Section 1 - Law & Society (3 Viewers)

[Frigid]

Though the wording of D makes it correct - the parliament can override common law, and change the law, but it cannot change common law itself.

i love your logic, but i disagree with you. Clearly multiple-choice questions involve selecting the most correct answer.

 

[Miltonian]

The contentious questions:

6- A Civil right - remember we are looking for the best answer. Legal is quite broad. The right to exercise silence is a civil right, thus it is part of the cautions given by an arresting officer as the "right to remain silent".

8- A Justice - We are looking at the predictability of law. "Predictability" implies that socially, such decisions seem obvious. If they are obvious, then this implies that they are part of social morals ethics and values. Thus, the best answer is justice, because justice needs to be attuned to social values. The rule of law, however, discusses the equality under the law, this is not the best answer regarding predictability.

9- C - This question is really up in the air. Yet when you think about it a bit deeper, legal representation is largely a state issue, ie. Legal Aid. Still not sure though, so don't hold me to it.

14- A Local Court - We are looking here at "enforcement" of a right. HREOC is a body designed to advocate individuals seeking legal redress of issues pertaining to Racial Discrimination. Yet to enforce such legislation the local court would be the only viable option. Again, a very flimsy question.

 

[jj.oc]

yeah 14, i agree. concilitation is coming to a MUTUAL agreement which has NO LEGAL enforcement. only arbitration can be enforced.

how can you argue that the local court is MORE enforceable if its jurisdiction doesnt even cover discrimination?

this is a question of enforcing Brian's RIGHTS and not the LAW anyway

 

[mckensara]

Haha do they complain that most of the stuff they try to teach us in Legal studies is totally irellevant and "airy fairy" like mine do

haha yes!
they are like "oh who writes this paper, they clearly do not have law degrees" hahaha
love the rents.

 

[ajdlinux]

The contentious questions:

6- A Civil right - remember we are looking for the best answer. Legal is quite broad. The right to exercise silence is a civil right, thus it is part of the cautions given by an arresting officer as the "right to remain silent".

No, the reasons police officers read those rights is because they're legal rights and they are required to read that statement by law (LEPRA).

8- A Justice - We are looking at the predictability of law. "Predictability" implies that socially, such decisions seem obvious. If they are obvious, then this implies that they are part of social morals ethics and values. Thus, the best answer is justice, because justice needs to be attuned to social values. The rule of law, however, discusses the equality under the law, this is not the best answer regarding predictability.

Justice does not aim for predictability, it aims to achieve what is right, which may not be predictable. The rule of law aims to achieve whatever the law says in every situation, hence predictability.

9- C - This question is really up in the air. Yet when you think about it a bit deeper, legal representation is largely a state issue, ie. Legal Aid. Still not sure though, so don't hold me to it.

It's not guaranteed at all. The only safeguard under Australian law for legal representation is Dietrich v The Queen, and that doesn't guarantee you a lawyer, it merely means your trial can be thrown out if you don't have one, so the government will give you one to avoid losing their case.

14- A Local Court - We are looking here at "enforcement" of a right. HREOC is a body designed to advocate individuals seeking legal redress of issues pertaining to Racial Discrimination. Yet to enforce such legislation the local court would be the only viable option. Again, a very flimsy question.

See the arguments about whether the Local Court has discrimination jurisdiction.

 

[jj.oc]

The contentious questions:

6- A Civil right - remember we are looking for the best answer. Legal is quite broad. The right to exercise silence is a civil right, thus it is part of the cautions given by an arresting officer as the "right to remain silent".

if you google "right to silence" the first thing that comes up is "The right to remain silent, as it is officially called, is a legal right of any person subjected to police interrogation or summoned to go to trial in a court of law"
however, the right to remain silent is also protected by the interntaional covenant on civil and political rights, so its hard to tell. but i didnt think this question was ambiguous at all- i went straight for legal right

Do you have a view on question 11???

 

[ajdlinux]

if you google "right to silence" the first thing that comes up is "The right to remain silent, as it is officially called, is a legal right of any person subjected to police interrogation or summoned to go to trial in a court of law"
however, the right to remain silent is also protected by the interntaional covenant on civil and political rights, so its hard to tell. but i didnt think this question was ambiguous at all- i went straight for legal right

Given a choice between moral/civil/etc. rights and legal rights, if it can be considered a legal right, I'd always pick that. In the context, he's in court and he doesn't want to give self-incriminating evidence. Now if he refuses to answer questions, the court doesn't consider whether he was morally right to do that, or whether the right to silence is a 'civil right', they consider whether the refusal to give evidence is lawful. In this case, it is, therefore it's a legal right.

So I agree - not particularly ambiguous, especially if you've done past HSC multiple choice sections.

 

[jj.oc]

ajdlinux

/\/\/\/\
i cant believe your only 16!! your so smart! you should be studying for the school certificate around about now.

 

[Miltonian]

I concede to you that 6 is a Legal Right

8 however, is definitely justice sorry to say to you.

9 - you mention Detrich v R which actually found at the high court that the constitution hold implied human rights so in fact D is the answer

14 - would have to be the local court as it is the only power of enforcement, we are not looking at advocation, but rather enforcement.

So the final is
6 - B
8 - A
9 - D
14 - A

 

[dolphy-chan]

from hreoc's website: "We help resolve complaints about human rights violation & various discrimination laws through a conciliation..." but in terms of enforceability the local court would be better if it had the jurisdiction to cover discrimination, as conciliation doesn't get you anywhere

...just before anyone continues, you guys do know that it's no longer called Human Rights Equal Opportunity Commission right? As of last year its the Australian Human Rights Commission >.>;; so technically, the answer could be (a) as the HREOC no longer 'technically' exists.

In regards to 14, you can say that it's an implied right based on Dietrich v R, but not its not guaranteed under the Constitution. It's only technically a right to a 'fair trial' in which the High Court ruled that for a fair trial to be committed, legal representation is required, however, in the case McInnis v R it was ruled because of the seriousness of the crime, legal representation was not granted. Thus, because of that deduction, I decided that it wasn't guaranteed and put (a) as most are guaranteed it, but not all, especially in the case of legal aid, as it requires a means,merit and jursdiction test before legal representation is granted.

 

[ajdlinux]

I concede to you that 6 is a Legal Right

8 however, is definitely justice sorry to say to you.

I still don't understand the logic there.

9 - you mention Detrich v R which actually found at the high court that the constitution hold implied human rights so in fact D is the answer

Read the decision: Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 (13 November 1992) - the only constitutions it mentions are American and Canadian. It is an entirely common law based decision, and as I said, it does not give you the right to a lawyer, only the right to have your trial thrown out in some circumstances.

In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.

That is the only guarantee Dietrich gives on legal representation. It is not a general right, constitutionally, statutorily or at common law.

14 - would have to be the local court as it is the only power of enforcement, we are not looking at advocation, but rather enforcement.

Again, see our arguments as to whether the Local Court has jurisdiction.

@dolphy-chan: agreed, I've told that in my email to the BOS. However, AHRC is considered one and the same legal entity as HREOC as it was only renamed.

 

[jj.oc]

I concede to you that 6 is a Legal Right

8 however, is definitely justice sorry to say to you.

9 - you mention Detrich v R which actually found at the high court that the constitution hold implied human rights so in fact D is the answer

14 - would have to be the local court as it is the only power of enforcement, we are not looking at advocation, but rather enforcement.

So the final is
6 - B
8 - A
9 - D
14 - A

are you joking? question 9?
legal representation is NOT guaranteed by the constitution. in the Dietrich 1992 case it was only determined that there was a right to legal representation for serious criminal matters.
also, do you have a view on question 11?

 

[Miltonian]

Justice is obviously the answer. Justice, conceptually, decrees that an outcome in a trial is considered by society, to be one which is based on their views and beliefs. If that is so, society would 'predict' that decisions are made. I think your missing the point that it is an "outcome". So the "outcome" is predictable as it is aligned to societies moral and ethical understanding of justice.

Im not going to argue about 9 anymore because the question is very silly, and you are misapplying both the case and misreading the question i feel.

For the last time, HREOC, or as our esteemed colleage mentions, The AHRC, does not, have power, to "enforce" only to advocate. While i understand where you are coming from, the answer clearly must be The Local Court, as it is the only answer which has power to enforce. It seems to me irrelevent whether the court actually has jurisdiction or not to deal with such a matter (which frankly i dont see how it could) Yet to me it is obvious, that the local court must be the answer with regard to enforcement, it is impossible to argue that the a delegated body such as the Commission has the right to enforce. It does not have authority or avenues by which to do so.

 

[ajdlinux]

Justice is obviously the answer. Justice, conceptually, decrees that an outcome in a trial is considered by society, to be one which is based on their views and beliefs. If that is so, society would 'predict' that decisions are made. I think your missing the point that it is an "outcome". So the "outcome" is predictable as it is aligned to societies moral and ethical understanding of justice.

I won't argue this one any more...

Im not going to argue about 9 anymore because the question is very silly, and you are misapplying both the case and misreading the question i feel.

I will point out to you, as a final reference, an official report about Dietrich from the Australian Senate: Parliament of Australia: Senate: Committee: Inquiry into the Australian Legal Aid System - Report 2

For the last time, HREOC, or as our esteemed colleage mentions, The AHRC, does not, have power, to "enforce" only to advocate. While i understand where you are coming from, the answer clearly must be The Local Court, as it is the only answer which has power to enforce. It seems to me irrelevent whether the court actually has jurisdiction or not to deal with such a matter (which frankly i dont see how it could) Yet to me it is obvious, that the local court must be the answer with regard to enforcement, it is impossible to argue that the a delegated body such as the Commission has the right to enforce. It does not have authority or avenues by which to do so.

It is relevant that the Local Court has no jurisdiction. If the Court has no jurisdiction it cannot do anything whatsoever, except dismiss the case.

I feel the question is very, very dodgy. At the very least, they should have said AHRC instead of HREOC, and in any case, I don't think the intricacies of the Local Court Act are part of the syllabus.

 

[jj.oc]

Justice is obviously the answer. Justice, conceptually, decrees that an outcome in a trial is considered by society, to be one which is based on their views and beliefs. If that is so, society would 'predict' that decisions are made. I think your missing the point that it is an "outcome". So the "outcome" is predictable as it is aligned to societies moral and ethical understanding of justice.

Im not going to argue about 9 anymore because the question is very silly, and you are misapplying both the case and misreading the question i feel.

For the last time, HREOC, or as our esteemed colleage mentions, The AHRC, does not, have power, to "enforce" only to advocate. While i understand where you are coming from, the answer clearly must be The Local Court, as it is the only answer which has power to enforce. It seems to me irrelevent whether the court actually has jurisdiction or not to deal with such a matter (which frankly i dont see how it could) Yet to me it is obvious, that the local court must be the answer with regard to enforcement, it is impossible to argue that the a delegated body such as the Commission has the right to enforce. It does not have authority or avenues by which to do so.

question 9 was not silly it was probably one of the most straight forward questions in the test. if there exists a constitutional right to legal representation, how do you explain cases such as McInns v R 1979? where there was no right to legal representation and the high court ruled that a fair trial had taken place without it.
Also, the couple who recently were charged with murdering their daughters death (they starved her, she weighed something like 6 kilos when she died), did NOT have the right to legal representation. The judge conducted the first hearing without it on the grounds that "it [was] becoming a very old matter", and legal aid had taken over a year to allocate legal representation.

this is CLEAR proof that the answer has to be A->it is not guaranteed for everyone.

ALSO DO YOU HAVE AN OPINION ON THE ANSWER TO QUESTION 11?!!!!!

 

[Miltonian]

Number 11, is definitely B, there is no issue about that one.

Im adamant on both 8 and 14.

I see your point JJ on 9, yet i still think that the question is badly put across, a "feature" is very broad.

Enough of this, see you all after eco for the same discussion no doubt.

The other answers by the way were
1 - D
2 - D
3 - C
4 - C
5 - D
6 - B
7 - A
8 - A
9 - A or D
10 - D
11 - B
12 - D
13 - B
14 - A
15 - C

 

[ajdlinux]

Number 11, is definitely B, there is no issue about that one.

Im adamant on both 8 and 14.

I see your point JJ on 9, yet i still think that the question is badly put across, a "feature" is very broad.

Enough of this, see you all after eco for the same discussion no doubt.

Too bad I don't do Eco then, I love all this debating (And I still say 11 is C.)

 

[Miltonian]

Mate, i respect your somewhat legal mind, but i think you have a warped understanding of the rule of law if you put that for 11 and 8, you really need to look it up, and figure it out. Sorry i dont have time to continue.

 

[bmn]

Justice is obviously the answer. Justice, conceptually, decrees that an outcome in a trial is considered by society, to be one which is based on their views and beliefs. If that is so, society would 'predict' that decisions are made. I think your missing the point that it is an "outcome". So the "outcome" is predictable as it is aligned to societies moral and ethical understanding of justice.

Very nice explanation there, hopefully its right...

Though I'm still fairly confident 2 is A...

 

[jj.oc]

Mate, i respect your somewhat legal mind, but i think you have a warped understanding of the rule of law if you put that for 11 and 8, you really need to look it up, and figure it out. Sorry i dont have time to continue.

i put 11C aswell. in my opinion, its more likely to be C than B. natural justice = procedural fairness, and the act of passing a law to compensate victims has nothing to do with procedural fairness.

As for question 2 I have to disagree with you, for similar reasons. it is not ESSENTIAL that a law represents natural justice. A law can be just without relating to natural justice at all.

but i completely agree with you on question 8.