SOCE311. Session 3. Legal Aspects. Department of Social Sciences.

Transcription

1 SOCE311 Session 3 Legal Aspects Department of Social Sciences

2 Session Aim o The aim of this session is to provide an introduction to: criminal law, civic law, and torts the Therapeutic Goods Act, Anti-Discrimination Act, Equal Employment Opportunity Act, Anti- Competition/monopoly, and consumer based legislation Endeavour College of Natural Health 2

3 Criminal Law, Civil Law, Torts Endeavour College of Natural Health 3

4 The Judicial System o The judicial hierarchy of courts is an essential part of our justice system. It is structured to achieve the following: lower courts to follow precedents made by higher courts allows consistency and modification appeals to higher courts specialisation in the hearing of particular cases and interpretation of particular statutes Endeavour College of Natural Health 4

5 The Judicial System o Australia has a federal judicial system made up of five judicial levels Level 5 High Court Level 4 Federal Court, Family Court, Federal Magistrates Court, and Commonwealth Tribunals Level 3 State and Territory courts Level 2 Courts with wide civil jurisdiction (such as district and county courts) Level 1 Courts with minor civil and criminal matters (such as local courts, Magistrates courts, and specialist courts and tribunals) Endeavour College of Natural Health 5

6 Principles Of Court Proceedings o Our legal system is known to be an adversarial system, meaning our judges have no general power to make enquiries, but adjudicates on a legal issue put forward to parties with evidence o Court proceedings are conducted in courts that are open to the public, except for certain cases that involve children Endeavour College of Natural Health 6

7 Principles Of Court Proceedings o Courts determine issues such as questions of law or fact o Evidence is any matter that can persuade the court that some other fact exists or does not exist o Evidence requirements change according to whether it is used in relation to court proceedings, quasi-judicial proceedings, or administrative tribunals Endeavour College of Natural Health 7

8 Principles Of Court Proceedings o The burden of proof differs between criminal and civil law o In criminal law the burden of proof must be beyond reasonable doubt o In civil law, the burden of proof must be within the balance of probabilities Endeavour College of Natural Health 8

9 Criminal Law o Criminal law relates to those offences against the state, but can also apply to acts such as theft, which affects a company or individual o In broad terms, crime can be stated as conduct the state proscribes, as traditionally they have been viewed as offences that are against the state (or against the Queen s peace ) Endeavour College of Natural Health 9

10 Criminal Law o A penalty may be imposed if the state declares the conduct an offence o It is possible that an individual could commence criminal proceedings, although normally crimes are prosecuted by the state Endeavour College of Natural Health 10

11 Criminal Law o Technically, minor traffic violations and parking offences may be described as crimes, but they are not normally regarded as behaviour that is deemed criminal o An activity could be actionable as a civil wrong AND a crime o One of criminal law s fundamental principles is that the accused person is innocent until proven guilty Endeavour College of Natural Health 11

12 Civil Law o Civil law is that part of law which is not related to crime, however, it may overlap with criminal law such as in the case of a car accident where someone is driving dangerously o Civil law protects the rights of individuals, and is brought about by the plaintiff (the aggrieved party) against the defendant Endeavour College of Natural Health 12

13 Civil Law o Civil law cases often result in compensation (usually in monetary form) for an infringement of a legal right (tort) against the plaintiff such as breach of contract Endeavour College of Natural Health 13

14 Torts o Torts are referred to as civil wrongs. The law may provide a solution if one party s actions towards another party is not in accordance with proper standards of society o Examples of torts include: nuisance, trespass, negligence, and defamation o There is quite a large overlap between criminal law and many of the torts due to their development from the same legal rules Endeavour College of Natural Health 14

15 Torts o The difference between the two is that crimes are concerned with protecting society and the wrongdoer being punished, whereas a tort involves some type of compensation for harm done to them Endeavour College of Natural Health 15

16 Torts o Intentional torts are those such as trespass to a person that is, touching a person or client without their consent o There are three main recognised legal trespasses assault a direct threat either intentionally or unintentionally that creates the belief in the client or individual of imminent harm or offensive contact Endeavour College of Natural Health 16

17 Torts battery occurs if the threat is carried out and the client or individual is touched against their will false imprisonment where the deprivation of a person s liberty occurs without the lawful justification or consent of the client or individual o Unintentional torts can involve negligence, such as a careless act by a defendant that causes harm to the plaintiff Endeavour College of Natural Health 17

18 Torts o Consideration must be given to four elements to prove negligence: did the defendant owe the plaintiff a duty of care? has the duty of care been breached by some act or omission of an act? was the injury caused by the act in question? has damage been suffered? Endeavour College of Natural Health 18

19 Negligence o A claim of negligence made against a practitioner will be assessed against the standard of a reasonably competent practitioner o Procedures that are accepted within the profession will be one important benchmark to determine what a reasonably competent practitioner would, and should, have done Endeavour College of Natural Health 19

20 Negligence o Professional associations are most likely to be accepted as the authority on standard practices and competent practice o A client can expect to be given notice of treatment options as part of informed consent, especially when the practitioner is suggesting a less orthodox approach than normal a wise practitioner will not use treatments which are outside the normal practice Endeavour College of Natural Health 20

21 Defamation o Defamation means making a statement against another person to others, that will bring that person into ridicule or contempt o It also means making a statement which causes others to avoid them or causes injury to their profession or trade o Common law divides defamation into libel and slander, although in Victoria, the law no longer differentiates between these and only recognises defamation Endeavour College of Natural Health 21

22 Therapeutic Goods Act, Anti-Discrimination Act, Equal Employment Opportunity Act, Anti- Competition/Monopoly, Consumer Based Legislation Endeavour College of Natural Health 22

23 Therapeutic Goods Act o The Therapeutic Goods Administration (TGA) is a component of the Australian government s Department of Health and Ageing o It conducts a variety of monitoring and assessment activities to make sure that therapeutic goods are of an acceptable standard if available in Australia o The Office for Complementary Medicine is within the TGA Endeavour College of Natural Health 23

24 Therapeutic Goods Act o On 15 February 1991 the Therapeutic Goods Act 1989 (Cth) came into effect, and the TGA operates under this authority o The purpose of the legislation is to ensure the safety, quality, and efficacy of therapeutic goods in Australia, and provide a national framework for their regulation Endeavour College of Natural Health 24

25 Therapeutic Goods Act o Before a product (for which a therapeutic claim is made) can be supplied in Australia, it must be entered in the Australian Register of Therapeutic Goods (ARTG) before it can be supplied Endeavour College of Natural Health 25

26 Therapeutic Goods Act o Therapeutic goods can be defined broadly as things that are: likely to be assumed as having a purpose that is therapeutic; or characterised as having a therapeutic purpose; or having a therapeutic purpose as declared by the TGA Endeavour College of Natural Health 26

27 Therapeutic Goods Act o The definition of a therapeutic purpose is that used in connection with alleviating, curing, preventing, or diagnosing an ailment, injury, disease, defect, or in relation to modifying or having an influence on a physiological purpose in animals or humans or testing a person s susceptibility to an ailment, or disease Endeavour College of Natural Health 27

28 Therapeutic Goods Act o Goods classified as listed goods (such as sunscreens and vitamins) must be able to demonstrate safety and quality o The TGA controls the supply, export, import, advertising, and manufacture of goods that are either represented, or likely to be, for use therapeutically. This covers the majority of herbs, remedies, and substances utilised by complementary medicine practitioners Endeavour College of Natural Health 28

29 Therapeutic Goods Act o Dependent on the ingredients and their claims, complementary medicines can be either registered or listed on the ARTG o The TGA does not affect you if you do not supply vitamins, herbs, homeopathic drugs, remedies, nutritional substances, or other therapeutic devices or goods to clients Endeavour College of Natural Health 29

30 Anti-Discrimination Act o When consulting and treating clients, practitioners should avoid making professional decisions for financial advantage, personal reasons of convenience, or based on discriminatory grounds o Practitioners should also avoid using their technical knowledge or position of influence to take advantage of a client Endeavour College of Natural Health 30

31 Anti-Discrimination Act o There is state, federal, and territory legislation that stipulates an individual seeking goods and services should not be discriminated against based on a number of grounds which includes: gender age race disability or impairment Endeavour College of Natural Health 31

32 Anti-Discrimination Act association marital status lawful sexual activity religion pregnancy industrial activity carer responsibilities breastfeeding Endeavour College of Natural Health 32

33 Anti-Discrimination Act o There is similar, but not identical, legislation in each jurisdiction o Such statutes include the Anti-Discrimination Act 1991 (Qld), Anti-Discrimination Act 1977 (NSW), and Equal Opportunity Act 1984 (Vic) Endeavour College of Natural Health 33

34 Equal Employment Opportunity Act o Equal Employment Opportunity Acts were developed to provide legislation against discriminating people on the basis of things such as: marital status, gender identity, age, disability, sexual orientation, religious believes, pregnancy, parental status, race, ethnicity, physical features, and nationality o You should familiarise yourself with the Act relevant to your State or Territory Endeavour College of Natural Health 34

35 Anti-Competition and Monopoly o Various state Fair Trading Acts and statutes such as the Commonwealth Competition and Consumer Act 2010 (which used to be known as the Trade Practices Act 1974) affect the type of advertising permitted by professionals o They impose penalties for misleading and false advertising relating to goods and services Endeavour College of Natural Health 35

36 Anti-Competition and Monopoly o Professional associations have legitimate interest in trying to reduce misleading, inappropriate, or unprofessional advertising by their members o Because advertising is an important factor between the profession and general public, for a positive public image to be developed, high standards in advertising are necessary Endeavour College of Natural Health 36

37 Consumer Based Legislation o In 2010 and 2011, significant changes occurred with the passing of an amendment to the Trade Practices Act. These changes included an introduction of the Australian Consumer Law (ACL), which has provision for control over consumer contracts o It also resulted in the Trade Practices Act being renamed the Competition and Consumer Act 2010 Endeavour College of Natural Health 37

38 Consumer Based Legislation o Each state has agreed to endorse amendments to their Fair Trading Act to reflect these provisions. That way, in all jurisdictions in Australia, the same consumer protections will be applicable Endeavour College of Natural Health 38

39 Consumer Based Legislation o As a complementary medicine practitioner you should familiarise yourself with the following important statutes: Sale of Goods Act (SGA) provisions are almost identical in all states Commonwealth Competition and Consumer Act 2010 (CCA) formerly the Trade Practices Act 1974 Fair Trading Act (FTA) provisions are similar in all states Endeavour College of Natural Health 39

40 Activity o Please refer to the subject outline for details of this session s activities Endeavour College of Natural Health 40

41 References Australian Human Rights Commission. (n.d). A quick guide to Australia s discrimination laws. Retrieved 16 February 2017 from Endeavour College of Natural Health 41