PRELIMINARY LEGAL STUDIES STYDY NOTES
CHAPTER 4- LAW REFORM
4.1 What is law reform?

Changes in the legal system to meet current expectations, meet new technology and adapt
to new ideas and values
4.2 Conditions that give rise to law reform
Changing social values- public morality
E.g. Same sex relationships: recognised in some laws like; De Facto Relationships Act 1961
(Cth) amended and changed to Property (Relationships) Act 1984. Recognising these
relationships have become an important part of laws including; Same-sex Relationships
(Equal Treatment in Cth Laws Superannuation) Act 2008 and Same-sex Relationships (Equal
Treatment in Cth Laws General Law Reform Act 2008
 New concept of justice- no more capital punishment, recognising chances of rehabilitation.
Also includes domestic violence but that’s in law reform in action.
 New technology- in areas such as cyberspace, birth technologies, use of DNA as evidence
introduced The Crimes (Forensic Procedures) Act 2000 to set guidelines for DNA testing of
criminal suspects
4.3 agencies of reformLaw reform commissions;



established by various parliaments within own jurisdictions to report under ‘terms of
reference’
reports may contain recommendations, modernisation, ways to simplify or to eliminate
deflects
Essential they are independent from parliament that established them- political interference
could skew findings.
Two commissions are;
The Australian Law Reform Commission- operating under Australian Law reform Commission Act
1996 (Cth)
o
o
o
o
o
o
o
o
set up by statute
Main role to review cth laws referred by Attorney General, conducting enquiries and to advice of
how it could be changed to meet current needs.
Must ensure laws, proposals and recommendations don’t trespass personal rights and
consistent with international obligations
Inquiry process involves research and consultation.
Will make recommendations to federal gov. through attorney general.
Gov. can accept some or all of recommendation, can also ignore.
In annual reports, ALRC publishes summary of implementation status or recommendations.
More recent areas studied include; sedition laws, privacy laws and freedom of info. Legislation
The NSW Law Reform Commission- set under Law Reform Commission Act 1967 (NSW)
o
Set similar role to ALRC but at state level
o
o
o
o
Role also includes consolidating overlapping legislation, simplifying law
NSW gov. to refer issues to commission for investigation.
In research typically consult public
E.g. Report on bail (2012) included discussion on the merits of s 22A of Bail act (2007)
Other ways to achieve law reform include:
Parliamentary committeeso
o
o
o
o
o
o
Established by both houses of parliament.
Committees scrutinise gov. activity including policy and administrative decisions and oversee
expenditure of public money
Vote taken to take something to committee
May only involve senators or members of House of Representatives.
‘Joint committee’ has both senators and members
‘Standing committee’ is a committee permanent during the life of appointed. They inquire into
and report matters appointed by senate or House of Representatives, include; estimates of
expenditure, bills and performance of department.
‘select committees’ are small committees appointed for particular reason, one task
Mediao
o
o
o
The gov. cannot influence how media report, what is reported.
Essential feature of working democracy is diversity of media ownership to dilute influence of
individuals
Keeping people informed allows public to apply pressure on gov. to address injustice,
incompetence or corruption
Effectiveness of non-legal mechanisms in influencing law reform can depend on politics of the
day
E.g. Issue that affects voters in hotly contested electorate is more likely to get addressed than
one that affects voters in a safe seat
NGO’So
o
o
o
o
o
Organisations independent from gov.
No obligation to conform to Gov. Policy and can be source of objective info.
Characteristics of a NGO include;
1. Formed voluntarily by individuals
2. Independent from gov.
3. Not for private or personal profit, money goes into goals of organisation; produce info,
utilities, etc.
4. Aim to improve people’s circumstances, prospects within mission
NGOS can work with gov.
As mechanism of law reform, effectiveness of NGOs can vary
Gov. can go against NGO due to independent status
Lobby groupso
Organised group who try to influence gov. ministers or other members of parliament to advance
social or political agenda
o
o
o
Goal could be to introduce, change or keep laws
May try to influence through writing letters, requesting meeting with representative or senator,
making policy submissions, writing letters to editor or calling talkback radio
Lobby group could also be NGO, industry group or other interest group
4.4 mechanism of law reformThese are ‘machinery’ that brings change, including judicial and legislative branches and
international organisations.
Courts- courts make laws through precedent thus can be law reform
o
o
precedents from higher courts can clarify what law should be in certain cases
role of judges to deal with manner before them, law reform comes in in an ad hoc or piecemeal
way
E.g. Mabbo case- ruling of high court to abolish terra nullius and declare land rights, later on
reforming and sparking creation of new laws
Parliaments- changing of laws occurs through passage of bills
o
o
o
change usually comes from other sources
in parliament laws are debated, bills fate depends on party/ies that hold the balance of power
on senate or in NSW legislative council
political parties present policies to voter prior election
United nationso
o
o
o
main organisation involved in international law
primary mechanism in evolution and reform of governing state
can take place when Australia implements treaty into domestic legislation
effectiveness and role of implementation and development of international; treaties outlined In
chapter 2
Intergovernmental organisationso
o
o
are subsidiaries of UN
established to meet and decide on certain international issues: e.g. refugees, tariffs and wealth
can contribute to international law reform through promotion and development of multilateral
and bilateral treaties
Other treaties- include
 royal commissions
 NSW coroners ‘office of the NSW ombudsman
 Australian human rights commission
CHAPTER 5- LAW REFORM IN ACTION
Topic 1; law reform and native title
5.1 history of Gov. policy-
o
o
Despite indigenous people having customary laws, English settlers didn’t think they understood
such concepts of land ownership. Thus declared it terra nullius
White people set laws to suit their needs rather than indigenous, (racial secretory and racial
discrimination)
E.g. Martial Law (1816) - killing, hunt and execution. Aboriginal Protection Act 1869 (NSW) - gov.
governing their interactions such as marriage, work and association. Nationality and Citizenship
Act 1948 (cth) - getting aborigines to give up nationality and life ‘white’ life
5.2 operation of the legal system in relation to native titleTerra nullius, meaning land belonging to no one.
o
o
o
o
Refers to uninhabited territory, territory with no recognisable system of law, social or political
organisation
Due to this, aboriginals not recognised and British put possession and imposition of their laws
Effect on indigenous people mean treatment by colonists involved loss of land, loss of culture
and dispersal.
Also impacted native title claims, land was considered crown land
Legal status of indigenous Australians up to 1967o
o
o
o
o
Gov. policies tended to condone violence to indigenous populations
Before 1967 referendum parts of the constitution reserved responsibility of Aboriginal affairs to
state gov. meaning no laws to cover indigenous welfare resulting in inconsistencies and
inhumanity
1967 referendum didn’t grant power to vote (achieved in 1965) but became symbol of public
recognition of rights of indigenous aboriginals.
Reflects changes in attitudes and beliefs
The removal of section 51 allowed for aboriginal affair to become federal issue slowing to be
counted in census and allowing welfare
Development of native titleMabo cases- 1985-1992 Mabo and others challenged Queensland gov. in two cases in the High Court
of Australia, Mabo v Queensland (69) and Mabo v Queensland (no. 2) (1992)
o
o
o
o
o
o
o
o
o
1st case- questioned validity of state law that attempted to abolish native title by asserting state
ownership of islands off the coast of Queensland
High court held that Qld act was inconsistent with Racial Discrimination Act 1975 (Cth) because
under it they had right to own property
Under constitution where federal and state laws conflicts, federal law prevails
2nd case- concerned right to occupy and control Murray island
High court ruled, 6 judges to one. That Australia was not terra nullius and Meriam people clearly
held native title to their land
This decision introduced doctrine of native title into law, recognising traditional right.
Also held native title existed for all indigenous people In Australia prior to European contract
To clear legal position of land ownership and process in land right claim, federal gov. passed
Native Title Act 1993
Case and legislation significantly changed legal status of indigenous people in relation to native
title and gave some people access to parcels of land to practice traditional way of life
Growing recognition of native title in some countrieso
o
Greater move for more self determination to groups
self-determinations means rights to control and use their traditional land as well as local
economy and policy
Agencies of law reform on native titleo
o
o
when claiming traditional land rights must be validated
only courts that can determine this are federal court and high court
claims bought to National Native Title Tribunal but body can’t make legal decisions and can only
carry out research and make recommendations
3 types of determination;
Unopposed determination- uncontested
Consented determination- reaches agreement through mediation
Litigated determination- contested in court where judge presides
Role of the high courto
o
o
will determine whether native title exists
appeal against determination made to full sitting to federal court then to high court
high court last place in determining land rights existence
Role of parliamento
o
enact legislation to protect property rights
public pressure and lobbying pushed response reflected on Mabo case
Major high court decisions on native title and subsequent legal developmentsNative title not recognised until 1992 with overturn of doctrine of terra nullius
Mabo caseo
o
o
o
led to introduction of native title legislation and gave recognition to aboriginal inhabitants
case required to consider legality of doctrine of terra nullius
as a result of Mabo decision federal gov. enacted Native Title Act 1993 (Cth)
purpose to; provide protection and recognition, establish procedure and set standard for
dealings, establish mechanism for determining native title claims and provide validation of
grants
Wik caseo
o
o
o
o
Mabo case and Native title act resulted in claims for land
Wik and Thayorre people launched case against Qld gov. (Wik people’s v Queensland) claiming
land to land being used by pastoralists under pastoral leases. Under leave gov. owned the land
but farmers had exclusive rights to use
federal court ruled existence of pastoral leases extinguished right to native title
decision appealed to high court which ruled the people where entitled to their land
court found that pastoral leases and native title could coexist but when conflict arose pastoral
leases would prevail
o
o
Wik case didn’t grant automatic title of crown land, causing concern among pastolist and mining
companies since they would have to negotiate with indigenous people over use and access
federal gov. enacted Native Title Amendment Act 1998 (cth) which amended the Native Title Act
1993 and introduced changes including;
1. extinguished native title over private property
2. when native title exists with pastoral lease, pastoralist allowed to use land for primary
production without having to consult people with native interest
3. tough tests to determine right to native title
Yorta Yorta native title caseo
o
o
o
o
o
applied for native title in respect to public land and water in 1994
Native Title Register accepted application and was subject to mediation until 1994when it was
referred to the federal court
Claim referred to federal court, dismissed on grounds of lack of evidence and that evidence
didn’t support claim as Yorta Yorta people has stopped occupying land in the 19th century
They appealed this decision but Full court upheld decision of federal court
Then they appealed to high court (members of the Yorta Yorta aboriginal community Victoria
(2002) claiming trial judge and full court had been wrong in requiring them to prove continuous
observance of traditional laws and customs relating to land
High court held that in order to prove native title claimants must establish acknowledgement
and observance of the land and custom on a substacially uninterrupted basis since British
sovereignty
National Native Title Tribunal
o
o
Federal gov. set up agency under Native Title act 1993 (cth)
Mediated native title claims under direction of federal court
Native legislationState legislation; Mabo and Wik case led to cth legislation in native title and self-determination.
State legislation enact to give rights and protect interests of indigenous people
 National Parks and Wildlife Act (NSW) provides protection of places and relic of significance
for their culture. Under acts it’s a offence to destroy, deface or damage parks
 Aboriginal Land Rights Act1983 (NSW) recognises land traditionally owned and occupied by
Abo’s, land has spiritual, social, cultural and economic significance to them
 Appropriate to acknowledge importance of land to Abo’s
 Gov. decision led to negative effect on Abo land right ownership
Federal legislationo
o
o
o
o
Enacted legislation to protect all parties involved and affected
Native Title Act 1993 (cth) provides recognition of native title and integration of property right
into land title system
Doesn’t allow for cth gov. to affect operation of law of state territory operating concurrently
with act
Changes also allowed for township leases where Australian gov. and traditional owners in
township could negotiate for town leased
Effects on changed intended to improve efficiency of process
o
Cth legislation enacted to provide rights over bodies of water, Aboriginal and Torres Strait
Islander Heritage Protection Act 1984 (cth) used to protect areas of water and land of
significance to Abo’s
Native title as a collective righto
o
o
o
o
Collective right, one claimed and shared by group of people
Native title is collective right, can’t be claimed as individual
Although collective right individual can bring claim before court
Individual acting on behalf of the group
Community to check they share rights are gained
5.3 effectiveness of law reform in relation to native title
o
o
o
o
Native Title Act 1993 Cth and amendment recognise not only the rights of traditional owners but
of current landholders
Biggest step in overturning concept of terra nullius but led to other major cases such as Yorta
Yorta claim
Other major steps in both judicial and legislative branches
Future progress depends on articulation and maintenance of new concepts of justice and
sustained public commitment to elective gov. that will legislate such purpose.
TOPIC 2 LAW REFORM AND SPORT (TO ASK MISS WEETHER I NEED TO STUDY FOR THIS SHIT)
Topic 3; law reform and sexual assault
5.8 conditions that led to law reform relating to sexual assault
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
Central aims of criminal justice system is to prosecute criminal offenders on behalf of victims
Challenge to balance rights of accused and individuals interest
Law reform motivated by perceptions of criminal justice system failing to deliver just outcomes
for community and victims
Sexual offences have lowest conviction rates
Most victims being women, aged 16-25 (28%), under reported
Under reporting can be attributed to factors such as; belief that victim cannot win a case, too
much trouble, cant face it emotional
Proof can be difficult due to 70% of cases victim not knowing offender
Survey of victims and service providers conducted by NSW Criminal Justice Sexual Offences
taskforce showed victims ill-served by legal system in terms of practical needs
No established system to address multiple needs such as translation, mental health support,
accommodation and counselling
DPP usually prosecute if prospect of conviction and in interest of public
Case to rely on one person’s word against another unless convicting physical evidence
Cases involving unknown attacker easier to establish sex is not consensual due to more severe
nature linking strong physical evidence
Physical evidence another major obstacle, victims to undergo physical examination and to be
questioned in detail in order to obtain evidence that can be used in court
Lack of state resources provided to doctors who work in sexual assault services
Training for ‘sexual assault nurse examiners’ instead of doctors was a need identified and NSW
Dept. of Health commenced training in 2004
o
o
o
Nurse examiners have training in clinical practise and forensic assessments and routinely gave
evidence in court, this initiative was seem as ‘resource efficiency’ measure
Resulted most formal complaints of sexual assault cases don’t result in formal investigations and
most investigations don’t lead to trials
Survey by national Personal Safety Survey saw only 19% of victims had reported experience to
police
5.9 agencies of law reform relating to sexual assault
The Criminal Justice Sexual Offenders Taskforce
o
o
o
o
o
o
Established to investigate issues relating to sexual assault and the prosecution of these crimes
To advice attorney general how criminal system could become more responsive to victims
without undermine right of accused to receive fair trial
Had broad input from cross section of gov. and non-gov. organisations to obtain various
viewpoints on criminal justice system
With NSW gov. asked Australian Institute of Criminology to investigate question of whether
giving evidence in closed-circuit television altered impact of evidence received- whether jury was
likely to reduce empathy for victim or accused
Found no difference in jury response
Convinced gov. that his could be reliable mode of delivering evidence for traumatised victim
who didn’t want to be in the same room as accused
NSW Rape Crisis Centre
o
o
o
Main form of law reform of how cases are dealt in the criminal justice system
Gov. provided funding so services could be upgraded and made permanent, paid workers
Centre runs 24 hours a day and provides support and counselling for victims
NSW bar Association
o
o
Baristas rewritten own rules for cross-examination of alleged victims
Questions that confuse or mislead victims are banned
Media
o
o
o
Case- 2004, 5 men accused of gang rape of Tyabb Sheikh, conviction of one overturned in NSW
Court of Criminal Appeal and retrial ordered. Sensationalised and dramatized gave jury access to
inadmissible evidence and jury’s ability to ignore information put into doubt. Placing accused not
receiving fair trial.
Medias influence on public option, law organisations and gov. resulted in changes to improve
treatment of victims in court
Victims questioning in cross-section can be traumatising, questioning credibility for events been
portrayed by media as horrific
5.10 mechanisms of law reform relating to sexual assault
Parliament- Acts passed by NSW gov. to support law reform include key legislations such as:
o
Criminal Procedure Amendment (Sexual Offences Case Management) Act 2005- amended
Criminal Procedure Act 1986 (nsw). To provide retrial order to proceed binding on following case
no change of evidence and admissibility. In order to reduce delays and to minimise stress and
trauma on victims while giving evidence
o
o
o
Criminal Procedure Further Amendment (Evidence) Act 2005- amended Criminal Procedure Act
1986 to allow transcript or recording into evidence into any retrial. If admitted victim cannot be
forced to give further evidence if not wanted
Criminal Procedure Further Amendment (evidence) Act 2005- prohibited improper questions
that target victim during cross-section. Also provided for evidence to be given privately and
support compliant when giving evidence. Also introduced new section in Criminal Procedure Act
1986 to prevent unrepresented accused to cross section victim
Crimes Amendment (Consent- Sexual Assault Offences) Act 2007-states consent and that an
individual must be in the right capacity to give said consent (might not be able to give if under
influence of drug or alcohol). Crimes Act 1900 NSW amended to place onus of defendant to
prove consent , and steps taken
Courtso
o
o
o
o
Recommendations by Criminal Justice Sexual offences Taskforce changed manner in which
judges and courts deal with sexual assault
Largely bought by legislation and amendments
Guilty verdict returned severe penalties to send general deterrence to community and reflect
severity of offences- e.g. applying non-parole periods
Suggested specialist courts could help in reducing stress and trauma thus also improve
conviction rates
Features include; appropriate technology – e.g. Closed circuit television, separate entrances for
victims and accused
5.11 effectiveness of law reform relating to sexual assault
o
o
o
o
o
Legislation passed in 2005 targeted at low reporting cases, low success prosecution rates
Also set to minimise stress and trauma
State governments have implemented two-thirds of the 70 recommendations by CJSOT
including; reduce in delays to address sexual assault cases by adding mandatory timetables,
close court while victim giving evidence, prohibit improper questions during cross section
Efforts in educating public of these acts of violence and gender inequality
Continuation of education and reform to criminal justice system necessary to improve reporting
and collection of evidence to assist successful prosecutions while balancing rights of accused
against victim and community
PART 2; the individual and the law
CHAPTER 6- YOUR RIGHS AND RESPONSIBILITIES
6.1 What are rights and responsibilities?
o
o
o
o
Rights- legal or moral entitlements or permissions
Responsibilities- legal or moral obligations to others
Rights and responsibilities are interrelated
State has responsibility to protect rights and ensure that they’re not violated by individuals,
state or state itself
Legal basis of rightsTo have legal bases must be protected by law and enforced by law. These legal rights may be
protected by statute or common law
o
o
Statute- example not to be excluded or restricted on the basis of race, descent or national or
ethnic origin, this is contained in the Racial Discrimination Act 1975 Cth and is broad in
extending to peoples treatment in ‘political, economic, social, cultural or any field of public
life(s9)’
Common law- particularly in contract law and tort law. Duty of care (Donoghue v Stevenson
1932) and right to end contract if other party breaches term of contract (Progressive Mailing
House Pty Ltd v Tabali Pty Ltd 1985)
Legal basis of responsibilities
Where someone has a right someone else has a corresponding responsibility
o
o
Statute- also called ‘obligations’ or ‘rules’. Example obligation of parent to send children to
school or ensure education. Duty contained in Education Act 1990 (NSW)
Common law- duty of care presented in case Donoghue v Stevenson owned to all persons likely
to be closely and directly affected by behaviour. Being aware that behaviour can pose a risk to
others (harmed person can bring action for negligence- carelessness resulting in breach of duty
of care)
6.2 The nature of individual rights
The distinction between moral and legal rights
o
o
o
o
o
Difference between moral and legal rights can be that people can argue from different ethical
viewpoints
Can be disputed but cannot interrupt binding jurisdictions of legislature or courts – if in law it
can’t be argued
Moral rights and responsibilities aren’t enforceable
Example- euthanasia. Very controversial but not legal right in Australian jurisdiction
Example- right to engage in sexual activity despite 16 being legal base. However some might
argue that the age is inappropriate
A bill of rights?
A protection provided by bill of rights- document that sets out specifically what individuals are
entitles to expect of their gov.
Arguments for and against an Australian bill of rights
o
o
Constitution expresses some rights including; right to religious freedom (s 116), right to trial by
jury (s 80)
Debate for need for explicit constitutional protection for border range of human rights
For
Law gives insufficient protection to fundamental
freedoms and bill would outline and protect
these rights
Make current laws more cohesive and accessible
Would protect rights of minorities
Against
Already protected by statues and common law
Make little difference in protection of rights BILL
Could quickly become outdates
6.3 individuals’ rights and responsibilities in relation to the state
Conflicts between rights and responsivities
o
o
o
People have expectation from local, state and federal gov.
Sometimes these come into conflict
E.g.- smokers being banned in several places, people says this is about keeping clean
environment but people could argue it overrides their right to enjoy a ciggie
State interference with personal liberties
o
o
Most western democratic countries allow individuals to govern certain areas of their life such as
food they eat, clothes worn, jobs etc. laws based on religious beliefs would violate constitutional
prohibition
Some countries however base laws on religion (theocracy) or ideologies (aboriginal spirituality)
It’s a free world?
o
o
o
o
Although there are no bill of rights constitution does protect a few rights including:
 S80 right to trial by jury
 S116 freedom of religion
 S117 right to not be discriminated based on residence
High court interpret constitution and find rights of individual to be ‘implied rights’
Implied right only protects individual from limits from particular type of communication
Person cannot rely on implied right if individual organisation or cooperation attempts to prevent
or her exercise of free speech
Freedom of expression and defamation
o
o
Defamation- act of making statements or suggestions that harm someone’s reputation with no
solid proof
Legally protected from defamation if:
 Statement is based on fact
 Its honest opinion , not based on fact, matter of public interest, and facts based on are
announced
 You have legal, social or moral duty to communicate something to person has
corresponding duty to hear or read it
Example case: Jodie Power and Mercedes Corby
6.4 international protections of rights
o
o
o
o
o
o
International law can be made through bilateral or multilateral treaties
Treaty can only be enforced once it is passed through domestic legislation
Self-executing automatically becoming binding on state party to teay as soon as treaty is ratified
Declarations they can simply states organisations intentions with respect to a certain area or
flaw- such of human rights
Usually developed through UN or other international organisations such as subsidiary bodies of
the UN or world trade organisation but are not legally binding rather they are morally bringing
and influential in setting standard of protection of rights
Universal Declaration of human rights is important declaration of rights a human is entitled to
Limitations of international law in protecting rights
o
o
o
In order to function effectively parties need full participation and cooperation
States may choose to ignore declarations, treaties and UN resolutions
Consequences are seldom
o
Self-determination gives power to states to pursue own political status (how they want to be
recognised), economic, social and cultural development
Rights of indigenous peoples
o
o
o
o
Questions whether people who want independence from colonial power to seek such
independence
UN declared decade for world indigenous rights from 1995 to 2004 to promote rights, languages
and culture of Abo’s
Abo’s have faced challenges in political autonomy (self-determination)
One way self-determination is demonstrated in aboriginal indigenous communities is through
the use of customary laws rather than English common law
 Example is circle sentencing
Circle sentencing
o
o
o
o
Goal of preventing crime, supporting victims and giving indigenous people greater involvement
in criminal justice system
Sai to be more meaningful for offender if penalty is imposed by authorities from his or her
culture
How it works:
1. Accused of criminal trial pleaded/found guilty. Is member of indigenous community
2. Magistrate travels to accused’s community for purpose of sentencing
3. Magistrate and others sit in circle
4. Discuss matter
5. Come to appropriate sentence
Group to include; offender, victim and family, respected members of community
CHAPTER 7 RESOLVING DISPUTES
7.1 introduction
To examine nature of disputed between individuals and ways it can be resolved in a variety of ways.
View on disputes with issues such as wrongful arrest. Investigate role of various law enforcement
agencies
7.2 law reform agencies
The police
o
o
o
o
o
State police- police don’t make laws they enforce them. try to main train order and try to see
law is being followed by preventing crimes, investigating and arresting offenders
Police must follow certain code to perform duties, to ensure evidence is collected correctly (to
become admissible at court)
Code of practise1. Powers to stop, search and detain people
2. Power to enter and search premises and seize property
3. Powers to arrest, detain and question suspect
4. Way in which suspect and others are treated by police
NSW police force mainly concerned with enforcing criminal law
Offences contained in Crimes Act 1900 – include crimes such as; homicide, manslaughter, sexual
assault
o
o
o
o
o
o
Another part they take action is in domestic violence by placing Apprehended Violence Orders
which restrict movement of individuals in relation to others
Federal police- responsible for enforcing federal law and criminal law where crime cross state
boundaries
Key role to prevent and detect crimes against the commonwealth
Crimes legislation enforced by AFP include; Crimes Act 1914 Cth and Criminal Code Cth which
include crimes such as drug importation and distribution, crimes relating cth entities (bribery)
Powers set out in Australian Federal Police Act 1979 Cth
New challenged include terrorism, human trafficking and cyber crimes
Additional law enforcement agencies in Australia
o
o
Australian Customs Service role to maintain security and integrity of Australian borders
Key areas of concern for ACS are;
1. Immigration- legal visas
2. Quarantine- monitoring and confiscating harmful goods
3. Family law- preventing parents to illegally remove children
4. Law enforcement
Australian crime commission
o
o
o
o
o
o
Cth statutory body
Works with federal and state police as well as other agencies
Counter serious crime
Australian Crime Commission NSW Act 2008 effectively passed bringing Australian Crime
Commission Act 2002 Cth into state law
Unify to fight against serious organised crime activity
Performs important functions such as
 Collecting and analysing of data
 Providing and maintaining effective and efficient criminal intelligence systems
 Investigating federally criminal activity
Australian High Tech Crime Centre
o
o
o
o
To provide national approach to technology crime
Involved in crimes with technology such as; online fraud, mule recruitment, offensive and
prohibited content
Part of the Criminal Code Cth includes;
 Computer intrusion
 Unauthorised modification of data
 Denial of service attack
 Creation and distribution of malicious software
Another role is to remove inappropriate and illegal content
Australian Security Intelligence Organisation
o
o
ASIO established under Australian Security Intelligence Organisation At 1979
Main role is to gather information to help other agencies
7.3 disputes between individual
Alternative dispute resolution
Can be good in saving time and money, these alternatives include;
o
o
o
o
o
o
o
o
o
o
o
o
Negotiation- discussion between 2 or more parties in aim of reaching mutually benefitting
outcome.
Involves consideration of both parties
Negotiation is the first step in resolving dispute
Only involves parties involved, being cost effective
Medication and conciliation- similar processes which are confidential
Both processes include neutral and independent 3rd party to negotiate and reach a decision
acceptable
Mediator doesn’t provide any advice (in-active)
Through this mediator can assist in examining issue and let the parties to come to own
conclusion on how to resolve dispute
In conciliation 3rd party helps identify issue, consider alternative dispute resolution.
May advice parties (active)
May be legal practitioner and is responsible for managing process, explaining rules acting as
umpire
Arbitration- formal dispute resolution process in which the independent 3rd party listens to both
side and comes to a conclusion for them, can be legally binding
Land and environment court
Specialist court with wide jurisdiction
o
o
o
Responsible in interpreting and enforcing environmental law.
Proceedings include;
 Can hear case recommended by other bodies
 Civil proceedings arising from breach of la
 Criminal proceedings for environmental offences
Statute of justisdiction include; Tress (Disputes Between Neighbours) Act 2006 which allows
court to make judgments on issue involving clearing of a tree
7.4 disputes with the state
Nonlegal methods of challenging state power
o
o
o
o
o
o
o
o
Media- sending letter, calling television or radio citizens are able to inform a decision they think
is unfair
This also includes internet
Members of parliament- elected to represent beliefs or ideas of certain issues
Trade unions- groups of people can join to unite to form trade unions and protect their rights
and conditions of employment
Trade unions can help to negotiate a work placement agreement containing important provision
of workplace safety, wages and conditions
Also work together to take action against employer trying to impose changes that are
detrimental to employer.
Interest groups, including non-gov. organisations- form groups that shre same political values
aims or goals.
Individuals can join groups and engage in these activities
Legal methods of challenging power
o
Internal reviews- gov. can review own decisions, procedures and behaviours. These are cost
effective but can be ineffective in terms of practical outcomes if people conducting have been
involved with inappropriate decision
External reviews
o
o
o
o
o
o
o
o
o
o
Administrative and other tribunals- review specific administrative decisions of gov. agencies
Can be time efficient and cost effective
They have narrow jurisdiction, less formal
And usually don’t need legal representation and aren’t bound by rules of evidence allowing to
take into factors into account in finding a resolution
Administrative decisions tribunal has 6 decision
They will conduct reviews of decision by gov. agencies in these categories:
 Community service sector
 Professional conducts of legal practitioners and property conveyancers
 Retail tenancy and unconscionable conduct claims against retail landlords
 Decisions under General Division
Have access to gov. information applications, privacy and licensing relating to firearms, security
industry, passenger transport and building industry
Privacy bodies- laws enacted at state and federal level to prevent personal info. Being released
tp companies, gov. departments or other citizens
Privacy Act 1988 (cth)- give right to complain if you believe your info is being mishandled by Cth
gov. agency or private sector organisation
At state level NSW act protecting privacy: Privacy and Personal Information Protection Act 1998
Cth and Health Records and Information Privacy Act 2002 (NSW) to protect those who feel their
personal info. Is being misused and can request for internal review or complaint to Privacy NSW
The courts
o
o
o
o
o
o
Judicial review- to describe process whereby a court is relevant jurisdiction can review decision
made by gov.
Judicial review doesn’t pronounce on merits of decision
What is legal can vary on circumstances
Decisions based on following requirements;
 Natural justice- person affected having opportunity to be hears and decision unbiased
 Decision authorised by Act under which its made and based on relevant considerations
 Decision maker to have jurisdiction
 Decision maker to have observed all procedures required in making of decision and must
have been no errors
In order to get judicial review person must be affected by issue
Decision that can remedy a decision found flawed include:
 Prohibition- order that stops decisions made or implemented
 Certiorari- order that revises decisions already made
 Mandamus- order that compels decision maker to perform certain types of public duties
 Injunction- order that prohibits decision maker from implementing invalid decision, or
compels informers of duty in decision where mandamus is not available
Office of the Ombudsman
o
o
o
o
o
o
Roughly translates to representative of the people
Offie acts as formal externa control with legal power to investigate complaints made by citizen
Public sector agencies and some private sector provide ombudsman to deal with complain
against them or their offices
Main areas of complaint include;
 Delivery of community services
 Child abuse and neglect
 Operation of police force
Any complaint followed only if prima facie exists (complaint would raise concern on first view)
Ombudsman would make suggestions/recommendations for rectifying problem
Statutory bodies
o
o
Created by stature for public purpose
Can investigating of certain types
Anti-discrimination board of NSW –
o
o
o
o
o
Part of NSW Attorney Generals Department
Established under Anti-Discrimination Act 1997 (NSW)
Role to promote principles and policies of equal opportunities throughout NSW to ensure people
are protected from discriminations on basis of characteristics such as disability, race, age and
sex.
Advises gov. and provided inquiry service to inform people about their rights and responsibilities
under the Act
Board to investigate and conciliate complains when action is necessary, powers to issue fines for
behaviour violating act
Commission of inquiry
o
o
o
o
o
o
o
Set up to investigate serious matter at state and federal levels
They’re based on fact finding
Cases investigated- death of aboriginal men in custody (Cth 1987) and corruption NSW Police
Service (NSW 1995)
Don’t have powers to prosecute offenders
End of inquiry commission to make report containing recommendations
Including on prosecution of individuals
Gov. to decide to act on commission’s recommendations
Independent Commission Against Corruption
o
o
o
o
o
o
o
o
Has greater power
Created under Independent Commission Against Corruption Act 1988 NSW
It’s a independent statutory body which investigates alleged corruption in gov.
Attempt to protect interest of public, prevent breaches of public trust and influence behaviour
of public officials
Including; bribery, fraud and theft
Power to investigate activates of private citizens if it affects administration of public officials
Can ask police to assist in investigations, can search and seize evidence
Cannot prosecute offenders
o
o
Can report to parliament of corrupt behaviour, who committed it and what actions should be
taken
Can seek judicial review in supreme court
Australian Human Rights Commission
o
o
o
o
o
Gov. body established under Human Rights and Equal Opportunity Commission Act 1986
Cth
Federal Attorney General minister responsible
Commission plays role in contributing maintenance and improvement of a tolerant,
equitable and democratic society
Provides info through education programs aimed at community, gov. and business sectors
Holds public enquiries, advises parliament, conducts research and investigates
discrimination complaints
United nations
Key human rights international treaties and rights:




International Convention on Civil and Political Rights
International Convention on Economic, Social and Cultural Rights
Convention on the Elimination of All Forms of Discrimination Against Women
Convention on the Elimination of All Forms of Racial Discrimination (UNDHR
Most well-known, citizens can send complaints where it will be investigated then report sent
back to the gov.
CASE- Toonen v Australia 1994, Nicholas Toonan argued Tasmanian legislation breached
articles 2, 17, 26 of International Convention on Civil and Political Rights. Human rights
committee ruled Tasmanian law constitutionalised violation of individuals privacy under
article 17 and recommended to amend constitution, federal gov. responded enacting
Human Rights (Sexual Conduct) Act 1994 Cth to override sections of Criminal Code 1994Act
Tas. Reluctant to change Tasmania took to high court Croome v Tasmania and help
Tasmania’s law was inconsistent with cth act and to enforce amendment to Criminal Code
CHAPTER 8
CONTEMPORARY ISSUE; THE INDIVIDUAL AND TECNOLOGY
8.1 the scope of new technology
o
o
o
Main difficulty; fast development
Important area is info. Technology- storage, sending and retrieval od info. Through computer
systems.
Info may be expressed in mathematical form, computer code, verbally or other type of language
The jurisdiction of cyberspace
o
o
o
Catalyst in changes in social, cultural and economic changes
Cyberspace- global online virtual work by interconnection of computers
No gov. or court can claim exclusive jurisdiction
8.2 legal issues in cyberspace
Nature of cyber space
3 distinctive feature opposing challenges for regulation
1. Facilitates anonymity- allowed to distribute info. messages anonymously. Which can present
advantages of privacy but can cover criminals
2. Facilitates creativity- permit info and services to be created and supplied.
3. Global- lacks national boundaries which can mean its difficult for nation-state to control
what goes on in territorial borders
Areas of legal concern relating to cyberspace
Can be classified in similar categories as in criminal and civil wrongs
Cybercrime
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
Hacking- unauthorised access to data , changing data, interfering with electronic
communication between computers or impairing security, reliability or funcion of data.
Acts- Cybercrime Act 2001 Cth amended Criminal Code Cth and Crimes Act 1914 Cth to
create offences with computers, data and internet.
These federal offences must have a Commonweath connecting factor
Case- R v Boden 2002
Internet fraud- intentional misrepresentation or concealment of info in order to deceive or
mislead. Can occur in conjunction with hacking
Scam to obtain money through deception
Can function through unsolicited mail, websites promoting pyramid selling, and unsolicited
mail
Phising; to obtain sensitive info for malicious reasons
Case- Australian competition and consumer commission v Chen 2002
Spam- junk mail received electronically, also known as unsolicited bulk email
Act- Spam Acy 2003; illegal to send or cause to be sent unsolicited email
Passed as result of public concern
Effective enforcement through the Spam (Consequential Amendments) Act 2003 Cth
amended Telecommunication Act 1997 Cth . enforced by Australian communications and
Media Authority – responsible for regulations in radio, tv broadcasting, phone
communications and internet
Intellectual property in cyber space- creation with commercial value (e.g. books, artistic
work, music, software programs, databases, trademarks and designs)
Can be created or published on the internet
Protects legal rights arising from persons intellectual creations
Applies not to ideas but expression of these ideas
Types of intellectual property; copyright, trademarks and patents
 Copyright is a type of protection to convey info or enjoyment
 Protected by Copyright Act 1968 Cth
 Globally protected by; Universal Copyright Convention 1961,
 WIPO Copy Right treaty 1996
 Berne Convention for the Protection of Literary and Artistic WORKS 1886 (THERES
MORE ON PG168)
 Trademarks- signs or symbols given to person or corporation legal righto use, license
or sell product or service registered in
 Distinguishes company or person apart form others
 Patents- protection of intellectual property in inventions



Aim to encourage people to continue research or development in product or
technology
Gives patent exclusive right to derive commercial benefit
international agreement regarding patent, Patent Cooperation Treaty 1970
8.3 privacy, safety and censorship
Makes people venerable:




o
o
o
o
cyberbullying
cyberstalking
racial hatred
exposure to violent, disturbing material/illegal material like child pornography (MORE
EXAMPLES IN PG 169)
people being too comfortable with cyberspace can make them disclose personal information
which could be dangerous in higher chance of identity theft and online predators
racial hatred is illegal in Australia and cyberspace Racial Discrimination Act 1975 Ctg. Racial
Hatred Act 1995 Cth amended to extend coverage giving mechanism to send complaints to.
Can occur through speech, gesture, images or written publication
Laws apply to cyberspace or people under Australian jurisdiction
Privacy concerns
o
o
o
o
o
o
Digital dossier- information about person held in multiple locations
Privacy Act 1988 contains principles of how info should be managed such as social security,
health insurance and taxation
Amendments in 2000 extended this not only to gov but to private sector, relating to how they
should store, collect and use personal info
No statutory tort for breach of privacy
Case- Australian broadcasting Corporation v Lenah Game Meats Pty Ltd 2001 stated the need for
such tort
Cybercrime Legislation Amendment Act 2012 Cth to tighten privacy rules
Protecting children
o
o
o
o
o
Protecting children from inappropriate content and online predators
Case- Reno c American Civil Liberties Union 1997 provisions prohibit transmission on
internet of indecent or obscene communication to under 18. Some saw it as a violation of
freedom of expression
A clean feed? Would involve establishment of filtering scheme imposed on all Internet
Service Providers
Would block pages listen in blacklist, which could prevent seen unwanted or inappropriate
material and could combat child pornography
People say it can be too easily bypassed and enforcement too onerous. Could also block
necessary material that don’t harm
8.4 rights in cyberspace
Laissez-faire approach to rights
o
Belief content shouldn’t be regulated
o
Argue individuals capable of determining quality of internet content and gov shouldn’t intervene
in marketplace of ideas
Interventionist approach to rights
o
o
o
o
o
o
o
Argue that appropriate role for govs is to ensure law deals with online phenomena (racial
hatred, pornography)
And ensure reasonable quality
Don’t trust marketplace of ideas
Advocate for more active role for gov in regulation
Would involve:
 Enacting legislation or international treaties
 posing obligation on internet providers
 Strengthening enforcement agencies
Govs would need to take a leadership role and also give other agents considerable freedom and
scope
Limits on national law enforcement remain despite globalisation
8.5 current status and sources of law in cyberspace
National
o
o
o
Statues- laws to govern use within borders Crimes Act 1900 NSw s 308 set out computer
offenses. Provisions added by Crimes Amendment (Computer Offences) Act 2001 NSW
Specific acts to cyberspace activity Spam Act 2003
Court decisions- precedents to legality of activities; Reno v ACLU
International
o
o
o
o
o
o
UN- mostly precedes on intellectual property mainly looked after WIPO
World Intellectual Property Organisation WIPO- specialised UN agency with intellectual property
European Union- political and economic partnership that regulates various areas of social and
economic life. Changed to cover electronic communications
World Trade Organisation- trade matters between nations. Deals with ecommerce matters
Internet Corporation for Assigned Names and Numbers- coordinates naming system on internet
to identify websites. Role to limit management of domain naming system and can see wider
representation internationally
Internet Assigned Numbers Authority- purpose of assigning unique addresses to computers.
8.6 future directions
Why laws are needed
o
o
o
To combat cybercrimes of all sorts, there must be enforceable laws
Govs are needed to create an environment where the rule of law prevails and where law
enforcement mechanisms will deter those who break the law
Public goods include; cable network and communication laws, criminal law, law governing
property rights and enforcement agencies
Strategies for govs
Intermediaries
o
o
o
o
One way they can get control over content is by enlisting local intermediaries such as ISPs and
the companies that control physical internet connection
Can influence policy of what foes on local portals for search engines
By utilising financial intermediaries gov can wield huge influence over industry
Govs who have introduced these measures can be seen as stopping freedom of expression
-Prosecution of individuals
o
o
This can be a way to assert control
Can face difficulty in that person must be within territorial borders, extradition treaties can be
used to remove the person from the country where they have taken refuge
Challenges to gov control of cyberspace
o
Another major difficulty can be seeking to control content is the risk of censorship- explicit
political protection for freedom of expression
Global laws
-the challenge of transnational cybercrime
o
o
o
o
o
o
o
o
o
o
Crimes are under- reported and effects of cybercrime because they don’t wanna advert publicity
In combating cybercrime the enforcement agencies have to work quickly with criminal acts
because it is quick for them to hide themselves in anonymity
Terrorism = cyberterrorism
Understood to mean unlawful attacks or threats or attacks on computer systems
Can be to harm or interrupt gov. agencies or infrastructure
International treaty on cybercrime- Council of Europe’s Convection on Cybercrime 2001 (in force
since 2014)
Not many countries signed due to sensitivity about sovereignty and authorising third parties to
cross-border searches. It also concerns treaty that outlines free speech and privacy rights
Only 43 countries ratified it
Most nations rely on unilateral action and hoc cooperation’s
Influences have brought up Cybercrime Act 2001
-ICANN’S potential
o
o
Non-profit organisation responsible with DNS domain system
Main achievements include; establishment of effective method of resolving trade mark
dispute, introduction in incidence of cybersquatting. Most importantly ensured stability of
the internet so people don’t have to worry About internet collapsing
8.7 Conclusion
o
o
o
o
o
Effectiveness limited due to limitation of national boundaries and cost of enforcement
Enforcement tied down to jurisdiction
Law must be seen in case-to-case approach and prioritise cases
When drafting legislations or agreements national and international organisations must
ensure that it can accommodate changes of technology
To ensure effectiveness there must be international cooperation
PART 3; LAW IN PRACTICE
CHAPTER 9- children and young people
9.2 children, young people and the law
-how the law defines ‘childhood’ and ‘young person’
o
o
o
o
o
Most jurisdictions have lowered it from 21-18
Convention on the Rights of the Child (croc) states anyone under 18 is a child
Children and Young Persons (Care and Protection) Act 1998- defines young person in ages of
16-18
Definitions significance to define rights and laws
Laws intended to;
 Prevent exploitation
 Protect consequences from making uninformed decisions
 Protect from disadvantages when dealing with minor
-a history of the status of children and young people
o
o
o
o
o
o
o
Children had no right until adulthood
Infant mortality rate at 50%
Experienced violence on a regular basis
Poverty and crime significant influences
Doli incapax non-existent (‘incapable of wrong’; presumption that under 10 cannot be held
accountable for their actions )
Public education non-existent so education depended on wealth of family
Education Act passed making education ‘free, compulsory and secular’
-recognition of children’s rights
2 main significant events in the recognition of rights, being the opening the signature of the UN’s
Convention on the Rights of the Child (CROC) and the Gillick case
1. Convention on the rights of the child 1989
-sets out basic rights
-covers civil, political, economic, social and cultural rights
-Family Law Act 1975 Cth set out these principles
2. The gillick case
-gillick v West Norfolk and Wisbech Health Authority 1985
-had distributed flyers advising they could provide contraception’s and advice to anyone
under 16
-local authority refused to promise mother that they wouldn’t provide such service to her
daughters without her consent
-trial ruled that children have the right and ability to make decisions that affect their lives as
long as they understand the implication of their decisions
Civil law in relation to children and young people
o
o
o
Family Law Act 975 Cth governs dispute between married and de facto couples including
children
‘paramount consideration’ orders relating to children made under this act
Aspects of children usually come under state jurisdiction
-registration and citizenship
o
o
Parents responsibility to register child under Births, Deaths and Marriages Registration Act
1995 NSW. Gives recognition of child giving legal name and gives rights of the child
Adoption order made under Adoption Act 2000 NSW
-education
o
Education Act 1990 makes it compulsory for children 6-17 to attend to school. Section 4
asserts that it the duty of the state to ensure a child receives an education of the highest
quality
-medical treatment
o
o
o
Minors (Property and contracts) Act 970 protects medical practitioner from liability in tort
for treating a young person
Parents must seek medical care for children despite religious objections
Children and Young Persons (Care and Protection) act 1988 authorises for medical or dental
practitioner to carry out emergency treatment without parental consent
-discrimination
o
Protected from discrimination on basis of age in Anti-discrimination Act1977
-contracts
o
o
Under Minors (property and contracts) Act 1970 NSW state people under 18 aren’t bound by
contract, lease or other transactions
Exception is in situation is of an agreement made to benefit and necessity. E.g.
accommodation or food
-torts
o
o
No age restriction on taking acting for civil wrong
Making a child personally responsible for wrongful acts
-leaving home
o
o
People cant leave before age of 18
However ; law cannot force person aged 16 to stay home against their wishes. Looking at
following factors; accommodation, safe living environment and parents attitude
Criminal law in relation to children and young people
o
o
o
Doli incapax stated in s5 of Children (criminal Proceedings) Act 1987 NSW
However they are subject to rang of criminal sanctions compared to adults committing the
same crimes
Juvenile detention last resort to offenders
-Young Offenders Act 2997 NSW
o
o
o
o
Aim of proving alternative diversionary measures , as alternatives to court appearances
Only applies to summary offences
Main principles include; less restrictions applied where possible, children should be
informed of right to seek legal advice, criminal proceedings not to be started I there are
alternative ways to dealing with matter
3 diversionary process in act includes; warnings, cautions and Youth Justice Conferences
o
o
o
o
o
o
o
o
Warning can be placed by police, child to be told nature, purpose and effect of warning
Police to ensure child understands warning and to notify parents
Caution to be given by police or specialist youth when child admits to offence
To determine use must be taken into account, seriousness of offence, degree of violence
involved and harm caused to victim and umber and nature of offences committed by child
Must understand nature, purpose and effect of caution and that they are entitled to obtain
legal advice and choose court to deal with matter
Must be written notice
Youth justice used for offences of gravity is serious
Conferences designed to encourage offenders to take responsibility for own actions, provide
support, promote rights of victim and involve families in justice process
9.3 mechanisms for protecting the rights of children and young people
Legal responses
-role of UN
o
o
Convention on the Rights of the Child important in putting rights of child in global agenda
Ratified into domestic law
-role of parliament and courts
o
Legal institutions in place to protect children and people
NSW commission for children and young people
o
o
Statutory body set up to promote and understand interests and needs of children and young
people
Also makes submissions to review legislations that affect children
Children’s court
o
Court has dual role; determining matters of juvenile offenders and determining care and
protection matters concerning children on application by Department of Family and
Community Services
Community services NSW
o
o
Responsible or care and protection
Proving accommodation and support
Legal aid
o
Represents in variety of matters, welfare to family law matters. Also criminal chargers
Non legal responses
-trade unions
o
provide information about pay, conditions, health and safety ossues, apprenticeships and
training and negotiating employing contracts for young people entering the workforce
-kids helpline
o
Organisation that help children seek advice
o
Offers 24 hour telephone and online counselling and referall about issues including famility,
child abuse, mental health, bulling, drugs and alcohol, eating and weight issues
-stop child abuse now
o
Provides services to help and support people who have experiences abuse as wel as parents
who are concerned about their own situation or want to report child abuse
9.4 responsiveness of the law
Children and young people in the criminal justice system
Seen and heard survey concluded 78% said that police rarely treated young people with sufficient
respect
-arrest and police interview
o
o
All suspects have right to contact a lawyer to represent during questioning as long as it
doesn’t interfere with police investigation
Young people don’t always exacerbate due to language barriers, cultural differences or age
-sentencing of young offenders
o
o
Must take into account age of offender and circumstances under which the offence was
committed
Following the guidelines of Children (criminal Proceedings) Act 1987 NSW gives juveniles
special considerations
-youth conferencing
o
Under Young Offenders Act 1997 NSW some indictable offences can be dealt summarily
International issues
o
Countries ravaged by war and famine where family structures destroyed, lack child
protection
-Australia’s obligations under the convention on the rights of the child
o
‘CROC’ can report and publish adverse findings
9.5 Conclusion
o
o
Legislation established processes and institutions to recognise and protect role children play
in society
Force of international law relies on domestic measures to ratify and enforce laws