Legal Studies (Prelim) Study Notes
The Legal System
Basic Legal Concepts
The Meaning Of Law
The law- set of enforceable rules of conduct imposed on all members of a society which
are officially recognized and enforced by the official legal system.
Customs, Rules and Laws
Customs, rules and laws are all interconnected.
Customs are expected behavioral patterns within a society
Rules are boundaries placed on specific branches of society, such as in schools or
workplaces.
Laws, unlike rules, affect all of society equally and are enforced by the legal system.
Characteristics of Just Laws
•
•
•
•
Laws apply to all members of society
Laws are officially recognized and enforced by the legal system
Laws are accessible by all
Laws relate to the interests of general society, and reflect the rights and responsibilities
of those within it
A just law will have these characteristics.
Values and Ethics
values: a set of moral standards which are considered desirable in society
morals: personal beliefs or understandings of right and wrong
ethics: the execution of moral beliefs in real life
Just laws are expected to adhere to, and reflect traditional values, morals and ethics within
that nation state as much as possible.
The Nature Of Justice and Procedural Fairness
Justice- the fair and impartial treatment of all individuals under the law. The legal system
is expected to achieve justice in all circumstances.
Three elements of justice in legal processes:
equality: all people are being treated in the same way
fairness: the legal system being free from any bias or dishonesty
access: the right or opportunity to make proper use of the legal system
Procedural fairness (natural justice) must have these factors:
• The right to be heard. Anyone involved in any dispute has the right to be heard and
their opinion taken into account
• An unbiased decision maker. Anyone in a position of power during legal processes
must be unbiased, honest, and fair to all.
The Rule of Law
The rule of law requires that no one is above the law.
Why do people obey the law?
• It makes them feel secure and safe
• Based on general customs and values
• Penalties apply
Anarchy, Tyranny
anarchy- absence of laws and government, often leading to martial law (loss of legal
rights)
tyranny- power held by a single individual, laws suit dictator
KEY QUESTIONS:
What is the law? How is it different from rules and customs?
What are the differences between ethics and values?
What are the characteristics of just laws?
Describe the nature of justice and procedural fairness.
What is the rule of law?
What is the difference between anarchy and tyranny?
Sources of Contemporary Australian Law
Common Law
Originated in Britain, based on the idea of traveling judges enforcing precedent
equity: body of law supplementing common law, corrects injustice by applying principals
of fairness
precedent: a judgement which acts as authority for a later legal decision (stare decisis,
the decision stands)
The rules of precedent:
• Must be followed in all courts lower in hierarchy (binding precedent)
• Can be used as basis for decision in any court (persuasive precedent)
The Judges Decision:
ratio decidendi: legal reasoning behind decision. Legally binding.
obiter dicta: other comments about case. Not legally binding.
Adversarial System of Trial
Australia uses adversarial system of trial.
• Two party’s prove their case to an impartial third party
• The burden of proof lies with the prosecution/plaintiff, defense must cast elements of
doubt
• Judge acts as impartial mediator, ensuring proper legal procedure is followed,
determining admissibility of evidence and asking questions of law. Case is directed by
two parties.
• Each party must be represented equally and controls what they present to the court
The alternative, an inquisitorial system:
• Judge directs entire case, and plays active role in investigation
• Judge chooses applicable evidence and witnesses
• Much higher prosecution rate
mandamus: compelling a government or official to complete a task
injunction: preventing an individual or organisation from completing an action
prohibition: court order preventing lower courts involvement in a case
Court Hierarchy
Courts are places where legal decisions are made.
Lower Courts
Intermediate Courts
Supreme Courts
Hear summary offenses,
minor civil claims ($60 000)
and committal hearings.
Heard by a magistrate, no
jury. Committal hearings
establish whether there is
sufficient evidence to trial
the case in a higher court
(prima facie case).
Hears indictable offenses
and civil claims ($750 000)
and has appellate
jurisdiction. Heard by a
judge and in most cases, a
jury.
Hears most serious
indictable offenses and civil
claims. Heard by a judge
and usually a jury. Has
appellate jurisdiction.
appellate jurisdiction: jurisdiction to hear appeals from lower courts
original jurisdiction: jurisdiction to hear case for first time, held by all courts
appeal: challenge of a legal decision made
Statute Law
• Statute law is created in parliament (group of elected representatives).
• Australian parliament utilises a bicameral system. Law changes must be passed in both
houses.
The Legislative Process:
• Proposed change (bill) introduced in lower house, usually by cabinet minister (anyone
can introduce a backbenchers bill)
• Bill is read, then discussed and amended if necessary
• Vote is taken after third and final reading, if it passes it moves to upper house
• Process repeats in upper house
• If passed, moves to governor or governor general for royal assent
• It is now an Act of Parliament
Delegated Legislation
• Made by non parliamentary bodies
• Concerns less important matters
• Given power through an enabling act
ultra vires: acting in excess of one’s authority
The Constitution
constitution: a set of rules governing the running of a nation state
Division of Powers
Legislative
Concurrent
Exclusive
Residual
Areas in which
federal government
can create laws.
Outlined in Section
51.
Areas in which
states may create
laws as well as
federal, also
outlined in Section
51
Powers exclusive to
federal parliament,
outlined in Section
52
Powers maintained
only by the states,
detailed in state
constitutions
Note: Where conflicting, federal laws always override state law.
Separation of Powers
Separation of powers is essential to an effective democracy- ensures that no section of
law is corrupt by maintaining independence between legal areas.
The three branches of government outlined in the doctrine:
legislature: law makers (parliament)
executive: ministers and departments which administer laws (cabinet)
judiciary: courts which apply law
The High Court
•
•
•
•
Highest in federal hierarchy
Section 51 of Constitution
7 Judges
Role= Interpret the Constitution
original jurisdiction: Any case involving the commonwealth, it’s officers, any state, it’s
officers, or any form of constitutional interpretation
appellate jurisdiction: Approval needed in the form of special leave
The constitution can be amended through a referendum.
Customary Laws
•
•
•
•
•
•
Customary laws are the laws of indigenous people
Diverse amongst tribes, but similar
Based on the Dreaming and a spiritual connection with the land
Laws are difficult to describe, based on sacred secret knowledge
Kinship dictates proper ways to interact
Mainly passed down orally
Connection to Contemporary Law
• Mediation was preferred as conflict resolution, overseen by Elders
• Sanctions (which differed by tribe) may have been imposed
• Communal based conflict resolution
Customary law is not legally recognised, but is integrated into the Australian legal
system (mediation, environmental law etc)
Customary law elements may be considered as mitigation during legal processes.
International Law
Domestic Law
• Law of a nation state
• Made by parliament or courts
Nation states:
• Politically independent
• Defined territories
• Effective government
• Capacity to negotiate internationally
International Law
• Based on worldwide system of values
and customs
• Governs relationships between nation
states
• Not legally enforceable in traditional
sense
• Formed by common worldwide thinking
state sovereignty: the right of a nation state to create it’s own laws
State sovereignty undermines Int. law. However, due to the interdependent nature of the
modern world, int. law is still followed by most.
Sources of International Law
customary international law: Develops from long standing ethics and customs which
become recognised by the international community. Does not become official in a nation
state until it is accepted as necessary by said nation state (opinio juris sive
necessitatis).
instruments (treaties+declarations):
• Treaties are mutual, written bilateral/multilateral agreements, governed by international
law, which govern interactions within and between nation states. Not legally binding until
ratified.
• Declarations are written documentation of opinions or facts, not legally binding. May
develop into treaty later.
• Conventions are a general agreement between nations
writings: Scholarly writings are drawn on by international law, as well as expert individuals
or organisation
legal decisions:
• Main international court is the International Court of Justice (ICJ), the judicial arm of
the UN
• Hears treaty disputes, and decisions may be the basis for future treaties
• Tribunals were used before the formation of the International Criminal Court (ICC) in
2002.
The United Nations
• Est. 1945 by Charter of the United Nations
• 193 members, headed by UN Secretary General Ban Ki Moon
• “To maintain global peace and security, and to develop friendly relations among
nation states based on respect for equal rights.”
UN General Assembly
• Every nation represented
• Open, multilateral forum
for international issues
• Discusses and makes
recommendations on the
operation of UN and
conflicts between nations
• Meets yearly
UN Security Council
ICJ
• Maintains world peace
• Hears international, non
and security
criminal cases
• 5 permanent members;
• Only hears cases where
USA, UK, France, Russia,
nation states accept
China
jurisdiction of the ICJ
• 10 non permanent
• Hears cases between
members serve 2 years
states (contentious
cases) and advises the
• Imposes sanctions to curb
aggression and maintain
UN (advisory
peace
proceedings)
• Decisions must be
unanimous
• Doesn’t represent world
Relevance to Australian Contemporary Law
Sign
Ratify
Enforce
THE TREATY PROCESS
• Australia implements the process above to enforce treaties it has signed. Often, existing
domestic laws are sufficient.
• Treaties also influence the development of common law
• Examples:
Convention on the Rights of a Child (CROC): Family Law Act (1975)
Convention on Elimination of All Forms of Discrimination Against Women (CEDAW): Sex
Discrimination Act (1984).
Intergovernmental and Non Governmental Organisations
intergovernmental organisations: organised groups of nation states which work towards
a mutual goal. Examples include International Labour Org. (ILO) or Interpol.
non-governmental organisations: organisations with no government affiliation. They
lobby and provide information to the public. Examples include St Vincent De Paul’s and
Amnesty International.
KEY QUESTIONS:
What are the origins of Australian common law?
Explain the doctrine of precedent.
What is the purpose of having a court hierarchy? Describe the court hierarchy of NSW.
Describe the structure of parliament.
What is the legislative process?
What is the function of delegated legislation?
What is the difference between separation and division of powers?
Analyse the role of the High Court.
What is customary law? To what extent is it incorporated into the Australian legal system?
What is international law and how is it undermined by state sovereignty?
Describe the 3 sources of international law.
How do intergovernmental org.s and NGO’s contribute to the development of Int. Law?
How is international law incorporated into Australian domestic law?
Classification of Law
Public Law
Public law is the branch of law governing the relationships between individuals and
the state, and the structure and operation of said government.
Criminal Law
Administrative Law
• The body of law under
• Deals with powers and
which acts are
decisions of government
punishable by state
bodies.
• Maintains public safety, as • Individuals can seek
criminal acts violate the
review of government
moral order of society
devisions:
• Constantly reviewed to
reflect modern society
internal: a decision made
is reviewed by the same
NSW- Crimes Act 1900
agency
external: an external party
reviews the decision
judicial: a court hears and
reviews the legality of a
decision
Constitutional Law
• Focuses on rules
governing the separation
of powers
• Concerns constitutional
validity of government
actions
• Related to the division of
powers
• Also deals with
constitutional breaches in
legal system
Private Law
Private (civil) law is the branch of law governing relationships between individuals
and organisations. Aims to protect the private rights outlined in statute and
common law.
Contract Law
• Recognition of legally
binding agreements
• Aims to compensate the
plaintiff through damages
paid by the defendant
• Injunctions may also be
sought
• Most complex body of civil
law
Tort Law
Property Law
• Civil wrongs, an action
• Concerns any
which breaches the rights
commercially valuable
of another
entity, such as land,
stock, goods or
• No prior legal
relationship required
intellectual property
• Like contract law, aim is to • Deals with legal rights of
compensate the plaintiff
possession (also use/
benefit)
• Examples include
negligence and nuisance
• Criminal or civil court
Criminal and Civil Court Procedures
Criminal Procedure
Civil Procedure
• Prosecutor (state) (crown) and
defendant
• Burden of proof with prosecution
• Standard of proof required is
beyond reasonable doubt
•
•
•
•
Plaintiff and defendant
Between two individuals/organisations
Burden of proof with plaintiff
Standard of proof required is the
balance of probabilities
The Criminal Procedure
Summary Hearings
• Minor offences, such as traffic
infringements or vandalism
• Heard in lower court only by a
magistrate
Trial By Jury (Indictable Hearings)
• More serious offences, such as assault or
murder
• Heard in intermediate or superior courts by
a judge and jury
• Legislation has passed allowing some indictable offences may be tried summarily in a
lower court, provided they meet a certain criteria and the defense and prosecution agree
(where appropriate) Less than $120 000 and/or 10 years prison
• Must undergo a committal hearing first, where a magistrate must be convinced there is a
sufficiently strong case to be heard in a higher court (prima facie)
• Criminal trials are heard in intermediate or superior courts
• Heard by a jury of 12 people, who must decide unanimously whether their is enough
evidence to warrant conviction beyond reasonable doubt
• The judge advises the jury and answers questions of law
The Trial Process
Indictment: Read to the defendant, who pleads guilty/not guilty
Opening Address by Prosecution: Sets out facts and explains prosecutions case to be
presented
Examination in Chief: Witness is examined by the party whom called them, to prove their
case (prosecution) or disprove the other (defence)
Cross Examination: Witness is examined by the opponent, to question credibility or
highlight inconsistencies (These two elements repeat for each witness)
Closing Address: Each side summarises their position
Summation: The judge summarises the case and instructs the jury how to reach a verdict
Deliberation: Jury deliberates to a unanimous decision
Sentencing: If guilty, judge chooses a suitable sentence
Trials are slightly different in different courts:
coronial inquests: Inquisitorial in nature, takes place surrounding suspicious events. Will
recommend the issue of an indictment if necessary and trial will take place as normal.
children's court: Media are banned. Less severe punishments. Proceedings are made
simpler and explained to the accused by a specialist magistrate.
Civil Procedure
Summons: An originating pleading (written document exchanged) detailing the facts
surrounding the case and those involved is sent to defendant
Statement of Defence: Defence responds to allegations
Discovery: Each party may question the other about relevant matters, and both must
answer all relevant questions. Information is collected. Most civil cases are resolved before
trial.
Trial: If necessary, the matter is trialled in the appropriate court similar to a criminal case.
The judge (or sometimes jury of 4) decides on balance of probabilities, it is more probable
than not that the defence is liable. The judge determines adequate compensation
Common and Civil Law Systems
• Civil law systems originated in Roman Law.
• Uses a code of law which is interpreted and applied by judges
• Common law systems developed through customs long before any actual court
proceedings
The main difference between the two is that common law systems partially uses previous
decisions to determine verdicts, civil law systems do not.
Civil law, in this context, refers to a system of law originating in Rome. Usually inquisitorial
in nature, countries include Germany and France.
Legal Personnel
Judge/Magistrate
• Preside over court cases ensuring proper procedure is
followed
• Magistrate decides verdict and suitable punishment
• Judges adjudicate, instruct the jury and determine admissible
evidence
• Judges decide on punishment, and verdict if no jury
Judges Associate
• Clerk, assists the judge where appropriate
Tipstaff
• Assists the judge with organisation and procedural matters
Barristers/Solicitors
• Solicitors generally do not appear in courts, but assist
barristers behind the scenes
• Both are specialised in certain areas
• During trial, barristers present their clients case, and advise
them on the likely outcome of the trial
Witness
• An individual who gives evidence in a case, who must swear
an oath to speak truthfully
Court Officer
Reporter
Corrective Services
Officer
Jury
• Organises court lists and calls witnesses.
• Ensures smooth running of the trial, essentially an ‘errand
runner’
• Looks after the courtroom
• Also assists judge where necessary and answers questions
from jurors
• All court proceedings are recorded and transcribed
• Guards and escorts the accused
• A panel of randomly selected citizens whom consider
evidence and decide a verdict.
• 12 in criminal cases, jury of 4 used in some civil cases
• Chosen from electoral roll
• Can be challenged by either prosecution or defence
challenges for cause: based on non-qualification, ineligible or
biased
peremptory challenges: no reason required, only a limited
number allowed by each party
KEY QUESTIONS:
Compare the three branches of public law.
Compare the three branches of private law.
Distinguish between criminal and civil proceedings.
Explain the concepts of standard and burden of proof and apply them to both civil and
criminal cases.
Outline the basic criminal trial process.
What are the main roles of a judge, jury and legal representatives in a court room?
Explain the jury selection process.
What is the main difference between common and civil law systems?
Law Reform
What is law reform?
Law reform is adaptations/modifications made to legislation and laws to reflect modern
society. The modern, globalised and technologically advanced world evolves extremely
quickly, and the law occasionally lags behind. Law reform should encourage improvements
within society, for the majority of society.
Conditions which Give Rise to Law Reform
1. Changing Social Values
• Social Values: Ethical standards which guide an individual’s view of their society, and
found beliefs of right and wrong. These change as society evolves over time.
• Heavily influenced by individual values, which may be different to those of greater
society
• Public Morality: Standards of behaviour generally agreed upon by the community
• Judicial decisions are used as indicators of shifting social values
2. New Concepts of Justice
• As society evolves, its views of justice may change
• A prime example is the abolishment of capital punishment in Australia. Australians
believed justice constituted rehabilitation rather than pure retribution
• As views of what justice should achieve are changed, legislation is reformed
3. New Technology
• Technological innovations bring with them the requirement for law reforms to how the
technology is used
• Reform can be obvious and blatant, such as road laws corresponding with the
development of the motor vehicle
• Reform can also be subtle (EG- the invention of life support technology required the
reform of the definition of legally dead).
• A prime example is new birthing technologies, which brought new laws distinguishing
biological versus family obligations and responsibilities associated with the donation of
genetic material
Why is law reform necessary?
• Law reform is necessary so that laws fulfill their role of providing stability and reflecting
modern society
• If law reform was not introduced, laws would become increasingly irrelevant in an ever
changing world
• Conducting law reform ensures that it remains enforceable and relevant
Agencies of Law Reform
Law Reform Commissions
• Established by parliament to conduct inquiries into potential areas of law change
• Completely independent
• Inquiries guided by ‘terms of reference’
• Findings are suggestions, and not compulsory
• EG- Australian Law Reform Commission, established in 1975, which operates under the
ALRC Act (1996)
Parliamentary Committees
• Established by houses of parliament
• Small groups of members investigate specific law reform issues
• ‘Standing committees’ are active for the life of parliament
• ‘Select committees’ are established for a specific purpose
The Media
• Objectively reports on parliamentary decisions
• Encourages informed community and application of public pressure
NGO’s
• Aims to improve lives by spurring law reform
• Independent of political influence
• Important in countries with repressive governments
Lobby Groups
• Pressure parliamentary members, the media and other agencies of law reform to
advance their own agenda
• May also be NGO’s
Agencies of law reform influence, but do not implement!
Mechanisms of Law Reform
Courts
• Law reform through new precedents: Made with social change in mind
• Judicial decisions clarify legal changes and bring issues/complexities to light
• EG: Mabo Decision
Parliaments
• Passage of bills, spurred by agencies of law reform
• Heavily reliant on balances of power
• Fairness can be skewed by political agendas
United Nations
• Conducts law reform on an international scale
• Instruments: Treaties (ratification), declarations, covenants
• Applies pressure of international community to nation states
Intergovernmental Organisations
• Cooperation between governments working towards improvements
• Enforce law reform: Treaties
• Work with the UN to enforce international law
Law Reform in Action: Native Title
• terra nullius: land belonging to no one
• Declared upon British colonization, legally eliminated any indigenous claims to Australian
land
• Need for law reform identified in 20th century
• Mabo II Case (1992): High Court abolishes idea of ‘terra nullius’ and recognises native
title for first time
• Parliament creates Native Title Act 1993 (Cth.) in response: Federal law
• Other Cases: Wik Decision (pastoral leases) and Yorta Yorta decision
• State Legislation: Aboriginal Land Rights Act 1983 (NSW)
KEY QUESTIONS:
What is law reform?
Describe the three conditions which give rise to law reform.
Evaluate how each agency of law reform influences mechanisms of law reform.
What are the primary mechanisms of law reform?
Define ‘terra nullius’. Why was it an obstacle to recognizing Native Title?
Describe the details of the Mabo II Case.
Evaluate the effectiveness of the High Court and federal parliament in bringing about
effective law reforms in response to the Mabo II case.
The Individual and the Law
Rights and Responsibilities
rights: predetermined entitlements/provisions granted to an individual (EG- Natural rights,
legal rights, sociocultural rights, civil and political rights, environmental rights)
responsibilities: predetermined duties of an individual (EG- legal and statutory
responsibilities)
“To guarantee one’s rights, an individual must adhere to their legal responsibilities.”
• Rights are protected by statute law, international treaties (UDHR), and within public law
in contractual relationships
• Responsibilities are protected by statute law (taxes) and especially within public tort laws
(EG- duty of care)
• Rights can be morally based or legally based. Moral rights are arguable by perspective,
legal rights are cemented in statutes and precedent.
• Legal rights cannot be legally disputed
Bill of Rights vs. Constitution
Bill of Rights
• Statement of human rights and
privileges
• Sets out what individuals should expect
from their governments
• Express rights: Not open to
interpretation
• Removes complexities, but restricts
rights to those specifically expressed
Constitution
• Governs the running of a nation state
• Implied Rights: Constitution can be
interpreted to reveal legal rights
• More complex and less explicit, but
more adaptable to different situations
• Governments occasionally pass laws not completely compliant to individual rights
• This is because on occasion, legal duties must be placed before rights for the good of
society
KEY QUESTIONS:
Explain the difference between rights and responsibilities and how they are related.
Identify two examples of legal rights and responsibilities guaranteed by statute law or
public law.
What is the difference between moral and legal rights?
Compare a bill of rights to a Constitution.
Identify a law which places legal duties of a higher stances than legal rights.
Resolving Disputes
Law Enforcement Agencies
The Police
• Federal and state police enforce statutory law relevant to their jurisdiction
• NSW State Police enforce Crimes Act 1900 (NSW)
• Federal police governed by Crimes Act 1914 (Cth.) and the Criminal Code 1995 and
LEPRA Acts
• Police has powers which assist in their investigative and preventative processes
• This is in turn governed by a strict code of conduct
• Power subject to debate, particularly in regard to the factor of police discrepancy
• Also an avenue for dispute resolution
Australian Customs and Border Protection
• Works with federal police to discourage unlawful movement through Australia’s borders
• Areas such as immigration, quarantine, family law and contraband (drugs/weapons)
Australian Crime Commission
• Counters serious organised crime
• Australian Crime Commission Act 2002 (Cth.)
• Forms strike forces to counter criminal activity
Australian High Tech Crime Centre
• Technology related crime prevention
• EG- Fraud, prohibited online material
• Covered by Criminal Code 1995 (Cth.)
• More important as technology evolves
Australian Security Intelligence Organisation
• ASIO Act 1979 (Cth.)
• National security service
• Gathers information to guard against national security threats
Government Departments
• Can enforce laws relevant to their jurisdiction
The police and other law enforcement agencies utilise their special powers to investigate
crimes, and prevent law-breaking behaviour, to maintain law and order in society.
Resolving Disputes Between Individuals
Alternative Dispute Resolution
• Methods of dispute resolution which have the aim of allowing the involved parties’ to
maintain control of the situation and reach a compromise.
• Cheaper and quicker than court procedures
negotiation: involved parties meet to discuss the issues and attempt to reach a
compromise
mediation: involved parties meet to discuss the issues and attempt to reach a
compromise. Overseen by an impartial third party.
conciliation: involved parties meet to discuss the issues and attempt to reach a
compromise. Impartial third party guides the proceedings and makes recommendations,
but these are not binding in any way.
arbitration: A process involving an arbitrator who makes a legally binding decision for the
involved parties.
Community Justice Centres
• Resolve disputes through mediation
• Six government run centres in NSW: Reduce strain on court system
Land and Environment Court
• Specialist court integrating ADR into it’s proceedings
• Interprets environmental law and deals with land disputes
Resolving Disputes With The State: Non Legal Methods
Media
• Encourages public pressure and informed citizens
• Brings issues to wider audience
• Can be biased
Members of Parliament
• Can bring issues to parliament: Source of decision making
• Willing to listen to the voters
• Only effective if other electorates have similar issues
Trade Unions
• Large unions with numbers to assert power and opinions
• Broad sociopolitical and legal base
• Members issues supported and recognised
Interest Groups/NGO’s
• Raise public awareness
• Focused attention on specific issues
• Investigates state decisions and their relevance
• Some are poorly structured with little legal/parliamentary basis
Resolving Disputes With The State: Legal Methods
Internal Review
• Reviews of government decisions within the same department
• Quick and inexpensive, by relevant and experienced personnel
• Can potentially be biased
External Review
• Reviews of government decisions undertaken by an external body
administrative and other tribunals
• review specific decisions of government agencies
• narrow jurisdiction, but quicker and cheaper than courts
• EG- NSW Administrative Decisions Tribunal
privacy bodies
• laws have been enacted to prevent unnecessary information being disclosed about
individuals
• Privacy Act 1988 (Cth.)
• individuals can seek an internal review or contact Privacy NSW (state jurisdiction)
courts
• state and federal courts have the power to review administrative decisions
• often called judicial review: based on legality, not merits
• remedies include prohibition (preventing an action), certioran (reversing a decision),
mandamus (forcing an action), or injunction (prohibiting actions in the future)/
ombudsman
• state and federal offices
• legal power to investigate complaints made by members of the public
• cannot impose punishments, only make recommendations
statutory bodies
• formed by statutes for an express purpose
• some established to review administrative decisions
• EG- Australian Human Rights Commission (Cth.)
KEY QUESTIONS:
Describe the role of the federal and state police.
Outline the roles of three other law enforcement agencies.
Identify the advantages of dispute resolution outside of courts.
Describe the various types of Alternative Dispute Resolution and evaluate the
effectiveness of ADR as a whole.
Evaluate the effectiveness of the non-legal methods of challenging state power.
Describe the legal methods available to challenge state power.
Cyberspace
Nature of Cyberspace
• Facilitates anonymity, allowing individuals to hide their identity
• Encourages creativity, makes sharing information easier
• A global, multilateral forum of ideas
Examples of Cyber Crimes
•
•
•
•
Hacking (unauthorized access to data)
Fraud (false information to deceive individuals)
Spam (unsolicited bulk email)
Cyber bullying and Cyber Stalking (disinhibition effect)
Intellectual Property in Cyberspace
•
•
•
•
IP: Creations of the mind with commercial value
Violation of intellectual property made easier due to file sharing and space shifting
Copyright Act 1968 (Cth) and Copyright Amendment Act (2006)
WIPO Copyright Treaty (1996)
Difficulties in Prosecution
•
•
•
•
•
•
Global nature makes prosecution difficult (jurisdiction issues)
United States of America v. Griffiths (2004)
Large digital dossiers create potential targets
Existing laws applied to technology with limited success
Disinhibition effect: People do things they wouldn’t normally do
Constant evolution places strain on legal makers: Spurs law reform
Approaches to Cyberspace
• Laissez fire: Less regulation, independence maintained
• Interventionist: Heavy regulation to ensure safety of users, restricts freedom
Legislation, Responses and Cases
•
•
•
•
•
Crimes Amendment (Computer Offences) Act 2001 (Crimes Act 1900)
Spam Act 2003 (Cth)
World Intellectual Property Organisation (United Nations)
USA vs Griffiths (2004)
Convention on Cybercrime (2001)
Law in Practice: People of Differing Sexual Identity
Issues:
• Homophobic harassment, which remains an issue due to inadequacies in federal law
• Homophobic discrimination in sectors including the workplace, aged care and health
care
• Inequality in legal recognition of relationships
Legislation and Treaties:
• All forms of discrimination are prohibited by Articles 1+26 of the ICCPR
• Sex Discrimination Act 1984 (Cth) was amended in June 2013. The Sex
Discrimination Amendment Bill 2013 (Cth) extends protection to include any
discrimination on the basis of sexual/gender identity.
• Amendments to many federal laws between 2008-2009 eliminate discrimination against
de facto couples from domestic legislation
• State legislation, including the Anti-Discrimination Act 1977 (NSW), prohibits
discrimination on the grounds of sexual preference
• Article 17 of the UDHR guarantees marriage as a fundamental human right
Cases:
• Farmer v. Dorena Pty Ltd (2002): The complainant appealed to the NSW Administrative
Decisions Tribunal, claiming she was discriminated against by a hiring agency (the
respondent) due to her transgender status. This is prohibited in the AD Act and as such
Ms Farmer was awarded $6000 compensation
• Burns v. Radio 2UE (2004): The complainant alleged that the radio presenters of 2UE
made derogatory remarks about homosexuals during a broadcast. The NSW ADT found
that these comments were discriminatory and the matter was settled outside of court.
• Toonen v. Australia (1994): The complainant alleged that laws criminalizing gay sex in
Tasmania breached his rights to privacy and freedom from discrimination (17+26 of the
ICCPR). Toonen’s case was successful before the UN Human Rights Committee.
• Young v. Australia (2003): The UN Human Rights Committee recognizes Australia’s
breach of the ICCPR in the inequalities contained within Australian de facto relationship
rights, compared to those of marriage.
Responses:
• Federal Parliament: Enacts legislation which is enforced by the entire legal system.
High enforceability, but low responsiveness and protection of rights.
• Australian Human Rights Commission: Established by the Human Rights and Equal
Opportunity Commission Act 1986 (Cth). Advises parliament on human rights issues
(including sexual identity and relationship equality). Offers complaint resolution (over
2000 to do with sexual preference/identity in 2010-2011). Effective in all regards.
• (Lobby Group) Australian Marriage Equality: Lobbies the federal government for
legislative change concerning marriage equality. Informs the public of developments in
this regard and has a high social media following. Lacking in enforceability, but effective
in responsiveness and contributes to protection of rights.
Law in Practice: Women
Issues:
• Domestic violence and abuse
• Discrimination in the workplace
• Sexual assault
Legislation and Treaties:
• All forms of discrimination are prohibited by Articles 2+26 of the ICCPR
• CEDAW (1981) is the main piece of international law
• Sex Discrimination Act 1984 (Cth) is the domestic enactment of Australia’s ratification
of CEDAW, complemented through the Equal Opportunity for Women in the
Workplace Act 1999 (Cth)
• State legislation, including the Anti-Discrimination Act 1977 (NSW), prohibits
discrimination on the grounds of gender
Cases:
• Poniatowska v Hickinbotham (2009): This was a sexual harassment case which
reached the Federal Court. The Court held on appeal that the plaintiff was discriminated
against, and the actions of her coworkers caused her serious emotional harm. She
received monetary compensation, demonstrating modern effectiveness of judiciaries in
achieving just outcomes for women.
• Stoker v. Kellogg Pty. Ltd (1984): The complainant contacted the Equal Opportunity
Commission concerning a discriminative wage increase. The commission confirmed
indirect gender bias, and responded in an effective manner to protect the rights of the
emerging demographic of working women.
• Toonen v. Australia (1994): The complainant alleged that laws criminalizing gay sex in
Tasmania breached his rights to privacy and freedom from discrimination (17+26 of the
ICCPR). Toonen’s case was successful before the UN Human Rights Committee.
• Young v. Australia (2003): The UN Human Rights Committee recognizes Australia’s
breach of the ICCPR in the inequalities contained within Australian de facto relationship
rights, compared to those of marriage.
Responses:
• Federal Parliament: Enacts legislation which is enforced by the entire legal system.
High enforceability, but low responsiveness and protection of rights.
• Australian Human Rights Commission: Established by the Human Rights and Equal
Opportunity Commission Act 1986 (Cth). Advises parliament on human rights issues
(gender equality). Offers complaint resolution. Effective in all regards.
• (Lobby Group) Australian Marriage Equality: Lobbies the federal government for
legislative change concerning marriage equality. Informs the public of developments in
this regard and has a high social media following. Lacking in enforceability, but effective
in responsiveness and contributes to protection of rights.