Law and Social Justice

Separation of Powers

Political theory recognises three powers of government: • Parliament – consists of the Queen, represented by the Governor-General, and two Houses – The house of representatives and the senate. The parliament passes legislation. • Executive – in theory is the queen but now is the government that carries out and enforces the law • Judiciary – judges who interpret laws and to judge whether they apply in individual cases

Statute Law • Statute law is legislation that has been passed through Parliament. The terms 'statute' and 'legislation' may be used interchangeably. • Both State Parliament and Federal Parliament have the power to pass laws within their jurisdiction (area of influence). Each State looks after aspects of government such as roads, transport, hospitals and education, which is why laws for these areas differ from State to State. • Statutes passed by Federal Parliament apply to all of Australia. Federal Parliament deals with issues such as defence, national health (Medicare), immigration and trade.

Common Law When an issue goes to court and there is no statute that covers it, a judge will hear the case and issue a verdict. The record of this verdict becomes a precedent so that when similar cases arise, other judges may take into account the penalty previously issued. Previous judgements therefore form the basis for common law.

Civil Law

• 2 legal individuals – one individual could be the government • One party seeking compensation and/or specific action/remedy from the other • Balance of proof is the balance of probabilities • If you continue to not pay your tolls (which is civil) you can go to jail.

Criminal Law

• Crimes ‘against society’ • The state prosecutes and punishes an offender • Person presumed innocent until proven guilty • Punishment for breaching criminal law may be imprisonment • Balance of proof is beyond reasonable doubt • Examples: murder, rape, assault, theft and fraud

Examples of Criminal vs. Civil Law A lot of it is based on intention. • Peter Rabbit stole carrots from Mr. McGregor’s garden. - Both – stealing (crime) but if Mr. McGregor wants them back or compensation, he has to initiate a civil case. • The Queen gave Snow White a poisonous apple. - Criminal because it was intentional but if the Queen bought it from a grocer and had no idea (then it’s civil). • The bean seller sold Jack seeds that the seller knew would not produce beans. – Civil – faulty goods – consumer law. • Papa bear and Mama bear no longer wanted to be married. - Civil • The second little pig didn’t complete building the other pig’s house as he said he would. – Civil if the second little pig was paid. Unless there was a contract (verbal or written), then it is criminal. • Humpty Dumpty fell off the wall that the Queen’s men built because it collapsed. - Civil but you could argue that someone was criminally reckless (then that’s a reckless murder). • Cat Woman scratched Batman with her claws. - Criminal • Goldilocks broke Baby Bear’s chair. Criminal

Criminal Sentencing

In Victoria, a sentence can only be imposed on an adult for one or more of the following purposes. These are known as the five purposes of sentencing: 1. Just punishment to punish the offender to a level, and in a way, that is just in all the circumstances. 2. Deterrence to discourage the offender (known as specific deterrence) or other people (known as general deterrence) from committing the same or similar offences. 3. Rehabilitation to create the conditions that help to restore the offender to leading a law- abiding life. 4. Denunciation to denounce, condemn, or censure the offender’s behaviour (that is, make it clear to the community that the behaviour is wrong). 5. Community protection to protect the community from the offender.

The Adversarial Model

• Opposing parties argue against each other and the judge or jury is the decision maker or arbitrator. The opposing parties aren’t allowed to talk directly to each other. • The distinguishing feature of the court’s process is that it is adversarial: it pitches opposing parties against each other, presided over by a judge or magistrate as a neutral, and comparatively passive, arbiter.

Rights • Rights can be viewed in different ways: o Legal rights § Those rights enforceable or given by law o Human rights § Basic rights and freedoms to which all humans are entitled. Socially constructed. o Natural rights § Moral, or inalienable rights, which are universal.

Justice Systems • Retributive o A system of criminal justice based on the punishment of offenders rather than on rehabilitation. • Restorative o Focuses on the rehabilitation of offenders by repairing the harm caused by criminal behaviour – It is best accomplished through cooperative processes that include all stakeholders. This can lead to transformation of people, relationships and communities. • Distributive o Focuses on the outcomes rather than the process o eg. if it takes you 10 years to get your kids back, you get them back in the end which is distributive justice. • Procedural o The idea of fairness in the processes that resolve disputes and allocate resources. o eg. if it takes you 10 years to get your kids back, even if you get them back in the end, justice has not been served. • Interactional o The degree to which the people affected by decision are treated by dignity and respect. o This justice focuses on the interpersonal treatment people receive when procedures are implemented. • Informational o Focuses on explanations provided to people that convey information about why procedures were used in a certain way or why outcomes were distributed in a certain fashion • Social o Justice in terms of the distribution of wealth, opportunities, and privileges within a society.

Courts and Tribunals

Judicial and Administrative Power

Administrative Tribunal Does not exercise judicial power

Judicial Power • Indicated by two distinctive functions: o Governing trial for the determination of criminal guilt, and; o Determining facts and applying law to decide a dispute between parties as to the existence of a right or obligation. o Most courts exercise judicial power (along with administrative power) because the parliament has given it to them through legislation.

Courts • Commonwealth o High Court o Federal Court o Federal Circuit Court o Family Court • State o Court of Appeals o Supreme Court - The Supreme Court is Victoria’s highest court. Cases in the Supreme Court may be heard by a judge and jury. The court is divided into the Trial Division and the Court of Appeal. The Trial Division hears very serious criminal cases, like murder, and deals with large disputes over money and business. Claims for $200,000 and above in civil justice matters are heard in the Supreme Court. The Court of Appeal hears appeals about decisions made in the County Court and in the Trial Division of the Supreme Court. o County Court - The County Court deals with more serious crimes and with claims for amounts over $100,000. Cases in the County Court may be heard by a judge and jury. These cases are called ‘indictable’ offences. If a decision made in the Magistrates' Court is to be appealed, it usually goes to the County Court. The judge in the County Court can decide whether to agree with the magistrate's decision or make a different decision. o “appealed” means a person applied to a higher court for a reversal of the decision of a lower court: he said he would appeal against the conviction. Types of indictable offences include – aggravated burglary – indecent assault – drug trafficking offences – murder – manslaughter. o Magistrates Court – criminal matters that a Magistrate has jurisdiction to decide are called ‘summary’ offences and have conventionally been less serious charges, tried by a Magistrate alone, without a jury. Charges that a Magistrate does not have jurisdiction to decide are called ‘indictable’ and have conventionally been more serious charges, tried by a higher court with a jury. o Children’s Court - The Children's Court operates like the Magistrates' Court but specialises in children's matters. o Coroners Court o Koori Court – refer to Aboriginal People and the law for social work

Tribunals Tribunals are less formal than courts and are usually a quicker and cheaper way of resolving disputes. Often people involved in a case at the tribunal will be able to represent themselves. • Commonwealth o Administrative Appeals and Tribunals • State o Victorian Civil and Administrative Tribunal o Mental Health Tribunal o Victims of Crime Assistance Tribunal

Legal Aid Victoria

Duty lawyers help people who need it most. Our main focus is on people who: • Can’t afford a private lawyer • Have an intellectual disability, an acquired brain injury or mental illness • Are experiencing or at risk of homelessness • Are in a psychiatric in-patient unit with a Mental Health Tribunal hearing • A child or young person going to the Children’s Court • Can’t speak, read or write well in English • Are Indigenous Australians • Are at court for a family violence matter or are at risk of family violence • Are in custody or facing a serious penalty. A serious penalty is where there is a real risk that a person will: • Go to jail • Be put on a community corrections order • Get a substantial fine. The penalty can depend on your prior criminal record.

Jurisdiction

• The word describes the extent of power through two meanings: • Geographical limits: The courts and tribunals established by the State of Victoria exercise jurisdiction – power- within the defined geographic boundaries of Victoria. o On the same basis, a federal court or tribunal exercises its jurisdiction in all parts of Australia. • Limits of responsibility: A consequence of the jurisdictional limit of responsibility is that a given court or tribunal may not have power to deal with a matter because the issues are outside its allocated role. o For tribunals, this limitation of authority follows from the fact that they are created by a State or Territory government for specific purposes, so their jurisdiction is only what is described in the statute that creates them. o For courts, this limitation follows in part from the conventional role under our inherited system of English common law, and in part from statutes that allocate areas of responsibility among the courts. o Eg. mental health tribunal can only hear matters about the mental health act. Eg. Only the Supreme Court has jurisdiction to hear cases about murder.

Three Main Approaches to Law • Positivism, defines the law as something made by someone with law making power (eg. king or queen) • Natural law, argues the law should reflect principles of natural rights (eg. right to life or right to movement) • Legal realism, which suggests law is as irrational and unpredictable as it relies on humans to implement it (law isn’t strictly followed as judges have discretion)

Rule of Law An example where the rule of law has not been followed, for each of these principles.

• The law must be both readily known and available, and certain and clear. o Marriage act – discriminates against people arbitrarily and irrationally. • The law should be applied to all people equally and should not discriminate between people on arbitrary or irrational grounds. • All people are entitled to the presumption of innocence and to a fair and public trial. o Terrorist suspects o White people are likely to get shorter sentences • Everyone should have access to competent and independent legal advice. o Quality of lawyers – people who can’t afford decent legal representation. o Refuges denied access to legal advice. • The Judiciary should be independent of the Executive and Legislature (the prime minister cannot tell the judges what to decide). o The nomination process o A principle that isn’t always followed. • The executive should be subject to the law and any action undertaken by the Executive should be authorised by law. o Parliamentary privilege – protection from defamation. Encourages a free and open debate in parliament, so politicians aren’t feeling constrained in the chamber. • No person should be subject to treatment or punishment which is inconsistent with respect for the inherent dignity of every human being. o Prisoners – it’s not rehabilitation, dehumanization. • States must comply with their international legal obligations whether created by treaty or arising under customary international law. o Refugees o Climate change

What is Social Justice? The social justice side of things is the main focus

Code of Ethics 1.1 Definition of social work The social work profession promotes social change, problem solving in human relationships and the empowerment and liberation of people to enhance wellbeing. Utilising theories of human behaviour and social systems, social work intervenes at the points where people interact with their environments. Principles of human rights and social justice are fundamental to social work.

Code of Ethics 3 Social Work values: Respect for persons Social justice Professional integrity

Social Justice: Code of Ethics 3.2 The social work profession holds that social justice is a core obligation which societies should be called upon to uphold. Societies should strive to afford protection and provide maximum benefit for all their members. The social work profession: promotes justice and social fairness, by acting to reduce barriers and to expand choice and potential for all persons, with special regard for those who are disadvantaged, vulnerable, oppressed or have exceptional needs advocates change to social systems and structures that preserve inequalities and injustice opposes and works to eliminate all violations of human rights and affirms that civil and political rights must be accompanied by economic, social and cultural rights promotes the protection of the natural environment as inherent to social wellbeing promotes community participation in societal processes and decisions and in the development and implementation of social policies and services.

Social justice refers to ‘the concept of a society in which justice is achieved in every aspect of society, rather than merely through the administration of law. It is generally considered as a social world which affords individuals and groups fair treatment, equality and an impartial share of the benefits of membership of society’ Ife, J 2010, ‘Human rights and social justice’, in M Gray & S Webb (eds), Ethics and value perspectives in social work, Palgrave Macmillan, Basingstoke (UK), pp. 148–159

Referencing Acts: Resources/referencing: We need to state the name of the act, the year of the act and the jurisdiction in our references. Example: Family Law Act 1975 (Cth).

The person commencing the action is the Commonwealth Government and the person defending the action is Anderson; the Commonwealth is suing Anderson for something. Commonwealth and Anderson, pp. 303 - Commonwealth v Anderson (1960) 105 CLR 303; [1961] ALR 354).