lOMoARcPSD|15901274 Full Preliminary Legal Notes Legal Studies (Higher School Certificate (New South Wales)) StuDocu is not sponsored or endorsed by any college or university Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 2020 PRELIMINARY LEGAL NOTES Meaning of law: a set of enforceable rules that as seen as binding on the whole community and impartial as a whole. A set of rules is officially recognised. There are consequences if they are breached which are imposed by the institutions that govern a society. CHARACTERISTICS OF LAW - Laws are binding on the whole community Laws can be enforced – backed by sanctions and punishments Laws are officially recognised Law is discoverable – people can find out easily Laws relate to public interest – laws rarely made to cover private Laws reflect rights and duties Customs: Collective habits or traditions that have developed in a society over a long period. Rules: regulations or principles governing procedure or controlling conduct. Values: principles, standards or qualities considered worthwhile or desirable within a society Ethics: rules or standards directing the behaviour of a person or the members of a profession Customary Law: principles developed according to a people, nation treated as obligatory and accepted as a legal requirement. Aboriginal, British and International Laws. Areas of laws that have developed due to changes in values: - Changing role of women – Sex Discrimination 1970’s Capital punishment outlaw 1970’s Unlawful to be homosexual or having relations Euthanasia, cannabis are areas of development for the future CHARACTERISTICS OF JUST LAWS Justice involves the fair and impartial treatment (upholding rights and enforcing responsibilities) to ensure equal outcomes for all - Human rights recognised - Carry out decisions of the majority and minority can out forward their own point of view - Equal and based on utilitarism (greatest good of the greatest amount of people) - Must be known (publicised, introduced and advertised) Justice: the legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those individuals Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 - Justice involves consulting the people and carrying out the decisions of the majority - A just law is one that allows everyone to receive fair treatment and outcomes, and ensures that human rights are recognised and respected. In order for a law to be valid, it must 1. 2. 3. 4. 5. 6. 7. Be equal and treat everyone the same Based on widely held values Must achieve the greater good for the greatest amount of people Aims to redress inequalities It must minimise delays and resolve disputes as soon as practical It must be retrospective and must be made for the future It must be known NATURE OF JUSTICE Equality: the state or quality if being equal that is having the same right or status - Equal states Laws don’t discriminate and apply equally Despite striving for equality, the legal system takes into account different capacities. Doli incapax – 10-14 is a grey area, judge decides Fairness: freedom from bias, dishonesty or injustice; a concept commonly related to everyday activities - Applies to everyday life, whereas justice has legal connotations - Right to appeal - There is no single social mechanism for deciding what is fair, or ensuring fairness Access: the right or opportunity to make use of something - All individuals have accesses to the legal system and aware of their rights and responsibilities, in order for justice to be achieved - Legal aid aims to resolve the issue of access for disadvantaged persons. However, the merit-based system has its problem. - Women, financially disadvantaged, non-English speaking, disabled and Aboriginal and Torres Strait Islander people and those that are institutional experience difficulty in accessing appropriate legal structure - It is the task of the legal system to ensure that all citizens have equal access to the law and that the law provides equality, fairness and justice to all members of a society PROCEDURAL FAIRNESS AND THE PRINCIPLES OF NATURAL JUSTICE Features of Natural Justice/Procedural Fairness - Right to attend ones trial - Knowing what one is accused of and gathering evidence Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 - Right to a hearing and the ability to present evidence Matters heard without bias Right to test evidence and cross examination The right to have previous convictions not mentioned in court proceedings Fairness Transparency Equality before the law Freedom from bias The right to be hard The body of principles used to ensure the fairness and justice of the decision-making procedures of courts; in Australia, it generally refers to the right to know the case against you and to present your case, the right to freedom from bias by decision makers and the right to a decision based on relevant evidence. RULE OF LAW The rule of law is a key principle in the legal system of democratic societies; it means that the use of arbitrary power is eliminated. No one is above the law. Arbitrary power – unrestrained power i.e. making decisions without any reference to the law. Features of rule of law in Australia - Human rights Demographic processes Equality before the law Separation powers Formal Legal Process - In Australia for example if the government attempts to pass a law that is beyond its powers, the Governor-General and the High Court of Australia are empowered to intervene. The separation of powers ensures rule of law. In essence, the government is bound by the constitution. Key elements of rule of law - An independent judiciary – courts should not be influenced by the parliament - Controls placed on enforcement agencies such as the police to ensure they do not abuse power - The accused should not be forced to incriminate themselves - Police discretion is another grey area ANARCHY AND TRYANNY Anarchy: the absence of laws and government Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Tyranny: rule of a single leader holding absolute power over a state AUSTRALIA’S LEGAL HERITAGE Common Law: laws made by judges based on precedent Statue law: law made by parliament - Australia has an adversarial system Adversarial: two sides to argue, in front of a judge and jury. The court is meant to act impartially. Inquisitorial: Judge is a referee SOURCES OF CONTEMPORARY AUSTRALIAN LAW Common Law: the Australian political system is based upon elements of British and American systems. In 1788, when Australia was first colonized, Britain applied the English law in Australia. Common law can be defend as part of the English law developed by the courts of common law which judgements by judges hearing real cases. Common law is law that is not written into the statutes but is commonly recognised as law. DEVELOPMENT OF COMMON LAW - Norman invasion of England in the 11th century - To consolidate his position in the newly conquered country, William the Conqueror sent judges around the country - There were given three main tasks by the king 1. To administer a uniform set of laws throughout the country 2. To report to the king any threats of the throne 3. To assess the wealth of the country in order to determine what taxes could be levied - These royal judges ensured that their ruling were similar, thus developing the concept of precedent Doctrine: a commonly accepted set of rules and procedures. Equity - The general principle is that the courts could correct any injustices in the common law - The key principle is that a person’s intentions are often more important than their actions - Judging each case on its merits - Ensuring that all parties carry out what they agreed to - Looking closely at the parties intent in a dispute Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Common Law A complete legal system Common law rights are extended to all people Common law remedies are enforceable at any time Common law is non-discretionary and must follow precedent Equity A series of isolated principles Right of equity are valid only to those people specified by the courts Equitable remedies must be applied for promptly Equity is discretionary Precedent: Common Law is based largely from previous cases. A judgement that is authority for a legal principle, and that serves to provide guidance for deciding cases that have similar facts Binding Precedent: lower courts are bound to follow decisions made in the higher courts Ratio Decideni: the legal reason for a judge’s decision Obiter Dicta: comments from the judge in a case that are not directly relevant to the case and therefore not legally binding Persuasive Precedent: superior courts do not have to follow decisions made in lower courts. They may, however, use them to help make a decision COURT HIERACHY HIGH COURT FEDERAL COURT OF AUSTRALIA FAMILY COURT OF AUSTRALIA FEDERAL CIRCUIT COURT OF AUSTRALIA - Deals with appeals from every state and territory - Creates laws that affect parliament - Interprets the constitution - Deals with industrial matters and bankruptcy - Civil disputes governed by federal law as well as some summary offences - Complex family law matters - Deals with divorce, parenting orders, the division of property and spousal maintenance - Established to relieve some of the case load of the federal and family courts, reduces and costs time - Family law and child support, Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 LAND AND ENVIRONMENT COURT NSW - SUPREME COURTS OF NSW - - DISTRICT COURT OF NSW - LOCAL COURT - CORONERS COURT - - human rights, copyright, bankruptcy, migration, consumer protection and trade practices, privacy, admin law and industrial law Interpreting and enforcing environment law in NSW Wide jurisdiction and deals with matters related to environmental planning and environmental offences Photographs try to take photos of prisoners Most serious criminal matters and civil cases involving large sums of money Most serious indictable offences murder, treasons Civil cases over $750,000 From charges of larceny manslaughter, sexual assault and large scale drug importation Civil cases $750,000-100,000 Cannot hear offences which carry long sentences Jury decides if the accused is acquitted Deals with minor criminal matters and minor civil cases disputes No jury Magistrate hears cases Can imprison offenders for up 2 years Hears bail applications Sues up to $100,000 Committal hearings with indictable offences Ensure that unexplained or suspicious deaths, fires and explosions Coronial inquests: investigation into a death that has occurs is Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 unusual circumstances, held in the coroners court and over seen by a magistrate called a coroner - Deals with civil matters concerning the protection and care of children and young people - Also deals with criminal cases involving persons under the age of 18 at the time of the offence CHILD COURT SOURCES OF CONTEMPORAY LAW Statute Law: delegated legislation, legislative process, role and structure of parliament Democracy: a system of government by the whole population or all the eligible members Parliament: a body of elected representatives, which debates proposed legislation, passes amends or rejects legislation and delegate’s legislative authority to other bodies. - Any laws passed by parliament is called a statue Statute law has the power to our common law When statute and common law conflicts statute law prevails All states have a bicameral parliament except Queensland Bicameral: containing two chambers House of Representatives: the most powerful 150 members, 1 per electorate. Each electorate holds about 80,000 voters. Traditionally members have been drawn from the three largest parties. Those being the liberal, national and labour parties. The liberal and nationals combine to form the coalition and they vote the same on the majority of issues. THE SENATE - Its role is to represent the states, rather than the electorate. It has 12 from each state and 2 from each territory - Their main role is to review legislation proposed by the lower house - The senate has equal law making powers to the lower house, except that it is not allowed to introduce or amend money bills Double Dissolution: when deadlocks between the upper and lower house occur on agreeing to pass legislation, the constitution grants special power to the governor general to dissolve both houses and call a new electorate. Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Governor General: a representative of the Queen created by the constitution. The appointment has no set period but usually lasts 5 years. The Australian act 1986 diminished the role of the Queen. Today the main role of the Queen is to appoint the Governor General. Federal Executive Council: made up of the Governor General, Prime Minister and the Cabinet Ministers. The Governor General’s main role is to ensure the FEC acts lawfully and Royal Assent is given to all legislation passed. The Governor General can exercise her ‘Reserve Powers’ and chose not to follow when there is a hung parliament and when dismissing a Prime Minister. LEGLISLATIVE PROCESS - Constitution determines who makes the powers in certain areas - The mechanisms for passing legislation are the same inn both NSW and federal parliaments DELEGATED LEGISLATION - Laws made by subordinate authorities who are given this power by parliament. - Made by non-parliamentary bodies such as councils, often called an enabling act - The parliamentary committee enabling act NSW lists the powers and rights of various committees by the parliament of NSW - Either house has the power to disallow delegated legislation ADVANTAGE Efficiency Flexibility Expertise Frees parliament Local government DISADVANTAGE Under morality Lack of consultation Lack of parliamentary control Lack of publicity confusion TYPES OF LEGISLATION Original Acts: areas where there have been no previous laws Amending Acts: change sections of existing legislation Consolidating Acts: combine all the statue made over the years on one area into one Act Codifying Acts: combine all the existing laws on a particular area into one Repealing Acts: remove statue laws either total or partially Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Delegated Legislation: laws made by subordinate authorities who are given this power by parliaments. The following can make them: - Government departments - Local government - Statutory authorities Non-parliamentary bodies such as a council, often called an enabling act, make it. The parliamentary committee-enabling act (1996) NSW lists the powers and rights of various committees of the Parliament of NSW. Either house has the powers to disallow delegated legislation. ADVANTAGES Efficiency Flexibility Expertise Frees Parliament DISADVANTAGES Undemocratic Lack of Consultation Lack of Parliamentary Control Lack of Publicity THE CONSTITUTION A set of rules that may apply to a nation. It outlines the legal framework and rules that apply to the government of Australia. The commonwealth of Australia constitution act was passed in 1900. It explained that Australia had a federal government, bi-cameral government, high court, separation of powers, division of powers and that it can only be amended by a referendum. EXCLUSIVE S21 includes exclusive law making power reserved for the federal government - Trade - Defence - External powers - Marriage DIVISION OF POWERS CONCURRENT Shared areas - Tax - Health care - Medicare S109 if state law is inconsistent with federal law, federal law prevails RESIDUAL S106 & 107 ensures state existence and remaining powers after federation - Health - Transport - Education - Law and order DIVISION OF POWERS The reluctance of state to hand over complete control to the commonwealth resulted in the division of powers between the commonwealth and states. Legislative Powers: the powers to make laws Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Concurrent Powers: the state can as make laws on those sections. Both federal and state governments hold the powers, however federal law prevails. Exclusive Powers: s52 of the constitution outlines that laws can only be made by the federal parliament Residual Powers: matters on which the states can legislate. Powers over that are not given to the commonwealth SEPERATION OF POWERS This means that the executive, the judiciary and the legislative have to separate to achieve justice, fairness and equality. ROLE OF HIGH COURT - S71 of the constitution creates the high court. It must contain one chief justice and two other judges - S71 allows the commonwealth parliament to create other courts - High court judges usually come from state supreme courts or federal courts and must retire at age 70 ROLE OF HIGH COURT IN INTERPRETING THE CONSTITUTION - The high court has a fundamental duty to make final determinations about the constitution is to be interpreted. This involves stipulating each of the areas of the commonwealth can legislate on and which areas belong to the states - They can also make statements on how each level of government can use its power and outline their limitations ORIGINAL AND APPELLATE JURISDICTION Original: the power of the court to hear a case in the first instance S75: - Matters under treaties or between states - Matters where a prohibition or an injunction is sought against an officer in the commonwealth S76 - Matters relating to the interpretation of the constitution - Matters arising under laws made by parliament Mandamus: a judicial write issued as a command to an inferior court or ordering a person to perform a public or statutory duty. Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Injunction: an authoritative warning or order Appellate Jurisdiction - The High Court can hear cases from the High court exercising its original jurisdiction any federal court or the supreme court - Decisions in the High Court are final and conclusive Special Leave: leave the appeal Questions of law: must be answered by applying relevant legal principles to the interpretation of law Judicial Review - The High Court can also review actions of a government official or departments and admin decisions - The most effective way to resolve a government administrative decision is through the Administrative Appeals Tribunal Merits review administrative reconsideration of a case Natural Justice: rule against bias ABORIGINAL AND TORRES STRAIT ISALND PEOPLES CUSTOMARY LAWS Terra nullius: land belonging to none Government policy: prior to settlement of the British, indigenous persons where considered to have a nomadic lifestyles with oral law and customs control behaviour. They were seen as savages no fences, tenant’s property owners or farms. Therefore not signs of ownership, therefore allowing the British government to declare terra nullius Doctrine of reception; where land is inhabited and no system of law apparent Stories of the dreaming: used to explain why the land is how it is, connections to people through ancestral beings, stories contain laws and ethics, met temporal Importance of the dreaming: no matter how diverse, outlines how things came to be, provides social order through totemic responsibilities. This allows individuals and kinship groups the ability to care for the land Kinship: family relationships governing how everyone behaves towards one another Disputes between indigenous societies: negotiation, mediation and concilation INTERNATIONAL LAWS Domestic vs International Law Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 A nation state can have its own laws because it is an independent that has sovereignty. A state can be defined as: - Defined territory - Permanent population - An effective government - Enter international negotiation International law covers areas such as Human Rights, presenting conflict. However, it is criticised in its power to enforce these laws. The UN intervention can be argued to be a breach of sovereign rights. Law is adhered to because the whole community generally accepts it. As the world holds different cultural values and customs, not all countries will agree to international laws and may decide to ignore it. State sovereignty acts provide a dilemma for international law as nations states have the right to refuse participation International laws: laws that govern relations between nation states developed through diplomatic relationships, agreements/treaties, and conventions Ratification: when international law becomes domestic law from becoming legislation. State Sovereignty: the power of a state to make and enforce laws SOURCE OF LAW Customary law - Is not contained within a written documentary - Based on long established traditions or common practices - This develops over time ad requires constant and uniform practise Declarations: a formal statement of a party’s position on a particular issues: a declarations is not legally binding under international laws Treaties: an international agreement concluded between states in a written form and governed by international laws; treaties may also be referred to as conventions and covenants Legal Decisions: the international court of justice is the judicial body that deals with disputes between states. The international criminal courts jurisdiction is to resolve disputes that arise from non-compliance of treaties and war crimes - The internal criminal courts – serious crimes - The European courts of human rights – violations to it Legal writings: in article 38 of the statue of the ICJ, scholarly writings are stated to be a means of determining the rules of international laws. ROLE OF Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 United Nations It is the chief organization involved in international law. The UN’s main objectives are to maintain global peace and security; to develop good relations between states based on recognition of equal rights and each state’s right to govern its own political, economic and social development; and to promote cooperation in solving international problems. The UN has been central to the protection of human rights and the developing a legal framework to address terrorism, drug trafficking, the clearing of landmines, and protection of the environment. It has also been active in concrete effort to right disease, reduce poverty, provide emergency relief in natural disasters, and many other humanitarian operations. Courts/Tribunals The International Court of Justice is the primary judicial body of the United Nations. Its principal activities are to settle disputes submitted to it by states and to give advisory opinions on legal questions submitted by the General Assembly, the Security Council, or other bodies as permitted by the General Assembly. Intergov. Org. They are organised groups of states, established to pursue mutual interests in a wide variety of areas. Non-gov. Org NGOs are associations based on common interests and aims, and which have no connection with any government. They make contributions in a wide range of areas, from world peace, disaster relief and environmental protection to promoting education and alleviating poverty. They do this by informing the public and lobbying governments to take actions on issues of concern. Relevance to contemporary Australian Law CLASSIFICATION OF LAW PUBLIC – law affecting everyone, disputes between the state and the citizen and with law making powers of the government Criminal: behaviour damaging the whole community Administrative: encourages accountability of government departments and decisions and includes internal and external reviews as well as judicial reviews Constitutional: dealing with the powers of different government levels PRIVATE- disputes between private citizens that are protected by common and state laws Contract: laws relating to agreements between people such as buying and selling a house Tort: someone has done something to interfere with the right of another Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 CRIMINAL AND CIVIL PROCEDURES CRIMINAL Summary hearing: judge, magistrate, no jury usually for summary offences Indictable offences: held by a judge or jury Police Prosecutor: represents the state in court usually heard in the Local Court People: a prosecutor and a defendant Who bring the case to court: The State Onus: on the prosecutor Standard of proof: beyond reasonable doubt CIVIL Examination in chief: questioning of a witness by the barrister who called the witness Cross examination: talking to the other sides witness People: plaintiff and a defendant Who bring the case to court: an individual or organisation Onus: on the plaintiff Standard of proof: balance of probabilities LAW REFORM Law reform is the process of changing the law to make it more current, correct defects, simplify it or remedy injustices. Law reform is not always smooth an easy, and is slow to adapt Changing Social Values – it reflects public morality and social acceptance - Same sex marriages and relationships New concepts of Justicee – reflects moral and practical considerations, adapts to social expectations and when the law is unable to deliver just outcomes - Domestic violence - Capital punishment - Youth Justice Technology- pressure on laws to adapt to ever-changing technological advances - Birthing technology Use of DNA in criminal investigations Cyber bullying Social Media AGENCIES OF LAW REFORM LAW REFORM COMMISSIONS Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Law reform commissions have been established by various parliaments within their own jurisdictions to report on matters referred to them under what is called the terms of reference for a particular inquiry. The reports may contain recommendations for ways to modernise or simplify the law, or to eliminate defects. An essential feature of law reform commissions is that they are independent of the parliament that established them. This is important because political interference in the research and reporting process can skew the findings. It has also been said that when a government provides the terms of reference for an inquiry into an area of law reform, it should not already know the answer. In other words, the government should not know what the end result or recommendations will be. PARLIMENTARY COMMITTEES Parliamentary committees can be established by both houses of parliament. For example, at the federal level, the House of Representatives and/or the Senate may not have sufficient time in parliamentary sitting sessions to discuss issues that arise from a particular piece of legislation. There may be flaws in the effectiveness of a law or the legislation may be particularly complex, requiring greater scrutiny. Committees scrutinise government activity, including policy and administrative decisions, and oversee the expenditure of public money THE MEDIA Because of their large audience and geographical reach, current affairs programs like the ABC’s 7.30 Report are able to interview important political figures, such as the prime minister, state premiers and Cabinet ministers, about contentious issues. Keeping citizens informed allows them to apply public pressure on governments to address injustice, incompetence or corruption. Thus the media can be a powerful vehicle for holding governments accountable. The effectiveness of non-legal mechanisms in influencing law reform can depend on the politics of the day. For example, an issue that affects voters in a hotly contested electorate, or an electorate that is part of the government’s key support base, is more likely to be addressed than one that affects voters in a safe seat. If votes in an electorate do not pose a threat to seats in parliament, then the issue may be ignored in the hope that it will eventually fade from public attention. The modern m NGOS Non-government organisations (NGOs) are organisations that are independent of governments. They are under no obligation to conform to any government policy and therefore can be a source of objective information about various issues around the world. This is particularly important for people who live in countries with repressive governments that restrict freedom of speech. The common characteristics of NGOs have been identified as follows: They are formed voluntarily by individuals. • They are independent of government. Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 • They are not for private personal gain or profit. Money generated goes towards the goals of the organisation, though it may also be used to produce information and for expenses such as utilities, publications and paid employees. • Their aim is to improve people’s circumstances and prospects, within the scope of their mission LOBBY GROUPS A lobby group is an organised group of people who try to influence government ministers or other Members of Parliament to advance their social or political agenda. The goal may be to change the law, to keep a particular law that already exists, or to introduce new laws. Lobby groups target Members of Parliament, parliamentary committees, the media and the public as well as governmental inquiries. They may do this by writing letters, requesting a meeting with a representative or Senator, making policy submissions, writing letters to the editor or calling talkback radio. A lobby group may also be an NGO, an industry group or other interest group. MECHANISMS OF LAW REFORM COURTS The manner in which courts make law through precedent, as outlined in Chapter 2, can be considered a means of law reform. Precedents made in higher courts clarify what the law should be, in cases where the law is in an early stage of development or where there is a need to clarify the meaning of words contained in legislation PARLIAMENTS Parliaments today are the institution where most law reform is realised. The process of changing the law occurs through the passage of bills. The impetus for this type of change, however, usually comes from other sources: namely the conditions that lead to law reform and the agents of reform. Detailed knowledge of the subject matter is often required to report and comment accurately on areas where reform is needed, and parliamentarians’ expertise does not always extend to this level. THE UNITED NATIONS The United Nations is the chief organisation involved in international law. The role of the United Nations in the development and implementation of international treaties was outlined in Chapter 2. As such, it is the primary mechanism in the evolution and reform of the law governing states. The effectiveness of the United Nations in promoting peace and security around the world via international law is discussed in more detail in Chapter 2. Law reform may take place when Australia implements a treaty by passing domestic legislation that takes account of the international obligations. INTERGOVERNMENTAL ORGANISATINONS Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 As mentioned in Chapter 2, many intergovernmental organisations (IGOs) are subsidiaries of the United Nations. These bodies are established to meet and decide upon certain international issues such as refugees, tariffs and wealth. To this extent they contribute to international law reform on a global as well as a regional scale through the promotion and development of multilateral and bilateral treaties OTHER AGENCIES Other agencies of law reform also exist and are listed below. Find their websites and research the role they perform in contributing to law reform in Australia. • Royal Commissions • The NSW Coroner • The Office of the NSW Ombudsman • The Australian Human Rights Commission LAW REFORM IN ACTION TERRA NULLIUS As discussed, there has been progress in the area of law reform relating to native title; however, this progress has been relatively slow. Due to the very nature of the law, all stakeholders involved in (and affected by) native title claims must be considered when proposing and enacting new legislation and, as such, the Native Title Act 1993 (Cth) and its amendments recognise not only the rights of the traditional owners, but also those of current landholders. Although one of the biggest legal steps forward was the overturning of the concept of terra nullius in the Mabo case, the initial use of terra nullius by the British has continued to be a major stumbling block for those communities making native title claims; consider the Yorta Yorta people’s claim for their traditional lands in Victoria. The court cases took eight years and the claim was eventually denied. The basis of the High Court’s determination was that the Yorta Yorta could not prove a recent history of traditional ownership of this land. The main reason that they could not prove this history of ownership was because, when the British took over this land, they excluded the Yorta Yorta community. This is a problem faced by other Aboriginal and Torres Strait Islander communities in claiming traditional ownership. It is undeniable that major steps have been taken with respect to native title, by both the judicial and legislative branches of government. However, those interested in reform are also faced with the fact that the law protects the property rights of people who themselves had nothing to do with colonial dispossession, but whose interests are at odds with native title claims. In addition, legal progress is very slow; for example, in 1996 the Yaegl people lodged a claim over land around the mouth of the Clarence River. Further claims were lodged in 1998 and 2011 over adjoining lands. When native title was finally awarded in 2015 many of the original claimants had died. Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Topic summary • ‘Native title’ refers to Aboriginal and Torres Strait Islander peoples’ right to an area of land with which they have had an ongoing association. • The concept of terra nullius was used to justify the implementation of British law and the dispossession of Indigenous peoples. • The 1967 referendum amended the Constitution to allow the Commonwealth to legislate for Indigenous Australians, and to allow them to be counted in the Census. • The Mabo case was a significant High Court decision that abolished terra nullius and led the federal government to pass the Native Title Act 1993 (Cth). • Further state and federal legislation and court decisions have been instrumental in law reform in the area of native title INDIVIDUAL AND THE LAW THE INDIVIDUAL AND THE LAW Your Rights and Responsibilities Rights: Entitlement that people have by legal or moral authority, individual rights are strengthened in the legal system as equality is increased between citizens. Rights are principles of freedom or entitlements. Human rights are one type of individual rights. These are inalienable fundamental rights to which a person is inherently entitled simply because that person is a human being. Responsibilities: Legal or moral obligations that a person has to another person, group, state or sovereignty. - Rights and responsibilities go together. With rights, comes the responsibility to respect others’ rights and contribute to functioning democracy. Economic, Social & Cultural Rights Civil and Political rights, Personal liberties Consumer Rights RIGHTS Environmental rights Legal Rights Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Economic, Social and Cultural International Covenant on Economic, Social and Cultural Rights (1976). Outlines a life of dignity - Equal pay for equal work Form and join trade unions and the right to strike Right to receive social security Right to an adequate standard of living, health care and education Right to enjoy a cultural life and freedom Civil and Political Rights Covenant on Civil and Political Rights (1976) key rights aims to protect people from oppressive governments - Right to life and freedom of expression - Right to participate in public life - Right to equality before the law Environmental Rights Environmental rights aim to protect future generations (intergenerational equality). For example, enjoyment of clean air and water. Consumer Rights Consumer rights are designed to protect the interests in business and consumers - Competition and Consumer Act 2010 (cwlth): gives rights to consumers when goods are defective, or to prevent misleading/deceptive conduct. The Constitution and Rights The Australian Constitution does not contain a bill of rights It does expressly protect a few rights of the individuals - s 80 to right to a trial by jury - s 116 freedom of religion - s 117 the right not to be discriminated against on the basis of one’s state of residence - s 51 the right to compensation if one’s property is compulsory acquired for any purpose in respect of which the Commonwealth government has the power to make laws The Constitution and Implied Rights Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Implied rights are rights that are not expressly stated in the Constitution or statutes The High Court interprets the Constitution to find implied rights for individuals - World Youth Day Act 2006 (NSW) – World Youth Day hosted in Sydney- special powers granted to the police to make sure that any ‘annoying or inconvenient’ saviour to participants be prohibited - This was challenged in a court as a violation of freedom of expression Legal basis or rights and responsibilities in Australia Common Law – is not seen as stable, and can be overturned if a statue law is passed that overrides it. The most common right is a right to a fair trial: - Dietrich v. The Queen: Dietrich represented himself for drug offences. He was found guilty. He appealed the decision based on an injustice. The appeal was upheld. Statute Law – This is the main protector and creator of rights in Australia. - The right to be free from discrimination: Racial Discrimination act 1975, Sex Discrimination Act Criminal Law – allows for basic rights when an individual is arrested 1. Right to remain silent (this may change in the near future) 2. Innocent until proven guilty 3. Right to have a lawyer presented questioned Bill of Rights - In Australia, rights are protected by statue or common law - Australia is the only western democracy that does not have one - A bill of rights is a statement of basic human rights and priviledges For Australian law gives insufficient protection to fundamental freedoms, and a bill of rights would enshrine those rights A bill of rights would make our current laws more cohesive and accessible, rather than being ‘locked up’ in past judgements and statutes Against Rights are already protected by statutes and the common law A bill of rights makes little practical difference in the protection of rights Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 We are becoming increasingly internationalised and need to be aware of international laws. A bill of rights would bring Australia in line with other countries A bill of rights would allow Australia to meet its international obligations more effectively. A bill of rights would protect the rights of minorities The High Court’s interpretation of ‘implied rights’ in the Constitution is too limited: we need a document explicitly setting out our rights Enabling judges to strike down laws made by parliament that are inconsistent with a bill of rights would be undemocratic Rights written in a bill of rights can become outdated very quickly in a rapidl changing world. A bill of rights would actually restrict right because once defined, a right is limited by the The judiciary would become too political if there were a bill f rights Customary Rights - An individual may feel entitled because of a custom or social practice to these rights. Moral Rights - Moral or ethical rights are those where a person feels that they an entitlement to something because of a moral or ethical principle Legal Rights - A legal right is an entitlement given to a person and enforced or protected by the law Australian citizenship rights - Citizenship is often considered the basis for having legal rights Domestic Rights - Domestic rights are those that people have within their own nation. International Right - International rights are deemed to apply to all people regardless of their nationality or the type of political system of government that exists within their own nation. Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 RESPONSIBILITIES Citizens have a number of responsibilities, duties, or obligations that they must carry out in order for the society in which they live to function in an orderly fashion. AGENCIES IN DISPUTE RESOLUTION NSW Police Force - Police powers are vast including the right to search and arrest - Individuals are required to present their license. The right to silence foes not apply to traffic offences (due to its strict liability nature). - Police powers are limited in some instances ( investigation is limited across state boundaries, warrants) - Police prevent, search, detain, investigate, arrest and prosecute offenders. - Enforce the Crimes Act 1900 (NSW) & the Road Transport (General) Act 1999, and ADVOS - Powers may be arbitrary e.g. The excessive use of the Taser led to the death of a Brazilian student for stealing a packet of biscuits (2012) Australian Federal Police - Australian Federal Police Act 1979 (Cth) - The AFP also serves as a part of Australia’s peacekeeping forces for the Un e.g. East Timor - Collaborates with domestic and overseas policing organisations to fight trans-borders crime. The main areas include: 1. Terrorism 2. Fraud 3. Drug trafficking 4. Cybercrime 5. Family Law: a court order may be imposed if there is fear a child might be removed from Australia Australian Customs & Border Protection Service - Works with several other agencies to detect unlawful movement of goods across Australia’s border 1. Importation of drugs 2. Illegal firearms 3. Immigration 4. Quarantine Australian Security & Intelligence Organisation Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 - ASIO: national security (to warn the government about security threats from politically motivated violence): - Includes spying, sabotage - Other security agencies include - Defence intelligence Organisation - The office of National Assessments (role is to collect and assess Intel from countries Australia has agreements with.) DISPUTES BETWEEEN INDIVIDUALS Alternative dispute resolution: dispute resolution processes, such as mediation, arbitration and conciliation that do not involve courts. Negotiation means discussion between two or more parties with the aim of reaching a mutually beneficial outcome. It involves consideration of the other party’s views and often some degree of compromise. Negotiation only involves the parties involved and therefore is usually low in costs. - Good will - Give and take - Least expensive Mediation and conciliation: these are usually confidential and both processes involved a neutral and independent third party who helps the parties to negotiate their disagreements and to come to a decision that they both find acceptable. Mediation: a form of alternative dispute resolution designed to help two parties, in the presence of a neutral third party, to reach an agreement. Conciliation: a form of alternative dispute resolution in which the disputing parties use the services of a conciliator, who takes an active role advising the parties, suggesting alternatives and encouraging the parties to reach agreement. The conciliator does not make the decision for them. Dispute resolution with a third party Voluntary or directed as a pre-court hearing The law society provides mediators ; will, debt, workplace issues Non-binding, signed, but does not need to follow a precedent or is not legally enforceable - Quick and cheap - Conciliation will usually have a conciliator assisting in a mutual outcome - Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Arbitration: a form of alternative dispute resolution in which the disputing parties present their cases before an arbitrator, who makes a decision that is binding on the parties. - More formal Cheaper and more efficient than courts Arbitrator hears evidence, both arguments, an imposes a decision Legally binding and enforceable Courts: if the individuals involved in a dispute cannot resolve it by way of alternative methods, they will need to take the matter to litigation. - Due to the costs and stress, a small percentage of cases are resolved In the court system - Rules of evidence exist (past convictions, confessions) - Offenders have the right to bail and appeal - Victims have the right to compensation is strengthened through the Victim Impact Statements - In civil cases, this is called a ‘legal standing’. Where only those who have an interest or have suffered economic loss can sue. THE NSW LAND AND ENVIRONMENT COURT The NSW Land and Environment Court is a specialist court with a wide jurisdiction. It has the same status in the court hierarchy as the Supreme Court of NSW and is responsible for interpreting and enforcing environment law in NSW. Proceedings that can come before the LEC include: - Administrative or merits review: the court re-hears a case that has been decided by a body such as the local council - Civil proceedings arising from a breach or potential breach in the law - Criminal proceedings for environmental offences It does not have the power to hear matter outside that statutory jurisdiction. It deals with environmental, development, building and planning disputes, and certain types of native title claims. Alternative disputes resolution is integrated within its procedures. Tribunals: Tribunals offers a less formal and expensive methods of dispute resolution that the court system. Individuals do not normally need legal representation and the person presiding over the tribunal may have specialist expertise rather than specific legal training. Their background should enable them to understand the details of the dispute, and they ensure that the principles of natural justice are applied, so that all the parties have the opportunity to put forward their position =, and nobody is disadvantaged. Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 NSW CIVIL AND ADMINISTRATIVE TRIBUNAL NSW civil and Administrative Tribunal established on the 1 January 2014, combining the roles of 22 previously separate tribunals. It has four main divisions and deal with various types of disputes between individuals, as well as individuals against organisations. Disputes between individuals will often come under the Consumer and Commercial Division: examples include disputes about repairing or replacing the fence between two residential properties, and excessive noise or pet ownership within a block of units or townhouses. RESOLVING DISPURES WITH THE STATE INFORMAL METHODS Interest Groups and NGO’s - NSW Council for Civil liberties Australian Conservation Interest Groups Business Council of Australia National Farmer’s Federation Tenants NSW Greenpeace Australia NON-LEGAL - Media By writing a letter, sending an email, calling television and radio stations or position status updates on social media sites, citizens are able to inform the community of a decision they think is unfair, unjust or harsh. The internet is a source of information and a means of communication. If individuals and pressure groups are frequently heard, the Government may choose to respond. - Members of parliament Members of state and federal parliaments are elected by voter to represent a particular area or electorate. All citizens within an electorate are able to contact the office of their representative and speak to their MP about an issue that may trouble them. Some electorates or regions are significantly more affected by certain issues than others are. - Trade Unions Groups of people in various industries unite to form trade unions to protect their rights and conditions of employment. Unions can help to negotiate a workplace agreement containing important provisions about workplace safety, wages and conditions. They will also take actions when Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 an employer proposes to change the condition of work in a way that is detrimental to employees. In Australia, the legislative approach to industrial relations was historically based on conciliation and arbitration. Builders Labourers Federation is an example of this. - NGO’s People can also form groups where they share political values, aim, or have a specific goal of challenging a state decision. Individuals can join these groups and engage in activities or various types, or donate money to fund their activities. Get Up! Is an example of this? LEGAL METHODS OF CHALLENGING POWER Challenges to decisions of government or government bodies can also be made on a formal or legal basis. Internal reviews In New South Wales, government departments can review their own decisions, procedures or behaviour. Such reviews are much cost=effective, but can be ineffective in terms of practical outcomes if the people conducting the review have been involved with decisions that is not appropriate or incorrect. External Reviews Reviews of government activities can also be undertaken externally. There are a number of avenues by which an external review can be pursued. These include the following: 1. Administrative and other tribunals: administrative tribunals are bodies that review specific administrative decisions of government agencies. They offer a time-efficient, low-cost means of resolving legal disputes and problems. They are different from courts as they are narrow areas of jurisdiction, are less formal, usually do not allow legal representation and are not bound by rules of evidence, and so can take into account a variety of factors in finding a solution. 2. Privacy bodies: all individuals have a right to privacy. Most people would agree that it is not a pleasant feeling to know that somebody who is not close to you has access to information about you. In a broad sense, laws have been enacted at both state and federal level to prevent information about you from being released to companies, government departments or other citizen. 3. Courts: law courts at both state and federal level have the power to review administrative decisions and actions. Judicial review is used to describe a process whereby a court with the relevant jurisdiction can review a decision made by a government department only Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 - based on whether the decisions was lawfully made. Judicial review does not pronounce on the merits of the decision’ that is, whether or not it was a good decision or the right decision in the circumstances. What is legal can vary depending on the circumstances or each case but the decisions are subject to the following requirement. Natural justice: natural justice to the person affected having the opportunity to be heard and the decision being unbiased The decision must be authorised by the Act under which it was made and must be based only on relevant considerations The decision maker must have jurisdiction to make the decision The decision must be justified by appropriate evidence The decision-maker must have observed all procedures in making the decision, and there must have been no errors of law. If a judicial review finds a decision flawed in one or more ways. The remedies that courts can issue will depend on the nature of the error that was made by decision-maker. They include - Prohibition – an order that stops a decision from being made or implemented - Certiorari- an order that reverses a decision that has already been made - Mandamus – an order that compels the decision-maker to perform certain types of public duties that have not been performed - Injunction - an order that prohibits the decision-maker from implementing an invalid decision or compels the performance of a duty in decisions where mandamus is not available The office of the Ombudsman Ombudsmen exist in the both NSW and commonwealth jurisdictions. The main objective and role of Ombudsmen is to keep government agencies and some non-government organisations accountable by promoting good administrative conduct, fair decision-making, high standards of service delivery and the protection of the rights of people. Ombudsman perform this role by responding to and investigating complaints from the public. Ombudsmen can also initiate their own investigations. However, there are some areas in NSW that the state ombudsmen cannot investigate. These include: - The governor, parliament, minister and MPs Courts or court like bodies Legal advisors acting for public authorities Individual employment related issues Trusts and investment funds Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 - Royal commissions - The ICAC, Casino Control Authority and the Legal Services Commissioner The Commonwealth Ombudsman cannot investigate any matters that concern - Action taken by a minister Action taken by a judge or magistrate Action that constitutes proceedings in parliament Complaints by persons employed in the Australian Public Service about their employment or their employer Both Commonwealth and NSW Ombudsmen will respond to a complaint by either undertaking an investigation or not taking any action. If no action is taken, the person making the complaint will be provide with reasons for this. At the end of the investigation, a repost is made to the agency involved and the relevant minister. This report may contain recommendations that can include: - The agency should reconsider or change its action or decision - A law, rule or procedure should be changed - The agency should take appropriate action, such as pay compensation for financial loss or, in serious cases, initiate proceedings The ombudsmen cannot compel any agency to take action or comply with recommendations. However, most agencies will take action. If they take no action, the Ombudsmen can make a report to parliament. The Ombudsmen have limited effectiveness. The major factor is that the agency being investigated does not have to act on the recommendations of the Ombudsmen. Another limitation is the restriction on areas that the Ombudsmen. Factors that enhance the effectiveness of the Ombudsmen include the fact that he or she can initiate an investigation without a complaint being made. Another factor the increases effectiveness is the fact the services of both NSW and Commonwealth Ombudsmen are free. The publicity surrounding an investigation by the Ombudsmen will also improve the effectiveness of the process. STATUTORY BODIES A statutory body is an organisation that has been created by parliament through legislation for a public purpose. The Australian Human Rights Commission - They administer the racial discrimination act, sex discrimination act, disability discrimination act and age discrimination act Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 - They investigates and inquire into human rights issues, provide educational resources, giver advice to develop/amend legislation ad provide legal advice to courts Royal Commission - Deals with matters of public importance NSW Independent Commission against Corruption - Investigates and prevents corruption by public authorities to protect public interest THE INDIVIDUAL AND TECHNOLOGY Copyright: An exclusive right to publish, copy, publicly perform, broadcast, or make an adaption of certain forms of expression, namely sounds, words or visual images. Cyberspace: the environment in which electronic communication occurs; the culture of the internet. Disinhibition effect: the tendency to say and do things in cyberspace that the person would not ordinarily say or do in the face-to-face world. Extradition: the handing over of a person accused of a crime by the authorities of the country where he or she has taken refuge, to the authorities of the country where the crime was committed. Patents: rights granted for any device, substance, method or process, which is new, inventive or useful. Trademarks: words, names, symbols, devices or any combination of these, used to identify and distinguish the goods or services of one company from those to another THE SCOPE OF NEW TECHNOLOGY AND DIFFICULIES OF ENFORCING RIGHTS IN CYBERSPACE The government faces many difficulties creating regulations regarding technology including: - Technology is the pinnacle of development therefore; it raises political, social and legal issues that have never been discussed before. New technology = new challenges - Technological innovations are changing at enormous speeds – difficult to create regulations to protect people because it is constantly evolving. Jurisdiction in Cyberspace: no government or court can claim cyberspace as its exclusive jurisdiction due to its global nature making it difficult to create and enforce laws. Three FEATYRES OF CYBERSPACE THAT POSE CHALLENGES FOR LEGALL REGULATION It is global Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 - No national boundaries – people in different countries can easily socialise and connect - Therefore difficult for a country to control what goes on inside its borders as no government or court can claim cyberspace to be their exclusive jurisdiction Facilitates anonymity - Users can send messages and information anonymously - Advantages: gives you privacy to not reveal who you are - Disadvantages: cybercrimes are increasing Facilitates creativity - The user is able to create and supply information and software to others CYBERCRIME Hacking: - Unauthorised access to data held in a computer system, changing the data, interfering with electronic communication between computers or impairing the security, reliability or function of stored electronic data - Legal issues: the right to an individual to have privacy. The hacker may spread a virus or this hacking could be an act of terrorism - Legislation: the cybercrime act 2001 amended the criminal code and the crimes act that did not include cybercrime. Can also be changed under state law INTERNET FRAUD - Intentional misrepresentation or concealment of information in order to deceive or mislead such as through scams - Legal issues: loss of identity or personal information if a person fulfils what the scam says. - Legislation: the work of the ACCC - Unsolicited emails, websites promoting pyramid selling, emails promises the recipient huge rewards for helping a government, organisation or a family in a developing country with financial assistance by providing bank account details SPAM - Electronic junk mail. Also known as unsolicited meaning the recipient has not granted permission for it to be sent - Legal issues: raises privacy issues the way people’s email addresses and personal information are collected and handled for scamming. Also a potential for an individual to lose money as spam can contain the same elements are internet fraud - Legislation: Spam Act 2003 makes it illegal to send unsolicited electronic messages INTELLECTURAL PROPERTY Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Copy right: - Protection given to work intended to convey information or enjoyment - Legal issue: the protection of original work such as music, films has become difficult due to digital technology. For example, it is easy to download music and movies and copy images, essays and computer software. TRADEMARKS - Signs or symbols that give a person or corporation the legal right to use of seel the product that is registered. Such as the apple sign or the KFC logo PATENTS - Protection for inventions. Sets out a right for the owner to have the exclusive rights to derive commercial benefit for their invention PRIVACY, SAFETY AND CENSORSHIP Cyber bullying: harassment using digital media such as websites, email, chat rooms, social networking or instant messaging Cyber stalking: repeated harassment using digital media with the intent of causing fear or intimidation RIGHTS IN CYBERSPACE There are 2 main approaches about what our rights should be in cyber space Laissez-faire approach: used to describe economic philosophies that government should not intervene in business; may also be used in a boarded sense of minimal government intervention in most aspects of society Interventionist approach: this approach would involve enacting legislation or international treaties, imposing obligations on ISP’s to block certain content and strengthening enforcement agencies CURRENT STATUS AND SOURCES OF LAW IN CYBERSPACE Statute law: - Many laws are created through Parliament to deal with internet crimes on a national and state level - Crimes Amendment Act 2001 sets out computer offences such as hacking Common law - Superior courts can create precedents in relation to the legalities of activities in Cyberspace Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 - Judges are not bound by International Court Decisions but can refer to them to assist in their ruling – similar to persuasive precedent International law There are a number of international organisations and treaties established to specifically deal with cyberspace. - United nations World intellectual property organisation European union World trade organisation Internment corporation for assigned name and number Internet assigned numbers authority FUTURE DIRECTIONS – WHAT LAW REFORM IS NEEDED FOR CYBERSPACE In order to combat cybercrimes there must be enforceable laws. The smooth function of cyberspace requires both government regulation and individual cooperation to ensure adequate and appropriate content is available. For example, eBay originally believed that they did not need to rely on government or laws to create their business. However, they found out frauds occur. Big companies will refuse to do business in countries where the government does nothing to protect rights – economic reasons for a country to have clear legislation Despite it being difficult for the government to enforce cyber laws and prohibit crime without them it would be worse. They do deter people through their law enforcement mechanisms. Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 LAW IN PRACTICE PORT ARTHUR Legal responses + effectiveness Non-legal responses + effectiveness TERRORISM Legal responses + effectiveness Non-Legal responses + effectiveness CASE EVENT LEGISLATION SYLLABUS POINT Commonwealth v Tasmania (1983) Tasmania wanted to build a Hydroelectric dam on the FranklinGordon river systems. A group of environmentalists began a protest campaign against this proposal. They to court, federal law prevailed, and this dam was not built. The Federal and State Government were both able to collect taxes. Then the Federal Government went to pass a law that only allowed the federal government to collect income tax. The State tried to oppose this even though the Federal Government was going to give them the money they were going to lose. The High Court ruled this as irrelevant; the proposed law was passed and deemed as constitutional Google was using sponsored links to promote certain businesses over rivals. The High court decided that Google was no different. In Obiter dicta, the Court noted that if Google or any publisher is aware of that, the material is misleading or deceptive they can be held liable as per 251 of the Australian Consumer Law. Allegations were made by the DRC that their neighbour Rwanda had been launching attacks as well as many other international laws. Due to Rwanda not signing a treaty they did not have to World Heritage Act 1983 Division of Powers South Australia v Commonwealth (1942) First uniform tax Google v ACCC (2013) Democratic Republic of Congo v Rwanda Role of High Court The Australian Consumer Law Role of High Court Convention against Torture Convention against Genocide International Law Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Toonen v Australia (1994) Donoghue v Stevenson (1932) Mabo v Queensland 1988 Gutnick v Dow Jones and Co Inc. (2001) Julian Assange Taylor Swift wedding copyright issue Lock out Laws follow international law Australia signed the International Covenant on Civil and Political Rights (ICCPR) and it came into effect in November 1980. Toonen made a complaint to the UNHCR that the Tasmania Law criminalising consensual sex between adult males was a violation of this Convention. The UN decided that this was a breach and gave Australia 90 Days to respond. Tasmania did not budge on these laws, So the Federal Government passed the Human Rights (Sexual Conduct) act 1994, which legalised this. Federal Law prevailed. If Australia signs a Treaty, it must uphold its provisions, to the point of enacting legislation in order to do so. A ginger beer was bought for Mrs Donoghue in a dark bottle preventing her from seeing the contents. When she poured out the ginger beer, a dead snail came out and she got quite sick. She sued the manufacturer for a failure of duty of care. The court held that a manufacturer is under a legal duty to the consumer to take reasonable care that the article would not cause injury to health. It formed the tort of negligence worldwide. Covenant on Civil and Political Rights (ICCPR) Human Rights (Sexual Conduct) Act 1994 Law Reform and International Law changing to domestic Law Duty of Care Tort Law – negligence Eddie Mabo challenged the Queensland Government. The first case questioned the validity of a state law that attempted to abolish native title by asserting state ownership of the islands off the coast of Queensland. The second case gave Australian law the doctrine of native title. To make this distinction clearer they created the native title act. An articles contained several referneces to the defendant Joseph Gutnick. He argued that part of the article defamed him. There was an argue that because it was made in New jersey it did not have jurisdiction in Australia. But due to the internet being accessible to everyone this was shut down. The high court allowed Joseph to sue Dow Jones. The case was settles but was highly controversial and the subject attracted much commentary from legal analysts. Released secret documents Racial Discrimination Act (1975) Queensland Act – never made legal Native Title Act 1933 Law reform Role of High Court Requires 1.30 am lockouts and 3 am last drinks at bars, pubs and clubs in the Sydney CBD entertainment precinct. Liquor Act Difficulty enforcing rights on cyberspace Cyber crime Intellectual property copyright Law Reform New concepts of Justice Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com) lOMoARcPSD|15901274 Smoking Outlaw Over the past few years in New South Wales, smoking cigarettes has been outlawed in more places. Manly Council, which governs Manly Beach through delegated authority, introduced a nocigarette policy for its beach in 2004. Council rangers were able to fine people smoking on the beach up to $50. Individuals’ desire to smoke on the beach clearly conflicts with the desires of non-smokers to have a smoke-free environment. Also, there is conflict between smokers and the council’s responsibility in keeping the beach free of cigarette butts and creating a healthier environment for marine life. By 2012, Manly Council had imposed smoking bans on all ocean and harbour beaches, within 10 metres of child playground areas, sporting fields and all events run by the council. Nature of responsibilities and rights – conflicts Downloaded by Cate Bennett (brpp2fjzy7@privaterelay.appleid.com)
