session 3 legal aspects department of social … 3 legal aspects department of social sciences ......

SOCE311

www.endeavour.edu.au

Session 3

Legal Aspects

Department of Social Sciences

© Endeavour College of Natural Health www.endeavour.edu.au 2

Session Aim

o The aim of this session is to provide an

introduction to:

• criminal law, civic law, and torts

• the Therapeutic Goods Act, Anti-Discrimination Act,

Equal Employment Opportunity Act, Anti-

Competition/monopoly, and consumer based

legislation


Criminal Law, Civil Law, Torts


The Judicial System

o The judicial hierarchy of courts is an essential

part of our justice system. It is structured to

achieve the following:

• lower courts to follow precedents made by higher

courts

• allows consistency and modification

• appeals to higher courts

• specialisation in the hearing of particular cases and

interpretation of particular statutes


The Judicial System

o Australia has a federal judicial system made up

of five judicial levels

• Level 5 – High Court

• Level 4 – Federal Court, Family Court, Federal

Magistrates Court, and Commonwealth Tribunals

• Level 3 – State and Territory courts

• Level 2 – Courts with wide civil jurisdiction (such as

district and county courts)

• Level 1 – Courts with minor civil and criminal matters

(such as local courts, Magistrates courts, and

specialist courts and tribunals)


Principles Of Court Proceedings

o Our legal system is known to be an ‘adversarial’

system, meaning our judges have no general

power to make enquiries, but ‘adjudicates’ on a

legal issue put forward to parties with evidence

o Court proceedings are conducted in courts that

are open to the public, except for certain cases

that involve children



o Courts determine ‘issues’ such as questions of

law or fact

o Evidence is any matter that can persuade the

court that some other fact exists or does not

exist

o Evidence requirements change according to

whether it is used in relation to court

proceedings, quasi-judicial proceedings, or

administrative tribunals



o The burden of proof differs between criminal

and civil law

o In criminal law the burden of proof must be

‘beyond reasonable doubt’

o In civil law, the burden of proof must be within

the ‘balance of probabilities’


Criminal Law

o Criminal law relates to those offences against

the state, but can also apply to acts such as

theft, which affects a company or individual

o In broad terms, crime can be stated as conduct

the state proscribes, as traditionally they have

been viewed as offences that are against the

state (or ‘against the Queen’s peace’)


Criminal Law

o A penalty may be imposed if the state declares

the conduct an offence

o It is possible that an individual could commence

criminal proceedings, although normally crimes

are prosecuted by the state


Criminal Law

o Technically, minor traffic violations and parking

offences may be described as crimes, but they

are not normally regarded as behaviour that is

deemed criminal

o An activity could be actionable as a civil wrong

AND a crime

o One of criminal law’s fundamental principles is

that the accused person ‘is innocent until

proven guilty’


Civil Law

o Civil law is that part of law which is not related

to crime, however, it may overlap with criminal

law such as in the case of a car accident where

someone is driving dangerously

o Civil law protects the rights of individuals, and

is brought about by the plaintiff (the aggrieved

party) against the defendant


Civil Law

o Civil law cases often result in compensation

(usually in monetary form) for an infringement

of a legal right (tort) against the plaintiff such as

breach of contract


Torts

o Torts are referred to as civil wrongs. The law

may provide a solution if one party’s actions

towards another party is not in accordance with

proper standards of society

o Examples of torts include: nuisance, trespass,

negligence, and defamation

o There is quite a large overlap between criminal

law and many of the torts due to their

development from the same legal rules


Torts

o The difference between the two is that crimes

are concerned with protecting society and the

wrongdoer being punished, whereas a tort

involves some type of compensation for harm

done to them


Torts

o Intentional torts are those such as trespass to a

person – that is, touching a person or client

without their consent

o There are three main recognised legal

trespasses

• assault – a direct threat either intentionally or

unintentionally that creates the belief in the client or

individual of imminent harm or offensive contact


Torts

• battery – occurs if the threat is carried out and the

client or individual is touched against their will

• false imprisonment – where the deprivation of a

person’s liberty occurs without the lawful justification

or consent of the client or individual

o Unintentional torts can involve negligence,

such as a careless act by a defendant that

causes harm to the plaintiff


Torts

o Consideration must be given to four elements

to prove negligence:

• did the defendant owe the plaintiff a ‘duty of care’?

• has the duty of care been breached by some act or

omission of an act?

• was the injury caused by the act in question?

• has damage been suffered?


Negligence

o A claim of negligence made against a

practitioner will be assessed against the

standard of a reasonably competent

practitioner

o Procedures that are accepted within the

profession will be one important benchmark to

determine what a reasonably competent

practitioner would, and should, have done


Negligence

o Professional associations are most likely to be

accepted as the authority on standard

practices and competent practice

o A client can expect to be given notice of

treatment options as part of informed consent,

especially when the practitioner is suggesting a

less orthodox approach than normal – a wise

practitioner will not use treatments which are

outside the normal practice


Defamation

o Defamation means making a statement against

another person to others, that will bring that

person into ridicule or contempt

o It also means making a statement which

causes others to avoid them or causes injury to

their profession or trade

o Common law divides defamation into libel and

slander, although in Victoria, the law no longer

differentiates between these and only

recognises defamation


Therapeutic Goods Act, Anti-Discrimination Act,

Equal Employment Opportunity Act, Anti-

Competition/Monopoly, Consumer Based

Legislation


Therapeutic Goods Act

o The Therapeutic Goods Administration (TGA) is

a component of the Australian government’s

Department of Health and Ageing

o It conducts a variety of monitoring and

assessment activities to make sure that

therapeutic goods are of an acceptable

standard if available in Australia

o The Office for Complementary Medicine is

within the TGA



o On 15 February 1991 the Therapeutic Goods

Act 1989 (Cth) came into effect, and the TGA

operates under this authority

o The purpose of the legislation is to ensure the

safety, quality, and efficacy of therapeutic

goods in Australia, and provide a national

framework for their regulation



o Before a product (for which a therapeutic claim

is made) can be supplied in Australia, it must

be entered in the Australian Register of

Therapeutic Goods (ARTG) before it can be

supplied



o Therapeutic goods can be defined broadly as

things that are:

• likely to be assumed as having a purpose that is

therapeutic; or

• characterised as having a therapeutic purpose; or

• having a therapeutic purpose as declared by the

TGA



o The definition of a therapeutic purpose is that

used in connection with alleviating, curing,

preventing, or diagnosing an ailment, injury,

disease, defect, or in relation to modifying or

having an influence on a physiological purpose

in animals or humans or testing a person’s

susceptibility to an ailment, or disease



o Goods classified as ‘listed’ goods (such as

sunscreens and vitamins) must be able to

demonstrate safety and quality

o The TGA controls the supply, export, import,

advertising, and manufacture of goods that are

either represented, or likely to be, for use

therapeutically. This covers the majority of

herbs, remedies, and substances utilised by

complementary medicine practitioners



o Dependent on the ingredients and their claims,

complementary medicines can be either

‘registered’ or ‘listed’ on the ARTG

o The TGA does not affect you if you do not

supply vitamins, herbs, homeopathic drugs,

remedies, nutritional substances, or other

therapeutic devices or goods to clients


Anti-Discrimination Act

o When consulting and treating clients,

practitioners should avoid making professional

decisions for financial advantage, personal

reasons of convenience, or based on

discriminatory grounds

o Practitioners should also avoid using their

technical knowledge or position of influence to

take advantage of a client



o There is state, federal, and territory legislation

that stipulates an individual seeking goods and

services should not be discriminated against

based on a number of grounds – which

includes:

• gender

• age

• race

• disability or impairment



• association

• marital status

• lawful sexual activity

• religion

• pregnancy

• industrial activity

• carer responsibilities

• breastfeeding



o There is similar, but not identical, legislation in

each jurisdiction

o Such statutes include the Anti-Discrimination

Act 1991 (Qld), Anti-Discrimination Act 1977

(NSW), and Equal Opportunity Act 1984 (Vic)


Equal Employment

Opportunity Act

o Equal Employment Opportunity Acts were

developed to provide legislation against

discriminating people on the basis of things

such as: marital status, gender identity, age,

disability, sexual orientation, religious believes,

pregnancy, parental status, race, ethnicity,

physical features, and nationality

o You should familiarise yourself with the Act

relevant to your State or Territory


Anti-Competition and Monopoly

o Various state Fair Trading Acts and statutes

such as the Commonwealth ‘Competition and

Consumer Act 2010’ (which used to be known

as the Trade Practices Act 1974) affect the type

of advertising permitted by professionals

o They impose penalties for misleading and false

advertising relating to goods and services


Anti-Competition and Monopoly

o Professional associations have legitimate

interest in trying to reduce misleading,

inappropriate, or unprofessional advertising by

their members

o Because advertising is an important factor

between the profession and general public, for

a positive public image to be developed, high

standards in advertising are necessary


Consumer Based Legislation

o In 2010 and 2011, significant changes occurred

with the passing of an amendment to the Trade

Practices Act. These changes included an

introduction of the Australian Consumer Law

(ACL), which has provision for control over

consumer contracts

o It also resulted in the Trade Practices Act being

renamed the Competition and Consumer Act

2010



o Each state has agreed to endorse amendments

to their Fair Trading Act to reflect these

provisions. That way, in all jurisdictions in

Australia, the same consumer protections will

be applicable



o As a complementary medicine practitioner you

should familiarise yourself with the following

important statutes:

• Sale of Goods Act (SGA) – provisions are almost

identical in all states

• Commonwealth Competition and Consumer Act

2010 (CCA) – formerly the Trade Practices Act 1974

• Fair Trading Act (FTA) – provisions are similar in all

states


Activity

o Please refer to the subject outline for details of

this session’s activities


References

Australian Human Rights Commission. (n.d). A quick guide to Australia’s discrimination

laws. Retrieved 16 February 2017 from

https://www.humanrights.gov.au/employers/good-practice-good-business-

factsheets/quick-guide-Australian-discrimination-laws

session 3 legal aspects department of social … 3 legal aspects department of social sciences ......

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