Legal

1 - Basic Legal Notions

Anarchy – A society without rules and laws. (Lord of the flies)

Customs – A custom is a type of behaviour that has emerged overtime and is

followed by a group by mutual consent.

Rules – Authoritative regulation of behaviour. Constraining and controlling

commends which have the authority of a superior power. E.g. Rules of house

Laws – is a set of rules that are seen as binding on the whole community. It is a set
of rules that can be enforced and officially recognised.

Fairness – free from bias, fraud or injustice.

Equality – Where everyone is treated equally whether race, religion or gender.

Equality is not before the law.

Justice – The administration of law; the act of determining rights and assigning
rewards for punishments.

Values – Principles or attitudes that we hold as important.

Ethics – a set of moral beliefs governing behaviour.

The relationship between rules, laws and customs -

o People may obey the law partly because of external factors;

• They wish to conform.

• Follow the actions of the majority.
• Avoid the sanctions.

o Alternatively people may obey the law because they internalise values and rules;
 • Taking pride in being a law abiding citizen.
• It is morally wrong to break the law.
• “Do unto others as you would expect the to do unto you”

o Many rules and customs that people internalise have become laws.

o Rules are one way in which order and organisation can be achieved.

o After a rule is used by a particular amount of people for a long period of time, they
become customs. Sometimes those customs are explicitly recognised and become
law. E.g. Mobile phone use in a car has evolved from rules and customs.

2 - Source’s of law in Aus before 1788

Aboriginal and Torres straight Islanders customary law (ATSI)

Customary law like that of ATSI was based on tradition, ritual and acceptable
modes of conduct
Features of it include;
• It being a part of life (eg rituals, marriage etc)
• Laws were tribal, different tribes had different variations in their legal system
• Ownership of the land, land owned on a tribal bases, being a particular tribe
gave you the right to dwell/ use resources of the land
• Oral tradition, passed on orally
• Secrecy- some laws were secrets
• The dreaming made up some of the law
• Kinship, system of blood ties, extending further then the tribe
• Maintenance of order- it was a part of lief and so solved disputes and regulated
behaviour
• Mediation and conciliation- conciliation meaning persuasion and negotiation,
other times they would be a punishment. Mediation was a decision to solve the
dispute
• Enforcement and sanctions- the punishment would usually be enforced by the
elders.

Because of white settlers much of law was forgotten and not recognised as a
consequence they has been a loss of culture as it was a part of their life and culture
It is based in…
• unwritten rules
• kinship ties and relationships with the law (eg laws relating to marriage)
• ritual traditions
• sacred and secular (non-religious laws)
• clan consensus
• Dreamtime

Many ATSI customary laws vary from tribe to tribe however they are similar
because they are all mainly based on the structure of the Dreamtime.

The Australian Law Reform Commission investigated the situation and in

1986, they decided to apply some of the ATSI customary law amongst themselves.
Their recognition existed in the following areas (NSW)…
• Land rights
• Child custody
• Aboriginal marriages- counted as de facto relationships
• Criminal law (some punished under ATSI law rather then Aust law)

Conciliation and mediation –

Disputes would be settled by an agreement more preferable rather then a

punishment
Enforcement and sanctions
The triable elders would usually carry out the punishments.

The different methods of resolving disputes include -

• consensus (agreement)
• talking
• argument
• ritual/ ordeal
• inquest
• mediation and conciliation
Punishments include…
• revenge
• social ridicule
• trials by ordeal
• death

The role of property: land was seen as being owned by the tribe, giving them the
right to dwell on that particular land. Although some people had personal items such
as cloths and hunting equipment.

The development of the Aus. Legal system

They are three types of law -

• Statute law – law made by parliament
• Common law – law made by the decisions of previous courts
• delegated legislation – giving other authorities the power to make legislation,
given by court

English law (past Norman conquer times) was based on -

• Roman law – law made by government
• Canon / ecclesiastical / church law – makes up a lot of our present laws on
marriage and divorce

Equity – rules developed that look at what is fair and just to an individual case. It
was developed by the court of chancery, death with injustices in the common law. It
was a development of the English legal system, as in some cases they thought that
the common law wasn’t fair in certain circumstances. Because the King could
overrule the decision they would go to the King for justice. The King would then do
equity or decide on conscience.
Mercantile law – law developed by merchants as they travelled to settle disputes
among themselves.

REFER TO TABLE –

SOURCES AND FRAMEWORK OF INERNATIONAL LAW

Civil/criminal law (and all the other laws studied previously studied) are called
domestic laws (laws that operate within a country).
1International law is the system of law Sovereignty basically means authority. For a state to be
which governs the relationships between considered a state there must a group of people that have
power and authority(in other words they must have
countries. A country is also called a
sovereign state. A state is an
independent entity or body that can enter into relationships with other states and be
recognised internationally. To be considered a state a place must have the
following…
• a permanent population
• a defined territory over which it exercises authority
• an effective government
• the capability of entering into international negotiations
Under the constitution Australia’s federal government has the power to make
international decisions on behalf of the people (section 51 (xxix)).

In Australia the sovereignty exists in the parliament, judiciary and executive arms of
government. Though in a sense the people have sovereignty as they vote in the
people.

In international law nations agree to not interfere with each others sovereignty.
International law is based on agreement and co-operation between nations. It is said
to be consensual ( general agreements).

They are two types of international law… Private international law: rules that govern the
rights of the individual which cross national
• Private international law.
• Public international law.

Public international law: the laws between

sovereign states.

SOURCES OF INTERNATIONAL LAW

Treaties are that most common source of international law
A treaty is an international agreement, concluded between states in a written form
and governed by international law. Eg ANZUS- defence and security agreements
between Australia, New Zealand and the United States (1951)

They are two forms of international law

1) Bilateral treaty – between two states
2) Multilateral treaty – between three or more states

Convention/covenant – a treaty is agreed to and proclaimed by a large number of

nations eg Geneva convention.

Declaration – is a resolution declared by the United Nations eg The 1972

Declaration of the Human Environment also know a the Stockholm Declaration.

INTERNATIONAL ORGANISATIONS –

• The UN was established by the charter of the United Nations in 1945.

• From 51 members in 1945 it has grown to 185 members by 1995.
• The UN was established to look over world affairs. The main aim is to
maintain global peace and security – it is not a law-making body.
• Originally it did not interfere with matters inside a particular nation. Though
now they are starting to interfere with matters that effect global peace or
human rights (particularly genocide). Eg in Rwanda in 1994 was broke out
between the Hutus and the Tutsis, two ethnic groups. Because the Tutsis was
the minority the Hutu-based government tried to wipe them out. UN
peacekeeping force were sent, whose role was to control/minimise conflict
rather then to take action.

International Government Organisations (IGOs) (Over 2,000 IGOs).

Are usually somehow related as an art of the UN. They deal with issues within ht
international law (such as tariffs, refugees and wealth)
Eg The UN’s ECOSOC or the International Labour Organisations (ILO) it establishes
universal standards for labour and social conditions.

Regional Organisation
Eg Asia–Pacific Economic Cooperation (APEC) and the European Unions(EU).
APEC is made up of nations of the Asia Pacific region and its purpose is to promote
the common economic interests.
EU consists of European nations, it has the power to regulate the economies of its
members for the good of the rest of them.
International agreements are made by the work of these Regional Organisations
(such as agreements about defence, human rights, the environment and trade.

Non-government organisations (NGOs)

Organisations that are separate from the government and UN but often have their
support. Eg The Red Cross and Greenpeace.

Comparison of International and Domestic law -

• International law is based on a consensual basis rather then a constitutional
basis like domestic law.
• International laws are made through treaties, conventions, resolutions of the UN,
customary international law, legal decisions and legal writings. Domestic laws
are made through statue law, common law and delegated legislation.
• Domestic customary law is the law of the ATSI and is becoming increasingly
recognised. In International law it is included in treaties and conventions
• A dispute resolution in Domestic law is through criminal and civil , federal and
state court systems. In International law it is the ICJ that resolves despites.
• Domestic law is organised through the court hierarchy and state and federal
courts. International law is organised by the UN and all its organs and treaties as
well as other related organisations eg The European Union.
• In Domestic law the basis of enforcement is that the law is obeyed or they will be
punishments. In the International law the basis of enforcement is that no
sovereign state can be forced to obey the law. Obedience to international law is
provided through reciprocity, nations obey the law because they want others to
obey the law as well.
• In Domestic law enforcement can be made by bodies such as the police and
punishments can be enforced, they can be in the form of gaol sentences or fines.
In International law dispute mechanisms and the Security Council can reinforce
through the UN. Punishments such as economic or diplomatic sanctions and the
loss of rights and privileges. Peacekeeping forces can also be deployed.

3 - The constitutional System of Australia

The Statute of Westminster 1942 (back dated 1939) – Australia can now make
laws for itself. Australia still connected with Britain
The Australia Acts 1986 – All connections with Britain cut. Privy Council no longer
could hear appeals from Australia.

The Constitution;
• Decides Federal Government’s power.
• Says that the Commonwealth can raise naval and military forces.
• The State has power to make laws on substantial areas of Government. E.g.
Police, prisons, electricity, education and health.

Separation of Powers:
1. The Legislature: The Commonwealth Parliament (House of reps and the
senate who make the law). Debate and approve proposed laws. It makes
the rules and laws in society which everyone is expected to obey.

2. The Executive: Administer law made by Parliament. Make decisions.

a) Executive Council – Consists of the Governor General and ministerial

advisors, who assent to the laws on behalf of the queen.

b) Government Department – (The public service – police) administer

laws.

3. The Judiciary – The courts. They judge who broke laws of the legislative.
The high court interprets the Constitution and is the highest court of
appeals for the settlement of disputes.

High Court –

o The high Court is at the Apex of the Australian court structure. It is the final
court of appeal for all Australian cases. Thus, when it is exercising appellate
jurisdiction it may hear appeals from all federal courts, from State courts
exercising Federal jurisdiction and from each states Supreme Court. It is thus
hearing matters on different matters of law.

o The High court also has original jurisdiction. This means that it has the power
to settle matters that are principally associated with Australia as a Federation
and may put pressure on the Federation. Within this jurisdiction it can hear
cases E.g. where a Victorian wants to sue the South Australian. The
 jurisdiction also includes interpreting and establishing the meaning of words
within the constitution.

o Most of the time the high court tends to works quietly and out of the glare of
publicity.

o It does not have the power to initiate change by enacting legislation and can
only decide those matters brought before it. In fact, it carries out its
constitutional function so quietly that like its ty lvalent (The Supreme Court) it
has been called the ‘least dangerous branch of Government.’

4 - The operation of the legal system

THE DOCTRINE OF TERRA NULLIUS

Native Title, this right was lost by the Native title: refers to the right to live on land and use
Aboriginal and Torres Straight Islanders it for traditional purposes.
(ATSI) in 1788 due to the doctrine of terra
nullius.

Doctrine of terra nullius: all English law applied to a

ATSI were bound by English law, their country that belonged to no one if the English
rights weren’t recognised, even with
disputes among themselves.
Prior 1788, land was owned by aboriginals on a tribal basis, being part of a
particular tribe meant you had the right to dwell on that land.

The doctrine of reception was what all English Colonists carried with them,
necessary to make an English rule. It distinguished between colonies that were can’t
by conquest or agreement and those claimed as findings of Uncultivated.
Uncultivated land was land that had no inhabitants or the inhabitants were primitive
(no system of law or social or political organization).

Mabo Case of June 1992 overturned the doctrine of terra nullius

LEGAL AID- is the provision of cheap legal services for people on limited incomes.
• helps inequalities i.e. rich people can have an advantage of better representation
while others can’t.
• Primary source of legal aid is from the Legal Aid Commission of NSW.
 • It provides legal advice, legal practitioners (information from and assistance,
preparation for a case and/or representation.

To receive legal aid a person must pass…

• means test- to see if they have a income that allows them to be classified as
needing legal aid
• merit test- to see if the case has a chance of winning
• policy guidelines- to see if they topic can be dealt with by Legal Aid

If a person applying for legal aid and they are at a special disadvantage (disabilities) then the policy guide lines extend

Legal aid is not free. After the case some people agree to pay the full costs of the
court.

Problems with legal aid

• It doesn’t reach the needy people: some believe the means test is too low.
• Funding problems:1996 Fed Gov cut legal funding ($120 million for 4 years).
Results of this fund cut include…
- Unrepresented parties: leading to more chances of loss.
- Policy restrictions: so that now the people who do qualify for legal aid (merit
test) can’t get the help they deserve because the subject of the case is no
longer provided by legal aid.
- Lack of experience and competence legal representation.
- Use of alternate dispute resolution mechanisms.

COURT HEARINGS –

Criminal Hearings- two main are summary hearings and trial by jury.

Summary offences- are heard without a jury, with a magistrate/judge. These tend
to be minor offences such as motor traffic offences or offensive behaviour.
Indictable offences- are more serious offences heard by a judge and jury. Eg
murder, malicious wounding, sexual assault

Trial by Jury (les then 1% of criminal cases)- Jury- a group of 12 citizens, they hear the
evidence and decide on a verdict.
a number of possible candidates are selected
by an electoral role. they are examined by both parties, eliminating some of them
and then ending up with 12 Jurors.

Examination in chief- prosecution looks at its own witnesses, defence locks at its
own witnesses.
Cross-examination- both parties look at opposite parties witnesses
Re-examination- parties look at own witnesses again, clarifying any issues form
cross-examination.
A unanimous verdict s reached when all of the jurors agree with the outcome of the

Civil case
• Called a suit or litigation
• Plaintiff brings case to court
• Defendant
• A remedy (fix something up) is giving
in the form of either damages (money
given for compensation)
• The standard of proof is on the
balances of probabilities
• Burden of proof is on the plaintiff
• Plaintiff (person whose rights have
been breached) initiates court
hearing.

case.

Summary hearing
A case heard by the magistrate alone. Same court procedure as Trial by Jury (Judge
makes the verdict).

Committal hearings
Preliminary cases to be heard before a jury. The prosecutor must prove that there is
a prima facie case (worthy of being seen by a jury).

Children’s hearings
For people under 18 years of age, similar to a Summary hearing except…
• It is a closed court (not viewable by the public).
• The media is allowed in but can’t publish names.
• The magistrate s specialised in children’s cases and tries to make sure the child
knows the proceedings
• A conviction is not recorded if the child s under sixteen years if age
Coronial Inquiries
These are cases when there is an unexplained/unnatural death or fire.
A coroner will try to explain it. The case is more inquisitorial and normal rules of
evidence and procedure aren’t necessarily followed. If they are evidence of
someone committing an offence then a case in front of a jury will be held in the
usual way.

CIVIL HEARINGS eg negligence, trespassing, breach of contract and property

disputes.
Conducted similar to those of criminal hearings. Each side will present their side of
the story with the same structured examination of witnesses.
Differences of Civil cases from Criminal cases
• Negotiation between parties can occur leading to an agreement between the
parties before the case or before the end of the case (out of court settlement).
• Usually judge decides case, occasionally there can be a jury of six.
• The case must asses the damages (money compensated by one party to
another because of a loss or injury) as well as the costs (legal expenses paid by
losing party).

Proceedings
Statement Claim where the legal practitioner representing the plaintiff presents a
document explaining the issues that have risen. The Statement of defence, or cross
claim is returned. This is the response of the defendant. It is known as the discovery,
allowing parties to prepare themselves for court hearings.

If the party doesn’t settle by that stage then they go to court. They present their
evidence with the rules of evidence as well as their witnesses. After this the lawyers
make final submissions or speeches to the judge or jury. A decision is reached. The
judge indicates who won the case and why. Then he gives the orders, whether one
party should pay costs or damages.
The main reason for the differences in the civil and criminal hearings is because a
person’s liberty depends on this case, also the state ahs the resources to detect and
give legal advice.
Participants in the court process
Jury
• Decides guilty or innocence in criminal case, occasionally there is a jury of six
people.
• In criminal a jury is made up of 12, civil of 6
• A number of candidates are picked out of an electoral role, the parties then
narrow the numbers down to 12.

Judge/ Magistrates
• Are legally qualified persons who conduct the court proceedings, they are usually
barristers
• Magistrates are used in the local court, the district court or higher uses a judge.
• Civil case: decides in favour of plaintiff/defendant (balance of probabilities)
• Criminal case: decides sentence and makes sure trial is fair, also he must decide
what questions about the law arise
• In summary hearings the judge must decide the verdict

Lawyers
Represent parties and take part in the examination of the witness.
• Solicitors (up to $2,000 a day) – advise, prepare, communicate on behalf of the
client, represent and brief a barrister. They are general legal practitioners. They
are the first point of contact between a client and the law. They generally work in
offices with other solicitors and deals with other legal matters eg the conveyance
when properties are sold requires a solicitor.
• Barristers (up to $6,000 a day) – specialise in representing a client, previously
could only be approached by a solicitor until Legal Profession Reform Act 1993
(NSW). Senior counsel (previously known as Queen’s Counsel) is the highest
rating barristers.

Judges, Magistrates, Lawyers and Parliamentarians are seen as part of the legal
profession.

The Clerk of the Court- takes part in the administrative work of the local court.
The registrar- responsible for administration in a higher court.
The Tipstaff- maintains order and administers the oath to the witnesses.

5 - Power and Authority

Power: to have control over something or someone. Or to exert strength over

someone or something.
In order to have power to you must have authority.
Sources of power
1. Physical strength
2. Position or title
3. Knowledge
4. Financial status
5. Customs/religion/religious beliefs
6. Emotional power
7. Fear of retaliation

Types of power –

Economic: held by a person or entity that has the money, means of production or
capital to influence the law. Eg: the breadwinner of a family, the largest stakeholder
of a company.

Political: held by the person or group that is able to control the running and policy
development of a decision making or controlling body. Can be exercised in to
people who are voted in to positions of power.

Social: include people for example charismatic politicians & public speakers who
use their power to influence people who have control of who becomes or remains a
decision maker. This is linked to cultural power.

Cultural: includes religious bodies, ethnic minority groups & lobby groups that have
as their basis sex or sexuality. They attempt to gain advantage, economic or legal
for the group. Provide pressure to ensure equality. Eg: women’s groups,
employment, political & social rights. Attain greater social recognition for rights.

Legal: 2 categories, those with the power to create law or to influence its creation &
those with the ability to use the law to defend their own rights.

Concepts of Authority –

Customary: weld power as a result of history or tradition. Is held by parents,

employers over employees etc. has developed overtime & is often recognised at
common law.
Statutory: held by persons or organizations that are provided with power by the
Parliament, organizations such as the police and taxation office.

Common Law: provided to persons and groups by the courts.

Delegated: given to subordinate people or organizations to make decisions or

principles on their behalf.

Relationship between the individual and power and authority –

Often conflict, eg: religious or philosophical beliefs are contrary to the decision of the
state, eg against warfare, refusal of conscription.
EG: case study: R v. Brown (1993)
Men in private group performing sadomasochistic activities which they video taped.
Men apprehended and charged with assault.

Should the needs of the state or individual be given priority?

Issues include:
Abortion, euthanasia, cannabis for medicinal purposes. These are irreconcilable.
EG: Gareth Joseph v. Minister for immigration, Multicultural & Indigenous affairs
(2002)
Denied citizenship because had not lived in Aust. Long enough. Said he would
suffer hardship & disadvantage. Minister used discretionary powers to grant him
citizenship.

6 - Legal controls on State Power

Official Duties and Discretionary Powers- Law is brandished by the state in three
ways:

1. By parliament when exercises its power of legislating.

2. By the courts through the decision making of judges.
3. By the executive in the development of government policy and the
administration of the state.

Administrative duty - arises where a statute providing the decision making power
states that an official “shall” by law, do something.
Administrative discretion - is available to a government official when the statute
providing the official with that power to act states that the official “may” do
something.

Individual Rights of access to information –

Govt. Transparency is defined as the openness towards the public about govt.
activities & intentions. An important means of limiting the power of the state.

Common Law Rights courts have considerable power in ordering the release of
info that may be useful to an individual. A subpoena is the notice ordering a person
to attend a law court; through this they can order a person or organization to present
info.

Statutory Rights are acts that are broadly known as Freedom of Information
Legislation.

Informal means of challenging state power-

• Media - its power is based on its ability to provide wide access to information
in an extremely fast time.
oThe facts that it is providing allows it to shape society’s opinions about
issues.

• Members of Parliament - Are the electrol representatives of society.

oTheir role is to represent the interests and legal concerns of their
electorate.

• Trade unions - are representatives of certain classes of workers engaged in

employment pursuant t an award.
• Are required to develop a relationship with employer groups and government
in order to further interest of workers.
 • Interest groups - representatives of sections of society that wish to have
their views formally recognised or legalised.
oUse political and media contexts to further their arguments.

Formal means of challenging state power -

• Ombudsman

• The independent commission against corruption (ICAC): independent

from the govt. works to investigate bodies such as the police.

• Privacy bodies: EG: the privacy committee of NSW are formed to advise the
govt. about breaches or potential breaches of privacy by govt. bodies.

• Administrative appeals tribunal (AAT): a federal body that hears appeals

against Cth govt. ministers officers & authorities. Areas of work are also
under the Freedom or Information Acts.

• Special Tribunals: are created in pursuant to specific legislation in order to

review problems in particular areas of the state use of power.

• The Courts

7 - Duties

A duty is something that a person or organisation is obliged to do.

Types of duties imposed on or felt by people are;

1) Social &cultural duties: unique to the society & created by them.

Frequently based on customs & define gender roles. EG Muslim
women keep their faces covered
 2) Moral duties: Concerned with distinction between what is good and
bad. Are personal feelings and therefore moral obligations when
created can be unique to the individual, can be linked to religious
beliefs.

3) Religious duties: lined to moral duties, fewer people, created by

religious authority & apply to all followers. EG Buddhism, duty not to
kill animals.

4) Ethical duties: relate to how we should behave, concerned with what

is right or wrong. Possible for something to ethical & not moral.

5) Legal duties: Duties that must be done because the law imposes
them. They are created by common law or statute cases.

Relationship between legal and other duties.

Often a legal duty will overcome a moral and religious duty because the legal duty
can be imposed and can lead to ramifications fro breaching the law. But sometimes
a religious or moral belief will come first. Eg abortion some religions ban it while the
law accept it.

The relationship between religious and legal duties in Australia is not strong, but the
relationship between legal and moral duties is strong because in most societies the
law reflects the moral values and ethics of the society. Such as murder and
marriage.

Legal and social duties- close relationship, eg those who avoid paying taxes are
punished the law. But social duties from custom such as replying to an invite will not
result in legal action.

Law reforms takes place to help bring legal duties in line with changing moral and
social duties. Eg after 1975 adultery was no longer a grounds for divorce b/c of
peoples changing views on their moral and social duties.

The nature and sources of international duties.

Legal duties between states-the United Nations charter imposes obligations and
duties on those member states. States also have duties b/c of international law.
Sources of international law;
• Treaties and conventions- all treaties impose legal obligations on states that
sign it.
• Customary international law- imposes duties on nations. Eg all nations must
prohibit slavery.- international habit of action- They can be recognised
through decisions of international bodies such as the ICJ.
• Decisions of international tribunals/ other sources of international law-states
also have obligations to other states arsing out of judicial decisions and legal
writings

Not only do states owe duties to other states, states are also obliged to maintain the
rights of individuals within their own territory.
Comparison of international and domestic law is that domestic duties is easier to
enforce and those people who breach it can be punished domestically, but
international breaches are harder to enforce and it is difficult to force them to meet
their international obligations.

Many states feel a moral and ethical obligation to perform other international and
domestic duties such as accepting refuges which is not an international law.

The duties of states

• Maintain friendly relations with other states. And settle their disputes by
peaceful means.- UN charter-
• Refraining from the use of force.-means nations are prohibited from using or
threatening to use force against other nations. Except for self defence, by the
Security Council ect.
• Promotion of economic and social development.- cooperation in solving
international problems of an economic, social, cultural or humanitarian
character.
• Promotion and encouragement of respect for human rights.

8 - Rights

Fundamental rights of individuals are protected both nationally and

internationally.
A right is something to which you are entitled. There are moral, customary, legal
and human rights.
Some aspects of the nature of rights are as follows;
The relationship between rights and duties - are that for an individual to gain
or maintain a right, some other individuals or organisations must perform a duty.
Such as a person’s right to freedom of religion means that others have duty not
to impose restraints on religious worship.

Moral and customary rights- many people believe that they have a right tot
certain things b/c of a moral or custom. Eg if someone lends their lawn mower
out they have the right o get it back in good condition. The law will usually not
enforce it.

Legal rights- are a right clearly given by the law.

Govt owe people some rights such a social security benefits. Many govt dept are
granted discretionary powers. Means officials may take certain action but are not
obliged to.

Human rights- are entitlements that are fundamental. They are things to which
every human being is entitled just b/c they are human.
They include the right to live, liberty and security, the right not to be held in
slavery, the right to a fair and public hearing, the right to own property and to
take part in govt. these right are listed in the Universal Declaration of Human
Rights 1948 (international)
They are recognised internationally.

Collective rights- are rights that do not belong to an individual but to a group of
people. Some rights are collective rather than individual such as the right to a
continued survival of a race which protected by prohibition of genocide.
Another collective right is the right to govern themselves- Self determination- it
is recognised within and betweens nations.
It means the right of the subjects or people of a state to choose their own for of
govt. it si regarded as a fundamental principle of international relations. It
involves;
• The right of colonial people to establish their independence.
• Principle of sovereign equality-means that no matter the size or power of
a state each state has equal footing in the UN and all have one equal
vote.
• Is the right claimed by indigenous people - is most controversial- to control
their own traditional lands and economy.
 International protection of rights;
Human rights are protected under international law through the;
• United nations charter- it promoted human rights
• International bill of rights
- The United Nations Universal declaration of human rights- lists all the
human rights.
• Global human rights treaties.
• Non govt organisation such as amnesty international- they publicise and
raise awareness.

There have been considerable limitations on international law protecting

rights.
• Not all countries are parties to human rights treaties
• Lack of enforcement mechanisms
• Different cultural perspectives on human rights.

Protection of rights in Australia-

• Many legal rights are granted to citizens because the law does not
interfere with them such as freedom of movement.
• Rights conferred by common law such as being a tenant and the right of
quiet and peace from neighbours.
• Rights by statute law
• The constitution
• International law

International rights versus domestic rights

• The international human rights treaties cover many rights more than
the domestic laws of most countries.
• International rights are more difficult to enforce while domestic legal
rights have the authority of domestic law behind them.

9 - Women

Traditional Role of women in society

• Historically women have been seen as holding an inferior place to men
 • Viewed as UNITA CARO ‘one body’ lost identity to husband
• Role of women in society determined by their marital status

Women at Work

1963 Women’s Bureau is established this saw to promote women’s issues

through parliament

1966 ‘Marriage Bar’ which compelled women to resign from public service
lifted

1969 Aust Conciliation and Arbitration Commission first steps toward ‘equal
pay for equal work’ However, didn’t apply to industries where work ‘usually or
essentially done by women’

1970 Committee for women’s employment established Independent group

aimed at promoting interest of women through lobbying govt and initiating policy

1972 Aust Conciliation and Arbitration Commission ruling grants that work of
equal value should receive equal pay

1974 AAAC grants women the medium adult wage, same which men getting
since 1966

1975 Women’s Advisory Council is established in NSW to advise govt

1977 Anti-Discrimination Act (NSW) - gender - marital status

1984 Sex Discrimination Act (Cth) prevents discrimination based on gender,

marital status, pregnancy, when going for services and goods (e.g. home loans)

1986 Affirmative Action (Equal Employment Opportunity for women) Act (Cth)
removes barriers in workplace

Problems for women in workforce

Wages
 • 84% pay of men ABS 2000
• 1999 study average fortnightly wages earned:
o M = 798.40
o F = 669.60

Stereotype of women’s work

• Despite equal pay gains still concentrated in particular areas of workforce
which are lower paid than those dominated by men
oTypists 98.5%
oNurses 94%
oTeachers 70%
oReceptionists 86.5%

Education
• Leves v Haines (1986) school didn’t offer industrial art subjects, court
ruled these were not offered due to stereotypical reasons.
• This placed women at a disadvantage court rules therefore they had to be
offered

Women viewed as homemakers

• Usually bear greater domestic duties
• Lack of affordable childcare facilities these lead to:
▪ Less over time and majority part time to perform domestic
duties (75% P/T are women)
• More likely to miss work because children are sick
• Broken working life (child birth)

Lack of Female Role Models

• Harder to aspire to top corporate positions
• Discrimination less likely to gain promotions

Enterprise Bargaining and over award payments

• Federal Govt conducted survey which showed men 60% more likely to gain
pay rise under E.B.
o“likely to get significantly less than their male counterparts” (SMH 22/9/93)
 oOver award payments HREOC stated less likely to gain due to nature
of their work

Glass ceiling effect

• The invisible barriers created by male prejudice prevent women from
being promoted above certain levels
• Proven by:
oProfessor Still of Uni Western Syd 1993, women in senior
management positions fell to 1.3% from 2.5% in 1984

Indirect Discrimination
• High court ruled indirect discrimination by BHP against 700 women
• Due to ‘last on, first off’ policy meant women were likely to be
discriminated against compensation ordered

Sexual Harassment
• Refers to any unwanted sexual advances or conduct in workplace take
form of; smacking, crude jokes, displaying pics of naked women on computer
screens
• General patterns of harassment shows often people in positions of power
who sexually harass fellow workers
• Often not reported through fear of losing job
• Of harassment complaints received by Anti-Discrimination board in 93-94
40% related to sexual harassment
• Hall and Others v A Sheiban Pty Ltd and Sons (1989) doctor asking
intimate personal questions during consultations

Discrimination
• Treatment of one person differently to another in the same situation due to
that persons membership of a particular group in society

2 types of Discrimination

• Direct: - someone acts to treat someone differently

• Indirect: - action results in one group being treated unfavourably
Main Laws

• Anti-Discrimination Act (NSW) 1977

• Sex Discrimination Act (Cth) 1984
• Race Discrimination Act (Cth) 1975
• HREOC Act (Cth) 1986