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Critical case note � foundations of law 70102 Assignment sample

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Introduction - Critical case note – foundations of law 70102

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PART A

The present case study cis based on the matter “Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109”. The matter was leading with the proceedings of legal matters leading to the Black Lives Matter that was held on 6 June 2020 in Sydney. One side of the case was the implementation of “constitutional freedom” regarding political communication. On the other hand, there was a need to ``reinforce the public measure” in the response to COVID 19. The first hearing was held within 24 hours of the incident; the hearing was held in front of the Judge of the “New South Wales Supreme court” under Justice Lonergan between the two parties “Raul Bassi” and the “Commissioner of Police”

Material Facts related to the case 

The present case was based on the status according to the legality of different protest rights during the pandemic situation which caused the crisis in “New South Wales' '. At the federal level, Australia does not have any statutory provision for the right to protest. The constitution is only liable to provide the basis of implied rights[1]. During the covid situation protest organized in NSW has been subjected to negotiating the management model of protest policing under the “Summary Offences Act 1988” (NSW). Under the provision, the organizers of the protest wrote a notice to the Police commissioner for expressing the intention of holding a public assembly[2]. There was a successful appeal from the organizer Mr. Bassi in the suggested case. The situation is considered as the first case as per the supreme court of law. The matter of protest allied with the “Black live matter movement”was not considered. The protestors appealed against the commissioner remembering the death of a “Dunghutti” who died in “Sydney Jail in Long Bay” in the year 2015. BI as the staff held him to face down till the time, stop breathing and he died. 

Procedural History

The appeal made by Bassi was accepted in the court of Law. The first hearing was held within 24 hours of the incident occurring. Firstly, the application of police was allowed as per the judgement of the Supreme court for prohibition of the protest. The circumstances that are exceptional for the situation of the crisis in the state are taken into consideration. The testimony was considered by the court that was provided by Dr. Kerry Chan, the health officer. The line of reasoning was followed by Justice Lonergan. The facts of the matters of “{New South Wales Police Force v Kumar (OBO National Union of Students) [2020] NSWSC 804}”. In the case of “{Commissioner of Polic”e v “Gray [2020] NSWSC 867}” the court of supreme allowed the protest to be taken into consideration[3]. The court considered the evidence and confirmed the social distancing but on the other hand, the protest organizers submitted the protest analogs for acceptable risk for the community gathering events. The other cases were prohibited before the Supreme Courtare {“Commissioner of Police (NSW)” v “Supple [2020] NSWSC 727}” and “{Commissioner of Police (NSW)” v “Gibson [2020] NSWSC 953}”. Under the circumstances of the two cases mentioned above the method of proceedings was held. 

Legal issues

The matter argued that the jurisprudence corpus in the matter of NSW for the legality of protest gatherings in case of a health crisis seems to be unique and is one of the major issues. No equivalent set of cases can be seen exactly in Australia, but some of the cases of UK air are taken into consideration for the covid regulations[4]. The judge misunderstood the matter and included that no evidence has been given for the meeting on 29 May 2020Mr. Bassi has not provided the notice as of 29 May 2020 as per the relation with the public assembly which has to appear on 6 June 2020. Another issue about the matter was the misunderstanding in the matter of holding the notice by the judge as per the amendment on 4 June 2020. This was effective in the new notice of the judgment. Thirdly the judge did not declare seeking the matter that the commissioner had provided the notice to Bassi that he did not oppose the holding of public assembly. 

Legal Reasoning

The supreme court judge sorted out the matter for creating the balance between public assembly a competing interest as well as the health and safety community. While balancing the exercise the court came to different conclusions[5]. While balancing the exercise the court came to different conclusions. All Type cases adhere to the understanding of the principles of Justice approach mentioned in the case of “{‘Commissioner of Police’ V Rintoul, [2003], NSWSC 662}” as per the “Summary Offences Act” (NSW)}.

Orders

The decision was made in the favor of Mr. Bassi at the end of the case the court ordered and the Commissioner gave notice to Mr. Bassi. As per the meeting on 4 June the police, “commissioner”understood the change and no authorization was required by him at the end as per section s 26. The commissioner is required to prohibit an order that is used to propose assembly under “section 25”[6]. After following the E-mail, the view of the commissioner was changed and the application was made to the court. 

PART B

Critically analyzing the Matter

Subject

“Although Bassi seems to be a case concerning a political demonstration, at its heart it shows that law really is separate from politics.”

This statement defines the matter that needs to be talked about to reduce its effect and it is the case that helps to analyze current indigenous people in Australia. According to the case study, Mr. Raul Bassi organized an assembly in response to the sudden death of Mr. George Floyd in Minneapolis, USA. This assembly discussed and raised voices regarding “Black Lives Matter” Australia. “Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109” is the most famous and vastly discussed case talk against racism and discrimination against indigenous people in Australia[7]. Basically, Mr. Bassi criticized the law and connection of political proformas. It has also been analyzed that racism is one of the biggest concerns in Australia. Indigenous peoples in Australia are also a potential victim who face discrimination on the regular basis. This case is a path-breaking case that helps to understand the current condition of Indigenous people in Australia and their relationship to the Anglo-Australian legal system.

According to the “Racial and Religious Tolerance Act 2001”, discrimination against race is a punishable offense and it is illegal to make or feel discriminated against any person[8]. “Aboriginal and Torres Strait Islander people '' are the indigenous people of Australia and they face similar issues on a daily basis. Indigenous people are not a single group of people, there are different groups who live all over Australia[9]. According to the “Recognition of Aboriginal Customary Laws (ALRC Report 31)”, Australia is noticed and recognized that there are different native races who live in the country after 1788 and they are also called Anglo Australian[10]. They are mostly native Australian people who are also known as “Aboriginal Australian”. Mr. Bassy criticized and raised concern about discrimination against races under “Part 4 of Act 1988 (NCW) (Act)”. There are different theoretical concepts that can be used to understand the thought process of the whole matter and it can also give a clear view of the person who discriminates against others.“Type of Discrimination”, is the main and initial “theoretical concept” that needs to analyze and most cases of discrimination show that race-based discrimination is the most common discrimination in the world[11]. “Intention and Explicit Discrimination” is basically discussed the comprehensive social science behind discrimination. These are the potential “theoretical concept” that measures the discrimination process and they can also help to determine the current scenario of the discriminated peoples. According to many journals, it has been clear that Anglo Australians and indigenous Australians are the initial residents of Australia, and discrimination against them was not practiced in the early 16th century. Colonialism is a potential reason for discrimination against race and it has been recognized by the Australian Legislative System in the year 1788. Settler Colonialism is the concept that can reduce discrimination and it is the primary process to tackle the issue[12]. Mr. Bassi criticized the law and connection of political proformas. It has also been analyzed that racism is one of the biggest concerns in Australia. Moreover, Colonialism discriminates against people and it separates native people from the legislation and society. On the other hand, Settle Colonialism prefers proper law and colonized regions for the indigenous peoples. Other than that, Settler colonialism gave a chance and opportunity to form a permanent society for them. The Anglo-Australian Law can help the indigenous people to overcome the current situation and it is firmly rooted in Statutory Law, the Crown’s power to gain interest in law. Mr. Bassy also discussed the Australian legislation and laws regarding Black Lives Matter. Political issues are also a primary reason for increasing discrimination cases[13]. Furthermore, “Port Regulations of 1800”, is also a potential legislative law that describes race discrimination. “Aboriginal Policy and the Law”, has been implemented by the Australian Government to reduce race discrimination and it also protects the people who faced discrimination in Australia[14]. These are the potential Anglo-Australian legal systems that protect the indigenous people in Australia.

After analyzing the current situation of insidious people in Australia it has been determined that the Australian government needs to introduce some new laws to protect them. Other than that, the Australian government also needs to take strong action to reduce the discrimination effect on Australian indigenous people. According to the “Australian Human Rights Commission Act 1986, section 46p” any person is allowed to make complaints to the “Australian Human Rights Commission” about any unlawful acts[15]. Aboriginal and Torres Strait Islander people ' are the indigenous people of Australia and they face similar issues on a daily basis. This is the most effective law that can be implemented to reduce discrimination and it has the power to develop “Settle Colonialism” for indigenous people of Australia. Colonialism discriminates against people and it separates native people from the legislation and society. Other than that, under “Section 51 (xxvi), the Australian constitution”, any person in Australia has the right to protect themselves from any unlawful activity which includes race discrimination[16]. Mr. Bassy, discussed these constitutional laws to be more effective that can protect the indigenous Australians. “Diversity and public debates” are the most essential “political policies” that can be implemented in Australian legislation and they can increase the power of indigenous peoples in Australia. Moreover, this political appreciation and policies have the power to increase authenticity and it also has the power to manipulate the Australian legal system regarding racial discrimination[17]. Indigenous people are not a single group of people, there are different groups who live all over Australia. After analyzing the current policies and legislative laws it has been clear that the Australian government needs to take action to reduce discrimination against intrigued people[18]. Mr. Bassy raised his voice and complained about the police officer who killed a black man unlawfully in America. Moreover, there the different legal systems that work to reduce racial discrimination in Australia.

References

  • Alrc, (2022), Australian Law as Applied to Aborigines, Retrieved from:https://www.alrc.gov.au/publication/recognition-of-aboriginal-customary-laws-alrc-report-31/4-aboriginal-customary-laws-and-anglo-australian-law-after-1788/australian-law-as-applied-to-aborigines/, (Retrieved on: 30th Sep 2022)
  • Alrc, (2022), Changing Policies Towards Aboriginal People, Retrieved from:https://www.alrc.gov.au/publication/recognition-of-aboriginal-customary-laws-alrc-report-31/3-aboriginal-societies-the-experience-of-contact/changing-policies-towards-aboriginal-people/, (Retrieved on: 30th Sep 2022)
  • Alrc, (2022), Recognition of Aboriginal Customary Laws (ALRC Report 31), Retrieved from:https://www.alrc.gov.au/publication/recognition-of-aboriginal-customary-laws-alrc-report-31/#:~:text=The%20focus%20of%20ALRC%20Report,living%20in%20tribal%20communities%20only.(Retrieved on: 30th Sep 2022)
  • Austlii, (2022), THE ‘RACE’ POWER IN SECTION 51(XXVI) OF THE CONSTITUTION, Retrieved from:https://www.austlii.edu.au/au/journals/AUIndigLawRw/2011/18.pdf, (Retrieved on: 30th Sep 2022)
  • Barnews, (2022), Black Lives Matter rally wins last minute appeal in Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109, Retrieved from:https://barnews.nswbar.asn.au/winter-2020/raul-bassi-v-comm-of-police/, (Retrieved on: 30th Sep 2022)
  • Humanrights, (2022), Racial and Religious Tolerance Act, Retrieved from:https://www.humanrights.vic.gov.au/legal-and-policy/victorias-human-rights-laws/racial-and-religious-tolerance-act/#:~:text=The%20Racial%20and%20Religious%20Tolerance%20Act%20prohibits%20vilification%20%E2%80%93%20behaviour%20that,their%20race%20and%2For%20religion.(Retrieved on: 30th Sep 2022)
  • Nap, (2022), Theories of Discrimination, Retrieved from:https://nap.nationalacademies.org/read/10887/chapter/7#56, (Retrieved on: 30th Sep 2022)
  • Pediaa, (2022), What is the Difference Between Settler Colonialism and Colonialism, Retrieved from:https://pediaa.com/what-is-the-difference-between-settler-colonialism-and-colonialism/(Retrieved on: 30th Sep 2022)
  • Www5, (2022), Commonwealth Consolidated Acts, Retrieved from:http://www5.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/s46p.html#:~:text=Commonwealth%20Consolidated%20Acts&text=Note%202%3A%20Under%20section%2046PZ,Intelligence%20and%20Security%20Act%201986%20.(Retrieved on: 30th Sep 2022)
  • Goodyear, B. (2020). Black lives matter rally wins last minute appeal. Bar News: The Journal of the NSW Bar Association, (Jun 2020), 30-31.
  • Altynbekkyzy, A., &Zhumabaeva, G. A. (2019). Constitutional guarantees of freedom of speech and the right to access information on the internet. J. Advanced Res. L. & Econ.10, 13.
  • Talbot, A. (2022). The right to protest: Challenges during the pandemic. Precedent (Sydney, NSW), (169), 18-25.
  • Hamiltonjanke, (2020). Black Lives Matter Protest Authorised, Retrieved At: https://www.hamiltonjanke.com.au/protest/#:~:text=Raul%20Bassi%20v%20Commissioner%20of,NSW)%20%5B2020%5D%20NSWCA%20109&text=However%2C%20an%20urgent%20appeal%20was,of%20the%20public%20health%20directions. (Retrieved on 01.10.2022)
  • barnews (2020), Black Lives Matter rally wins last minute, Retrieved At: https://barnews.nswbar.asn.au/winter-2020/raul-bassi-v-comm-of-police/(Retrieved on 01.10.2022)
  • nswca (2020). Decisions of Interest, Retrieved At:https://nswca.judcom.nsw.gov.au/wp-content/uploads/2017/04/20200619-DOI.pdf(Retrieved on 01.10.2022)
  • [1]Altynbekkyzy, A., &Zhumabaeva, G. A. (2019). Constitutional guarantees of freedom of speech and the right to access information on the internet. J. Advanced Res. L. & Econ.10, 13.
  • [2]Talbot, A. (2022). The right to protest: Challenges during the pandemic. Precedent (Sydney, NSW), (169), 18-25.
  • [3]barnews (2020), Black Lives Matter rally wins last minute, Retrieved At: https://barnews.nswbar.asn.au/winter-2020/raul-bassi-v-comm-of-police/(Retrieved on 01.10.2022)
  • [4]Hamiltonjanke, (2020). Black Lives Matter Protest Authorised, Retrieved At: https://www.hamiltonjanke.com.au/protest/#:~:text=Raul%20Bassi%20v%20Commissioner%20of,NSW)%20%5B2020%5D%20NSWCA%20109&text=However%2C%20an%20urgent%20appeal%20was,of%20the%20public%20health%20directions. (Retrieved on 01.10.2022)
  • [5]Goodyear, B. (2020). Black lives matter rally wins last minute appeal. Bar News: The Journal of the NSW Bar Association, (Jun 2020), 30-31.
  • [6]nswca (2020). Decisions of Interest, Retrieved At:https://nswca.judcom.nsw.gov.au/wp-content/uploads/2017/04/20200619-DOI.pdf(Retrieved on 01.10.2022)
  • [7]Barnews, (2022), Black Lives Matter rally wins last minute appeal in Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109, Retrieved from:https://barnews.nswbar.asn.au/winter-2020/raul-bassi-v-comm-of-police/, (Retrieved on: 30th Sep 2022)
  • [8]Humanrights, (2022), Racial and Religious Tolerance Act, Retrieved from:https://www.humanrights.vic.gov.au/legal-and-policy/victorias-human-rights-laws/racial-and-religious-tolerance-act/#:~:text=The%20Racial%20and%20Religious%20Tolerance%20Act%20prohibits%20vilification%20%E2%80%93%20behaviour%20that,their%20race%20and%2For%20religion.(Retrieved on: 30th Sep 2022)
  • [9]Alrc, (2022), Changing Policies Towards Aboriginal People, Retrieved from:https://www.alrc.gov.au/publication/recognition-of-aboriginal-customary-laws-alrc-report-31/3-aboriginal-societies-the-experience-of-contact/changing-policies-towards-aboriginal-people/, (Retrieved on: 30th Sep 2022)
  • [10]Alrc, (2022), Australian Law as Applied to Aborigines, Retrieved from:https://www.alrc.gov.au/publication/recognition-of-aboriginal-customary-laws-alrc-report-31/4-aboriginal-customary-laws-and-anglo-australian-law-after-1788/australian-law-as-applied-to-aborigines/, (Retrieved on: 30th Sep 2022)
  • [11]Nap, (2022), Theories of Discrimination, Retrieved from:https://nap.nationalacademies.org/read/10887/chapter/7#56, (Retrieved on: 30th Sep 2022)
  • [12]Pediaa, (2022), What is the Difference Between Settler Colonialism and Colonialism, Retrieved from:https://pediaa.com/what-is-the-difference-between-settler-colonialism-and-colonialism/(Retrieved on: 30th Sep 2022)
  • [13]Alrc, (2022), Australian Law as Applied to Aborigines, Retrieved from:https://www.alrc.gov.au/publication/recognition-of-aboriginal-customary-laws-alrc-report-31/4-aboriginal-customary-laws-and-anglo-australian-law-after-1788/australian-law-as-applied-to-aborigines/, (Retrieved on: 30th Sep 2022)
  • [14]Alrc, (2022), Recognition of Aboriginal Customary Laws (ALRC Report 31), Retrieved from:https://www.alrc.gov.au/publication/recognition-of-aboriginal-customary-laws-alrc-report-31/#:~:text=The%20focus%20of%20ALRC%20Report,living%20in%20tribal%20communities%20only.(Retrieved on: 30th Sep 2022)
  • [15] Www5, (2022), Commonwealth Consolidated Acts, Retrieved from:http://www5.austlii.edu.au/au/legis/cth/consol_act/ahrca1986373/s46p.html#:~:text=Commonwealth%20Consolidated%20Acts&text=Note%202%3A%20Under%20section%2046PZ,Intelligence%20and%20Security%20Act%201986%20.(Retrieved on: 30th Sep 2022)
  • [16]Austlii, (2022), THE ‘RACE’ POWER IN SECTION 51(XXVI) OF THE CONSTITUTION, Retrieved from:https://www.austlii.edu.au/au/journals/AUIndigLawRw/2011/18.pdf, (Retrieved on: 30th Sep 2022)
  • [17]Alrc, (2022), Recognition of Aboriginal Customary Laws (ALRC Report 31), Retrieved from:https://www.alrc.gov.au/publication/recognition-of-aboriginal-customary-laws-alrc-report-31/#:~:text=The%20focus%20of%20ALRC%20Report,living%20in%20tribal%20communities%20only.(Retrieved on: 30th Sep 2022)
  • [18]Pediaa, (2022), What is the Difference Between Settler Colonialism and Colonialism, Retrieved from:https://pediaa.com/what-is-the-difference-between-settler-colonialism-and-colonialism/(Retrieved on: 30th Sep 2022)
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