Analysis of legal issues and information tips on how to respond critically

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1 Additional resources Analysis of legal issues and information tips on how to respond critically Brief examples of how each of the criteria examined on pages xix xxiii of the Cambridge Legal Studies HSC Study Toolkit can be applied to the Options covered in the Student Book are presented below. These examples only provide a starting point for your research. As you work through the course content in HSC Legal Studies, add to these examples so that you are well prepared to respond on a range of different issues in the external examination. Note that no examples are provided for the final evaluation criterion ( Has justice been achieved? ), as this requires your own evaluation and should draw upon the other points already discussed. RESOURCE EFFICIENCY Resource efficiency refers to how efficiently and effectively available resources are used when dealing with problems and achieving just outcomes. Most of the time, it refers to the use of resources allocated by the government. Resources can refer to available funds, but also to the time and expertise of professionals like judges or solicitors, or the limited availability of venues like courtrooms. At times there may not be enough resources (a common problem) or the resources used may be wasted or allocated to the wrong areas. For example, this might occur if services are unnecessarily duplicated or if particular processes do not appear to be working but resources are still being directed toward them. Consumer bodies like the Australian Competition and Consumer Commission (ACCC) have limited resources available to be able to pursue all complaints by consumers. Smaller complaints are more efficiently dealt with directly with the supplier, by contacting the relevant industry ombudsman or by approaching a small claims tribunal. The ACCC s resources, time and skill will usually be directed towards more serious breaches of the Trade Practices Act, like anti competitive conduct. Option 2: Global environmental protection Global agreements on environmental protection can achieve greater resource efficiency than the monetary and environmental costs of diverse and inconsistent national approaches. By agreeing on targets and measures to implement them, like a global emissions trading scheme, international administrative bodies can reduce duplication and increase both efficiency and effectiveness. Cambridge University Press 1

2 Recent changes to the law of de facto couples has moved responsibility for hearing those matters from state courts to the Federal Magistrates Court and Family Court. This may put additional strain on the resources of the federal courts, but is argued to be more resource efficient as it reduces duplication. The federal courts already deal with similar matters and have more expertise in the area cases can be heard faster in a well established system. The simplification of Australia s industrial relations system from diverse state systems into one national system is more resource efficient. It reduces operational costs for government and is more cost effective for businesses that have only one system to comply with. The capacity of the International Criminal Court to investigate and prosecute crimes against the international community relies heavily on the funding made available by member states. If limited resources are available, the ICC may need to be selective in the cases it pursues. ACCESSIBILITY Access to the legal system is essential in achieving justice. It refers to the availability the legal system and the removal of barriers to achieving equal justice for all. Access includes many different aspects, for example access to the law itself, access to timely and affordable legal advice, access to adequate legal representation or access to appropriate courts and dispute resolution mechanisms. Access may be restricted when a person has little or no knowledge of the law and how the system works. It may also be difficult for such people to know where the costs lie and/or where the delays in the system occur. In addition, quality legal advice, information and representation may not be available to those who cannot afford a private lawyer. Access can also be denied because of legal structures, for example where individuals cannot access complaint mechanisms in international human rights treaties. Consumer claims tribunals have been a positive development in improving accessibility for small consumer claims because of the minimal costs and formalities required to bring a claim before the tribunal. Option 2: Global Environmental Protection Citizens and non government organisations may argue that they have been denied appropriate access to help determine the outcome of recent international agreements on global environmental protection. These have been negotiated by government parties only without the direct input of interest groups. Cambridge University Press 2

3 The Family Law Act 1975 (Cth) requires couples in dispute to first attend a Family Relationship Centre before attending a court hearing. Family Relationship Centres have help increase access to justice by making available alternative dispute resolution mechanisms like reconciliation and mediation to reach mutual agreement without the cost and difficulties of going to court. The new Fair Work Act 2009 (Cth) includes a range of measures to improve employee s access to justice in workplace dispute. The range of measures includes mandatory dispute resolution clauses in employment contracts to encourage fast resolution by agreement, a Fair Work Ombudsman as an inexpensive way to hear complaints, the Fair Work Australia tribunal to hear disputes, and finally the Fair Work Division of the Federal Court if all other measures have failed. In the context of world order, accessibility issues can arise in a number of areas. One example is with smaller or developing states and the UN Security Council. The Security Council is constituted by five powerful permanent members with veto power, together with non permanent members on a rotating basis. The Security Council is one of the most powerful bodies in the international system and the influence the veto wielding permanent members is so great that it deter any approach by smaller states to have a matter considered that is against the interests of a permanent member, despite the possible merits of the cause. ENFORCEABILITY For laws to be effective they must also be enforceable. Enforceability refers to the mechanisms or processes in place to ensure people and/or institutions comply with the law. It refers to a number of different levels of enforceability for example: is the law clearly drafted and are people likely to comply? is there some mechanism for compliance or penalty for non compliance? are there are enough resources to police the law and pursue those who violate it? are there appropriate court systems in place to ensure breaches can be enforced? Issues of enforceability might arise, for example, in laws directed at people s domestic life, where it might be near impossible for police to know about or investigate breaches, or some international laws where treaties may not include any mechanisms or institutions to actually enforce them. Cambridge University Press 3

4 The Trade Practices Amendment (Australian Consumer Law) Act 2009 (Cth) established a uniform national law for the regulation of consumer credit and financial services, increasing clarity and certainty in the law for both businesses and consumers. It also enhanced enforcement mechanisms and protection for consumers, while providing greater stability for credit and financial service providers. Option 2: Global Environmental Protection A common criticism of global environmental law is that of enforcement mechanisms in international treaties to ensure nations comply with their obligations. This can allow states to ignore their obligations while providing little avenue for concerned states, groups or citizens to lodge a complaint. In NSW, Apprehended Domestic Violence Orders (ADVOs) have been an important mechanism in reducing the incidence of domestic violence. They are a quick and inexpensive form of protection for victims of domestic violence and supported by the full weight of the criminal law to ensure compliance if they are breached. Equal employment opportunity legislation like the Equal Opportunity for Women in the Workplace Act 1999 (Cth) provide for workplaces to develop appropriate programs to ensure the absence of discrimination but do not themselves make discrimination illegal and lack enforcement mechanisms. However, there is complementary legislation such as the Sex Discrimination Act 1984 (Cth) that prohibits discriminatory conduct, include sexual harassment. This Act does provide enforcement mechanisms, allowing individuals who feel the provisions have been breached to take a complaint to the Australian Human Rights Commission for investigation, and on to the Federal Court if the complaint cannot be resolved. International treaties can sometimes lack effective enforcement mechanisms. For example, the International Court of Justice can hear disputes between states, but only if those states have agreed to accept the court s jurisdiction. Even if the court makes a decision in one party s favour, there is little the successful party can do to force the state to comply. Cambridge University Press 4

5 RESPONSIVENESS This refers to the ability of the law to respond to needs or issues within the community. It refers to the flexibility of the law and its capacity to adapt to new situations to achieve justice. The law can often be slow to evolve and respond to changes in society, such as shifts in public morality, new technology or when methods of justice are failing. In considering the responsiveness of the law, both the common law (the responsiveness of courts) and statute law (the responsiveness of parliament) should be considered. In the area of technology, for example, the law has been fast to respond in some areas Australia was one of the first countries in the world to introduce legislation prohibiting the sending of electronic spam whereas in other areas, the law has been particularly slow to respond. For example, taping television programs at home has been practised in most homes in Australia since the 1980s, but copyright law did not actually legalise it until Generally, the legal system offers consumers adequate protection against the misuse of technology within Australia, although there are still issues with transactions that occur across jurisdictions. E commerce and e marketing will continue to evolve and new technologies will challenge law enforcers by creating new opportunities for fraud and the law will need to continue to adapt to provide the best protection. Option 2: Global environmental protection Some of the most important environmental problems facing the world today are global in nature. The issue in addressing these problems is that it relies on the political will and consensus of all responsible states to achieve an effective global solution. Political will, capacity to respond as well as the conflicting interests of some countries make reaching a global agreement a long and difficult task. As Australian society has changed over the last few decades, family law has been adapted to provide for legal recognition and protection of a wider variety of family and domestic relationships. The law has moved away from the traditional concept of a married man and woman with children, where the man held most of the legal power, to include single parent families, de facto couples and their children and same sex couples and their children. The law has also increased women s and children s rights and protections against the traditionally male dominated role. Cambridge University Press 5

6 One criticism of changing workplace laws in recent years is that they have not been framed to respond to the needs of workers and the changing workplace, but that the changes have been heavily influenced by political ideology. The significant shifts in workplace legislation over the past two decades have each been brought about by a new political party gaining power positions have been reversed, laws amended, abolished and reinstated. One area of responsiveness, however, has been standardisation of one national system of workplace regulation, in response to the problems encountered with the previous system of diverse state laws and bodies. International agreement can be difficult to reach, even in situations of crisis. The United Nations has received some criticism of its ability to react to situations of mass human rights abuse occurring in some states, for example the Rwandan genocide or the situation in Darfur, Sudan. In response, the UN and the international community have developed the principle of responsibility to protect to facilitate the Security Council s response to human right and humanitarian crises. It remains to be seen if this will improve the responsiveness of the international community in the future. PROTECTION OF INDIVIDUAL RIGHTS As citizens, we all expect the law to protect our individual rights all areas discussed above will impact on how the law protects these rights, such as accessibility, enforceability or responsiveness. Some individuals, particularly when they belong to a minority group in a community, may experience more difficulty having their rights recognised and protected by the law for example, the rights of Aboriginal and Torres Strait Islanders, same sex couples or refugees. This can lead to injustices in the legal system. This can be a result of the processes by which law is made for example, parliament passing a statute usually requires the political support of the majority, which can often mean that the needs of minority groups go unheard or are overridden. Another area where individual rights can be a concern is in the rights of suspects or the accused in criminal law for example, recent anti terrorism legislation has been criticised as altering long standing criminal rights and processes by making changes like extending periods of detention without charge. Traditionally, the law gave few rights to consumers and markets were characterised by the common law notion of caveat emptor or buyer beware. Purchases were at the buyer s own risk with little if any protections. The law s focus over the last century has moved to regulation of suppliers and imposition of obligations towards consumers to provide a fairer balance. For example, the Trade Practices Act 1974 (Cth) provides protection against misleading and deceptive conduct, false representations of taking advantage of vulnerabilities. Cambridge University Press 6

7 Option 2: Global environmental protection Global environmental rights are generally collective rights negotiated and enforced by nation states through international treaties, rather than individual rights. However, the domestic system does provide protection of individual rights through common and statute law, for example through the Environmental Planning and Assessment Act 1979 (NSW). The legal system has been accused of acting too slowly to protect child victims of abuse and that existing mechanisms to protect children are in adequate. According to a 2009 report of the Australian Institute of Health and Welfare, more than children were placed on care and protection orders, an increase of 88 per cent since Some argue this indicates that people are aware of their rights and are seeking ADVOs to protect themselves and their children from harm. The federal government has recognised child abuse and neglect as a major issue and is seeking to create a national framework for protecting children. One of the major issues in workplace law is the balance between the rights of employees (individuals) and the rights of employers (businesses). This has been at the centre of the debate and changes to workplace laws over the past decade. The Fair Work Act 2009 (Cth) reintroduces a range of minimum rights for all employees. Fair Work Australia Act will protect the rights of workers better because of the re introduction of the safety net on minimum wages and unfair dismissal provisions. The importance of state sovereignty in international law has often been in conflict with individual rights. International law generally governs the rights and obligations between states and there are few mechanisms outside national jurisdictions for individuals to raise a dispute. However, some areas of international law have developed in recent years beyond traditional boundaries, for example the UN Human Rights Committee provides a forum for individuals to raise concerns about their country s compliance with international human rights laws. MEETING SOCIETY S NEEDS This is a broad area of discussion and will vary significantly depending what area of law is being investigated. Looking at research and statistics studied in class and considering the future implications of the issue are a good starting point. The difficulty lies in identifying what society s needs are, as this question is often contentious or politically charged, and then assessing to what extent this need is being met. For example, the law may be attempting to respond to some form of anti social behaviour for the protection of the community, it may be attempting to improve the rights of consumers, or may be in response to environmental concerns. Society s needs can sometimes appear to be in conflict with individual rights, but ultimately the best laws will meet society s needs without infringing on the rights of the individual. Cambridge University Press 7

8 On the whole, consumer laws are very effective in meeting society s needs. They provide a good balance between both the needs of consumers and the needs of businesses in the market. For example, contract law provides guarantees and protections to both consumers and retailers that their agreements will be met. The Trade Practices Act ensures that businesses will not engage in misleading or deceptive conduct or otherwise take advantage of vulnerable consumers, while also regulating competition to ensure a fair marketplace for all businesses. Product certification guarantees for consumers that goods have passed performance and quality assurance tests but also ensures all businesses can sell quality goods on a level playing field without the risk of substandard goods undercutting their market share. Option 2: Global environmental protection For environmental protection to meet the needs of the international community can be problematic and complex. Countries have diverse needs and interests and are at varied stages of development. Countries have varying capacity to meet the financial cost of environmental protection, and countries differ greatly both in the way they affect the environment and in the way they are affected by it. The ability of global environment law to meet the needs of the whole community is a difficult task and consensus on the bets solution can be hard to achieve. For family law to meet society s needs it needs provide effective protection for all those people it concerns, including parents, children or couples, married or de facto from all areas of society. One way in which family law has improved in meeting society s needs is in the introduction of Apprehended Domestic Violence Orders (ADVOs). ADVOs have been a crucial development in the law to allow a quick and effective way to protect children and partners in a domestic situation from violence, where ordinary court action could take too much time to be effective or police time and resources would be inadequate to respond. One way in which family law has improved in meeting society s needs is in the introduction of paid parental leave from The scheme is an important step in improving productivity by allowing and encouraging parents to remain in the workplace while raising their children. It ensures businesses to not lose skilled resources and ensures parents can continue earning a minimal amount while still being able to take part in the development of their newborn children. Similarly to global environmental law above, meeting the diverse needs of the international community is a difficult task. The current system of world order has been criticised as favouring developed and powerful countries over the needs of developing and poorer countries, for example in the structure of international trade or the power of the permanent members of the UN Security Council. The UN has undertaken important work to address this difficulty, including recent structural reform and ongoing programs designed to address the needs of developing countries. Cambridge University Press 8

9 APPLICATION OF THE RULE OF LAW The rule of law is the principle that no one is above the law. It requires government authority to be exercised in accordance with written, publicly disclosed laws that are adopted and enforced in accordance with established processes. Where there is an absence or breakdown of the rule of law there may be a failing of democratic processes and procedures. Issues in application of the rule of law may arise where there is potential bias or favouritism in a law, where the law unfairly targets some groups or individuals but not others, or where there is a lack of transparency in how a law is adopted or applied. To be effective, consumer protection laws need to regulate all types of businesses, including large and small, online and offline and different industries. Competition law aims to ensure all businesses in the marketplace are subject to the same rules and that the marketplace is fair. In an unregulated market, for example, a monopoly where one company holds all the market power for that product area, there is a greater likelihood of unscrupulous or unfair conduct that risks harm or disadvantage to other businesses and to consumers. Option 2: Global environmental protection To be effective, global environmental protection laws need to apply to all states responsible for the problem. However, state sovereignty can sometimes mean that responsible states can refuse to sign up to any treaty obligations on the issue or if they do they may still fail to meet their obligations. Without proper enforcement mechanisms for such violations, there is little the international community can do, an some states may put themselves above the law or promote their own interests above the needs of the global community and the requirements of international environmental law. One area of family law where rule of law has recently been as issue is in overseas adoption. More and more Australian couples are applying to adopt children born overseas. Intercountry adoptions are governed by the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption, and by bilateral agreements between Australia and countries that have not ratified the convention. In some countries, adoption laws may be weak, or there may be unscrupulous organisations promoting adoptions outside official channels. Where standard adoption laws and procedures are not followed, there can be devastating affects for the adopting family, the child and the family giving the child up. Occupational health and safety regulations on employers can sometimes be difficult to enforce. Occasionally some employers fail to meet the minimum standards required and put themselves above the law despite the risk to employees. Mechanisms such as random workplace inspections and court actions by employees or regulators are essential to improve workers rights and reinforce to the community that all employers are subject to the law. Cambridge University Press 9

10 One of the obstacles to an effective international system is the issue of state sovereignty. Some countries may use state sovereignty as a means of avoiding obligations, for example by not agreeing to sign up to them in the first place or by ignoring and violating obligations they do have. In some areas, the international community has made progress in addressing this problem. One area is in international human rights law and humanitarian law, where the doctrine of responsibility to protect has been adopted by the UN, aiming to deal with situations that arise within a violating state s borders. Another is the establishment of an International Criminal Court to prosecute violations of international criminal law, even where they occur within a state s own jurisdiction. HAS JUSTICE BEEN ACHIEVED? This can be a subjective judgment, but you should stay as objective as possible examining each of the above criteria in an objective way and considering how they apply to the issue is a good starting point. You should make sure your analysis covers multiple sides of the issue and does not focus too heavily on one side of the argument. In addition to the above criteria, concepts like fairness, impartiality and equality are essential in assessing whether justice has been achieved. This applies to both the processes involved and the outcome. You should also critically examine any result by looking at its implications rather just describing it for example, has the situation been resolved, has it improved or become worse, or has it just shifted the problem somewhere else? Important to this analysis is whether maximum justice has been achieved for both the parties involved and for the community at large. You should consider whether any future reforms to the law could help achieve better justice. Cambridge University Press 10