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BSBLEG413 Identify And Apply The Legal Framework
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BSBLEG413 Identify And Apply The Legal Framework
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Course Code: BSBLEG413
University: TAFE Queensland
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Country: Australia
Question:
Discus about the Legal Frameworks and Indigenous Claimants.
Answer:
Indigenous Claimants
One of the factors that the indigenous people have to prove for purposes of ensuring that they have a right to the native title is their usage of the land under consideration for thousands of years. According to the precedent that has been established in the case of Mabo and others v Queensland, the High Court made a ruling that for any indigenous person to claim the native rights, he must prove that his community had an access to the land and used it before 1788. On this note, for a claimant to have a legal claim over a native title, he must prove that his indigenous community owned the land, before 1788, and used this land for their customs and traditional values (Short, 2016).
This means that the claimant must prove that they have a continuous connection to the land under consideration. On this note, the high court in the case of Mabo determined that for a claimant to succeed in getting a native title, he must prove that he is still living in the traditions and customs of the native tribe that he is seeking title of, of if he does not have the connection with the traditional values and customs of the indigenous people who lived in the land before 1788, then the claimant does not have a right to the native title, even if he belongs to the indigenous group.
The Native Title Act of 1993 provides a framework that can be used for purposes of determining whether an individual qualifies for the native title right. According to the act, an indigenous person can successfully claim a right to a native title if they prove that,
The rights and usage of the land under consideration are contained in their traditional laws, and they are still being observed by the specific indigenous people.
The native title under consideration is recognized by the principles that are established by common law.
Additionally, by the virtue of this common law, the claimants have a right to use the waters and lands under consideration.
The Case of Joe Agro and Big Jim
Outcome of the case
Based on the decision of the court and the reasoning in Austen v Bronte (2009), I will drop the case against Joe Agro in this scenario. According to the decision of the court in Appendix 1, players who are playing a game such as rugby are vulnerable to injury based on the nature of their game (Bellas, 2014). This is whether the injuries are intention or unintentional; hence, it is the norm of the game. On this note, if the tackle or injury emanates from a normal situation, a plaintiff would not be liable for a civil or criminal offence. In the circumstance of this case, Joe Agro could not be held responsible for the injury caused to Big Jim, and this is because he was acting within the nature of the game.
Reasoning behind the decision
Section 245 of the Australian Criminal Code provides an explanation on the circumstances whereby an assault can occur in a sporting organization. The first instance is when there is a threat to the application of force. This involves the behavior and gestures of a player towards another player, threatening them to use force against them. Under this circumstance, a player is guilty of assault or battery. This law also identifies implied or express consent as a factor that can be used to analyze whether assault occurred in a sport or not.
For instance, when a player agrees to play rugby, he consents to being tackled by implication. However, if the tackle happens beyond the scope and rules of the game, it can be considered an assault. For example, when a hockey players uses his hands to box a fellow player, can be accused of assault because it is not within the rules of hockey for players to use their bare hands while playing the game. In Hodge v Sunder (2005), the court ruled that to judge on the liability of a player, there is a need of determining whether the injury was an incidence of the game. In this scenario, the injury to Big Jim was an incidence of the game, and this is basically because he was injured when he was in possession of the ball.
Kawasaki Case
Whether Kawasaki is a motor vehicle
According to the motor accident insurance act, a motor vehicle is a vehicle that requires registration. Motor Cycles always require registration, and this includes Kawasaki. On this note, Kawasaki can be viewed as a motor vehicle.
Application of statutory interpretation methods
The method that can be used for purposes of determining whether Kawasaki is a motor vehicle is the literal rule. Under this rule, the definition of motor vehicle is defined as per the 1994 Motor Accident Insurance Act. Motor Cycles are also registered vehicles.
Support of Findings
According to the provisions of the 2010 Transport Operations Regulations, a motorcycle can be considered a motor vehicle. This is a definition that is provided for under schedule 8 of the regulations, and identifies them as notifiable vehicles. Article 11 of the regulation denotes that any vehicle that is driven on the road must be registered, and the Motor Accident Insurance Act recognizes a motor vehicle as any driven vehicle that is registered. Therefore, through the application of the literal rule, it is possible to define Kawasaki as a motor vehicle.
Jury Trials
Time wastage is one of the criticisms directed towards jury trials. One of the most efficient method of ensuring that the jury does not waste the trial time is to change the process of picking the members of the jury and the number of people who should sit as members of the jury (Horwitz & Horwitz, 2016). For instance, the state should limit such a number to 5 people, and the people chosen for the trial should be professionals who understand matters of the law. This will help to minimize unnecessary questions and explanations on issues of the law that the members of the jury do not understand.
Furthermore, when it comes to the representation of the community, there is a need of allowing the public to participate in choosing the people who are to serve in the jury. This is as long as they pass the legal literacy test (Flanagan, 2015). Jurors who have knowledge of the law will help to come up with a well informed decision on whether a defendant is guilty or not hence solve the problem of incompetency. Jury position should be allocated based on the kind of groups and people who have an interest on the case, and not the whole community.
References
Austen v Bronte (Court of Appeal 2009)
Australian Criminal Code, Section 245
Bellas, C. M. (2014). Jury Trial. The Encyclopedia of Criminology and Criminal Justice.
Flanagan, F. X. (2015). Peremptory challenges and jury selection. The Journal of Law and Economics, 58(2), 385-416.
Hodge v Sunder (Court of Appeal Qld, 2005)
Horwitz, L., & Horwitz, E. (2016). Trial Techniques in Jury and Bench Trials of Copyright Cases. Intellectual Property Counseling & Litigation, 5.
Native Title Act (1993).
Motor Accident Insurance Act (1994).
Mabo and others v Queensland (High Court 1988)
Short, D. (2016). Reconciliation and colonial power: Indigenous rights in Australia. Routledge.
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