legal studies prelim yearly notes

Preliminary Legal Studies Notes 2010

Define the following terms:

Law – a set of rules imposed on all members of a community which are officially recognised, binding and enforceable by persons or organisation such as the police and/or courts. It is a set of rules made by the government Values – principles, standards or qualities considered worthwhile or desirable within a society. Rules – Regulations or principles governing procedure or controlling conduct Customs – Collective habits or traditions that have been developed in a society over a long period of timeCustomary Law – Aboriginal Laws. Principles and procedures that have developed according to the customs of a people or nation, or groups of nations, and are treated as obligatory.

What is the relationship between customs, rules and laws?

Customs becomes rules and rules become laws.

What is justice? How do the concepts of equality, fairness and access relate to the concept of justice?

Justice – The legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those involved. Concept of Justice – Involves the fair and impartial treatment for all persons, especially under the law. Equality, fairness and justice are central concepts which allow us to distinguish good law from bad law. It is the task of the legal system that ensures all citizens have equal access to the law and that the law provides equality, fairness and justice to all members of society.

What is procedural fairness or natural justice?

Procedural fairness – refers to the idea that there must be fairness in the processes that resolve disputes. Natural Justice – refers to the fact that everyone should be treated fairly in legal situations. Two main principles of nature justice are:

The right to be heard – includes right to fair hearing Right to have a decision made by an unbiased decision maker.

Procedural fairness/natural justice – 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 present your case, right to freedom from bias by decision makers, and right to a decision based on logically relevant evidence

What is meant by the term ‘the rule of law’? Outline 2 ways the rule of law is ensured in Australia.

The Rule of Law means that no one is above the law, even the prime minister is not above the law.

Under what circumstances do people NOT obey the law?

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People will not follow the law if they do not agree with them or feel that the rules have no connection to them

What is the difference between anarchy and tyranny?

Anarchy – the state where there are no lawsTyranny – where a state has a single ruler holding all the power

From which country did Australia inherit its legal system?

From England

Briefly outline the development of the common law system in England. Ensure you incorporate a discussion of the Doctrine of Precedent in your answer

The British legal system developed from a number of sources. In Anglo-Saxon England, questions about rights and obligations were decided on the basis of the local customs and disputes were dealt with by the local courts. After the Norman invaded England, they began a system of travelling judges who applied a common set of laws to all areas of England. Decisions made by judges provided precedents for later cases and laws applied became the basis of the British legal system. Judges must resolve disputes on the basis of decisions made in similar cases. A judgement that is followed is called a precedent and it provides authority for the legal principle contained in the decision. The doctrine of precedent is also known as stare decisis – Latin for ‘the decision stands’. The purpose of precedent is to ensure that people are treated fairly and that the law develops in a consistent and coherent fashion.

How does the doctrine of precedent apply to today’s court structure in Australia?

The NSW local and district courts must follow the decisions of the NSW Supreme Court. All state and federal courts must in Australia are bound by the decisions of the High Court. Only the ratio decidendi (legal reason why a judge came to a particular decision) of the superior court is binding. The High Court usually follows its own decisions.

Explain the meaning of the common law in each of the following contexts:

Common Law V Statute Law Common Law refers to laws created in court i.e. decisions made by judges. Statute Laws refer to laws made by parliament.

Common Law system V Civil law system Civil Law System is a codified system that uses a set of rules (known as the code of law) that are applied and interpreted by judges. It is used in many countries. Judges apply the rule in the code of law to the various cases before them.

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Common Law System was developed by customs. It began long before there were any written laws but continued to be applied by courts long after written laws came into use. It is the rules that were derived in part from specific court rulings.

Common Law court V Courts of equity Court of Equity followed a set of loose rules to avoid the slow pace of change and possible harshness or inequity of the common law. Common Law Courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy.

What is the difference between adversarial system of law and the inquisitorial system?

Adversarial system – a system of resolving legal conflicts used in common law countries such as England and Australia, which relies on the skill of representatives of each side who present their cases to an impartial decision maker. Basically, in a trial, the two sides try to prove their version of the facts and disprove the other side. Inquisitorial System – the court is actively involved in determining the way in which the competing claims are presented. The judge will conduct an inquiry into the truth of what occurred.

Explain the concepts of original and appellate jurisdiction and how they apply to each of the courts in the NSW court hierarchy

Appellate jurisdiction – the ability or power of a court to hear appeals of the decisions of lower courts and to reject, affirm or modify those decisions. Original jurisdiction – the ability or power of a court to hear a case in the first instance.

What is statute law? Outline the process of passing a bill through Parliament.

Statute Law is laws made by the parliament. It is also known as ‘legislation’ or ‘Acts of Parliament’.

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What is delegated legislation?

Delegated Legislation is legislation made by non-parliamentary bodies. It involves ‘less important’ laws that parliament does not have time to draft, consider and pass, and so delegates the responsibility to ‘subordinate’ bodies, such as government departments or local councils.

Advantages Disadvantages The people making the

legislation are usually experts in that field.

Delegation of minor legislation frees up parliamentary time for very serious issues.

It is easier to amend delegated legislation and thus it is more flexible.

Members of parliament do not have the time or expertise to fully check the delegated legislation.

With many different bodies involved in making delegated legislation, there can be inconsistencies.

Little publicity surrounds the delegated legislation and thus the public usually cannot voice their views.

What is the Constitution of Australia? Which piece of legislation formed in the Constitution in Australia?

A Constitution is a set of rules that may apply to a social club, a large-scale organisation or even a nation. The Constitution of Australia is the Commonwealth.

How can the Constitution be changed?

By a referendum of Australian voters.

Explain the Division of Power as outlined in the Constitution

Division of Powers means that legislative, executive and judicial powers are divided between the states and the federal government. The state has control over some areas such as police while the Commonwealth controls others such as migration. States retain the law-making powers they had before the Federation unless the Constitution has given those powers to the federal government. The division of power between the states and the federal government has changed over the years with the federal parliament gradually gaining more power.

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Explain the concept of the separation of powers. Why is it important in ensuring the rule of law?

Separation of Powers doctrine was developed by the 18th century by a French political philosopher. The separation of power does not exist in pure form in Australia as some members of the executive are members of the legislature. For a true democracy to operate and in the interest of justice, it is imperative that there be no overlap between judicial and non-judicial arms of government. Key organs of government are:

The legislature – law makers The executive – ministers and government departments who administer

the las made by parliament The judiciary – courts which interpret and apply the law

What is the role of the High Court?

One of the exclusive functions of the High Court is to interpret the Constitution by deciding disputes on constitutional matters. The High Court often reviews Commonwealth legislation which involves interpreting the words of the Constitution. Elements of the High Court’s involvement with the Constitution are:

Judicial review – It is empowered by the Constitution to review Commonwealth legislation if a constitutional dispute is brought before it. Disputes occur when a person, organisation or government challenges the validity of a state or federal law.

Constitutional interpretation – Must interpret the words of the Constitution when resolving constitutional disputes.

Transfer of power to federal parliament – There has been a gradual shift in power from the states to the Commonwealth.

State/Federal agreements – State and federal governments have reached agreement on many issues so that standard laws apply across Australia.

The High Court may not give opinions or declare laws valid or invalid unless it is deciding a dispute.

Outline the characteristics of Aboriginal and Torres Strait Islander law.

Features of Aboriginal and Torres Strait Islander customary law included: Law was part of life: No distinct rules that separated law from religion,

or law from other modes of conduct. Laws were an integral part of values, ethics and customers of Aboriginal and Torres Strait Islander people.

Laws were tribal: Different tribes had different variations of laws. Ownership of land: The idea of individual ownership of land was absent

from Aboriginal and Torres Strait Islander thought. Land was owned by Aboriginal and Torres Strait Islander people on a group or tribal basis. Aboriginal and Torres Strait Islander had a spiritual bond with the land rather than ownership of it. Belonging to the land was part of being a tribal member and to lose the land meant losing the tribe’s culture and history. Aboriginal and Torres Strait Islander people also had links with the sea, lakes, rivers and all bodies of water.

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Oral tradition: Laws were passed from generation to generation by word of mouth rather than written down.

Secrecy: Some Aboriginal and Torres Strait Islander law was secret and was only known to a small group of specially selected men or women.

The Dreaming: Aboriginal and Torres Strait Islander law was based on the Dreaming and spirits of the land, animals, plant and sky.

Kinship: Complex system of blood ties which extend beyond one tribe. Kinship was another important source of Aboriginal and Torres Strait Islander law and governed much behaviour such as marriage and punishment

Maintenance of order: Law was an integral part of everyday life, order did not need to be maintained through complex situations. If disputes occurred they were solved by all tribal members or by relatives of the parties involved, though mediation and conciliation.

Mediation and Conciliation: Elder and influential members of the tribe were involved in settling disputes through mediation and conciliation. Conciliation involved persuasion and negotiation and often a section of the tribe would talk to offender behaviour. At other times the tribe would decide on a suitable punishment. Mediation involves the Elders of the tribe, who would meet separately and make a decision about how to resolve the dispute.

Enforcement and sanctions: Punishment was usually enforced by relatives of the wronged party or by ceremonial leaders. Punishment ranged from ridicule, to ostracism, to spearing and death by sorcery.

What is the difference between international and domestic law?

Each country has laws for its own people, known as domestic law. International law governs the relationship between nation-states. It enables nations to participate in trade and commerce and provides mechanisms for the maintenance or peace, security and reduction in conflict. It also covers fundamental human rights.

What is meant by the concept of state sovereignty? What impact can state sovereignty have on the enforcement of international law?

There are many examples around the world of nation-states breaching international law as result of state sovereignty, especially in the area of human rights.Sovereignty means that the state has authority to make rules for its population and power to enforce these rules.

Outline the sources of international law

The main sources of international law are customs, treaties, legal decisions and legal writing. Customary international lawIt is not contained within a written document. Instead, it is based on long-established traditions or common practices followed by many nations to a point that they are accepted as being fair and right by the international community.

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This form of law develops over time as it requires ‘constant and uniform’ practice of states in order to be accepted as law. Treaties and declarationsMost commonly used source of international law. A treaty is an agreement concluded between states in written form and governed by the guidelines of international law. Treaties can be either:

Bilateral – Between two nations concerning their common security and respective national security

Multilateral – Between many nations. The more nations that sign a treaty, the more powerful that treaty will be. Treaties are used to make specific laws and to control conduct and cooperation between and within nations. Declarations are also international instruments but they differ from treaties. Declarations state and clarify the parties’ position on particular issues, but do not impose legally binding provisions that must be followed. Legal decisionsThe International Court of Justice (ICJ) is the judicial body that deals with disputes between states. Many treaties designate the ICJ as the means of resolving disputes that arise under the treaty. ICJ decisions may help to shape the content of treaties. There are other international courts such as the International Criminal Court (ICC) and the European Court of Human Rights (ECHR), whose judgements contribute to establishing international law. Legal WritingsThe writings of respected international lawyers, judges and academics have an important part to play in guiding decision-making and treaty formation. Scholarly legal writings may be drawn upon the purpose of interpreting treaties or determining their application in international disputes. Governments may also seek the advice of experts on matters of international law.

What is the role of the United Nations?

The United Nations (UN) was established by the Charter of the United Nations in 1945. It was formed directly after the international breakdown of World War Two. It was established to oversee world affairs. The chief goal is to maintain global peace and security. It is not a law-making body. The UN begun to interfere with matters that concern general peace or human rights. The six main organs of the United Nations are:

1. The General Assembly (UNGA) which contains representation from all member nations. It can:

pass resolutions create organisations discuss customary international law

The General Assemble meets every year and can be called upon at any time. It works on agreement and consensus between its members.

2. The Security Council is the executive and most powerful section of the UN. It can have the final say over the security and peacekeeping activities of the General Assembly. It has the right to stop or ignore the General Assembly decisions. It has five permanent members: the USA, UK, France, Russia and China. Has ultimate control over the UN peacekeeping corps, its armed forces. The Council is the only body which can enable the UN to be sent into areas

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of conflict. Because of this power, the Security Council is a very important and often criticised body.

3. The Secretariat is the administrative and coordinating organ of the UN. It is under the control of the UN-elected Secretary-General.

4. The Economic and Social Council (ECOSOC) is an example of intergovernmental body. ECOSOC has 54 member nations who are elected for a three-year term. It examines international economic, social, health and educational issues and any other concern to which it is directed by the General Assembly.

5. The Trusteeship Council is the organ of the UN that works to help nations become independent and self-governing.

6. The International Court of Justice

What is the role of the International Criminal Court and the International Court of Justice?

International Court of JusticeICJ is the judicial organ of the UN and is an international judicial body. It has fifteen justices who each serve a nine-year term and who are elected by the General Assembly and the Security Council. It can only hear cases between nations. Thus it is only concerned with public international law. Nations who accept the ICJ’s jurisdiction are usually parties to the statute of the ICJ. These nations agree to obey the decision of the court. If nations are a party to the statute, the Security Council has the power to enforce the Court’s decision. The effectiveness of the ICJ depends on the cooperation which it receives, and this is restricted by the consensual nature of international law. ICJ can also give advice to the other organs of the UN. It was established to be a mediator in disputes between nations and to decide matters on a legal and peaceful basis. The international Criminal CourtIt is a permanent criminal court designed to handle war crimes, genocide and crimes against humanity. It has permanent legal authority and is a method of helping address concerns about the enforcement of international criminal law. It officially commenced on the first of July 2002.

What role do NGOs play in international legal matters?

NGOs are associations based on common interest and aims. These organisations are separate from governments and the UN but have their support. They also work on the basis of cooperation and consensus and unofficially contribute to world peace, human rights and other issues. They do this by lobbying governments and informing public to take action on issues of concern.

What is the difference between public and private law? Give examples for each

Public LawIt is law that affects everyone. It deals with disputes between the state and the citizen and with the law-making powers of governments. Four main areas of public laws are:

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Administrative Law – deals with government powers and decisions made by government bodies. It is designed to help citizens who are affected unfairly by government decisions. It is an important part of the government being accountable or transparent. There are three ways a person can seek a review of a decision made by government agency:

1. Internal review2. External review (ombudsman)3. Judicial review

Constitutional Law – is a branch of law that focuses on the rules governing the executive, legislative and judicial functions of the government as written in the constitution. This is a particularly difficult area of law as lawyers are often debating the meaning of what is written in the constitution. Constitutional disputes are held in the High Court and are heard by 3 to 7 judges. Decisions may take weeks to come to as judges deliberate over every aspect of the law.

Criminal Law – Deals with behaviour that is seen as damaging towards the whole community

Industrial Law – Deals with relationship between employers and employees.

Private Law/Civil LawIt is law that deals with disputes between private citizens. The main areas or private laws are:

Contract Law – A contract is a promise or agreement between two or more people and is a form of civil law. Disputes over contracts are common and often involves the workplace or the purchase of goods and services.

Torts – involves ‘civil wrongs’ when damage is done to someone or their property because someone fails to fulfil their duty. Torts can include negligence, trespass on land, defamation, nuisance and false imprisonment

Family Law – Deals with disputes between a husband and wife, divorced couples, parents and children.

Outline the differences between a criminal case and a civil case in the courts.

Criminal Case Civil Case

Case is called a prosecution Party that takes the case to court

is called the prosecution. It is usually the state, a.k.a. the Crown

Party against whom the case is brought is called the defendant

Court can sentence the wrongdoer if he or she is found guilty. The court imposes a sanction (punishment)

Standard of proof if beyond reasonable doubt.

Case is called a suit or litigation Party who takes the case to

court is called to plaintiff The party against whom the

case is brought is called the defendant

Court can award remedy to the wronged persons or a court order such as injunction

Standard of proof is on the balance of probabilities

The burden of proof is on the plaintiff who must prove his or

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Burden of proof is on the prosecution who must prove that the defendant is guilty

her version of the facts.

Remedy – An action ordered by a court to fix a wrong done to a party in a civil caseInjunction – A court order which makes a person does something or stops doing something

Give an outline of the different agencies involved in law reform

Law reform commission have been established by various parliaments within their own jurisdictions to report on matters referred to them under what is called the term of reference for a particular inquiry. 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. The Australian Law Reform CommissionIt is an independent statutory body. The main role is of the Commission is to review Commonwealth laws relevant to matters referred to it by the Attorney-General. It also works to bring about harmonisation of Commonwealth, state and territory laws where possible. It must ensure that laws, proposals and recommendations do not trespass on personal rights and are consistent with Australia’s international obligations. Once the ALRC has completed an inquiry and report, it will make recommendations to the federal government through the Attorney-General. The government can accept all or some of the recommendation or it can ignore it all together. The NSW Law Reform CommissionIt was the first kind in Australia. It has a similar role to the ALRC but at state level: to consider the laws of NSW with a view to eliminating aspects of the law that are out of date, unnecessary, too complex or defective. The NSW government will refer issues to the commission for investigation as to what law reform is necessary. Parliamentary CommitteesCan be established by both houses of parliament. There may be flaws in the effectiveness of a law or the legislation may be particularly complex, requiring greater scrutiny. A vote is usually taken to take something to committee. It may only involve Senators or Members of the House of Representative. A ‘joint committee’ will have both Members and Senators. A ‘standing committee’ is a one that is permanent during the life of the body that appointed it. They inquire into and report on matters referred to them by the Senate or House of Representatives. ‘Select committees’ are small ones appointed for a particular purpose or for a once-only task. The mediaThe diversity of media ownership to dilute the influence of individuals or media companies who may have a particular ideological view to push. Keeping citizens informed allows the media to apply public pressure on governments to address injustices, incompetence or corruption. Thus the media can be a powerful vehicle for holding governments accountable.

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The modern media can promote law reform simply by reporting the stories of individuals who may suffer from discrimination, persecution or financial loss due to a poorly framed law. Lobby groupsThey 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 introduce new laws. They target members of parliament, parliamentary committees, the media and the public as well as government inquires. They may do this by writing letters, requesting a meeting with a representative or senator, or making policy submissions or by writing letters to the editor or calling talkback radio.

What are the main reasons for laws reforming?

New concepts of justice – as society’s view of what constitutes justice change, the law changes with it. For example, the removal or the death penalty; the introduction of circle sentencing; the drug court and youth conferencing as alternated methods of achieving justice are all examples of how the law has changed to effect changes in justice. Changing social values – As society’s social values change, the law is required to change. For example laws supporting same-sex marriage and de facto relationships, laws regarding domestic violence and anti-discrimination legislation all came about owing to a change in society’s values on these issues. Social values are standards or principles that guide people in their thinking about aspects of their society and that are underpinned by beliefs about right and wrong. Social values are not necessarily the same as individual values, but they both influence and are influenced by individuals’ judgment. Both individual and social values and ethics are shaped by various cultural factors, often including religion. When the majority of people within a society hold similar views about an issue, the views can be said to reflect public morality. The law must reflect the social values of the majority of the community if it is to stay relevant and be assured of a high rate of compliance. As Australia is a diverse multicultural society, it can sometimes be difficult to gauge the mood of the community.New Technology – As technology develops, there is a need for the law to changed e.g. laws regarding IVF, the internet and identity theft.

What types of rights are individuals entitled?

1. We are all born free and equal 2. Don’t Discriminate3. The right to life4. No slavery 5. No torture6. You have the right where ever

you go7. We are all equal in the eyes of

the law8. Your human rights are

protected by the law9. No unfair detainment10.The right to trial

11.Always innocent until proven guilty

12.The right to privacy 13.Freedom to move14.The right to seek a safe place

to live15.Right to a Nationality 16.Marriage and family17.Right to your own tings18.Freedom of through19.Freedom of expression20.Right to Public Assembly21.Right to democracy 22.Social Security

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23.Worker’s right24.Right to play 25.Food and shelter for all26.Right to education27.Copyright

28.A fair and free world29.Responsibility 30.No one can take away your

human rights

What responsibilities do citizens of a society have?

Responsibilities are legal or moral obligations that a person may have to another person, to a group or to the state, society or other people generally.

A parent has responsibilities to care for children under the age of 18 Responsibilities to follow the law Pay tax Be in the jury Act civilly to other citizens

How do the Federal Police and the NSW Police differ?

The Federal Police are responsible for enforcing federal law and criminal law where crimes cross state boundaries. The key role of the Australian Federal Police is to prevent and detect crimes against Commonwealth law within Australia and in certain circumstances, by Australians overseas.

Heavily criticised in recent years for Haneef case and allowing the Bali 9 to be arrested in Indonesia, when they couldn’t be arrested here

Key role is to prevent and detect crimes against Commonwealth law within Australia, and sometimes by Australian Citizens

Do not make laws, only enforce them Responsible for enforcing Federal law and criminal law where crimes cross

state boundariesThe NSW police force is primarily concerned with enforcing criminal law, particularly those offences contained in the Crimes Act 1900 (NSW). It also include assisting with mediation in family and neighbourhood disputes, particularly those involving domestic violenceDifference between barrister and solicitor

Solicitor – they are normally employed by a firm or organisationBarrister’s working life will, in general, be much more governed by the demands of the courts than that of most solicitors. Your time will be split between working in chambers, or at home, and appearing in court. Be prepared to be briefed on a Friday for a court appearance on Monday, with consequent disruption to weekend social life.

The key difference between a barrister and a solicitor, however, lies in the day-to-day nature of their work. A barrister is essentially an advocate speaking on behalf of his or her client, arguing the client's case, persuading the judge or jury to the advocate's way of thinking.

For some solicitors, life may be very like that described above (e.g. for solicitors who specialise in litigation and who appear in Magistrates' and County Courts or at Employment and other Tribunals). For most solicitors, however, their office will be their principal place of work, whether employed as an in-house lawyer with a multinational company or as a partner in a small High Street practice. One-to-one with clients will be an almost daily occurrence, though for in-house and large City commercial firms, team work, often in multidisciplinary groups, will be the norm. They give legal advice.

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People seeking legal advice will usually contact a solicitor first. Solicitors give legal advice to people on a wide range of legal issues. They have completed a recognised law course and carried out relevant work experience to achieve their qualification.Traditionally, only barristers could represent parties in court. Solicitors will most often prepare a brief for a barrister when a case must go before a court, as well as doing research and providing legal advice. Barristers often specialize in one area of law (e.g. family law), which allows them to develop a depth of knowledge and expertise in the area. Solicitors will generally approach a barrister on behalf of their client. The barrister will then represent the client in either a criminal or civil court proceeding.

List the legal and non-legal ways disputes in our society are resolved

Alternative Dispute Resolution: It involves resolution that does not involve courts such as mediation, arbitration and conciliationNegotiation: Any dialogue (verbal or written) that is designed to resolveMediation: This is when people in dispute are in the presence of a third party who is neutral and there to resolveConciliation: Similar to mediation only the third party has a more active role. The conciliator will try and suggest a solution Arbitration: This is when parties that are in dispute go before an arbitrator for him/her to make a legal judgement. Ombudsman

Created by statue in 1974 in NSW, 1977 federally Has legal power to investigate complaints made by citizens Public sector agencies and some private sector agencies can use this

office Does not have power to impose any punishments or fine on government

agency or department Can make recommendations to the department in question or to the NSW

parliament Main areas of complaint:

Delivery of Community Child abuse and neglect Operation of police force

Complaints must be in writing Taken seriously, but only followed through if a prima facie case exist i.e. if

the complaint would raise concern ‘on first view’. Only exists if there are witnesses to an event or if a citizen had very strong and irrefutable evidence

Office will investigate and assess whether the complaint is justified If justified, ombudsman will make recommendations for rectifying the

problem

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The individual and technology

Technology and the law: Transportation (including cars) Genetic modification Internet fraud warfare Criminal evidence Health services Medical technology Cyber stalking Cyber bullying Privacy Education

Libertarians are the advocates of minimal government control of interference in the lives of individualsCyberspace is the environment in which electronic communication occurs; the culture of the internetCyberspace is the global online virtual world created by the interconnection of millions of computers on the internet. Like any other new area of human activity there is a need for law applicable to cyberspace. Currently, no government or court can claim cyberspace as its exclusive jurisdiction. Its global nature poses particular challenges for the law.The Declaration of the Interdependence of Cyberspace declared that governments has no legitimacy in cyberspace, and that those who ‘gather’ there have formed a democratic and egalitarian social contract that has no need of external controls. Bullying

16% of young people said they have been bullied online, while 14 were bullied through their mobile, with boys and girls experiencing similar levels

56thought it was easy to get bullied online

Key Terms

Clean feed – legislation originated during the Howard federal government and involved the established of a filtering scheme that would be imposed on all Internet Service Providers (ISPs)Copyright – an exclusive right to publish, copy, publicly perform, broadcast or make an adaptation of certain forms of expression, namely sounds, words or visual imagesCyber bullying – harassment using digital media such as websites, emails, chat rooms, social networking pages or instant messagingCyber stalking – Repeated harassment using email, text-messaging or other digital media with the intention of causing fear or intimidationHacking – Unauthorised access to data held in a computer or computer system, changing the data, interfering with electronic communication between computers, or impairing the security reliability or function of stored electronic data. Intellectual Property – intangible property that has commercial values and can be protected by law, e.g. text, images, designs, inventions and computer programsInternet Fraud – fraud is intentional misrepresentation or concealment of information in order to deceive or mislead. On the internet, fraud can be carried out in a number of ways and can occur in conjunction with hacking

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Internet Service providers – Companies that offer customers access to the internet.Online predators – People with malicious intent, such as sex offenders, paedophiles, who give false and misleading identities with the aim of enticing their victims into harmful encounters online or in real life. Racial Hatred – Abuse of denigration of a person because of his/her race or verbal abuse or denigration of race generallySpam – Junk mail received electronically. Some spam is harmless but much of it is malicious and potentially damaging to the recipient. Also known as unsolicited bulk email. Privacy, Safety and CensorshipIn cyberspace there are a few barriers between individuals and potentially harmful content. Online, people tend to loosen up and reveal things that they would be less likely to divulge in their offline world. People are vulnerable in cyberspace by:

Cyber bullying Cyber stalking Racial hatred Exposure to violent, disturbing and/or illegal material including child

pornography Exposure to adult materials inappropriate for children Intrusions into privacy

The disinhibition effect is the tendency to say and do things in cyberspace that the person wouldn’t ordinarily say or do in the face-to-face worldPeople are not aware that other people can access their information, either immediately or at some later stage, as online information remains indefinitely in cyberspace. Social Network SitesOnline communities and social network sites are a relatively recent development, with the number of users growing rapidly. It can be typically defined as online communication platforms which enable individuals to join or create networks of like-minded users. Social network sites have common characteristics:

Users are invite to provide personal data for the purpose of generating a description of themselves or ‘profile’

provide tools which allow users to post user-generated content such as photographs, videos and diary entries

Enabled using tools which provide a list of contacts for each user, and with which users can interact

Generate much of their revenue through advertising which is served alongside the web pages set up and accessed by users.

Cyber bullying IssuesSocial network sites have also raised concerns about cyber bullying. The 2008 youth poll found that cyber bullying is affecting more than one in five young Australians. The poll found that 64% of those aged 15-20 belonged to a social network site and 22% had been harassed or bullied online. In Australia the Commonwealth Criminal Code sets out an offence of using a carriage service in a way that in menacing, harassing or offensive. Cyber bullying probably involves activity that should be prosecuted under other laws. Technology and the Net

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Some internet expert advocate a laissez-faire approach to information which means the net should not be regulated, however, it can be clearly seen that the internet provides many areas in which law is needed. The main aim of the law is to offer protection to vulnerable members in society and it is therefore necessary to have some form of regulation for the net. Technology in general is the biggest creator of new laws. Just like the development of the motor car or aeroplanes needed new laws, so does the development of the internet of the development in genetics. Laissez-faire – a French word meaning ‘allow to do’ which means limited government interference; often used in Economics.

Port Arthur Massacre

In 1987, Australia experience six gun massacres over the course of the year that resulted in a total of 32 deaths. Each of these incidents was premeditated and all were carried out by people who legally owned guns. The most well known of these occurred in Melbourne; the Hoddle Street Massacre and the Queen Street Massacre Responsiveness of the legal system to the Port Arthur Massacre

From 1998 Australia experienced a marked decrease in gun deaths handguns are a new threat after the shooting that occurred at Monash

University, Victoria After the Monash shootings, the ACC was formed. It is a statutory body

that develops strategies for dealing with serious and organised crime Total number of deaths per suicides, unintentional killings and homicide

had dropped dramatically Gun massacres remain a feature of life in the US and the sale of firearms

continues to grow every year. Port Arthur Massacre Timeline – Martin Byrant Saturday 28th April 1996 – Set off to Port Arthur, killed two people, David and Noelene Martin1:10 pm – Arrived at Broad Arrow Cafe where he purchased a meal and ate it on the deck. After eating, pulled out an AR-15 semi-automatic rifle from the bag and began shooting people at a close range. Moved to gift shop and did the same thing. Returned to the bag for additional ammunition. In the first 90 seconds he killed 20 people and injured 12.

- Shot and killed another 4 people, wounding others. Continued shooting people on the grounds of the historic site, then got into his car and killed 7 people, drove past the toll booth and onto the main road.

- Stole a BMW and killed the driver and passenger - Used BMW he was driving to block a Toyota Corolla. Forced male occupant of

Corolla into boot of BMW, killed female occupant, dragged her body out of the car and drove off with the male in the boot.

- Police Officer arrived and went in chase of Byrant - Returned to seascape guesthouse with hostage and burned BMW

2 pm – Police officers arrived9 pm – Special operations police team arrived29th of April 1996 – Byrant set fire to the house, taunting the police to come in and get him. Eventually he ran out where he was arrest and taken to hospital20th May 1996 – Bedside hearing. Charged with just one murder

Iana Wan | Year 11


22nd May 1996 – Byrant appeared via a video link from Risdon Prison to magistrate court from a remand hearing Following weeks – final charges: 35 murders, 20 attempted murders, 4 aggravated assaults, eight wounded, 3 grievous bodily harm, 1 arson, one unlawfully setting fire to a property.10th May 1996 – First photos of Byrant appeared. The Australian newspaper photo shopped him.

Law Reform

Australian society is constantly evolving and changing. Given the speed at which social values change, the law can sometimes seem anachronistic, or slow to respond. The saying often quoted is ‘Society moves ahead and the law limps behind’. The law needs to be similarly dynamic in order for the community to respect and follow it.In our language, the word ‘reform’ tends to connote an improvement, an advance: not just for change, a change for the better.Changes to laws should not only recognise the changes taking place in society, but should reflect those changes which have produced better circumstances for significant portions of society, as well as providing protections against harm. However, law reform is not always smooth or easy, as not all members of society may agree with particular changes to the law or see the need for them. The extent of disagreement often depends on the conditions that gave rise to law reform: in other words, on what is driving the need to reform the law.

Independent Commission against Corruption (ICAC)

It was established by the NSW government in response to growing community concern about the integrity of public administration in NSW. They are to:

Investigate and expose corrupt conduct in the NSW public sector Actively prevent corruption through advice and assistance Educate the NSW community and public sector about corruption and its

effects. The jurisdiction extends to all NSW public sector agencies (except the NSW police force). Corrupt Conduct is deliberate or intentional wrongdoing, not negligence or a mistake. It has to involve or affect a NSW public official or public sector organisation. Undetected and unchecked corruption in the public sector can cause serious damage including:

Undermining public trust in government Wasting public resources and money Causing injustice through advantaging some at the expense of others.

Timely reporting helps the ICAC and public agencies to deal effectively with corrupt conduct and prevent future corruption. Anyone can report corrupt conduct allegations to the ICAC.

Australian High Tech Crime Centre

Role is to provide a national approach to technology crime Areas of investigation include online fraud, mule recruitment and offensive

and prohibited internet content Make use of highly sophisticated techniques to intercept drugs and

firearms

Iana Wan | Year 11


Each state and territory has its own legislation, similar to Commonwealth legislation, covering computer related offences.

Australian Security Intelligence Organisation

Australia’s national security service was established under the ASIO Act 1979 (Cth)

All states have passed legislation allowing this Federal body to work within State borders, allowing all sections of intelligence gathering to be brought together to fight serious, organised crimes

Main role is to gather information that will help in the federal government and other law enforcement agencies such as the AFP to thwart attacks on Australia

Australian Crime Commission

Has both intelligence and investigate functions, including collecting and analysing data and investigating federally relevant criminal activity

Is a Commonwealth body who works with other federal and state agencies to counter serious and organised crime

Governed by rules about correct collection of evidence

Australian Customs and Border Protection Services

Name changed from Department of Trade and Customs to Australian Customs and border protection service in 2008

Key areas – Immigration, Quarantine, Family Law, Law Enforcement Work closely with AFP and Australian Quarantine and Inspection Service,

the Dept of Immigration and Citizenship and the Dept of Defence

Iana Wan | Year 11


Iana Wan | Year 11

legal studies prelim yearly notes

Documents