Legal Studies (Prelim) Study NotesThe Legal System

Basic Legal Concepts

The Meaning Of Law

The law- set of enforceable rules of conduct imposed on all members of a society which are officially recognized and enforced by the official legal system.

Customs, Rules and Laws

Customs, rules and laws are all interconnected.

Customs are expected behavioral patterns within a society

Rules are boundaries placed on specific branches of society, such as in schools or workplaces.

Laws, unlike rules, affect all of society equally and are enforced by the legal system.

Characteristics of Just Laws

• Laws apply to all members of society• Laws are officially recognized and enforced by the legal system• Laws are accessible by all• Laws relate to the interests of general society, and reflect the rights and responsibilities

of those within it

A just law will have these characteristics.

Values and Ethics

values: a set of moral standards which are considered desirable in society

morals: personal beliefs or understandings of right and wrong

ethics: the execution of moral beliefs in real life

Just laws are expected to adhere to, and reflect traditional values, morals and ethics within that nation state as much as possible.

The Nature Of Justice and Procedural Fairness

Justice- the fair and impartial treatment of all individuals under the law. The legal system is expected to achieve justice in all circumstances.

Three elements of justice in legal processes:

equality: all people are being treated in the same wayfairness: the legal system being free from any bias or dishonestyaccess: the right or opportunity to make proper use of the legal system Procedural fairness (natural justice) must have these factors:

• The right to be heard. Anyone involved in any dispute has the right to be heard and their opinion taken into account

• An unbiased decision maker. Anyone in a position of power during legal processes must be unbiased, honest, and fair to all.

The Rule of Law

The rule of law requires that no one is above the law.

Why do people obey the law?• It makes them feel secure and safe• Based on general customs and values• Penalties apply

Anarchy, Tyranny

anarchy- absence of laws and government, often leading to martial law (loss of legal rights)tyranny- power held by a single individual, laws suit dictator

KEY QUESTIONS:

What is the law? How is it different from rules and customs?What are the differences between ethics and values?What are the characteristics of just laws?Describe the nature of justice and procedural fairness.What is the rule of law?What is the difference between anarchy and tyranny?

Sources of Contemporary Australian Law

Common Law

Originated in Britain, based on the idea of traveling judges enforcing precedent

equity: body of law supplementing common law, corrects injustice by applying principals of fairness

precedent: a judgement which acts as authority for a later legal decision (stare decisis, the decision stands)

The rules of precedent:• Must be followed in all courts lower in hierarchy (binding precedent)• Can be used as basis for decision in any court (persuasive precedent)

The Judges Decision:

ratio decidendi: legal reasoning behind decision. Legally binding.obiter dicta: other comments about case. Not legally binding.

Adversarial System of Trial

Australia uses adversarial system of trial.

• Two party’s prove their case to an impartial third party• The burden of proof lies with the prosecution/plaintiff, defense must cast elements of

doubt• Judge acts as impartial mediator, ensuring proper legal procedure is followed,

determining admissibility of evidence and asking questions of law. Case is directed by two parties.

• Each party must be represented equally and controls what they present to the court

The alternative, an inquisitorial system:

• Judge directs entire case, and plays active role in investigation• Judge chooses applicable evidence and witnesses• Much higher prosecution rate

mandamus: compelling a government or official to complete a taskinjunction: preventing an individual or organisation from completing an actionprohibition: court order preventing lower courts involvement in a case

Court Hierarchy

Courts are places where legal decisions are made.

appellate jurisdiction: jurisdiction to hear appeals from lower courts

original jurisdiction: jurisdiction to hear case for first time, held by all courts

appeal: challenge of a legal decision made

Statute Law

• Statute law is created in parliament (group of elected representatives).

• Australian parliament utilises a bicameral system. Law changes must be passed in both houses.

The Legislative Process:

• Proposed change (bill) introduced in lower house, usually by cabinet minister (anyone can introduce a backbenchers bill)

• Bill is read, then discussed and amended if necessary• Vote is taken after third and final reading, if it passes it moves to upper house• Process repeats in upper house• If passed, moves to governor or governor general for royal assent• It is now an Act of Parliament

Delegated Legislation

• Made by non parliamentary bodies• Concerns less important matters• Given power through an enabling act

ultra vires: acting in excess of one’s authority

Lower Courts Intermediate Courts Supreme Courts

Hear summary offenses, minor civil claims ($60 000) and committal hearings. Heard by a magistrate, no jury. Committal hearings establish whether there is sufficient evidence to trial the case in a higher court (prima facie case).

Hears indictable offenses and civil claims ($750 000) and has appellate jurisdiction. Heard by a judge and in most cases, a jury.

Hears most serious indictable offenses and civil claims. Heard by a judge and usually a jury. Has appellate jurisdiction.

The Constitution

constitution: a set of rules governing the running of a nation state

Division of Powers

Note: Where conflicting, federal laws always override state law.

Separation of Powers

Separation of powers is essential to an effective democracy- ensures that no section of law is corrupt by maintaining independence between legal areas.

The three branches of government outlined in the doctrine:

legislature: law makers (parliament)executive: ministers and departments which administer laws (cabinet)judiciary: courts which apply law

The High Court

• Highest in federal hierarchy• Section 51 of Constitution• 7 Judges• Role= Interpret the Constitution

original jurisdiction: Any case involving the commonwealth, it’s officers, any state, it’s officers, or any form of constitutional interpretation

appellate jurisdiction: Approval needed in the form of special leave

The constitution can be amended through a referendum.

Legislative Concurrent Exclusive Residual

Areas in which federal government can create laws. Outlined in Section 51.

Areas in which states may create laws as well as federal, also outlined in Section 51

Powers exclusive to federal parliament, outlined in Section 52

Powers maintained only by the states, detailed in state constitutions

Customary Laws

• Customary laws are the laws of indigenous people• Diverse amongst tribes, but similar• Based on the Dreaming and a spiritual connection with the land• Laws are difficult to describe, based on sacred secret knowledge• Kinship dictates proper ways to interact• Mainly passed down orally

Connection to Contemporary Law

• Mediation was preferred as conflict resolution, overseen by Elders• Sanctions (which differed by tribe) may have been imposed• Communal based conflict resolution

Customary law is not legally recognised, but is integrated into the Australian legal system (mediation, environmental law etc)

Customary law elements may be considered as mitigation during legal processes.

International Law

state sovereignty: the right of a nation state to create it’s own lawsState sovereignty undermines Int. law. However, due to the interdependent nature of the modern world, int. law is still followed by most.

Domestic Law International Law

• Law of a nation state• Made by parliament or courts

Nation states: • Politically independent• Defined territories• Effective government• Capacity to negotiate internationally

• Based on worldwide system of values and customs

• Governs relationships between nation states

• Not legally enforceable in traditional sense

• Formed by common worldwide thinking

Sources of International Law

customary international law: Develops from long standing ethics and customs which become recognised by the international community. Does not become official in a nation state until it is accepted as necessary by said nation state (opinio juris sive necessitatis).

instruments (treaties+declarations):

• Treaties are mutual, written bilateral/multilateral agreements, governed by international law, which govern interactions within and between nation states. Not legally binding until ratified.

• Declarations are written documentation of opinions or facts, not legally binding. May develop into treaty later.

• Conventions are a general agreement between nations

writings: Scholarly writings are drawn on by international law, as well as expert individuals or organisation

legal decisions:

• Main international court is the International Court of Justice (ICJ), the judicial arm of the UN

• Hears treaty disputes, and decisions may be the basis for future treaties• Tribunals were used before the formation of the International Criminal Court (ICC) in

2002.

The United Nations

• Est. 1945 by Charter of the United Nations• 193 members, headed by UN Secretary General Ban Ki Moon• “To maintain global peace and security, and to develop friendly relations among

nation states based on respect for equal rights.”

UN General Assembly UN Security Council ICJ

• Every nation represented• Open, multilateral forum

for international issues• Discusses and makes

recommendations on the operation of UN and conflicts between nations

• Meets yearly

• Maintains world peace and security

• 5 permanent members; USA, UK, France, Russia, China

• 10 non permanent members serve 2 years

• Imposes sanctions to curb aggression and maintain peace

• Decisions must be unanimous

• Doesn’t represent world

• Hears international, non criminal cases

• Only hears cases where nation states accept jurisdiction of the ICJ

• Hears cases between states (contentious cases) and advises the UN (advisory proceedings)

Relevance to Australian Contemporary Law

THE TREATY PROCESS

• Australia implements the process above to enforce treaties it has signed. Often, existing domestic laws are sufficient.

• Treaties also influence the development of common law• Examples:

Convention on the Rights of a Child (CROC): Family Law Act (1975)

Convention on Elimination of All Forms of Discrimination Against Women (CEDAW): Sex Discrimination Act (1984).

Intergovernmental and Non Governmental Organisations

intergovernmental organisations: organised groups of nation states which work towards a mutual goal. Examples include International Labour Org. (ILO) or Interpol.

non-governmental organisations: organisations with no government affiliation. They lobby and provide information to the public. Examples include St Vincent De Paul’s and Amnesty International.

KEY QUESTIONS:

What are the origins of Australian common law?Explain the doctrine of precedent.What is the purpose of having a court hierarchy? Describe the court hierarchy of NSW. Describe the structure of parliament.What is the legislative process?What is the function of delegated legislation?What is the difference between separation and division of powers?Analyse the role of the High Court.What is customary law? To what extent is it incorporated into the Australian legal system?What is international law and how is it undermined by state sovereignty?Describe the 3 sources of international law.How do intergovernmental org.s and NGO’s contribute to the development of Int. Law?How is international law incorporated into Australian domestic law?

Sign Ratify Enforce

Classification of Law

Public Law

Public law is the branch of law governing the relationships between individuals and the state, and the structure and operation of said government.

Private Law

Private (civil) law is the branch of law governing relationships between individuals and organisations. Aims to protect the private rights outlined in statute and common law.

Criminal Law Administrative Law Constitutional Law

• The body of law under which acts are punishable by state

• Maintains public safety, as criminal acts violate the moral order of society

• Constantly reviewed to reflect modern society

NSW- Crimes Act 1900

• Deals with powers and decisions of government bodies.

• Individuals can seek review of government devisions:

internal: a decision made is reviewed by the same agencyexternal: an external party reviews the decisionjudicial: a court hears and reviews the legality of a decision

• Focuses on rules governing the separation of powers

• Concerns constitutional validity of government actions

• Related to the division of powers

• Also deals with constitutional breaches in legal system

Contract Law Tort Law Property Law

• Recognition of legally binding agreements

• Aims to compensate the plaintiff through damages paid by the defendant

• Injunctions may also be sought

• Most complex body of civil law

• Civil wrongs, an action which breaches the rights of another

• No prior legal relationship required

• Like contract law, aim is to compensate the plaintiff

• Examples include negligence and nuisance

• Concerns any commercially valuable entity, such as land, stock, goods or intellectual property

• Deals with legal rights of possession (also use/benefit)

• Criminal or civil court

Criminal and Civil Court Procedures

The Criminal Procedure

• Legislation has passed allowing some indictable offences may be tried summarily in a lower court, provided they meet a certain criteria and the defense and prosecution agree (where appropriate) Less than $120 000 and/or 10 years prison

• Must undergo a committal hearing first, where a magistrate must be convinced there is a sufficiently strong case to be heard in a higher court (prima facie)

• Criminal trials are heard in intermediate or superior courts• Heard by a jury of 12 people, who must decide unanimously whether their is enough

evidence to warrant conviction beyond reasonable doubt• The judge advises the jury and answers questions of law

The Trial Process

Indictment: Read to the defendant, who pleads guilty/not guiltyOpening Address by Prosecution: Sets out facts and explains prosecutions case to be presentedExamination in Chief: Witness is examined by the party whom called them, to prove their case (prosecution) or disprove the other (defence)Cross Examination: Witness is examined by the opponent, to question credibility or highlight inconsistencies (These two elements repeat for each witness)Closing Address: Each side summarises their positionSummation: The judge summarises the case and instructs the jury how to reach a verdictDeliberation: Jury deliberates to a unanimous decisionSentencing: If guilty, judge chooses a suitable sentence

Trials are slightly different in different courts:

coronial inquests: Inquisitorial in nature, takes place surrounding suspicious events. Will recommend the issue of an indictment if necessary and trial will take place as normal.children's court: Media are banned. Less severe punishments. Proceedings are made simpler and explained to the accused by a specialist magistrate.

Criminal Procedure Civil Procedure

• Prosecutor (state) (crown) and defendant

• Burden of proof with prosecution• Standard of proof required is

beyond reasonable doubt

• Plaintiff and defendant• Between two individuals/organisations• Burden of proof with plaintiff• Standard of proof required is the

balance of probabilities

Summary Hearings Trial By Jury (Indictable Hearings)

• Minor offences, such as traffic infringements or vandalism

• Heard in lower court only by a magistrate

• More serious offences, such as assault or murder

• Heard in intermediate or superior courts by a judge and jury

Civil Procedure

Summons: An originating pleading (written document exchanged) detailing the facts surrounding the case and those involved is sent to defendantStatement of Defence: Defence responds to allegationsDiscovery: Each party may question the other about relevant matters, and both must answer all relevant questions. Information is collected. Most civil cases are resolved before trial.Trial: If necessary, the matter is trialled in the appropriate court similar to a criminal case. The judge (or sometimes jury of 4) decides on balance of probabilities, it is more probable than not that the defence is liable. The judge determines adequate compensation

Common and Civil Law Systems

• Civil law systems originated in Roman Law.• Uses a code of law which is interpreted and applied by judges• Common law systems developed through customs long before any actual court

proceedings

The main difference between the two is that common law systems partially uses previous decisions to determine verdicts, civil law systems do not.

Civil law, in this context, refers to a system of law originating in Rome. Usually inquisitorial in nature, countries include Germany and France.

Legal Personnel

Judge/Magistrate • Preside over court cases ensuring proper procedure is followed

• Magistrate decides verdict and suitable punishment• Judges adjudicate, instruct the jury and determine admissible

evidence• Judges decide on punishment, and verdict if no jury

Judges Associate • Clerk, assists the judge where appropriate

Tipstaff • Assists the judge with organisation and procedural matters

Barristers/Solicitors • Solicitors generally do not appear in courts, but assist barristers behind the scenes

• Both are specialised in certain areas• During trial, barristers present their clients case, and advise

them on the likely outcome of the trial

Witness • An individual who gives evidence in a case, who must swear an oath to speak truthfully

KEY QUESTIONS:

Compare the three branches of public law.Compare the three branches of private law.Distinguish between criminal and civil proceedings.Explain the concepts of standard and burden of proof and apply them to both civil and criminal cases.Outline the basic criminal trial process.What are the main roles of a judge, jury and legal representatives in a court room?Explain the jury selection process.What is the main difference between common and civil law systems?

Court Officer • Organises court lists and calls witnesses. • Ensures smooth running of the trial, essentially an ‘errand

runner’• Looks after the courtroom• Also assists judge where necessary and answers questions

from jurors

Reporter • All court proceedings are recorded and transcribed

Corrective Services Officer

• Guards and escorts the accused

Jury • A panel of randomly selected citizens whom consider evidence and decide a verdict.

• 12 in criminal cases, jury of 4 used in some civil cases• Chosen from electoral roll• Can be challenged by either prosecution or defence

challenges for cause: based on non-qualification, ineligible or biasedperemptory challenges: no reason required, only a limited number allowed by each party

Law Reform

What is law reform?

Law reform is adaptations/modifications made to legislation and laws to reflect modern society. The modern, globalised and technologically advanced world evolves extremely quickly, and the law occasionally lags behind. Law reform should encourage improvements within society, for the majority of society.

Conditions which Give Rise to Law Reform

1. Changing Social Values

• Social Values: Ethical standards which guide an individual’s view of their society, and found beliefs of right and wrong. These change as society evolves over time.

• Heavily influenced by individual values, which may be different to those of greater society

• Public Morality: Standards of behaviour generally agreed upon by the community• Judicial decisions are used as indicators of shifting social values

2. New Concepts of Justice

• As society evolves, its views of justice may change• A prime example is the abolishment of capital punishment in Australia. Australians

believed justice constituted rehabilitation rather than pure retribution• As views of what justice should achieve are changed, legislation is reformed

3. New Technology

• Technological innovations bring with them the requirement for law reforms to how the technology is used

• Reform can be obvious and blatant, such as road laws corresponding with the development of the motor vehicle

• Reform can also be subtle (EG- the invention of life support technology required the reform of the definition of legally dead).

• A prime example is new birthing technologies, which brought new laws distinguishing biological versus family obligations and responsibilities associated with the donation of genetic material

Why is law reform necessary?

• Law reform is necessary so that laws fulfill their role of providing stability and reflecting modern society

• If law reform was not introduced, laws would become increasingly irrelevant in an ever changing world

• Conducting law reform ensures that it remains enforceable and relevant

Agencies of Law Reform

Law Reform Commissions• Established by parliament to conduct inquiries into potential areas of law change• Completely independent• Inquiries guided by ‘terms of reference’• Findings are suggestions, and not compulsory• EG- Australian Law Reform Commission, established in 1975, which operates under the

ALRC Act (1996)

Parliamentary Committees• Established by houses of parliament• Small groups of members investigate specific law reform issues• ‘Standing committees’ are active for the life of parliament• ‘Select committees’ are established for a specific purpose

The Media• Objectively reports on parliamentary decisions• Encourages informed community and application of public pressure

NGO’s• Aims to improve lives by spurring law reform• Independent of political influence• Important in countries with repressive governments

Lobby Groups• Pressure parliamentary members, the media and other agencies of law reform to

advance their own agenda• May also be NGO’s

Agencies of law reform influence, but do not implement!

Mechanisms of Law Reform

Courts• Law reform through new precedents: Made with social change in mind• Judicial decisions clarify legal changes and bring issues/complexities to light• EG: Mabo Decision

Parliaments• Passage of bills, spurred by agencies of law reform• Heavily reliant on balances of power• Fairness can be skewed by political agendas

United Nations• Conducts law reform on an international scale• Instruments: Treaties (ratification), declarations, covenants• Applies pressure of international community to nation states

Intergovernmental Organisations• Cooperation between governments working towards improvements• Enforce law reform: Treaties• Work with the UN to enforce international law

Law Reform in Action: Native Title

• terra nullius: land belonging to no one• Declared upon British colonization, legally eliminated any indigenous claims to Australian

land• Need for law reform identified in 20th century• Mabo II Case (1992): High Court abolishes idea of ‘terra nullius’ and recognises native

title for first time• Parliament creates Native Title Act 1993 (Cth.) in response: Federal law• Other Cases: Wik Decision (pastoral leases) and Yorta Yorta decision• State Legislation: Aboriginal Land Rights Act 1983 (NSW)

KEY QUESTIONS:

What is law reform?Describe the three conditions which give rise to law reform.Evaluate how each agency of law reform influences mechanisms of law reform.What are the primary mechanisms of law reform?Define ‘terra nullius’. Why was it an obstacle to recognizing Native Title?Describe the details of the Mabo II Case.Evaluate the effectiveness of the High Court and federal parliament in bringing about effective law reforms in response to the Mabo II case.

The Individual and the Law

Rights and Responsibilities

rights: predetermined entitlements/provisions granted to an individual (EG- Natural rights, legal rights, sociocultural rights, civil and political rights, environmental rights)responsibilities: predetermined duties of an individual (EG- legal and statutory responsibilities)

“To guarantee one’s rights, an individual must adhere to their legal responsibilities.”

• Rights are protected by statute law, international treaties (UDHR), and within public law in contractual relationships

• Responsibilities are protected by statute law (taxes) and especially within public tort laws (EG- duty of care)

• Rights can be morally based or legally based. Moral rights are arguable by perspective, legal rights are cemented in statutes and precedent.

• Legal rights cannot be legally disputed

• Governments occasionally pass laws not completely compliant to individual rights• This is because on occasion, legal duties must be placed before rights for the good of

society

KEY QUESTIONS:

Explain the difference between rights and responsibilities and how they are related.Identify two examples of legal rights and responsibilities guaranteed by statute law or public law.What is the difference between moral and legal rights?Compare a bill of rights to a Constitution.Identify a law which places legal duties of a higher stances than legal rights.

Bill of Rights vs. Constitution

Bill of Rights Constitution

• Statement of human rights and privileges

• Sets out what individuals should expect from their governments

• Express rights: Not open to interpretation

• Removes complexities, but restricts rights to those specifically expressed

• Governs the running of a nation state• Implied Rights: Constitution can be

interpreted to reveal legal rights• More complex and less explicit, but

more adaptable to different situations

Resolving Disputes

Law Enforcement Agencies

The Police• Federal and state police enforce statutory law relevant to their jurisdiction• NSW State Police enforce Crimes Act 1900 (NSW)• Federal police governed by Crimes Act 1914 (Cth.) and the Criminal Code 1995 and

LEPRA Acts• Police has powers which assist in their investigative and preventative processes• This is in turn governed by a strict code of conduct• Power subject to debate, particularly in regard to the factor of police discrepancy• Also an avenue for dispute resolution

Australian Customs and Border Protection• Works with federal police to discourage unlawful movement through Australia’s borders• Areas such as immigration, quarantine, family law and contraband (drugs/weapons)

Australian Crime Commission• Counters serious organised crime• Australian Crime Commission Act 2002 (Cth.)• Forms strike forces to counter criminal activity

Australian High Tech Crime Centre• Technology related crime prevention• EG- Fraud, prohibited online material• Covered by Criminal Code 1995 (Cth.)• More important as technology evolves

Australian Security Intelligence Organisation• ASIO Act 1979 (Cth.)• National security service• Gathers information to guard against national security threats

Government Departments• Can enforce laws relevant to their jurisdiction

The police and other law enforcement agencies utilise their special powers to investigate crimes, and prevent law-breaking behaviour, to maintain law and order in society.

Resolving Disputes Between Individuals

Alternative Dispute Resolution• Methods of dispute resolution which have the aim of allowing the involved parties’ to

maintain control of the situation and reach a compromise.• Cheaper and quicker than court procedures

negotiation: involved parties meet to discuss the issues and attempt to reach a compromisemediation: involved parties meet to discuss the issues and attempt to reach a compromise. Overseen by an impartial third party. conciliation: involved parties meet to discuss the issues and attempt to reach a compromise. Impartial third party guides the proceedings and makes recommendations, but these are not binding in any way.arbitration: A process involving an arbitrator who makes a legally binding decision for the involved parties.

Community Justice Centres• Resolve disputes through mediation• Six government run centres in NSW: Reduce strain on court system

Land and Environment Court• Specialist court integrating ADR into it’s proceedings• Interprets environmental law and deals with land disputes

Resolving Disputes With The State: Non Legal Methods

Media• Encourages public pressure and informed citizens• Brings issues to wider audience• Can be biased

Members of Parliament• Can bring issues to parliament: Source of decision making• Willing to listen to the voters• Only effective if other electorates have similar issues

Trade Unions• Large unions with numbers to assert power and opinions• Broad sociopolitical and legal base• Members issues supported and recognised

Interest Groups/NGO’s• Raise public awareness• Focused attention on specific issues• Investigates state decisions and their relevance• Some are poorly structured with little legal/parliamentary basis

Resolving Disputes With The State: Legal Methods

Internal Review• Reviews of government decisions within the same department• Quick and inexpensive, by relevant and experienced personnel• Can potentially be biased

External Review• Reviews of government decisions undertaken by an external body

administrative and other tribunals• review specific decisions of government agencies• narrow jurisdiction, but quicker and cheaper than courts• EG- NSW Administrative Decisions Tribunal

privacy bodies• laws have been enacted to prevent unnecessary information being disclosed about

individuals• Privacy Act 1988 (Cth.)• individuals can seek an internal review or contact Privacy NSW (state jurisdiction)

courts• state and federal courts have the power to review administrative decisions• often called judicial review: based on legality, not merits• remedies include prohibition (preventing an action), certioran (reversing a decision),

mandamus (forcing an action), or injunction (prohibiting actions in the future)/

ombudsman• state and federal offices• legal power to investigate complaints made by members of the public• cannot impose punishments, only make recommendations

statutory bodies• formed by statutes for an express purpose• some established to review administrative decisions• EG- Australian Human Rights Commission (Cth.)

KEY QUESTIONS:

Describe the role of the federal and state police.Outline the roles of three other law enforcement agencies.Identify the advantages of dispute resolution outside of courts.Describe the various types of Alternative Dispute Resolution and evaluate the effectiveness of ADR as a whole.Evaluate the effectiveness of the non-legal methods of challenging state power.Describe the legal methods available to challenge state power.

Cyberspace

Nature of Cyberspace

• Facilitates anonymity, allowing individuals to hide their identity• Encourages creativity, makes sharing information easier• A global, multilateral forum of ideas

Examples of Cyber Crimes

• Hacking (unauthorized access to data)• Fraud (false information to deceive individuals)• Spam (unsolicited bulk email)• Cyber bullying and Cyber Stalking (disinhibition effect)

Intellectual Property in Cyberspace

• IP: Creations of the mind with commercial value• Violation of intellectual property made easier due to file sharing and space shifting• Copyright Act 1968 (Cth) and Copyright Amendment Act (2006)• WIPO Copyright Treaty (1996)

Difficulties in Prosecution

• Global nature makes prosecution difficult (jurisdiction issues)• United States of America v. Griffiths (2004) • Large digital dossiers create potential targets• Existing laws applied to technology with limited success• Disinhibition effect: People do things they wouldn’t normally do• Constant evolution places strain on legal makers: Spurs law reform

Approaches to Cyberspace

• Laissez fire: Less regulation, independence maintained• Interventionist: Heavy regulation to ensure safety of users, restricts freedom

Legislation, Responses and Cases

• Crimes Amendment (Computer Offences) Act 2001 (Crimes Act 1900)• Spam Act 2003 (Cth)• World Intellectual Property Organisation (United Nations) • USA vs Griffiths (2004)• Convention on Cybercrime (2001)

Law in Practice: People of Differing Sexual Identity

Issues:• Homophobic harassment, which remains an issue due to inadequacies in federal law• Homophobic discrimination in sectors including the workplace, aged care and health

care• Inequality in legal recognition of relationships

Legislation and Treaties:• All forms of discrimination are prohibited by Articles 1+26 of the ICCPR• Sex Discrimination Act 1984 (Cth) was amended in June 2013. The Sex

Discrimination Amendment Bill 2013 (Cth) extends protection to include any discrimination on the basis of sexual/gender identity.

• Amendments to many federal laws between 2008-2009 eliminate discrimination against de facto couples from domestic legislation

• State legislation, including the Anti-Discrimination Act 1977 (NSW), prohibits discrimination on the grounds of sexual preference

• Article 17 of the UDHR guarantees marriage as a fundamental human right

Cases:• Farmer v. Dorena Pty Ltd (2002): The complainant appealed to the NSW Administrative

Decisions Tribunal, claiming she was discriminated against by a hiring agency (the respondent) due to her transgender status. This is prohibited in the AD Act and as such Ms Farmer was awarded $6000 compensation

• Burns v. Radio 2UE (2004): The complainant alleged that the radio presenters of 2UE made derogatory remarks about homosexuals during a broadcast. The NSW ADT found that these comments were discriminatory and the matter was settled outside of court.

• Toonen v. Australia (1994): The complainant alleged that laws criminalizing gay sex in Tasmania breached his rights to privacy and freedom from discrimination (17+26 of the ICCPR). Toonen’s case was successful before the UN Human Rights Committee.

• Young v. Australia (2003): The UN Human Rights Committee recognizes Australia’s breach of the ICCPR in the inequalities contained within Australian de facto relationship rights, compared to those of marriage.

Responses:

• Federal Parliament: Enacts legislation which is enforced by the entire legal system. High enforceability, but low responsiveness and protection of rights.

• Australian Human Rights Commission: Established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Advises parliament on human rights issues (including sexual identity and relationship equality). Offers complaint resolution (over 2000 to do with sexual preference/identity in 2010-2011). Effective in all regards.

• (Lobby Group) Australian Marriage Equality: Lobbies the federal government for legislative change concerning marriage equality. Informs the public of developments in this regard and has a high social media following. Lacking in enforceability, but effective in responsiveness and contributes to protection of rights.

Law in Practice: Women

Issues:• Domestic violence and abuse• Discrimination in the workplace• Sexual assault

Legislation and Treaties:• All forms of discrimination are prohibited by Articles 2+26 of the ICCPR• CEDAW (1981) is the main piece of international law• Sex Discrimination Act 1984 (Cth) is the domestic enactment of Australia’s ratification

of CEDAW, complemented through the Equal Opportunity for Women in the Workplace Act 1999 (Cth)

• State legislation, including the Anti-Discrimination Act 1977 (NSW), prohibits discrimination on the grounds of gender

Cases:• Poniatowska v Hickinbotham (2009): This was a sexual harassment case which

reached the Federal Court. The Court held on appeal that the plaintiff was discriminated against, and the actions of her coworkers caused her serious emotional harm. She received monetary compensation, demonstrating modern effectiveness of judiciaries in achieving just outcomes for women.

• Stoker v. Kellogg Pty. Ltd (1984): The complainant contacted the Equal Opportunity Commission concerning a discriminative wage increase. The commission confirmed indirect gender bias, and responded in an effective manner to protect the rights of the emerging demographic of working women.

• Toonen v. Australia (1994): The complainant alleged that laws criminalizing gay sex in Tasmania breached his rights to privacy and freedom from discrimination (17+26 of the ICCPR). Toonen’s case was successful before the UN Human Rights Committee.

• Young v. Australia (2003): The UN Human Rights Committee recognizes Australia’s breach of the ICCPR in the inequalities contained within Australian de facto relationship rights, compared to those of marriage.

Responses:

• Federal Parliament: Enacts legislation which is enforced by the entire legal system. High enforceability, but low responsiveness and protection of rights.

• Australian Human Rights Commission: Established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Advises parliament on human rights issues (gender equality). Offers complaint resolution. Effective in all regards.

• (Lobby Group) Australian Marriage Equality: Lobbies the federal government for legislative change concerning marriage equality. Informs the public of developments in this regard and has a high social media following. Lacking in enforceability, but effective in responsiveness and contributes to protection of rights.