a class biology
Preside at a court
Federal and state
executive
Federal and state
executive
Federal and state
legislative
Federal and state
executive
Local Government
executive
State executive
Federal and state judicial
2
Get a copy of The Advertiser …
Common examples:
LEGISLATIVE – Federal and State Parliaments re new laws made
EXECUTIVE – Police enforcing the traffic and criminal laws
JUDICIAL – judges sentencing a convicted person
3
Give a practical illustration to how the separation of powers functions to make an enforce road traffic laws.
LEGISLATIVE – SA Parliament amends the Road Traffic Act to allow police to immediately disqualify a driving
licence if detected drink driving
EXECUTIVE – Police the new drink driving laws
JUDICIAL – Magistrates Court hear the drink driving cases
Discussion questions
Page 46
1 Is the separation of powers necessary in a democratic society?
• prevents the amassing of power in the hands of the few which can too easily abuse its powers and infringe the
rights of the citizens
• acts as a check and balance on the use of power
2
•
Does Australia practice the separation of powers
Yes, with the exception that the Ministers of the Government are drawn from the elected Parliament per the
Westminster conventions of responsible government
Review questions
Page 46
1 What is the separation of powers?
See page 45
2 Outline the main features and roles of the three institutions of government in the separation of powers.
See page 45
The Legislative Arm
Activity Box
Pages 53/54
1 Reproduce a copy of the seating arrangements for the Cwlth Parliament…
House of Representatives
Speaker
Government
backbenchers
Cabinet
Ministers
Clerk
Shadow
Ministers
Opposition
backbenchers
PM
Leader of Opp
Mace
Hansard
Cross benchers
Cross benchers
Senate
President
Black rod
Cabinet
Ministers
Government
backbenchers
Clerk
Shadow
Ministers
Opposition
backbenchers
Leader of Gov
Leader of Opp
Hansard
Cross benchers
Cross benchers
2
Complete a similar seating plan for the SA Parliament or the NT Parliament and identify the main
participants.
Similar to the above diagrams, except the head of State Government in SA is called the Premier, and Chief Minister
in the NT
3
Access the Cwlth Parliament website on www.aph.gov.au to answer the following questions.
This answer will vary depending on the electorate.
4
Access the SA Parliament website on www.parliament.sa.gov.au to answer the following questions.
This answer will vary depending on the electorate.
5
Get a recent copy of The Advertiser …
Possible examples include:
• Cwlth Parliament making laws re illegal immigration, family law, taxation etc
Discussion questions
Pages 54/55
1 Do Parliaments adequately represent the views of the community?
YES ARGUMENTS
• MPs held accountable at regular elections
• Public can exercise democratic rights to petition, lobby etc
NO ARGUMENTS
• Minority groups not adequately represented eg Aboriginal People
• No, if Government has a majority in both Houses
2
Should upper houses be abolished?
YES ARGUMENTS
• Duplication and costly if the Government has a majority in both chambers
NO ARGUMENTS
• Acts as a check against executive power particularly when the Government does not control a majority
• Legislative review – dual scrutiny of legislation.
•
Committee system has proved to be an effective scrutinising mechanism
3
Is the Cwlth Parliament dominated by the PM and his government ministers?
YES ARGUMENTS
• When the Government has a majority in both chambers
NO ARGUMENTS
• Acts as a check against executive power particularly when the Government does not control a majority
• Legislative review – dual scrutiny of the Government’s bills.
• Committee system has proved to be an effective scrutinising mechanism
4
What impact does the voting systems have in Australia’s parliamentary system?
HOUSE OF REPRESENTATIVES
• Preferential system in individual single-member electorates favours the major political parties so there is
always a majority and minority so a Government can be formed to govern effectively for the term of the
Parliament
SENATE
• Proportional system allows independents and minority groups to be represented
• Legislative review – dual scrutiny of legislation usually works more effectively as Governments find it
difficult to get majorities in the Senate
• Committee system has proved to be a more effective scrutinising mechanism as the committees have a broader
array of political opinions, not just the major political parties.
5
Does your elected MP adequately represent the views of you and your family?
• Valued judgment, depends whether the laws and policies support you
6
Minority groups are not likely to be well represented in Australian parliaments. Discuss the validity of this
statement.
• Basically correct in lower houses where preferential voting occurs, as it favours the major political parties and
not Independents and minority parties
• Minority groups tend to be more well represented in upper houses eg Greens
• Aboriginal People would probably argue not well represented in either House eg had to wait until the High
Court decided the Mabo case in 1992 to have Australian parliaments respond seriously to the issue of native
title rights.
Review questions
Pages 55
1 Outline the structure and composition of the following parliaments:
Commonwealth Parliament
See Pages 47 to 50
SA Parliament
See Page 50
NT Parliament
See Page 50
2
What main traditions and practices have parliaments in Australia adopted from Britain?
See Page 49/50
3
How has the nature of the American Congress influenced the structure and role of the Australian Senate?
See Page 49
4
Why does the voting system for Australian lower houses facilitate stable Executive Government?
• Preferential voting system favours the major political parties as candidates need 50% +1 votes to get elected,
which Independents and minority parties find difficult to achieve.
• As a consequences the Liberal and Labor Parties always decide the majority and minority parties on the floor
of the lower house so that they can form a Government for the term of the Parliament.
5
Why does the voting system for Australian upper houses lead to the creation of chambers hostile to the
legislative programs of the Government?
• Proportional system allows Independents and minority parties to get elected so the Government does not
control the majority
• This means the Government often faces a hostile upper house, that is, the Senate does not pass Government
bills in the precise form it wants.
6
Outline the democratic roles of parliaments.
See page 51
7
Why is the supplying role an important function of Parliament?
• Australian and State Constitutions do not allow the Executive Governments to levy and collect taxes without
the passage of the supply bills through Parliament
• Without supply, the Government cannot “govern” ie provide government services
8
What important role does the Parliament perform in the separation of powers?
• In Westminster system provides for the determination of a Government
• Scrutinises the powers exercised by the executive and judiciary
Example : Can pass remedial legislation to override case law
9
Explain the difference between direct and indirect democracy.
See page 52
10 What features must exist for Australia to adopt the principles of effective representative government.
See pages 52/53
The Executive Arm
Activity Box
Pages 58
1 Access theCwlth Parliament website on www.aph.gov.au to answer the following questions:
BEWARE : The answers to these questions will change with the passage of time
(a) Who is the Prime Minister and which political party is he or she from?
• PM – Mr John Howard – Liberal Party of Australia
(b) How many Ministers are in the Federal Cabinet?
• 30, including PM, Attorney-General, Treasurer and 27 others
(c) Briefly outline who is in the following portfolios and what their roles are:
Federal Treasurer
• Prepares and presents the Government’s budget to the Parliament
Attorney-General
• Chief legal officer in the Cwlth
• Minister responsible for general legal matters
Foreign Affairs
• Minister responsible for the executing the Government’s policies re relationships with other nations
Defence
• Minister responsible for the nation’s national security
2 Access the SA Parliament website on wwwparliament.sa.gov.au to identify who the Premier and other
Ministers are and their portfolios?
• Premier is Mike Rann in 2006
• There are 15 Ministers in the State Cabinet in 2006,including:
Premier
Deputy Premier
Treasurer
Attorney-General and 11 other Ministers
NOTE The full list of Ministers is published on the font page of Hansard
3 Get a recent copy of The Advertiser ….
Possible roles include:
• PM discussing Government policies, such as the economy, immigration, defence
• Treasurer outlining economic, taxation policies
Discussion questions
Pages 59
1 Do Parliaments control the affairs of Parliament?
YES ARGUMENTS
• When the Government has a majority in both chambers
• Most Bills debated in Parliament are public bills initiated by the Government
NO ARGUMENTS
•
Not if the Government faces a hostile upper house
2
Is Parliament an effective institution to control the power of government?
YES ARGUMENTS
• Question time where the Government scrutinises the Government
• One House can disallow a Government regulation
NO ARGUMENTS
• Not if the Government controls the majority in the upper house
3
Do Prime Ministers have too much power?
YES ARGUMENTS
• Liberal PM dictates what Bills will be presented to parliament and how party members will vote on them
• Has tremendous executive power delegated to him in enabling Acts
NO ARGUMENTS
• Not if the Government faces a hostile upper house
• PMs subject to regular scrutiny at elections
• PMs power subject to constitutional law
Review questions
Pages 59
1 Explain the difference between executive power and executive government.
See page 56
2
What is responsible government.
See pages 56/57
3
Under what conditions can a person become PM of Australia?
• PM must be a member of the House of Representatives
• PM must have the confidence of the majority party in HR
• PM must be sworn in by the Governor-General
4
Under what conditions is the Gov-Gen obliged to accept the advice of his/her PM?
See page 57
5
What is meant by the term ‘chain of accountability’?
See page 58
6
Under what conditions is the Gov-Gen obliged to accept the advice of his/her PM?
• By electing members of the community to be MPs in parliament to make laws we get representative
government
• By the Government being formed from the majority party in the lower house of Parliament we get responsible
government. The Government determines government policy and administers the laws made by the
parliament. It is held directly accountable to the parliament for exercising its executive powers.
Constitutional monarchy
Activity Box
Pages 62
1 Go to the Gov-Gen’s website on www.gg.gov.au to answer the following questions:
NOTE These answers will change
(a) Who is the Gov-General?
Michael Jeffery in 2006
(b) Give a brief overview of the background of the incumbent.
Michael Jeffery was a General in the Australian army
(c) What are the roles of the Gov-Gen?
See page 61
(d) What recent roles has the Gov-Gen performed?
These will vary but could include:
• assenting a Bill
• proclaiming an Act
• appointing a person to a public office eg a judge to a federal court
Discussion questions
Pages 62
1 Should Australia become a republic?
YES ARGUMENTS
• Australia become a truly independent nation in the world community
• Head of state would be an Australian citizen
• Head of state determined by merit, not birthright
• Head of state has no links with religion and not based on sexist criteria
NO ARGUMENTS
• Australia has had stable government since federation and could destabilise the system
• Expensive exercise for a system that functions well anyway
2
What republican model would be appropriate for Australia?
EXECUTIVE MODEL
• Similar to the US Presidential system where the head of state and head of government are vested in the
same person. That is, the President would have his/her own executive powers.
• This would be a radical change from the current Westminster model which would require significant
constitutional changes
NON-EXECUTIVE MODEL
See page 62
• This was the model put to the Australian people at the 1999 referendum
• This model still has two options:
• President appointed by the Parliament, or
• President elected by the people.
Review questions
Pages 63
1 What are the main features of Australia’s constitutional monarchy?
See page 60
2
How does Australia’s constitutional monarchy vary from the US republic?
See page 60/61
3
What are the roles of the Gov-Gen?
See page 61
4
How would the 1999 model of the Australian republic have changed our current system?
See page 62
5
Give reasons why the 1999 referendum failed.
• Conservatism of the Australian community (reluctance to change)
• Disagreement between republicans of the appropriate model
• Lack of strong leadership by the Liberal Party (which was divided on the issue)
• Lack of bipartisan support
6
Why does the US have a complete separation of powers?
• The US executive cannot sit in the Congress (legislative arm). That is, the US President is elected directly by
the American people and not from any party in the US Congress
• Secretaries (Ministers) of State cannot be members of the Congress
Judicial power
Activity Box
Page 70
1 Draw up a chart to identify which court would hear the criminal cases.
NOTE
Where the offender is under 18 years and the matter is a summary or minor indictable offence the case will be
heard in the Youth Court
Speeding offence
Murder
Minor larceny
Criminal trespass
Drunk in public place
Drink driving
Appeal rape case
Not wearing seat belt
2
3
Magistrates Court
Supreme Court
Magistrates Court
Magistrates Court
Not an offence
Magistrates Court
Court of Criminal Appeal
Robbery with violence
Illegal use of MV
Sexual assault
Dealing in drugs
Serious criminal tresp
Dangerous drive/death
Breach pollution laws
District or Supreme Court
Magistrates Court
District Court
District Court
MC or DC
District Court
MC or DC
Magistrates Court
Draw up a chart to identify which court would hear the civil cases.
Trespass to land $5,000
MCD of MC
Neighbour $1,000
MCD of MC
Negligence $30,000
Constitutional case
Divorce
Breach contract $12000
Industrial dispute
Defamation $100,000
Breach contract $6m
GCD of MC
FB of HCA
Parenting
Appeal from DC
Discrimination
Car accident $70,000
Appeal from tribunal
Negligence $500,000
Family Court
Full Court of SC
Equal Opp Tribunal
GCD of MC
DC (EOT to SC)
DC or SC
Federal Magistrates Court
GCD of MC
IRC in SA, FCA in Cwlth
District Court
Supreme Court
Get a recent copy of The Advertiser…...
Students will have to get a copy of The Advertiser and look at the section titled “Law Courts – Today’s Listings” to
answer this question.
Discussion questions
Page 71
1 Why is it necessary to distinguish courts of original jurisdiction from courts of appellate jurisdiction?
• Original courts are where trials are conducted and guilt or innocence is determined in criminal cases or
Liability in civil cases
• Appellate courts are where cases are heard on appeal from courts of original jurisdiction
• The judges that sit in the original jurisdiction cannot sit on the pane in the appellate court in the same case to
ensure that justice is administered impartially in accordance with the principles of judicial independence.
2
Why are there different courts? Why are all cases not heard in the same court?
• So a hierarchy of courts can be created to accommodate the application of precedent and the appellate process
• Criminal and civil cases need to be distinguished due to different standards of proof and general rules of court
• To provide for administrative efficiency ie lower courts can hear matters summarily and quickly at low cost to
the parties and the community, while more complex cases are heard in the superior court using more formality
and legal technicality to ensure just outcomes occur.
3
Are judges truly independent?
YES ARGUMENTS
• Judges cannot simultaneously exercise s judicial and an executive or legislative function
• Judges cannot give legal advice to help parties prepare and present their cases
• Justice is administered solely in accordance with law and the merits of the case, not what is politically or
socially expedient
• Judges’ independence reviewed on appeal in appellate courts
NO ARGUMENTS
• Judges appointed by executive, so could gain their positions for reasons other than legal competence
• Judges are human and are subject to the same human frailties as all other people
Review questions
Page 71
1 Explain, using examples, the differences between:
(a) courts of civil jurisdiction and criminal jurisdiction
See pages 65 to 68
(b) courts of original and appellate jurisdiction
See page 64
(d) courts of general and specialised jurisdiction
See Page 65
2
What is Australia’s highest court? Give reasons to e4xplain why it is and identify the jurisdictions it can sit
in.
See pages 63/64
3
Explain the jurisdiction and roles of either the SA or NT Magistrates Court.
See pages 65 to 68
4
Explain the avenues of appeal from a decision of a Supreme Court Justice
• Appeal to the Full Court of the Supreme Court (or Court of Criminal Appeal)
• Appeal from FC of SC, by leave, to the Full Court of the High Court
5
What is judicial independence, and why is it considered as the cornerstone of the separation of powers?
See pages 68/69
6
How are judges appointed to, and dismissed from, the bench of a court?
See page 69
7
How is judicial independence protected in Australia?
See pages 68/ 69
Topic 3 Lawmaking
Activity Page 82
A Member’s speech in support of the bill to make consumption of dog
and cat meat unlawful:
Suggest 2 minutes and approximately 500 words maximum.
Arguments for supporting the Bill:
The Bill reflects the view of the community in South Australia. It
provides protection for cats and dogs and for people.
It would tend to prevent anyone killing dogs and cats to provide meat
for consumption, as the penalties are considerable.
It would curb any unlawful restaurant trade in such meat.
It would discourage owners who find it too expensive to keep their pets
to just ‘offload’ them to unscrupulous people. The Bill includes
penalties for ‘supply’, not just for killing animals.
Any suggestions that the Bill discriminates against people of certain
cultures where the eating of cat and dog meat is acceptable are rubbish!
Immigrants to this country are well aware that such practices are not
acceptable in Australia.
Discussion Questions Page 83
1.
If we trust our elected representatives to make laws on our
behalf, why is it necessary to have a series of checks and balances to
supervise legislation?
A.
The legislation may have been drafted in such a way as to be
ambiguous. The legislation may be controversial and require a ‘sunset
clause’ for review. Over time legislation may become irrelevant or out
of date for a modern society. The intention of parliament may not
always be clear so it is the role of the judiciary to interpret the meaning
of the statute. The Parliament may not have had the authority to pass
such a law – it is up to the judiciary to decide if the law has been
passed within the lawmaking powers of the lawmaking body.
2.
How appropriate is it to have other bodies, such as the
Executive and the Judiciary, able to exert control over legislation since
the people directly elect neither institution?
A.
The Executive may establish a Committee of Enquiry to look
into the effectiveness of legislation. They can also establish a Royal
Commission (as happened with the Kapunda Road Commission to
include an examination of relevant legislation in certain circumstances.
The public service is accountable to the Ministers for the way they
apply legislation relating to particular government departments.
There is a need for an independent person to decide the meaning of a
statute and to decide whether laws have been made within the
appropriate authority.
While neither the Executive nor the Judiciary have been directly
elected, there is a need for review of legislation from time to time.
Activity Page 87
Opinion of the new (fictitious) by-law
In favour of the new law:
It provides a ready means of ID for dogs in a council area. This means
that dogs can be identified and the owners contacted so they can be
reunited. It will prevent heartache at losing a loved animal and provide
peace of mind.
Against the new law:
The $200 fine for non-compliance is quite steep and a three-month
phase in period may not be long enough – it may require six months.
A three-day detention of any stray animal is also too short. Unless
council can guarantee to contact owners immediately it could take
several days before contact and the dog could be destroyed before the
owner has a chance to collect it. Also if the fine on collection is great
the owner may not have the money ready to hand.
Discussion Questions Page 87
1.
Should Parliament delegate lawmaking authority to such a wide
range of subordinate bodies?
A.
Yes, because it is impossible for Parliament to make laws for
all situations. The workload of parliament would become impossible.
It is more appropriate for local councils to make by-laws for their local
area. It is quicker for subordinate bodies to make laws appropriate for
their particular area of expertise.
The Executive government can make regulations quickly to meet
certain conditions like bushfires, floods etc.
It is more appropriate for issues such as changes to licence fees or
other government fees to be made by regulation rather than by
Parliament.
There is scope for community input into local council issues before
laws are made. This also applies in making regulations.
2.
How could the process for making regulations be given more
public awareness?
A.
Some possible suggestions:
In education programs as part of a ‘Civics’ course.
Government Departments could issue pamphlets to the public
when they pay bills.
Public Libraries could carry information regarding the process.
Attract media interest in promoting the process by identifying
issues where regulations are used to solve potential problems.
3.
How can Ministers and government departments be made more
accountable for the delegated legislation that they approve and
oversee?
A.
Ministers are already required to table regulations in Parliament
and to answer questions in Question Time.
Other ways they could be made more accountable include:
There could be more scrutiny of regulations through the forming of a
Government Review Group whose task it would be to highlight
potential difficulties that could arise once the regulations are in place.
This would give the opportunity for the subordinate body concerned to
amend the regulation before it went to Parliament.
Provision of a wider time frame for public scrutiny where there is no
urgency in passing the regulations may make for more acceptability.
Activity Page 89
Fictitious Situation
1.
Explain the role of statutory interpretation in deciding this case.
A.
The judge in Hermione’s case had to interpret the meaning of
‘adequate supervision’ under the Education Act to decide if the school
had failed in their duty of care to Hermione. This was vital to the
decision in favour of Hermione.
2.
Where does the Supreme Court stand in the hierarchy?
A.
The Supreme Court is the highest court in the South Australian
court hierarchy. It is the last court of appeal in the state hierarchy.
3.
What is judicial review and how does it apply in this case?
A.
Judicial review occurs when
• Judges review the decision made in lower courts on appeal
• Judges decide if an Act/Regulation has been made ultra vires –
outside the scope of the authority granted to the lawmaking body.
In this case the Department of Education appealed the decision on the
basis that the award of damages was ridiculously high and would set
standards for future claims far outside the normal range.
4.
How did the judge set a precedent?
A.
By interpreting the meaning of the words ‘adequate
supervision’ for the first time.
5.
What is the purpose of damages payments and how do such
payments relate to social cohesion?
A.
The purpose of damages payments is to compensate the person
who has suffered harm or loss.
Decisions to award damages can act as a deterrent so that
workplaces, schools, colleges, and universities will be encouraged to
provide adequate supervision and a safe environment for students and
the public. This will reflect the standards that society expects and
provide penalties for those who do not meet the standards. In this way
payment of damages helps to maintain social cohesion.
Activity Page 90
Fictitious Situation
1.
What is the role of the judiciary in this situation?
A.
The judge is deciding whether Harry caused death by
dangerous driving and whether a defence of being under the influence
of prescription drugs should be accepted. The judge is resolving a
dispute and applying precedent.
2.
How does the use of a jury trial promote social cohesion?
•
By involving the community in the justice process
• By providing for a jury of one’s peers
• The jury brings community values/perspectives to the decision
making process
3.
What was the precedent that the judge followed in this case?
A.
The 1999 Victorian case where the defence used could not be
proven. There is no test for the effect of the prescription drugs unlike
alcohol tests.
4.
What type of precedent was the Victorian decision?
A.
The decision is a persuasive precedent (not made in this state’s
hierarchy)
5.
How does the sanction imposed by the judge help to promote
social cohesion?
A.
The sanction or punishment imposed reflects society’s values
about dangerous driving – it provides a punishment and protects
society.
The punishment also acts as a deterrent to others so that they will think
twice about driving dangerously.
Discussion Questions Page 93
1.
What aspects of judge made law conflict with the principles of
democracy?
A.
Judges are unelected lawmakers.
Judges are not directly accountable to the public.
2.
If we disbanded the doctrine of precedent, how could we
resolve those disputes for which there is not appropriate legislation?
A.
Judge would apply commonsense in the absence of the
Doctrine of Precedent. This would however leave the judicial system
without a uniform, consistent and predictable approach to case law.
3.
Why should Parliament be the sovereign lawmaker?
A.
They are the elected body of representatives.
There will always be a need to have a body that can overturn
unjust decisions made by courts.
Discussion Questions Page 96
1.
Should the media have such a strong influence on government
in relation to changing the law?
A.
Yes: the media can reflect community concerns/values and
reveal abuses of the law or deficiencies in the law.
No: the media can become a ‘defacto’ lawmaking body not
elected by the people.
2.
A.
How can the public bring about change in the law?
Some suggestions:
• Petition the parliament through the local Member of Parliament
• Peaceful demonstrations on the steps of Parliament House
• Letters addressed to local Members of Parliament to raise
questions in the House
• Letters or emails to the media.
The Activities on Page 96, 97, 98 are largely at the discretion of the
teacher and involve personal research and presentation, so they
are not addressed here.
Review Questions Page 99
1.
List and give examples of any three groups that influence
Parliament to pass new laws.
A.
Group
The Cabinet of Ministers
Pressure group such as
Greenpeace
Example
Hoon legislation as
government policy
Pressure on government to
Change laws about the environment.
The media
Media reporting on cases of
home invasion led to new law.
Reports from Royal Commissions Kapunda Road RC
2.
Describe the stages of the passage of a bill through Parliament.
A.
These stages are thoroughly described on Pages 81 and 82 of
the text. Students should be able to identify the Pre-Parliamentary
Stage, Parliamentary Stage and Post Parliamentary Stage.
These stages include:
Pre-parliamentary stage
• The Office of Parliamentary Counsel drafts Bill
• Cabinet approval
• Minister tales notice of intention to introduce Bill
Parliamentary Stage
• First Reading Lower House
• Second Reading – Minister outlines principles of Bill
• General Debate on Bill
• Committee Stage – detailed examination and debate on Bill.
Amendments suggested and are accepted or rejected – vote on Bill.
• The Third Reading. A formal vote on Bill
• These stages are repeated in Upper House.
Post-parliamentary stage
• Royal assent by governor on behalf of Queen
• Bill now becomes an Act and is then
• Proclaimed in the Government Gazette with a date for
commencement.
3.
How is delegated legislation made?
A.
The process for making regulations is described in the stages
outlined on Page 85 of the text.
The process includes these stages:
Consultation Stage
The community is consulted
Cabinet approval
Drafting Stage
Office of Parliamentary Counsel drafts regulations and issues a
Certificate of Validity (not ultra vires the Enabling Act)
Parliamentary Counsel prepares cabinet submission for approval of the
regulation and a report to the Legislative Review Committee.
Confirmation Stage
Cabinet grants approval
Minister may grant approval if Cabinet cannot meet, except for
taxation regulations
Proclamation Stage
Minister advise Governor to proclaim regulations at a Governor-inCouncil meeting of the Executive Council
Parliamentary Counsel prepares proclamation documentation and then
regulations are published in official government Gazette
Tabling Stage
Regulations are tabled in Parliament within 14 days of proclamation so
that Parliament can scrutinise the regulations
Parliament may disallow regulations (only one house necessary to
move for disallowance)
Regulations commence 28 days after proclamation.
4.
Why is delegated legislation necessary and how is it
supervised?
A.
Why
•
•
•
•
•
• Delegated legislation frees parliament to
concentrate on broad areas of law and so lightens their
workload.
• The simple procedures used for making regulations
means that it can be made more quickly to respond to
situations like the need to increase licence fees.
• The people in government departments have the
necessary expertise to draft regulations suitable for the
area such as the Department for the Environment.
• When there is a need for regulations in emergency
conditions such as bushfire they can be made quickly
for the special conditions.
• Community participation is a feature of subordinate
law as it is the community that has requested more
control in areas such as planning, and health.
How supervised:
By Legislature:
• Parliament can limit or revoke delegated authority
• One House of Parliament can disallow a regulation
• Ministers can be called to account with regard to regulations in
Question Time
• Committees such as Standing Committees, Committees of
Review can review regulations and make recommendations for
change
By the Executive
• The Cabinet review draft regulations
• The Executive Council reviews regulations and recommend
approval
• Administrative tribunals may review administrative decisions
involving the application of regulations
• The Ombudsman’s office may investigate complaints
regarding the way regulations affect people
• The Executive may set up a Committee to specifically review a
set of regulations or by-laws e.g. Adelaide City Council by-laws
By the Judiciary
• A judge may declare a regulation to have been made ultra vires
the Enabling Act if a dispute arises as to its validity. This is a form
of judicial review.
• Judges may be called upon to interpret the meaning of a
regulation if a dispute arises as to the meaning or intention. The
Legislature has passed the Subordinate Legislation Act to provide
guidelines for interpretation.
5.
How do judges make law?
A.
Judges can make laws in two ways:
In resolving disputes judges may create and develop common
law (case law) principles where there is no statute law.
Judges also undertake statutory interpretation when called upon
to decide the meaning of a statute or regulation. Statutory
interpretation is the judicial process of giving meaning to the words of
a statute in the light of a case currently being argued, with reference to
previous cases where those same words have arisen.
6.
Identify three ways in which each of the types of lawmaking
affect people in the community.
A.
Legislature Example of hoon legislation has made life more
peaceful for people and has resulted in hoons losing their
vehicles for 48 hours.
Executive Curfew for schools protects school property.
Judiciary The High Court decision in the Mabo case led to the
establishment of the principle of native title enabling
indigenous people to seek title to traditional lands.
TOPIC 4: JUSTICE and SOCIETY
GUIDELINE ANSWERS
ACTIVITY BOX Page 105
Question 2
Some ‘discussion starters’
A person accused of serial murder is allowed to have a lawyer at public expense.
• All are presumed innocent until guilty
• Defence lawyers keep prosecutors ‘on the ball’
• The rule of law demands fair trials
• Justice does not come cheap
• Costs reimbursed if found guilty
Provisional licence holders cannot exceed 100 kph
• Inexperience makes their judgement questionable
• Protection of other road users
• Young people need stricter guidelines
• Older drivers make mistakes too
• On some occasions 100 kph is reasonable
• Roads and cars are safer now
Judges can set a sentence below the minimum allowed
• Parliament best reflects community standards
• Parliament is sovereign
• Judges are independent
• Judges do not understand community concerns
• Judges are best able to determine appropriate penalties
People can be refused a job because of their appearance
• Ability should be the criterion
• Employers are the best judges of their needs
• Equal opportunity laws do not prevent this for a reason
• Employees should not expect the law to protect them from their own foibles
Many American states have the death penalty
• But many do not or do not enforce it
• Research shows that the death penalty is not a deterrent
• Australia’s crime rate is lower than that of the USA
• The death penalty contravenes a human right
• A ‘life for a life’ is a contradiction
Same-sex marriage is illegal
• Marriage has always been between a man and a woman
• The law should not cater to minorities
• Morality is part of law
•
•
Same-sex marriage is legal in five other countries
Committed relationships deserve protection
A jury is not allowed to know the criminal history of an accused
• A trial should be judged on the facts of the case only
• Previous convictions could prejudice the jury
• Criminal history is taken into account in sentencing
• Juries should understand the full story of an accused
• Victims and the public deserve protection from recidivists
ACTIVITY BOX Page 111
Under what circumstances is it possible to make a ‘citizen’s arrest’?
•
someone is found damaging (or committing some other offence to) the citizen's
property [Summary Offences Act 1953 s 76]
• a person is attempting to commit an offence, but once a person stops the attempt, the
power to make the arrest ceases
• if the citizen is offered property that he or she reasonably believes is stolen [Summary
Offences Act 1953 s 77]
• a store detective or security guard arrests a person committing an offence against his
or her employer.
Suspecting someone of having committed an offence is not enough for a citizens arrest.
Do you have to give police your name and address?
A police officer who reasonably suspects a person has, is in the process of, or is about to
commit an offence, can demand that person give his or her correct name and address. The
penalty for giving a false name and/or address is a maximum fine of $1000 or imprisonment
for up to three months [Summary Offences Act 1953 s 74a(3)].
Can police force you to go to a police station?
People apprehended without a warrant must be delivered to the nearest police station as
soon as possible [Summary Offences Act 1953 s 78(1)]. However, a person arrested without
a warrant, suspected of committing an indictable offence or an offence punishable by
imprisonment of two years of more, can be detained for as long as four hours to investigate
the offence.
What actions must a police officer carry out when making an arrest?
An arrest is valid if words such as 'you are under arrest' are used while at the same time
touching or taking hold of the arrested person so that it is clear that he or she is being
arrested.
However the police do not need to use these words to arrest someone. They ought to inform
a person why they are under arrest and a person can be under arrest even if they are not
touched, if the effect of the police action is to stop a person from doing what he or she wants.
An arrest is only valid if the police reasonably suspect a person of committing an offence.
Most importantly, the person should be told of the right to remain silent, to have a friend or
relative told of their arrest and to speak to a lawyer and have an interpreter present if
required.
The person should also be told the reason for the arrest, even if it appears obvious from the
circumstances, although the omission of this information does not necessarily make the arrest
unlawful.
Can police use force when making an arrest?
A police officer may use as much force as is reasonably necessary to arrest the person.
Unreasonable force is assault. It is up to the court to decide whether the force used was
reasonable in the circumstances. For example, force that is likely to kill or cause grievous
bodily harm has been held reasonable if the person could not be arrested in any other way [R
v. Turner (1962) VR 30]. Handcuffs or a similar restraint are reasonable force where the
person has physically resisted arrest or attempted to run away.
Is there such a thing as an ‘off the record’ interview with the police after arrest?
Written and verbal statements can be used in evidence. Any conversation with the police can
be used in evidence. Hence any suggestion that a conversation between a suspect and the
police is 'off the record' should be ignored.
Is it possible to refuse a videotaped interview while arrested?
The police cannot force a person to be video taped or audio taped and a person who does not
wish to be taped should simply tell this to the police. If a person refuses to allow the interview
to be recorded, the police may ask him or her to sign a form confirming the refusal. This is not
unusual.
Can the police order a medical examination?
The law relating to forensic procedures is also contained in the Criminal Law (Forensic
Procedures) Act 1998. Under the Act 'forensic procedure' means:
•
•
the taking of prints of the hands, fingers, feet or toes
an examination of an external part or an orifice of a person's body (but not an
examination that can be conducted without disturbing the person's clothing and
without physical contact with the person)
•
the taking of a sample of hair from a person's body (but not the taking of a
detached hair from the person's clothing
•
the taking of a sample of blood
•
the taking of a sample by buccal swab, or a sample of saliva
•
the taking of a sample of fingernail or toenail, or material from under a fingernail or
toenail
•
the taking of a sample of biological or other material from an external part of the
body
•
the taking of a dental impression
•
the taking of an impression or cast of a wound.
Under the Act a police officer may only ask a person who is under suspicion to consent to a
forensic procedure if there are reasonable grounds to suspect that the forensic procedure may
produce evidence of value to the investigation of the suspected offence [Criminal Law (Forensic
Procedures) Act 1998 s 15]. A person must expressly consent to a forensic procedure
[Criminal Law (Forensic Procedures) Act 1998 s 8]. Protected persons (children and certain
persons under a disability) are considered incapable of giving informed consent.
How many people are there in a police line-up?
In an identification parade a suspect must be placed amongst nine other people of similar
physical type.
What rights does have a suspect have in a police line-up?
A suspect can choose where to stand in a line-up. If there is more than one witness, the suspect can
move to a different place in the line before each new witness enters the room.
An accused person has a choice about participating in a line-up, and should always get legal advice
before agreeing to do so.
Why is bail granted in most cases?
Section 10 of the Bail Act 1985 provides a statutory presumption in favour of bail, deriving from the
common law principle that a person is innocent until proven guilty. In ordinary language, the
presumption means that bail should be ganted unless there are good reasons for it being refused.
When might bail not be granted?
The presumption in favour of bail being granted is subject to the following considerations:
•
•
•
the seriousness of the alleged offence
whether the applicant might abscond,
offend again,
interfere with evidence or
hinder police inquiries
if necessary, the protection of the applicant for bail
•
any medical or other care that the applicant may require
•
any previous occasion where the applicant has contravened or failed to comply with a
term or condition of a bail agreement
•
the need or perceived need of any victim of the alleged offence to be protected from
physical violence (Bail Act 1985 s.10(4) provides that this must be given primary
consideration)any other relevant matter, such as the strength of the evidence,
any prior convictions the applicant may have, and,
any other special need for the applicant to have bail.
ACTIVITY BOX Page 116
1
2
3
4
To avoid further costs and a claim on your no-claim bonus, conceding the
claim would be the best option.
Mediation might be the best option but you must be prepared to go to court
if the amount of money involved is considerable. Certainly legal advice
should be sought.
Self help might be an option. You could cover spaces between the palings
in the fence.
If mediation has not worked, you could apply for an conciliated or
arbitrated decision in the Equal Opportunities Tribunal.
ACTIVITY BOX Page 120
The standard of proof in a criminal trial is higher than a civil trial – ‘beyond
reasonable doubt’ rather than ‘on the balance of probabilities’. In the civil trial, jurors
(who are used in the USA for civil trials) only had to believe that O.J.Simpson
probably committed the murders rather than certainly.
DISCUSSION QUESTIONS Page 131
Is trial by jury really a ‘trial by one’s peers’?
Because there are so many who are disqualified, ineligible or excused it is difficult to
say that a jury is a true cross-section.
Are there alternatives to trial by jury?
Civil trials, trials in the Magistrates Court are tried by judge or magistrate alone. An
accused in the District or Supreme Court also has the option of trial by judge alone. If
people are concerned about a single judge determining guilt or liability, a panel of
judges may allay fears. In Europe, occasionally lay people will sit with a judge on the
bench to determine guilt. However, the European inquisitorial system of trial puts
different responsibilities on the judicial participants.
Should all verdicts be unanimous?
NSW has recently converted to majority verdicts for some offences. It can be argues
that the insistence on unanimous verdicts reduces the efficiency of the system and
results in more ‘hung juries’. Majority verdicts do provide relief from ‘perverse’
jurors who can prevent an appropriate conclusion to a trial. However, even in South
Australia, the system demands a unanimous verdict for the offence of murder where
the mandatory sentence is life imprisonment. This provides for a fair trial in this case.
Should juries be used for all criminal trials?
At present there are no juries in the Magistrates Court criminal trials. If this was to
occur, as most criminal trials occur in this court, there would be a large impact on the
community, both in cost and time. This could be lessened by a provision of juries of 6
rather than 12 but the impact would still be great. This would also add to the cost of
the trial in general and to the accused as additional explanations would be needed for
the juries. Trials would last longer. Court delays are already a problem. This would
add to it. There does not seem to be any public sentiment calling for trial by jury to be
extended.
REVIEW QUESTIONS Page 135
1
Explain the meaning of ‘justice’.
Justice is ‘a state of affairs in which conduct or action is both fair and
right, given the circumstances’. Laws ideally give expression to this
sentiment but media articles constantly show that this may not be the case.
Ideas of ‘rightness’ and ‘fairness’ not only vary from individual to
individual but from place to place and over time. This explains the variety
of laws around the world and changes over time. It is not possible to please
everyone and often justice has to be ‘imposed’. Governments can only
approximate the collective wishes of the community. The pressure on
governments to propose and administer “just’ laws is the challenge.
Fortunately courts are the filter by which laws can be measured.
2
Describe the features of natural justice and the rule of law.
Natural justice is a right. It is neither earned nor bought. It is the minimum
right to fair treatment for all citizens. Natural justice is bound by three
principles – every person has a right to be heard, i.e. arbitrary detention
without right to mount a defence is unfair, no person may judge their own
case, i.e. all are accountable to legal process, and all persons will receive
due process of law, i.e. a fair hearing and trial.
The ‘rule of law’ is fundamental in a democracy. It states that all people
and institutions are bound by the law and no-one is above the law. In
particular, parliament and governments are bound by limits imposed by the
Constitution. This prevents arbitrary use of power that may result in
tyranny.
3
Distinguish between summary and indictable offences.
Parliament has determined that certain wrongful actions are criminal. It
has also classified crimes into those that are more serious and less serious.
Those crimes deemed to be less serious are called summary offences. They
are listed in the Summary Offences Act. 1953. Summary offences are heard
in the Magistrates Court and have penalties not exceeding 2 years in
prison. Trials are heard without a jury. Indictable offences are more
serious and are generally contained in the Criminal Law Consolidation Act
1935. Cases are heard in the District or Supreme Courts and may involve
jury trials. Penalties can range up to life imprisonment. Minor indictable
offences
4
Briefly discuss police powers when they are conducting a search.
See pages 108-9
5
Why is bail a feature of our legal system?
An accused is presumed innocent until proven guilty. For this reason
application for bail is a right to all accused. Bail is a release from custody
before trial on a promise to appear at hearings. Bail is sometimes
conditional and can be refused in some circumstances.
6
What is the purpose of a preliminary hearing?
In all indictable offences the prosecution is required to present its evidence
to a magistrate. The magistrate will then decide whether there is sufficient
evidence to send the matter to trial in the District or Supreme Court. This
is done by determining whether a jury would convict on the prosecution
evidence alone i.e. whether a prima facie (on first view) case exists. These
matters are usually done through a perusal of documents only but
witnesses can be called and questioned. Preliminary hearings prevent
poorly prepared and inappropriate charges from proceeding to trial thereby
further clogging the system.
7
What must a judge consider when determining a sentence?
As well as balancing the general aims of sentencing of retribution,
deterrence, protection of society and rehabilitation, the judge is bound by
Section 10 of the Criminal Law Sentencing Act 1988 as described on page
114.
8
Describe how ADR operates.
Before bringing a matter to court, it is advisable to try alternative dispute
resolution methods. These will generally save time, money and stress and
bring more satisfaction to participants. There is a hierarchy of strategies
where each successive step involves more time and effort and less personal
control. Some of these strategies range are compulsory before a court will
become involved. Page 117 describes the hierarchy of graded steps.
9
Describe the role of the judge and jury in an adversary trial.
In the adversary system the judge plays no active role in the presentation
of the case for either side. The judge is a referee and must apply the rules
of evidence and procedure. Judges must also protect the accused and
witnesses from unfair examinations. After a verdict, the judge has the
responsibility of sentencing the accused in a criminal trial or determining
the remedy in a civil trial.
The jury has several roles. It must determine the facts after listening to
evidence at the trial. It must then decide on a verdict of guilty or not guilty.
The jury represents the community in the trial process and therefore has a
democratic role as well.
10
Explain the strict rules of evidence in a trial.
The adversary system of trial accepts only relevant evidence. This means
that the evidence must cast light on an issue in dispute. The judge
determines whether evidence is admissible or not. Inadmissible evidence
includes opinion evidence. Witnesses, unless qualified as experts, may not
give opinions, only observations or what they have heard. Second-hand or
hearsay evidence is also not permitted. There are other restrictions on
evidence about the character of the accused and his or her previous
criminal history.
The strict rules are designed to allow only evidence that will allow a jury
to hear facts relevant to the issues of a particular case.
11
What are majority and unanimous verdicts?
In South Australia all verdicts except those in murder trials may be
majority verdicts. This means that 10 or 11 of the 12 jurors must agree. If a
verdict is reached in the first 4 hours of deliberation, it must be unanimous.
A unanimous verdict, where all 12 jurors agree on the decision, is
compulsory for murder trials.
12
Explain the difference between summoning and empanelling a jury.
Essentially summoning a jury gets them into a courtroom. Potential jurors
are divided into groups of about 25 – jury sections or pools. Empanelling
is the process of selecting the 12 or more jurors for a trial. They sit in the
jury box and are chosen from the jury section.
13
What is legal aid?
Legal aid is the provision of legal advice and representation by the State to
those who cannot afford it. It is operated by the Legal Services
Commission. Legal Aid is not available for all criminal disputes e.g. civil
cases and family law disputes that do not involve children.
Topic 5 - Young people and the Law
Discussion questions [page 142]
1.
Is 18 the right age for legal adulthood? What are the risks of setting a
lower age of adulthood? What are the benefits?
Debate around the right age for adulthood will concern questions about the age
at which youths consider they have or are granted other adult responsibilities.
For example, in days gone by, 21 was considered the age of majority. While the
current age is 18, young people can drive before 18 years of age, until recently
they could purchase cigarettes, the age at which sexual intercourse is legal is 17
etc. The important issue for any discussion around this topic is that with rights
being conferred at a younger age, there will be extra responsibilities such that
the age of adulthood for criminal offending and the protection currently
afforded through the youth justice system may also be lowered.
2.
The law sets limits on what children can do so as to protect them. These
protections also restrict the freedom of young people. Is the law
overprotective of young people in some respects?
On the one hand limits need to be imposed as children need time to develop and
deal with a range of life experiences that help them formulate their own set of
values. In some cases the restrictions offer protection from making ill-informed
decisions. The other school of thought may suggest that the law is overprotective and limits the capacity of younger people to learn from their
behaviour. In some situations, the protection afforded re making purchases or
entering into contracts may be considered overprotective. Similarly, laws
restricting purchase of alcohol or tobacco may be too overprotective, given that
some young people are already in employment at that stage and making adult
decisions on a day to day basis. The one constant at the present time is that most
of the law makers are not representative of the youth cohort.
3.
Why does the law prohibit children from buying alcohol? What are the
risks to a child who drinks alcohol in a hotel or club? Parliament has deemed that alcohol is a potentially harmful drug and while it is
difficult to regulate consumption within private homes, the refusal to allow
children to purchase alcohol may lessen opportunities to access it while also
acting as a deterrent. Legal risks and consequences flow from underage drinking
for both the drinker and the supplier apart from the range of health risks that
exist. Discussion questions [page 143]
1.
Catherine’s 14 year old daughter Clare is sick of school and has been
absent for the past two months. Catherine has received a letter from the
Education Department asking why Clare has been absent. Clare wants to
leave school. Advise Catherine and Clare. Clare is under the required school leaving age. Information about the legal
requirements can be found in the Education Act 1972 at
http://www.parliament.sa.gov.au/Catalog/legislation/Acts/e/1972.154.un.htm
Specific related sections include sections 76, 79 and 81A
Essentially they must attend school until the age of 16. Parents may be
notified that the school will put the matter in the hands of attendance officers
where they may be liable to a fine of up to $1000.
Generally exemptions are only granted in cases of severe illness or if repeated
attempts to negotiate an attendance plan fail and the child is engaged in
‘earning or learning’.
2.
Clare has obtained a full time day job working with Charlie from 9 am to
4 pm and them in the evenings between 6 and 9 pm. After 6 pm Charlie
goes home for tea for an hour and during this period many of Clare’s 14
and 15 year old friends arrive and she sells them cigarettes. Advise Clare
and Charlie. Sale of tobacco is prohibited to persons under the age of 18 years. The
relevant section can be found through the link below (refer to Part 3) and
section 81 re Vicarious Liability.
http://www.parliament.sa.gov.au/Catalog/legislation/Acts/t/1997.26.un.htm
3.
Clare’s friend Amy visits and tells her she is lucky to have missed school
because during the last week Amy had been caned for being caught
smoking, had been detained every recess, lunch and for one hour after
each school day. In addition her brother Deni aged 14, had broken his leg
on a school excursion in an old mine. The teacher had stayed on the
school bus having a smoke while the class of 28 students explored the
mine looking for fossils. Deni had attempted to climb a rock wall near the
mine. Advise Amy and Deni.
While schools may well be able to impose sanctions on students for their
behaviour, DECS schools cannot impose corporal punishment and even
detentions to that extent would need to be negotiated according to the existing
school behaviour management policy. For a situation to escalate to this level,
it would be more appropriate to explore suspension measures or even
exclusion from the school. As to camps and excursions, there are policy
guidelines about ratios and level of supervision, a breach of which could make
the teacher, school and Education Department potentially liable. Clearly the
behaviour of the teacher would amount to some degree of negligence in this
situation. (Independent and Catholic Schools would have similar policies)
4.
Clare aged 15, had been having regular sex with her boyfriend Jim, aged
17 and has become pregnant. They had discussed two options – getting
married or having an abortion. Advise Clare and Jim. The age of consent for sex is currently 17 years. Technically, whether or not it
is consential, the actions of Clare and Jim are illegal. The legal age for
marriage is 18 years. Under the Marriage Act 1961, only a court can grant this
permission. Obviously parental support will assist any application but courts
are reluctant to do this. In the case of abortions, certain requirements must be
met before the procedure can be performed.
5.
Clare’s older sister Maria, who was just about to celebrate her 18th
birthday, had fallen in love with her teacher – 25 year old Mikael. After a
night out the two consumed a bottle of champagne Clare had purchased
form a local hotel and they had sex at his flat. She had reassured Mikael
she would not get pregnant because her doctor had prescribed the pill for
her following a previous incident around the time of her 16th birthday.
Advice Clare and Mikael.
Assuming Maria is not yet 18 years of age, a number of offences have been
committed. Firstly, in relation to the sale and purchase of alcohol, the supplier
and Maria have both committed offences. The relationship with her teacher is
also an unlawful one as she is under 18 years and there is more than five years
difference between the two. Teachers as carers in positions of trust are in law
more culpable in such a situation, hence Mikael could face serious charges.
Her reassurance to Mikael is generally irrelevant, though in a trial there may
be submissions about whether or not the relationship was consential and
Maria’s proximity to adulthood that may be relevant in determining an
appropriate penalty or in fact determining whether or not the DPP decides to
run with a criminal case.
6.
Amy’s boyfriend Garth, aged 17, who has just obtained his driver’s
licence, is injured in a serious road accident. He was not at fault and
wished to sue the other driver. The car unfortunately was a write-off and
he had borrowed $10 000 for the car from a bank for the car he had only
owned for a week. The bank wanted repayments but Garth told them he
did not have to pay because he was under age. Advise Garth. Generally speaking, persons under the age of 18 are still able to engage in
contracts of necessity and the contract for the purchase of a car falls within
this definition. Hence Garth is liable for the payments to the bank. Civil action
against the other driver is an option, although it is extremely rare for liability
not to be apportioned in some way in such cases.
Discussion questions [page 148]
1.
When is a parent justified in using physical force on a child? Parents are allowed to use reasonable physical punishment in the rearing of a
child however such force could be deemed excessive, where it results in injury
to the child.
2.
Should the law force health professionals, teachers and others to tell the
authorities if they think a child is being abused? What are the benefits
and are there any disadvantages? Yes. Although this can be fraught with difficulty in some situations, child
abuse remains largely unreported as highlighted by the Mullighan Inquiry and
involving carers in potential disclosure will help address the problem. There is
also much evidence to suggest that abused persons can become part of an
ongoing cycle of abuse as perpetrators themselves and a history of abuse can
correlate with certain criminal behaviours. It could be argued that this imposes
a heavy burden on teachers and the like and may lead to a breakdown of the
family unit that can be counter productive for all parties. Once disclosure has
been made, the key is appropriate support and resourcing to support not only
the victim, but the perpetrator if deemed necessary.
3.
Anyone who suspects that a child is being harmed can tell the authorities.
What are the benefits of this? Could it create any problems? see above
4.
The Child Protection Act, s. 4(2), suggests that the law thinks it important
to keep children with their parents if possible. What are the arguments in
favour of this approach? What are the dangers? The stability of the family unit is vital to support the ongoing development of
a child and to assist in the maintaining of relationships with family members.
Obviously, there are concerns where leaving an individual in a dangerous
situation could be detrimental to both their physical and mental welfare and
perpetuate the problem.
Discussion questions [page 151]
1.
In what ways is section 3 consistent with the Convention on the Rights of
the Child? Is it inconsistent with it in any respect?
The convention on the Rights of the Child (see web reference at the end of the
chapter highlights a number of sentiments echoed in the legislation in section 3.
These include:
…“children should be afforded the necessary protection and
assistance so that it can fully assume its responsibilities within the
community.”
“The child, by reason of his physical and mental immaturity, needs
special safeguards and care, including appropriate legal protection,
before as well as after birth.”
“For the purposes of the present convention, a child means every
human being below the age of 18 years unless under the law
applicable to the child, majority is attained earlier.”
“In all actions concerning children…the best interests of the child
shall be the primary consideration.”
It is not explicit about the things contained in the legislation in 3.(2) or (2a)
2.
Do you think these policies are the right ones to be applied by the law when
a youth commits an offence?
Data from the Office of Crime Statistics (www.ocsar.sa.gov.au) tends to suggest
that where the right strategies are used there is a very real chance of altering the
behaviour of youths such that they may not offend, before they reach their mid20s. In many cases there is a high correlation between the offending and family
history in terms of access to a ‘supportive and functional’ home life. The family
environment and education are vitally important. In some circumstances, it may
be possible to argue successfully for different treatment in dealing with an
offender, for example, the offender who may have a set of mental health and
other health problems that is currently receiving support and education in
relation to this while in detention with pleasing results, may be better retained in
detention where they can continue to access this support than be released
because the sanction is deemed to be too harsh.
3.
Argue a case for changes to the age at which a child can be held to be
criminally responsible for their actions.
Some may argue that the incidence of criminal activity on the part of youths is
not decreasing and that the severity of the crimes is increasing while the age of
offending is decreasing. Perceptions such as this may be fuelled by media
reports and really needs to be justified according to available and quantifiable
data.
Others also argue that youth’s today have a sense of what is right and wrong at a
younger age than 10 years and hence should be responsible at a younger age.
Again this would need to be supported by hard evidence before any parliament
would consider a change, not withstanding the fact that other parliaments in
Australia may have done so.
Discussion questions [page 155]
1.
Do you think an informal caution would have any effect? Why or why not?
Obviously it is not going to have the same effect on all individuals. It may
however, serve to enhance relations between some youths and the police in
terms of their opinion of the police, while also serving as a kind of warning or
chance. For others there may be an expectation that flows that warnings should
continue without any further consequences for repeated behaviour.
2.
How successful do you think formal cautions and family conferences would
be in achieving the intentions set out in section 3? Can you suggest
anything that would make them more successful?
Generally, they are extremely successful provided individuals agree to attending
the family conference and the persons conducting the family conferences have
the requisite skills. For some youths, no amount of cautioning or the structure of
a family conference will not work, but I suspect this is in regard to a minority of
cases.
In terms of family conferences, much of the success is contingent upon the
range of available services and agencies to support any initiatives.
3.
Do you think it right that Youth Court proceedings are not public and
cannot be reported in the media as cases involving adults can? Why or why
not?
On the one hand many will argue that if they were public, the shaming process
associated with publicity and access may act as a deterrent for youth, while
others will argue that these things are not considered by offenders at the time of
the offending and that many offences are related to spur of the moment
decisions depending on perceived needs or opportunities. The problem with
publicity is the label that it attaches to persons, in some cases permanently and
in a way that can affect the rest of their lives.
4.
Are young offenders given ‘special’ treatment? Justify your answer.
Technically yes, in accordance with the relevant legislation that also reflects the
principles in the Declaration of the Rights of the Child and for the reasons
expressed above. It is important that people understand the reasoning behind
this. Any discussion should seek to define the term form a learner’s perspective,
identify those things considered to be examples of special treatment and analyse
them using tools such as a PMI Chart (Plus, Minus, Interesting) in a group
setting.
One example of ‘special treatment’ that may fit with the agreed definition is the
maximum time in detention for young offenders where they are not tried as
adults.
5.
Are the large number of community service hours both realistic and
justifiable?
There are always potential problems re compliance in terms of community
service hours. As a general rule 300 hours would equate to about 37.5 days that
for youths is more likely to be 37.5 x 5.5 hr days to mirror the requirement
when attending a learning institution such as a school.
The real issue relates to the task or tasks that are to be performed. Community
Service for the sake of ‘doing some hours’ is of little benefit to either the
individual or the community it is meant to serve. It needs to have some sort of
educative focus and involve the offender in having to work with people in order
that they can develop further their interactive skills. Financial constraints limit
the potential to make such improvements to the current system.
The other problem relates to situations where multiple offences have been
committed. Ordering community service for each offence compounds the
problem resulting in a situation on may occasions where the hours are so great
they cannot be realistically completed in the given time frame if at all.
Activity Box [page 155] These questions would best be done a s a group activity where
other learners could share their own views about what might be an appropriate outcome in each
case
1.
A youth, 13, has been caught marking graffiti on a railway station for the
second time. He was informally cautioned the first time.
Issue a formal caution as he has already been informally cautioned for the
offence before.
2.
A youth, 14, was caught carrying 60gm of cannabis. She has not been
caught with drugs before but six months earlier she had been found
drunk in public and was taken home by police. Being drunk in public is
not an offence.
Give an informal caution, but try to support the youth by finding out a little
about her circumstances, possibly even offering to be a point of future contact
so as to be seen as supportive and understanding. If it is possible to establish a
rapport then one could consider a warning about the next stages in the
continuum.
3.
A youth, 15, stole a car and crashed it. He has previously been informally
cautioned for trying a set of keys in the locks of some cars in his street.
Depending on the attitude of the victim, encouraging a family conference
where the aim of the exercise would be to try to get some agreed obligation
about what the offender cold do to account for the loss on the part of the
victim and the damage.
4.
A youth, 16, was in a fight and punched another boy, causing facial
injuries. This is his first offence. He says he is proud of the offence
because the other child was African and should not be in Australia.
This is potentially a very serious offence and depending on the investigations
and the attitude of the victim, could result in proceedings in the Youth Court
before a Magistrate or Judge. There is the potential for a Family Conference to
work as well, particularly if run with a clear Restorative justice perspective.
5.
A youth, 16 was caught selling some ecstasy tablets to friends. She has no
previous offences.
This depends on the amount of tablets being sold and again other
circumstances as the offence is potentially very serious and could warrant a
court trial for dealing in prohibited substances. Motivation for the selling of
the tablets would be another important consideration as would some education
about the potential danger and the need to deter further action of this type in
the interests of the community.
6.
A youth, 17 broke into a house where a family was sleeping, intending to
steal money. He has no previous offences of breaking into homes but he
was formally cautioned last year for stealing money from his employer. Depending on the attitude of the victim(s) a formal caution may be enough
however I would be tending towards wanting the youth to attend a Family
Conference to fully appreciate the extent of their behaviour. This is a serious
offence and potentially carries with it s period of detention.
Discussion questions [page 157]
1.
Is it right that a youth who is charged with homicide should have to be
tried in an adult court? Why or why not?
Arguments for would consider homicide as the most serious of offending and
the taking of a life requiring the ultimate penalty hence parliament has deemed
such an offence worthy of treatment as an adult. Given that parliament is
elected by the community and representative of their views to a degree the
legislation around this would tend to accord with majority values.
The counter argument would consider points such as the age of adulthood
being established as 18 for good reason and consistent with this should be that
no child can be dealt with as an adult in the criminal justice system. The
requisite penalties are simply too harsh.
2.
Why might it be important that a child does not go to an adult prison or
spend time in custody with adult offenders?
Spending time in an adult correctional facility will impose youths to
considerable risks that can not only affect their personal development but their
safety. Adult offenders may see it as very opportune that youth are in their
company and seek to take advantage of them. Also under the current structure
the general term of imprisonment for youths will be on average significantly
shorter.
Discussion questions [page 160]
1.
Identify factors in each case the judge took into account before
determining the penalty.
See s10 of the Criminal Law Sentencing Act. Here there are twenty factors
that have to be considered in sentencing as well as considering previous
similar cases, other legislation and the aims of the Young Offenders Act.
2.
Are the sentences too light, too harsh or just right in each case? Justify
your response.
Factors to consider concern an assessment of the cases in light of all the
information presented and bearing in mind that the sentencing judge would
have available additional information presented at a sentencing hearing. This
is suited to a small group activity where group members can argue their own
position before the group presents an agreed view to the rest of the class.
There is emphasis placed on the potential future effect of a period of detention
that could ultimately increase the social and financial cost to the community
and the ability of a youth to reach their potential and contribute to society.
While many may view the outcomes as lenient, it is important to focus
attention on the aim of any punishment to be awarded.
3.
Imagine adults committed these offences. Should the sentence be
different? Why or why not?
The benefit of a different set of life experiences may make adults more
responsible and accountable for their actions. This is certainly the view of
parliaments across Australia that make a clear distinction between offences
committed by youths and those committed by adults. In many cases involving
a first offence, a suspended sentence may be ordered – something that a
sentencing judge has to consider in all but the most serious of offending.
Discussion questions [page 161]
1.
Why might the birth parents place their child for adoption?
For a range of reasons this could occur. Possible explanations could include:
ƒ The child is the result of an unplanned or unwanted pregnancy
ƒ Cultural reasons around gender
ƒ Policy re birth control
ƒ Financial difficulties
ƒ Capacity to provide for and cope with the responsibility for rearing a
child
ƒ Too many children already
ƒ Not wanting to expose the child to a particular ‘lifestyle’
2.
At what age should an adopted person be allowed to find out who his or
her birth parents are? At what age should he or she be able to meet them?
Are there benefits in leaving this until the child turns 18?
While the law says 18 is the relevant age unless there are special
circumstances disclosure at an earlier age is tenable depending on the
argument put forward. Legal responsibility for most things tends to be
different at age 18 as this is recognised in law as the age of adulthood.
It depends on the circumstances in each individual case and the attitude of
both the adoptive and natural parents and their relationship with the child.
3.
Should a birth parent be entitled by law to information about the adopted
child while the child is growing up? Why or why not? Does it make a
difference whether the adopting parents consent?
No, because they have forfeited that right when they put the child up for
adoption etc.
Yes because the main consideration is what is in the best interests of the child
and this may be the case for some situations etc.
Given the adopting parents have taken on a significant responsibility, they
could expect to be involved in any decision so consent on their part is
warranted, however the guiding principle should be what is in the best
interests of the child. This does not necessarily mean what the child thinks is
the deciding factor.
4.
There is no legal requirement for parents to tell a child that he or she is
adopted. Should there be? Is it better for parents to tell their child at an
early age, or is it better to leave it until the child is more mature, or even
an adult?
Arguments could be advanced for both sides here. For some situations, failure
to inform a child may lead to identity problems at a later stage and a range of
associated issues while for others it may not matter.
Statistics would probably show that more adopted children would want to
know about their natural parents than not.
Discussion questions [page 163]
1.
Should it be up to children, rather than the Court, to decide which parent
they want to live with? What problems might this create? Are there
advantages for children having the decision made by the Court if their
parents cannot agree?
Factors to consider include the age of the child, the existing relationship
between both parents and the child and with each of their parents. Giving
responsibility to the courts to make a decision while not ideal does make the
decision more objective and allows for consideration about what is in the best
interest of the child rather than the competing parties. Children of a young age
may be more easily influenced or swayed in terms of making any decision.
2.
Is it true that it is better for children if their parents separate, rather than
stay together as a couple when they are both unhappy? Or should they try
to stay together for the sake of the children? Is it different if there is actual
violence between the parents?
The response here will depend on the individual circumstances. Clearly, there
are examples of cases where despite being unhappy, parents have stayed
together in order to provide a stable environment for the children and have been
successful, while in other situations the unhappy relationship between the
parents may impact on children in such a way that it makes retaining the family
unit untenable.
In environments involving violence there would be good reason to keep the
children away from the warring parents unless there are exceptional
circumstances involved. Whether or not the parents remain together is their
decision unless the law intervenes.
3.
Debate the proposition that: ‘Parents should be the ones to move not the
children in the event of a breakdown of the relationship resulting in divided
custody arrangements.’
Arguments for include:
It is important to maintain the status quo for children re friends, education,
environment etc.
The children may not be the cause of the problem
Moving may result in undue stress for the child
This position is in keeping with the philosophy that the needs of the child are
paramount.
Arguments against include:
It is not economically viable
Children remain the responsibility of the parents until they reach the age of
majority and will have to abide by the decision or arrangements of the parents.
It is not necessary.
Topic 6 - Victims and the Law
Activity Box [Page 169]
Who are the victims of these crimes?
A person about to set off for work at a
new job finds that his or her car tyres
have been slashed
▪
▪
▪
A winery discharges toxic waste
chemicals into a nearby river
▪
▪
▪
▪
A drug addict breaks into a hospital
dispensary and steals morphine that
was to have been given to cancer
sufferers
▪
▪
▪
▪
A gang kidnaps and murders
recipients of social security pensions so
as to use their identities to claim
pensions for themselves
▪
▪
▪
▪
▪
The person
Members of their family that rely on
the vehicle or may have to deal
indirectly will any fallout from the
incident
The employer who may have to deal
with late arrival to work
Users of the river including
consumers and fishers
Beach goers that use the area
proximal to the outlet
Future generations affected by
degradation of the environment
The wine industry that earns a bad
reputation for such behaviour
Potential patients without access to
the morphine
Persons affected/traumatised by the
break in such as witnesses
Other patients anxious about security
Family of both the patients in waiting
and the accused
The murdered people
Their families and potentially friends
and relatives
Family, friends and relatives of the
accused
Anyone so closely affected that they
suffer in some way such as witnesses
or persons discovering the bodies
Jurors
Discussion questions [page 172]
1.
Should we report all the crimes that come to our attention? If so, what
good does this do? What would happen if all crimes were reported?
Obviously, some transgressions of the law are less serious than others. People
do not report all crimes for a range of reasons including fear, not wanting to
endure the strain of police or court involvement, not thinking the crime itself
was worthy of report or being apathetic. Reporting crime ensures that police are
aware of the event and can make an assessment about whether or not to take the
matter further. Such disclosure also enables rights to be better protected (in
theory) although the strain on resources may mean it does not result in any
action. Some victims feel there is little chance of actually catching an offender
and where they make disclosure about a crime they set off a chain of events
over which they have little control. (see page 172)
2.
If we should not report all crimes, what crimes should we report and why?
This is often a very personal choice, however those crimes where some sort of
injury or loss has been suffered should be reported. If crimes are left unreported
then this may send a message to the perpetrators that they can get away with
criminal activity and may result in more crime. In an ideal world, all crimes
would be reported but this requires everyone to have a full knowledge of the law
and to respect and uphold lawful behaviour at all times. It also requires that an
individual or group is less concerned about the personal risks and consequences
to themselves.
3.
Have you ever been the victim of a crime but decided not to report it?
What influenced your decision? Do you now think you did the right thing?
The best approach to this question is to have learners engage in small group
discussion. Depending on the crime involved, disclosure may not occur
however the real aim of the discussion should be around trying to make learners
aware of the range of potential victims from one incident. Discussion could still
occur at a hypothetical level.
4.
If a friend told you that he or she had been beaten up repeatedly by
another family member over some time, would you encourage your friend
to tell the police? If yes, why? If not, why not and what other action would
you suggest?
Again it would be interesting to gauge the different opinions here. For many
people there are issues around causing disharmony within the family unit and
whether or not they can trust someone with the information. Having other
agencies or forums other than the police where such information can be passed
on is essential.
5.
Is it true to say that a crime is a wrong against society as a whole, not just
the victim? What are the consequences of this approach for the victim?
By its very nature and definition, crime is a public matter. Laws that prescribe
criminal acts are made by the representative parliament, usually reflecting the
values of the majority and consequences flow in accordance with values around
revenge and retribution for the anti-social actions of offenders. The
consequences for the victim are that their involvement in a process they have
little control over may mean they remain a victim for a considerable length of
time. In many cases, despite the best efforts to protect the identity of a victim,
the very public nature of the process of bringing offenders to justice means the
victim can be identified.
Discussion questions [page 174]
1.
Should the victim have any say in the decision whether a suspect is
prosecuted?
To a certain extent, yes. This is because of the consequences that flow and their
likely impact on the victim. However, victims are not the enforcers of the law in
the community and while they should be consulted, they are not the ones to
make the decision. (A victim can still influence any investigation through their
level of cooperation as police cannot control this.)
2.
What problems might arise from the victim having no say?
In making a decision as to whether or not to charge someone with an offence,
police rely on the evidence required to sustain a charge and secure a conviction.
In many cases, the victim is just as happy to be given the opportunity to face the
offender, have an explanation of the crime and an apology and then move on.
For less serious offences this may be a better approach as it may lessen further
repercussions for the victim.
3.
What problems might arise if the decision was totally up to the victim?
The victim could be the subject of threats from other parties that cause the to
make a decision that is not objective and based on other motives. The burden of
such a decision may be too great for the victim to bear and result in other
unwanted consequences. The victim may not have the capacity to make such a
decision and the attitude and response of different victims may promote a
climate of uncertainty and inconsistency.
Activity box [page 176]
1.
Would you grant bail? Why or why not?
Some considerations include:
▪ The fundamental right of offenders to be able to apply for bail based on the
presumption of innocence.
▪ The seriousness of the offending and whether or not it is likely to continue.
▪ Safety of the victim and to a lesser extent the accused if place din custody.
▪ Likelihood that the accused may abscond
For a more detailed list refer to the Bail Act at www.parliament.sa.gov.au
2.
Assume that you do grant bail. What conditions do you set?
▪
▪
▪
▪
▪
Seek a guarantor
Establish reporting conditions
Establish a curfew to keep the accused in doors at night
Include a small sum of money as an additional deterrent
Consider the option of home detention bail
Discussion questions [page 178]
1.
How might a victim feel when told by police that a case has been dropped?
Many victims may feel cheated that having made the big step to disclose
information, there has been an unsatisfactory outcome. They may think that the
system has failed them and this could affect future events.
Others may consider this is in line with their expectations. It is critical that
victims are told in an appropriate fashion and given a full explanation where
possible.
2.
Would it be different depending on the type of crime?
Offences against the person such as those causing bodily injury may bring a
different response – it depends on the victim.
3.
What other factors might make a difference?
Factors include:
▪ Age of victim
▪ Nature of the offence
▪ Whether or not this was a first or subsequent offence
▪ Whether or not the offender was known to the victim
▪ Level of support for the victim
▪ Delays in bringing the matter to the courts…
Discussion questions [page 179]
1.
Should a person who is in fact guilty of an offence be given a lesser penalty
because he or she has admitted their guilt rather than requiring it to be
proved at a trial?
The system inherited from Britain is based on one where people are rewarded
for showing remorse. An admission of guilt prior to a trial is taken as a sign of
remorse and the reward is greater the earlier the plea. Without this it could be
argued that the system would become clogged with excessive trials. Others who
oppose this view may argue that the admission is simply a tactic to take
advantage of the fact that a discount will then apply and that this does nothing to
bring about change in an offender’s behaviour or disposition.
2.
Why or why not?
See above
Discussion questions [page 181]
1.
What are the benefits of plea-bargaining? Do they do any harm?
Lawyers have to act in the best interests of their clients. Part of this role includes
trying to establish the best possible outcome. In many cases, the best outcome is
a penalty less than the standard for a particular type of offending. They also
need to be mindful of the problems caused by delays and lengthy trials in terms
of the cost to parties and the state. Plea-bargaining is an option in both
situations.
In the eyes of the community at large and/or the victim(s), plea-bargains may
give rise to undesirable or unjust outcomes by enabling offenders to avoid a
particular sanction or enjoy less time in prison where they may be expected to
be detained longer. Some may perceive that a skilled lawyer can use pleabargaining to their advantage and to the detriment of the community at large.
2.
Should the prosecutor have to consult the victim before agreeing to a ‘pleabargain’? Why or why not?
While it might be worth considering, there could be concerns about the
objectivity of a victim. Consulting the victim may well make police aware of the
victim’s perspective that could be a positive step as it has the potential to work
both ways. It is also possible that it could pave the way for coercion or
corruption.
Discussion questions [page 182] 1.
In what sorts of cases would it be appropriate to use measures such as
screens or closed-circuit television to assist a victim to give evidence?
Cases where:
▪ The victim feels threatened by the accused
▪ Is traumatised by having to face the accused
▪ Where the victim is not present in the court room for example, overseas
during the trial
In such a case the decision to provide support in whatever form, remains at the
discretion of the trial judge.
2.
Should victims in all crimes have a right to use special measures, without
needing the judge’s permission? Or should these measures be a right in
certain kinds of cases or for certain kinds of victims?
In general terms, where there are good reasons to allow special measures, they
are introduced. There has even been a case where the accused volunteered to
give their evidence from outside the court room to support a victim’s request.
There is a danger that this could become the norm rather than a more isolated
occurrence affecting costs and case flow management. The accused also has the
right to face their accuser.
3.
What particular difficulties confront a child who accuses an adult of a
crime?
Depending on the age of a child there is the possibility of intimidation, the
ability of older persons to manipulate children, people are less likely to believe
the words of a young person, under cross examination by skilled counsel a child
may make contradictory remarks, having to revisit the circumstances of the
offending may result in trauma.
Activity box [page 183]
Re giving evidence behind a screen or in another room, what advantages does it
have? Does it create any difficulties for you?
Factors to consider:
▪ Not having to face the accused and maintain eye contact versus wanting to
do this.
▪ Does being removed from the court create a sense of not being involved in
the progress of the case?
▪ The lack of face to face contact may add to or lessen the level of comfort in
proceedings.
Discussion questions [page 184]
1.
Are the factors above the right things to consider in sentencing an offender? Can
you identify other factors that should be considered?
▪
▪
▪
▪
▪
▪
▪
2.
Pleading guilty is often considered as a sign of remorse, but what about the
person who does so simply to receive a discount?
Do lawyers present the information in a particular way so as to encourage a
particular response form the judge?
If a person is found guilty of a serious crime, should it matter whether or
not prison may have an adverse effect on their rehabilitation?
Should the victim or other community members have a say?
Should members of the jury who convicted, have a say in the sentence?
Should the nature of the offence be considered in light of what the
community deem to be serious or not?
What do you do with repeat offenders?
Comment whether enough attention is paid to the victim of crime in the
factors above?
By virtue of the fact that few of these if any make specific reference to the
victim, there is a lack of attention here. Should the victim be given the
opportunity to receive a formal apology if one is forthcoming? Is the victim
who gives evidence consulted about when is the appropriate time to do so?
3.
Should the victim have a direct say in deciding the penalty? Why or why
not?
Factors in favour:
▪ As victim they have a keen sense of the damage suffered and can
express a desired outcome
▪ The victim impact statement goes some way to achieving this any
way
Factors against
▪ The victim may not know or understand the relevant law in the area
of the offending
▪ The victim’s response may lack objectivity
▪ The victim may focus solely on revenge
▪ The responsibility may be too great for the victim
▪ It is simply not their role
[page 185]
Read the situation, Reckless driver loses licence for killing and prepare your
sentence in this case including the penalty and any conditions.
Consideration needs to be given to what the law actually says in the Criminal Law
Consolidation Act 1935
▪ Note the circumstances of the offending and the submissions of either side.
▪ Note the details of the victim impact statement.
▪ Note whether or not this is a first offence
▪ Is the use of cannabis significant in the context of the accident?
▪ Is there any remorse?
▪ What did the witnesses say and how believable were they?
▪ Is the offender to be imprisoned?
▪ What is the head sentence?
▪ Are there grounds to suspend any sentence of imprisonment?
▪ When should the offender be eligible for release?
▪ Should the offender enter into a bond of some description?
Activity box [page 186]
In Mr Payne’s case, identify factors in favour of a high penalty and factors in favour
of a low penalty. Comment on whether you think the sentence was too high, too low
or about right, giving reasons.
High penalty:
▪ Traffic conditions at the time.
▪
▪
▪
▪
▪
▪
Wilful disregard of the law and road rules
Age of the victim
Seriousness of the offence
Criminal history
Previous similar cases
Subsequent speeding offence
Lower penalty:
▪ The pea of guilty
▪ Age of dependants and likely impact on them
▪ Guilty plea
▪ Previous similar cases
▪ The letter to the family
▪ Circumstances around the speeding offence
Discussion questions [page 192]
1.
Is restorative justice equally suitable to all types of offences? If not, why
not? Give examples of offences where it might not work as well.
Generally, RJ can apply where people admit to the offending. Even where
someone admits to the offence it is difficult to apply if the offender and victim
have very different views about what should happen. Some critics of RJ also
argue that increasing the role of victims may lead to greater inconsistency re the
penalty regimes or that where children are concerned, particularly younger
children, the approach is less successful.
Offences where it may not work as well include sex-related offences involving
abuse of a young person and perhaps those offences where the criminal act was
planned and carried out with a particular motive in mind.
While there is generally a great deal of emotion and stress in cases of cause
death by dangerous driving, there have been instances where the acceptance that
a deceased person cannot be brought back promotes a feeling of support for RJ
methods as it provides some closure for the victim’s family and friends.
2.
If a crime is a wrong by an individual against the state, or against society as
a whole, is it appropriate that the action to be taken to deal with it is
worked out between the victim and the offender?
In most cases, despite the involvement of victims in RJ processes there is still a
sanction of some form issued to the offender. RJ really focuses on the reasons
behind the behaviour and admissions around the behaviour that may result in the
element of remorse being a consideration in the sentencing of the offender.
Where an offender participates in RJ processes, there is probably less likely to
be a repeat of the offending in the future.
Following the premise that straight punitive measures in dealing with offenders
do not generally work, the use of RJ is an important consideration.
Discussion questions [page 194]
1.
What difference does money make to a person who is a victim of crime?
For some it may make no difference at all, while for others it may provide
further acknowledgement of the offending against them and the opportunity to
move forward without having to take civil proceedings against the offender.
In some cases for example, the money will allow the victim to participate in a
range of programs, re-locate or take time away from various commitments to
reflect and relax.
2.
Is $50 000 adequate compensation for some criminal injuries? Why or why
not? Does it make any difference that the money is paid by the fund rather
than by the offender?
Possibly not, however it is preferable to a situation where there is no money
available and victims can pursue action in the civil courts. For many victims, the
issue of an offender being responsible for the payment is significant however in
many cases the offender doesn’t have the financial means to do so and a victim
could be waiting for an inordinate amount of time for any payment.
3.
Are there other ways we could help victims to overcome the effects of a
crime, apart from paying monetary compensation? What else might be
helpful to them?
Apart from monetary compensation, access to a range of services, agencies and
support networks is important. These might include counselling services,
participation in a ‘friends of’ group and the ability to link up with other victims.
Many of these require funding support to a degree. It is important to remember
that the range of victims extends beyond those directly involved in the criminal
offending. Some victims may find it beneficial to be involved in educative
programs, while others may find it valuable t be consulted about proposed
changes to laws.
4.
Is it fair that people who commit offences that do not cause injuries (for
instance, speeding) should have to pay a levy to compensate people injured by
crimes? Why or why not?
Some considerations include:
Yes argument:
▪ Persons can be victims without suffering any injury
▪ The imposition of the levy raises awareness of responsibility for actions and
the concept of ‘victims’
▪
Levies are an effective means by which the burden of compensation for
potential victims can be shared
No argument:
▪ There is nothing to compensate people for
▪ The levy is just another form of taxation
▪ The money does not go directly to the victim
▪ People fail to make a connection between the levy and its purpose
5.
Is it fair that a prisoner who is serving a sentence for a crime, such as
armed robbery or home invasion, can claim compensation if he is attacked
in gaol by another prisoner? Is there any difficulty in describing that
person as a victim of crime?
For some people, whatever happens in prison goes hand in hand with the
sanction of imprisonment.
Others may hold the view that the purpose of imprisonment is to protect the
community and punish through denial of freedom and not expose offenders to
the threat of physical violence.
For more information visit www.voc.sa.gov.au and www.victimsa.org or contact
the victims of crime coordinator
Topic 7
Motorists and the Law
The function of motorist laws
Discussion questions
Pages 204/205
1 Should the Parliament listen more closely to the views of young motorists?
• Obviously yes, but responsible lawmakers must take a number of factors into account, such as:
• age and maturity of young motorists
• driving ability and experience of young motorists
• statistics of young motorists, re breaches of traffic laws and number of accidents
• need to balance the needs and rights of all aged motorists
2
Do motorist laws discriminate against young drivers?
• Yes, but for rational reasons, such as:
• driving ages and conditions eg L and P plate provisions
• drink driving prohibitions and speed limits to prevent accident
3
What overriding factors should the law-makers consider when making motorist laws
See pages 201 and 202
4
What are the main functions of motorist laws?
See pages 198 and 199
5
What are the specific objectives of motorist laws?
See the list on page 199
6
Which tier of government has the jurisdiction to make motorist laws? Why?
• State and Territory tiers
• road traffic and motor vehicles are a residual power of the States (ie a power not enumerated in the Australian
Constitution)
• The NT and ACT received their powers from federal statutes pursuant to section 122 of the Aust Cons
7
How is Australia addressing the need for national road laws?
• As stated above, motorist laws are a residual power of the States and therefore they have the propensity to
significantly from State to State
• To address fragmented approach to road traffic laws the Cwlth, States and Territories created The National
Road Transport Commission which makes the “Australian Road Rules” which all federal partners have agreed
to codifiy into local laws.
8
What factors do the lawmakers take into account when making motorist laws?
See pages 201 and 202
9
Who are the main participants in the making and enforcement of motorist laws?
See pages 203 and 204
10 Identify and explain the two principal statutes concerning motorist laws in South Australia.
• Motor Vehicles Act 1959
• Road Traffic Act 1961
See page 204
Activity Box
Page 205
Specific answers cannot be provided for these exercises.
Driving licences
Activity Box
Page 210
Specific answers cannot be provided for some of these exercises.
2 List the steps a young person must undertake to get a Learner’s Permit.
• The Driver’s Handbook provides an excellent step-by-step guide what a young person must follow to get a
Learner’s Permit
• See pages 207/208 for a brief overview
3
Briefly outline the nature of the theory test that a person must pass to get a Learner’s Permit.
• The Driver’s Handbook provides an excellent guide of the theory test
• Young people intending to sit for the Learner’s Permit are advised to do the example questions located on the
TransportSA’s website on www.transport.sa.gov.au
4
Explain the two different ways a young motorist can get a Probationary Licence after attaining a Learner’s
Permit.
• The Driver’s Handbook outlines the two methods:
• Vehicle On-Road Test (VORT)
• Competency Based Training course (CBT)
• See page 208 for a brief overview
5
Why has the SA Government introduced the Graduated Licensing Scheme?
• To provide a thorough, comprehensive and effective introduction of responsible driving to young motorists so
they are more likely to be responsible motorists who have fewer accidents, and are les likely to break the road
traffic laws.
Review questions
Page 211
1 How are uniform national laws on drivers’ licenses made?
• The model of co-operative federalism used where the National Road Transport Commission considers reforms
to driving licences and decides on a uniform approach.
• Each State and Territory then passes identical legislation and regulations to enforce and administer these
national standards.
2
What are the major classes of drivers’ licences in Australia?
See the list on page 206
3
What are ‘licence conditions’ and why are they necessary?
• See the list on page 207
• They are designed to ensure that motoring standards are as high as possible, for example, inexperienced drivers
have a “Z” classification to prohibit them driving with any level of alcohol in their blood which could cause
accidents and therefore harm to other people or damage to their property.
4
What are the statutory requirements for obtaining a:
(a) Learner’s Permit
• See page 207/208
(b) Probationary Licence
• See page 208/209
5
What statutory requirements are placed on:
(a) Learner’s Permit
• See page 208
(b) Probationary Licence
• See page 209
6
Explain the following as they apply to the Graduated Licensing Scheme:
(a) Learner Driver Log Book (LDLB)
(b) P1 and P2 Probationary Licenses
(c) Hazard Perception Test (HPT)
(d) Driver Awareness Course (DAC)
See pages 208 to 210
These concepts are also well explained in The Driver’s Handbook.
Discussion questions
Page 211
1 Does the Graduated Licensing System promote responsible driver attitudes and habits?
• The GLS only commenced on 31 October 2005 so it is too early to provide objective evidence whether it does
or does not.
• Could argue that any system devised to improve driver skills and attitude have to be applauded and given time
to take effect in the community.
2
A proposal to raise the age limit to 18 years to be eligible for a Learner’s Permit has been suggested. Provide
arguments for and against this proposal.
ARGUMENTS FOR
• 18 year olds are more mature and more likely to be responsible drivers than 16-17 year olds.
• Road accident statistics indicate that young drivers are more involved in accidents than other comparable age
groups so the measure could reduce road accidents.
ARGUMENTS AGAINST
• Would face intense community resistance, obviously from young people, but also from families who may want
their teenager children to have licences to attend learning centres and for employment.
• Could adversely impact on the employment opportunities and obligations of young people eg apprentices are
expected to report at work sites with their tool kits
3
Discuss why it is important to have a national system of Licence Classes and Licence Conditions.
• Need a national uniform driver licence system for interstate drivers of heavy vehicles, including coaches and
semi-trailers to prevent the possibility of accidents and drivers using multiple State licences to make a mockery
of the nation’s road traffic laws.
• Consistent driving standards
General road rules
Activity Box
Page 214
Use The Driver’s Handbook to answer the following questions:
1 What are the speed limits applicable to:
(a) arterial roads in metropolitan Adelaide
60 kph (eg Anzac Highway, South Road, Main North Road)
(b) suburban roads in metropolitan Adelaide
50 kph, unless specific Councils have lowered the speed limit to 40 kph (eg Unley Council)
(c) country roads
100 kph, unless speed limits allow 110 kph
(d) roads within a school zone
25 kph
(e) roads under construction with signs displayed
Can vary between 15 kph to 25 kph.
Going past a parked utility vehicle with warning lights displayed, 40kph
2
What special conditions apply regarding speed limits for:
(a) Learner’s Permit holders?
• Cannot exceed 80kph whatever the speed limit is.
• Will lose licence if exceed any prescribed speed limit by 10 kph or more.
(b) Probationary licence holders?
• Cannot exceed 100kph whatever the speed limit is.
•
Will lose licence if exceed any prescribed speed limit by 10 kph or more.
(c) Drivers of commercial passenger buses?
• Cannot exceed 100kph whatever the speed limits is.
3
What do the following road signs mean:
From the top row to the bottom row, from left to right:
Two lanes merge into
one lane
Bicycle land
Children crossing
Dip or bump in the
road ahead
A sealed river crossing
ahead
Recommend 45 kph
speed limit on right
hand road turn ahead
Pedestrian crossing
immediately after
turning left
Must give all other
vehicles the right of
way
Road crossing ahead
One lane divides into
two lanes ahead
No right turn
An overpass will only
allow a vehicle lower
than 4.2m to pass
under it.
Can do a u-turn
Road narrows ahead
A road on the left joins
the road ahead
Self evident
Speed limit on this
road is 60 kph
Traffic is only allowed
to go in the direction
indicated by the arrow
No going into the road
indicated.
Must keep to the left
hand side of the road
4
Outline four ways that a driver must give way to another vehicle. You may draw diagrams to support your
answer.
• The Driver’s Handbook clearly demonstrates a number of situations.
• The most common situations are:
• at a Give Way sign
• at a Stop sign
• at a Red traffic light
• when approaching a “T” junction
5
Use the website www.transport.sa.gov.au or brochures obtainable from a CSC to highlight a range of traffic
offences and their demerit points in the range 1 to 6.
• See page 213 for examples
Discussion questions
Page 215
1 Is the demerit system an effective deterrent to bad driving behaviour?
Points that could be considered
• Yes, as they do eventually lead to licence disqualification and drivers do not want to lose their licences
• Some evidence to suggest that many disqualified drivers still continue to drive after disqualification which
would suggest a mockery of the demerit system.
2
A motorist is charged with dangerous driving while travelling at 40 kph in a 60 kph zone. Under what
conditions could this occur?
Possible situations
• Very poor visibility conditions
• Road congested with pedestrians, such as leaving a sporting arena
• The motorist has a condition that lowers his or her driving performance, eg driving without prescription glasses
3
Is impounding a motor vehicle for 48 hours an effective deterrent against ‘hoon driving”?
Points that could be considered
• Yes, as young people are most reluctant to lose access to their vehicles
• No, if the vehicle is stolen or does not belong to the offender
4
There should be no road rules in large vacant car parks. Discuss the merits of this proposal.
ARGUMENTS FOR
• There is a general expectation by pedestrians and motorists that roads traffic laws will apply
• Could simply encourage car parks turning into mock racing tracks where people’s safety and property are put
at risk
Review questions
Page 215
1 Outline the main speed limits in metropolitan Adelaide. Why do these different speed limits exist?
There are essentially four main speed limit zones:
Main arterial roads
60kph
•
Suburban roads
50 kph
Specific Council areas
40kph
Special zones
70-80 kph
Eg past Adelaide Airport
on Tapley’s Road
These speed limits reflect the general road conditions and likelihood of accidents occurring
2
Outline the two main roles performed by road signs.
• Prescribe the standard between lawful and unlawful behaviour eg a speed sign
• Warn motorists of changes in road conditions or to recommend safe driving habits eg animal crossings
3
What is tailgating and why is it considered a traffic offence?
• What? Driving too close behind another vehicle. The distance will vary according to the speed the vehicles are
travelling at. At 60kph the vehicle rear should leave a gap of 6 or 7 car lengths, or a two second interval.
• Why? A very dangerous driving practice that can lead to serious road accidents where people are likely to be
injured or killed and property damaged. Accidents occur because the vehicle behind is usually unable to stop in
time to prevent an accident if the front vehicle stops suddenly.
4
Explain how the demerit system is used to disqualify a Driver’s Licence.
See page 213
5
What is “illegal use of a motor vehicle” and how are the impounding amendments to the Road Traffic Act
1961 designed to prevent it?
• See the “Did you know box on page 212
• It is anticipated that ‘hoon drivers’ are less likely to use their vehicles in anti-social ways if they are likely to
have it impounded (confiscated) for a short period of time.
Alcohol and motor vehicle use
Activity Box
Page 218
Use The Driver’s Handbook to answer the following questions:
1 What type and number of drinks will render a person over the legal alcohol driving limit?
• No alcohol level, and therefore no alcoholic drinks when intending to drive with a Learner’s Permit
or a Probationary Licence.
• Drinking three or more standard drinks in the first hour usually causes a person’s BAC to go above 0.05. For
women, it is two or more standard drinks.
• A standard drink includes
Low alcohol beer475 ml
(pint)
Ordinary beer
285 ml (schooner)
Wine cooler
285 ml (schooner)
Table wine
120ml (red or white)
2
How quickly does a person’s BAC fall so that a driver can legally drive home from a social engagement?
• Approximately 10% of alcohol passes out of the body unchanged by breath, urine and sweat.
• Approximately 90% of alcohol in the bloodstream is broken down by the liver. As a general rule, it takes the
liver about an hour to dispose of the alcohol in one standard drink. This means the BAC drops by about 0.15
per hour.
• This means a BAC of 0.05 will take approximately 3-4 hours to reach zero.
3
What strategies are suggested for legally mixing alcohol consumption and driving a motor vehicle?
• Don’t drink at all. Find other ways to get home, such as take a taxi, arrange to be picked up, stay the night, use
public transport or take in turns with one person not drinking.
Discussion questions
Page 219
1 Is random-breath testing by police an invasion of our civil liberties?
• Strictly yes, but society appears to accept the system in the anticipation that there will be fewer drink drivers
on the road and therefore fewer accidents.
2
Should police have the powers to disqualify a person’s driving licence immediately?
ARGUMENTS FOR
• Similar argument to above. The practice will act as a very effective deterrent so there is likely to be far fewer
drink drivers so public roads are more likely to be safer for responsible motorists.
ARGUMENTS AGAINST
• It abrogates the presumption of innocence principle as the motorist is denied the opportunity to test the
prosecution’s case at a trial
• Gives police far too much power which can be too easily abused or misused.
• A person could be “convicted and sanctioned” and later be proven innocent.
3
Some countries impose automatic gaol sentence on convicted drink drivers and/or confiscate a convicted
drink driver’s motor vehicle. Should Australia adopt these drastic measures?
• The arguments are essentially the same as in Question 2 above.
4
A young female on a Probationary Licence is apprehended with a BAC of 1.0. What is the most appropriate
penalty?
• The penalty for an ordinary licence holder is a loss of licence for a minimum of 6 months and a fine between
$500 and $900. See page 217.
• Should the penalty be higher for a Probationary Licence holder?
Review questions
Page 219
1 Why are there strict laws against drink driving?
• To protect the lives, safety and health of other road users, plus protect their property from damage.
• As the propensity of a drink driver to commit harm is much higher than an ordinary driver there must be very
strict rules and penalties to deal with this type of anti-social behaviour.
2
Outline the difference between DUI and PCA.
See page 217.
3
Under what conditions can a police officer breath test a driver?
See page 216.
4
What are the penalties for drink driving offences?
See page 217/218
Motor vehicle responsibilities
Activity Box
Page 222
It is not possible to provide specific answers to these questions.
Students are strongly recommended to undertake these exercises seriously as they will be useful experiences preparing a
young person for car ownership and vehicle budgeting.
Discussion questions
Page 222
1 Drink driver should accept total financial responsibility for the personal injuries they because. Do you agree
with this proposition?
ARGUMENTS FOR
• Social justice. Guilty adults should accept responsibility for their unlawful behaviour.
ARGUMENTS AGAINST
• Social equity. Unreasonable and unjust to expect youths and poor people to bear an excessive financial burden
as it is likely to cause more problems than it tries to overcome. Eg could lead to violence, suicide, criminal
behaviour, drug or alcohol abuse and/or marriage breakdown.
2
Should the Government implement compulsory third party property insurance?
ARGUMENTS FOR
• The principle is applied with third party person insurance and so it would be defensible to extend it to property
insurance.
• Social justice. Why should innocence parties bear the cost of damage caused by the unlawful or negligent
Actions of others, especially as this time of insurance is relatively inexpensive.
ARGUMENTS AGAINST
• Unreasonable intrusion into the civil liberties of the individual.
3
Students on low incomes should be eligible for subsidised vehicle registration and insurance. What are the
likely costs and benefits of implementing this proposal?
BENEFITS
• Social equity and justice. Students gaining an education now for which they can make a greater contribution to
society in the future in the form of higher tax payments as their income will be high
COSTS
• Means the burden is pushed onto the taxpayer.
• Students who can afford to pay vehicle costs simply push their personal burdens onto the tax payer.
Review questions
Page 222
1 What is care registration and why is it paid?
See page 219
2
Why is third party (bodily) insurance compulsory?
See page 220
3
Outline what a young driver should do if he or she injures another person.
See page 220
Topic 8 Young Workers and the Law
Activity Page 228
Select four industry categories and examples of occupations within
these industries.
Examples
Retail industry
Hospitality industry
Information technology
Agriculture
vineyard
Salesperson for David Jones
Barperson in a hotel
Programmer for an IT business
Viticulture – worker in a
Industries may be categorised as agricultural and non agricultural, or as
Primary, Secondary (manufacturing), Tertiary (distribution),
Quaternary (information processing) and Quinary (domestic services).
Activity Page 229
Examples
Full-time permanent
Part-time permanent
store
Casual worker
Subway etc.
Contract temporary
Seasonal
Voluntary
Shift work
Self-employed
government department worker
retail e.g. David Jones, Myers
fast food e.g. McDonald’s,
replacement teacher for one term
grape/fruit pickers
CFS
Nurses
Accountant with own business
Discussion Question Page 230
Should employers have the right to test employees for drugs?
YES ANSWER
It would make workplace safer
It would weed out unsuitable employees
NO ANSWER
It would be an infringement of personal liberty
A person who tests positive has no way of defending him or herself if
they claim innocence (was the test accurate?)
Activity Page 230
Young Worker’s Charter (Possible rights to be included)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Right to a safe workplace
Right to fair pay for a fair day’s work (award rate)
Right to annual holidays
Right to leave entitlements e.g. sick leave, carers, parenting etc.
Provision of protective clothing, uniform allowance
Have rules regarding notice of roster changes
Able to negotiate an agreement for working conditions
Protection from discrimination and sexual harassment
Protection from unfair dismissal
Workers’ compensation entitlement
Other possibilities would include right to join a union or choice not to
join.
The Activity on page 232 has not been provided with answers because
answers will be of a personal nature. Some teachers may choose not to
do this activity, as it could be time consuming.
Activity Page 234
Health and Safety obligations of the employer
1.
A safe workplace e.g. guards on machines, chemicals stored
properly
2.
Safe work procedures e.g. the lifting of heavy loads
3.
Provision of equipment, information, training and supervision
in order to be able to work safely
4.
OHSW representative elected by workplace – training provided
5.
Factors that affect health e.g. good lighting, ergonomic
furniture
Protection provided by WorkCover
1.
Compensation for injury certified by a doctor
2.
Rehabilitation of workers – counselling, medical treatment,
physiotherapy, re-training for a new job
3.
Workers’ compensation payments – lost wages medical and
other expenses
(Employee Advocate Unit of WorkCover advises employees)
Discussion Question Page 234
Discuss the range of strategies that employers may use to evaluate
the effectiveness of the occupational health and safety program in
the workplace.
An employer could consider the following
1.
2.
3.
4.
5.
An annual audit of OHSW practices including storing, and
handling of chemicals/drugs
An ongoing review of safety equipment at regular intervals
A personnel survey – periodically to raise any concerns by
workers
A review of induction of new employees – a follow up survey
at 3 months, 6 months etc to see how effective the induction
program was
Regular meetings between the OHWS representative and
management
Activity Page 236
Case Studies
1. In cases no. 1 the type of discrimination is sex discrimination based
on stereotyping of females.
In case no. 2 the type of discrimination is based on
employment/job applicant category.
2.
The role of the EO Commissioner in resolving disputes
includes
administering the EO Act
receiving complaints
providing conciliation conferences
providing access to the EO Tribunal
3.
law)
Why should discrimination be unlawful? (refer to functions of
Because there are identifiable disadvantaged groups in society
and the community upholds the value of the equal opportunity
principle. The EO law identifies unacceptable conduct and protects the
rights of people by providing dispute resolution for those with a
complaint of discrimination.
Activity Page 238 Fictitious Situation
1.
The basis of Annabelle’s claim is that there was no height
requirement and her limp was not a disability that would prevent her
from carrying out tasks as an MFS officer
2.
If Annabelle cannot get a quick resolution of her claim through
mediation she can have the matter heard by the Equal Opportunity
Tribunal
3.
The likely outcome for Annabelle is that she may be offered
employment with MFS if it can be shown that her limp does not in
any way stop her from being an effective fire fighter. However, the
ability to move quickly is an essential requirement that she may not be
able to meet.
Activity page 239 Fictitious Situation
1.
Why should harassment be unlawful?
Because it is a violation of sexual privacy
2.
How should you handle sexual harassment if it occurs while
you are on work experience?
Report the incident to your supervisor and make a written
record and date it. If you don not receive an apology and an
undertaking that the behaviour will stop you should report the incident
to the EO Commission.
3.
Apart from Verity’s experience, what other types of activity
would be regarded as sexual harassment?
• Suggestive behaviour – leering, ogling
• Unnecessary familiarity – deliberately brushing up
against a person, touching, fondling
• Sexual jokes, offensive telephone calls, photos, objects,
emails, SMS
• Sexual propositions or continual unsolicited requests
for dates
Ben’s case
1.
What is affirmative action and why is it necessary?
It is positive discrimination and is a process to remove barriers
that restrict opportunities for particular groups e.g. women, indigenous
people, people with disabilities. It is necessary to consciously
encourage more women into areas of male dominated employment.
2.
Do you consider such a policy to be fair or just? Explain your
answer.
YES ANSWER
Provides opportunity for women in areas previously not open to them
Also provides opportunities for other groups e.g. people with
disabilities, indigenous people.
NO ANSWER
It could be seen to discriminate against men
May not get the best person for the job
Activity Page 240
1.
What is meant by the term ‘stakeholder’? Give an example.
A stakeholder is a person or group with an interest in a dispute.
e.g. employees, employers (management), unions, trade
associations
2.
Define industrial action, give three examples and explain them
Industrial action is action taken by employees to bring about a change
in a workplace situation.
Some examples include
Picket is a procedure used during industrial disputes where those on
strike form a line or human barrier known as a picket line. Those in the
line are said to be picketing the place of employment. The purpose is to
cause disruption to those wishing to work by forcing them to attempt to
cross the picket line. Pressure is brought to bear on the place of
employment at it affects production and sales
A work in is a refusal by workers to leave a factory or cease production
(resulting in over production) in protest at planned closure or
dismissals.
Employees may lock the employers out of the factory – this is a
lockout.
A work to rule means that workers will only undertake
A work ban may be put in place if a particular area is regarded as
unsafe and the OHSW rep has placed a ban on that area so workers
will not be able to use or work in that area. This can affect production.
Work to rule is the curtailment (lessening) of output or productivity by
workers observing safety rules with exaggerated care.
4.
Explain in detail any three reasons that conflict in the
workplace may arise.
• Disputes about wages – changes to wage structure, new
Enterprise Agreement (may affect leave entitlements)
• Working conditions may be in dispute – could be an OHSW
issue
• Changes in work practices such as new requirements imposed
by management e.g. new machines, computers or rosters
Activity Page 243
1.
Define ‘unfair dismissal’ and give an example
When the dismissal is not as a result of breach of the contract
and is not a result of misconduct the employer has not acted fairly and
has not taken into account all relevant circumstances e.g. playing
cricket in a break when there is no ban on this in contract – a worker
who instigated this could not be summarily dismissed.
2.
Give an example of when it is justifiable to dismiss a worker on
the spot.
If a worker was drunk or under the influence of drugs (and
therefore unfit to work), or had been caught stealing.
3.
What would be a harsh, unjust and unreasonable dismissal?
Where an employer has allowed inappropriate practices to
creep into the workplace (e.g. allowing card playing in the breaks) and
dismisses a worker to make an example to others.
4.
What is the role of the Australian Industrial Relations
Commission?
The AIRC provides mediation services to assists parties to a
dispute to reach settlement. The AIRC will be responsible for unfair
dismissal matters and will decide if a worker has been unjustly
dismissed.
5.
In what circumstances would a worker be entitled to
compensation for an unjust dismissal?
Where a worker has not previously been warned in writing
regarding minor misconduct or inefficiency and where the conduct is
not part of a pattern. Where there is no consideration of alternative
action by the employer e.g.placing the worker in a lower classification
job.
Discussion Question Page 245
The high levels of unemployment today can be traced to the rapid
number of technological changes in the workplace.
Certain jobs of a repetitive nature have disappeared from the
workplace with the advent of technological change but there has been
new growth in IT jobs. Recent trends in unemployment levels suggest
they are now dropping.
The unemployment rate is also affect by the ageing population and
early retirement, the need for new skills as technology continues to
change means that many cannot meet the skill level requirements.
Activity Page 246
1.
Benefits of working for a multi national include a transfer in of
technical knowledge and the opportunity to expand overseas markets.
2.
Identify the disadvantages of a multi national –may bring in
overseas labour in technical areas and not provide jobs locally.
Example of multinational is News Corporation
3.
How do transnationals corporations differ from multinational
companies?
Transnationals corporations operate in several countries under an
international ownership. E.g. Ford, McDonalds
Multinationals are those that produce or manufacture in more than one
country but ownership resides on only one country.
4.
Why are workers often frightened of changes in technology?
May feel a loss of skills (a feeling of being left behind), a fear
of not being able to gain the new skills required – need time to adjust
and become familiar and comfortable with new technology if pressured
to gain new skills too quickly may feel inadequate and fearful and give
up.
Review Questions Page 247
1.
Define a worker.
A worker is a person who engages in activities that provide a
product or service that could be sold to provide an income.
2.
Identify the different types of work and the conditions of each
Full time permanent work the maximum number of hours available
Part time permanent work less than the maximum but on a regular
basis
Casual work irregular hours when required by the business
Contract temporary is a contract for a set period of time, which may be
renewed.
Seasonal worker only work at certain time of the year e.g. fruit pickers,
sheep shearers.
Voluntary workers are unpaid workers
A self-employed worker is a person who works for oneself.
3.
The rational for work is varied – give at least three reasons that
people work
• to satisfy needs and wants by providing an income
• providing a sense of purpose to feel worthwhile and a
valued person in the community
• provide for social interaction
• learn skills and gain experience
4.
Outline the major responsibilities for both employers and
employees
Employers
• Provide a safe workplace (pay compensation for
injuries)
• Pay a fair wage
• Operate in an ethical way with no discrimination
• Provide sick, annual and long service leave
• Provide superannuation
• Provide induction for new employees
• Ensure no one is unfairly dismissed
• Provide human resources management
Employees
• Be reliable and punctual
• Perform duties efficiently
• Keep confidential information
• Be ethical and honest
• Obey OHSW guidelines
• Be fit for work – not engage in activities that would make them
unfit
• Not breach work contract
• Perform duties with reasonable care and competence
5.
What are the rights of workers?
• Correct rate of pay
• To have appropriate conditions of work for he industry and be
able to negotiate these conditions
• Safety in the workplace
• Not to be discriminated against
• Not to suffer sexual harassment without it being redressed.
6.
Why was it necessary to introduce equal opportunity
legislation?
Because certain groups in the community such as the disable, migrants,
indigenous people and women were being discriminated against and
society believed there should be a principle of equality of opportunity.
7.
How does affirmative action extend equal opportunity?
Affirmative action is positive discrimination to advance women and
people in disadvantaged groups by removing barriers that restrict
opportunity. In this way affirmative action extends the principle of
equality of opportunity.
8.
What are the worker’s rights with regard to unfair dismissal?
• Employer must have a valid reason for dismissal
• Must be notified in writing in a reasonable time of possible
dismissal e.g. for misconduct, inefficiency
• Can apply to the Industrial Relations Court for a review of the
dismissal
• If accused of theft the employer must conduct an investigation
• Can be reinstated or compensated if found to by unfairly
dismissed – based on amount of wages lost.
9.
How has globalisation affected the workplace?
Globalisation breaks down national barriers and allows mobility of
workers across border in Australia and overseas. It may result in
increased work skills, new technology, opportunity for local workforce
to be involved working for multinational companies. It could benefit
young workers as companies expand into Australia and require a larger
workforce.
10. What are the some of the legal disadvantages of working from
home?
• May not have union protection
• Can be exploited e.g. outworkers with long hours and low pay
• May not know the appropriate award rates of pay and not be
able to negotiate and agreement
• May not be aware that you can take a case to the Employee
Ombudsman, as his role is not well advertised.
TOPIC 9 GUIDELINE ANSWERS
DICUSSION QUESTIONS Page 257
1. Laws regulate human behaviour and provide for social cohesion. In doing this
laws must reflect community values and set acceptable standards. As social
creatures, people live in groups. Families are the most fundamental of groups and
laws regulate how families are formed, operate and dissolved.
2. Nuclear families are the most common in Australian society. They comprise the
parents and children living as a functioning group. Extended families are common
in many other cultures and include other relatives, commonly the children’s
grandparents in the group.
3. Before 1857 British practice was that divorce was a matter for the church. First a
legal separation known as a ‘divorce a mensa et thoro’ was granted by the church.
This did not allow for remarriage. A specific bill had to be sponsored in the
British Parliament that, if successful, allowed a person to remarry. In 1857 the
British Parliament passed the first legislation allowing for a secular divorce, and
Australian Colonial Parliaments followed.
4. There have been many changes to laws regarding children. All have seen the legal
status of children enhanced. Children are no longer seen as the possessions of the
parents but are now legally entitled entities in their own right.
5. As a result of increasing financial independence and social status, women are now
seen as the equal of men in family circumstances. No longer are they treated as
‘chattel’ (or property) who lost certain rights on marriage.
ACTIVITY BOX Page 263
1. This not a valid marriage. Marriage must be ‘intended for life’ at the time of the
ceremony.
2. This is a valid marriage. While Jill’s parents may not approve, the final decision
lies with the court.
3. This is a valid marriage. Current law states that gender is determined at the time of
the wedding.
4. This is not a valid marriage. Henry has not divorced his American wife and
Australia respects that marriage as valid under the principle of ‘lex loci’. Henry is
committing bigamy, a criminal offence. Carissa’s brother can only perform a legal
wedding if he is a registered celebrant.
5. This is not a valid wedding. Marriage must be ‘voluntary’. This includes the
provision that you must know who you are marrying. Eva has been deceived.
DISCUSSION QUESTIONS Page 263
1. Until 1961 each state had its own laws on marriage. ‘Marriage’ is an area on
which the Australian Constitution allows both the states and the Commonwealth
to make laws. Until 1961 the Commonwealth had not done so. However, in 1961,
when state laws became divergent, the Commonwealth Parliament passed the
Marriage Act, 1961. The Constitution states that when state and Commonwealth
laws are inconsistent, the Commonwealth law prevails. So all state laws became
invalid.
2. The elements of marriage are derived from the British court case Hyde v Hyde
(and Woodmansee) that defined marriage. Marriage has four mandatory elements.
It must be ‘voluntary’, it must be between a man and a woman, it must be
intended for life and it must be to the exclusion of all others. This definition has
now been included in the Marriage Act, 1961.
3. In Corbett v Corbett the British judge ruled that a person’s gender for marriage
purposes is determined at birth. In the Australian case Re Kevin and Jennifer the
court decided that the gender is determined at the time of the marriage ceremony
and accepted sex change.
4. People under the age of 18 years can marry if a court gives permission. Parental
permission is not crucial. Courts will grant permission if they are convinced it is
in the best interests of the parties.
5. Wedding celebrants must be registered and ensure that all legal requirements for a
valid marriage are met. They must also provide the parties with a document
outlining the obligations and consequences of marriage. Notice of the wedding
must be received by the celebrant at least 1 month and no more than 18 months
before the wedding ceremony.
6. Australia respects laws that are valid in other jurisdictions. Therefore Australia
will accept polygamous marriages in cases involving matrimonial relief when
these marriage units become either permanent residents or citizens in Australia.
ACTIVITY BOX Page 271
1. Marriage rates have been historically linked to economic prosperity. Between
1929 and 1939 Australia, like much of the world, was affected by an ecomic
depression. This caused people to delay marriage.
2. The peaks in marriage rates relate to the time in World War 2 when men were
about to go off to war and the time after the war when armed servicemen and
women returned home. The peak in the 1970s relate to the children of these
couples – the ‘baby-boomers’.
3. The rate of marriage since the 1970s has decreased for two reasons. The ageing of
the population as families had fewer children and the acceptance of alternative
relationships e.g. de facto relationships.
4. Divorce rates until the 1970s were quite low as divorce was a difficult process. A
case had to be mounted in the Supreme Court and fault by the respondent had to
be proved by the plaintiff. This required considerable expense and stress.
Consequently, many couples did not pursue divorce.
5. The peak in the divorce occurred after 1976 when the new laws allowed for a ‘no
fault’ divorce requiring minimal cost.
6. The rate has stabilised since the initial peak.
7. While the divorce rate has stabilised, the marriage rate has continued to decline.
Statistically, about 45% of marriages will end in divorce.
REVIEW QUESTIONS Page 273
1. A de facto relationship is one where the parties live as if married but have not
celebrated a marriage ceremony under the Marriage Act, 1961.
2. A putative spouse is a legal status awarded to the surviving partner of a de facto
relationship. It must be applied for in court and allows the ‘putative spouse’ to
make claims on the will of the deceased partner and certain other rights. Putative
means “like” or “as if”. The status is only available if the partners have been
together for at least 5 years or there is a child of the relationship.
3. A ‘cohabitation agreement’ is like a ‘pre-nuptial agreement’ but for de facto
couples. The agreement is a legal document where arrangements for the division
of property can be arranged. Such agreements, as long as they are certified by
independent lawyers acting for each party, are binding in law. They were
introduced in South Australia in 1996.
4. As a result of the De Facto Relationships Act, 1996 (SA) there is no legal
difference in the division of property whether you are married or not. This only
applies if the de facto couple have been together for at least 3 years or if there is a
child of the relationship.
5. Since 1987 children of de facto couples are treated identically to those of married
couples. In both cases the Family Law Act. 1975 demands that all decisions
regarding children are made in ‘the best interests of the child’.
REVIEW QUESTIONS page 278
1. For many centuries marriage was seen as a sacrament, a contract with God. It was
an ecclesiastical matter for the church and the secular parliament had no part in it.
Because of the strong religious basis for marriage, it was extremely difficult to
dissolve a marriage. Until the first parliamentary law in 1857, it was almost
impossible to gain a divorce. As society became more secular and the influence of
the church declined, parliament has progressively involved itself in the area of
marriage. In the 20th century the enhanced status of women, and later children,
caused laws to be liberalised further. Divorce became easier. Recently much
discussion has centred around the issue of same-sex marriage. Several countries
overseas have made such unions legal although at present Australia has resisted
this movement.
2. In the Hyde v Hyde decision Lord Penzance, the judge, identified the four
elements of a valid marriage. These included that the marriage should be
‘voluntary’, between a man and a woman, entered into for life and to the exclusion
of all others. In 2004 these elements were included into the Marriage Act.
3. Until the Re Kevin and Jennifer ruling in the Family Court of Australia,
transsexuals (those who have surgically altered their gender) did not have their
new gender recognised in marriage law. An earlier decision in a British court, the
Corbett v Corbett decision had ruled that a person’s gender was determined at
birth and could not be altered surgically. The Re Kevin and Jennifer decision ruled
that, in Australia, a person’s gender for the purpose of marriage is determined at
the time of the marriage. Hence transsexuals in Australia can marry according to
their new gender.
4. In Australia the marriageable age is 18 years for both male and female. However,
court permission can be gained if a person is under the age of 18. If one partner is
over the age of 18 but the other is not (but over the age of 17) there is an increased
chance of court permission.
5. Any marriage performed overseas that is legal in that jurisdiction is recognised in
Australia. This applies the doctrine of ‘lex loci’. The exception is that any samesex marriage, even if legal in the place where it occurred, is not recognised in
Australia. This is the result of an amendment to the Marriage Act in 2004.
6. Under the Family Law Act 1975 there is only one ground for divorce in Australia
– ‘the irretrievable breakdown’ of the marriage. This requires no proof of any fault
but merely that the marriage cannot be saved. The evidence accepted by the court
is that the couple have lived ‘separately and apart’ for a period of 12 months.
7. A ‘parenting plan’ is a document detailing the negotiated arrangements for
children of parents whose relationship has broken down, both married and de
facto. Thr Family Court encourages and will accept reasonable decisions made by
the parents that are in the ‘best interests’ of the child.
8. If a de facto relationship has persisted for at least 3 years or there is a child from
the relationship, the De Facto Relationships Act 1996 provides that property will
be divided by both ‘direct’ and ‘indirect’ contribution. The law values monetary
inputs and non-financial (homemaker) inputs equally. In this way, there is no
difference between married and de facto partners when a relationship breaks
down.
9. Most Australian states now have legislation that gives same-sex couples legal
rights equivalent to de facto couples. South Australia has not yet (late 2006)
passed the relevant legislation – the Statutes (Amendment) Bill.
10. Surrogacy is the practice of one woman becoming pregnant for another and then
relinquishing custody of that child to the other woman. Any such arrangement that
involves monetary payment is illegal. There are also legal problems relating to the
legal parents. The law currently states that the husband of the birth mother is the
parent of the child.
11. Cloning directly from human DNA is illegal. Manufacturing body parts frm stem
cells is allowed.