1.

Basic legal concepts

Law is a set of rules imposed upon all members of a community, which are binding, enforceable and
officially recognized.

Customs, rules and law

Customs are collective habits or behaviours which have developed in a society over time
Rules are regulations or principles for conduct in certain situations.
Laws differ from rules because: laws are binding on the whole community, they are enforceable (e.g. there
are penalties), they are officially recognised by the court and government, they are discoverable (e.g.
people can find out how it applies), they relate to the public interest, and they reflect rights and duties of
people.

Values and ethics

Values are principles or attitudes which a community hold as important

Ethics are concerned with choosing between values and what is right and wrong.

Characteristics of just laws:

A just law should be:

Equal (it treats everyone the Minimise delay (resolve disputes
same) quickly)
Widely held values Cannot be retrospective (only for
Utilitarian (achieves the greatest the future)
good) Must be known (Government
Redress inequalities Gazettes, Media)

The nature of justice

Equality: Laws apply equally to all people (exception doli incapax)

Fairness: Laws do not discriminate and will be fair to all those affected.
Access: Individuals must have access to legal information and assistance and understand
the system (in reality disadvantaged people dont really have this)

Procedural fairness

The idea that there must be fairness in resolving disputes, aka natural justice.
Involves the right to be heard, right to an unbiased decision maker, informing people of
the case against them and for decisions to be made only on logical evidence.

Rule of law

All people are equal before the law and none are above the law.
In R v Einfeld [2009] NSWSC, Marcus Einfeld, a Federal Court judge, committed
perjury and lied in court and received 3 years imprisonment.
People obey the law because it creates order, because it fits with their values, and because
they dont want to be punished.

Anarchy and tyranny

 Anarchy is the absence of law and government which often occurs during revolution or
natural disasters.
Tyranny is rule by a single leader who holds absolute power and usually involves severe
punishments for crimes.

2. Sources of contemporary Australian law

Common law

British Origins

Development of common law:

From the 6th century, the law was enforced by local bodies such as the church or
landlords (local customary law). Involved trial by ordeal and oath swearers.
From 11th century, after the Norman Conquest, there was William the Conqueror, so
judges travelled around to apply the same laws around the country. This created a set of
uniform laws throughout the country, the basis of common law.
Equity, precedent:
Equity: When people felt common law had been applied wrongly to their case, they
applied to a Chancellor who used rules of equity and fairness and Christian values to
judge each case on its merits. Nowadays, both rules of equity and common law are
applied in cases.
Precedent: Precedent is a judgement made in a court that establishes a point of law.
The doctrine of precedent is stare decisis (the decision stands). It ensures the law is
consistent and coherent.
A judges decision is made up of: ratio decidendi, the judges reasons and obiter
dicta, (said in passing) the judges other remarks.
A judge can avoid precedent by distinguishing a case (deciding it is sufficiently
different to a previous), by reversing a decision (appeals), and by overruling a lower
precedent.
Binding precedent is precedent of a higher court which is to be followed by a lower
court. Persuasive precedent is not binding but is useful precedent or cases from an
international court system or jurisdiction.
Adversarial system of trial: each side proves their case and disprove the other to an
impartial decision maker (judge/jury). Found in England and Australia.
Inquisitorial system: Part of the court (judge) is actively involved in conducting the trial,
including asking questions and deciding on witnesses and evidence. Found in Europe and
Japan.

Court hierarchy

There are both state and federal court systems. Summary offences are less serious heard
in lower courts and indictable are serious in higher usually with judge/jury.
State Court system:
 Local Court/Magistrates Court: A Magistrate hears and decides punishment. Hears
minor criminal (stealing, driving, traffic, drug possession) and civil (up to $100,000)
cases. Can hear committal hearings (determining whether prosecution has a strong
enough case to try defendant in a higher court).
Coroners Court: Investigates unexplained or suspicious deaths, performs coronial
inquests.
Childrens Court: Cases relating to criminal cases for children under 18 or care.
Land and Environment Court: Interprets and enforces environmental law.
District Court: More serious criminal (manslaughter, assault, robbery, drugs, sexual
assault) and civil ($100,000 - $750,000) cases. Hears appeals, cannot hear murder,
treason or piracy. Judge and sometimes jury.
Supreme Court: Highest state court. Deals with the most serious criminal (murder,
manslaughter, kidnapping, corporate law) and civil cases (no monetary limit). Hears
appeals, all cases have a judge and jury, but only a few civil have a jury.

Federal Court system:

Federal Circuit Court: Hears simple family law cases, lifts burden from Family and
Federal Court. Hears federal matters (family law, human rights, industrial law,
bankruptcy, consumer law, copyright, migration).
Federal Court of Australia: Hears civil federal law disputes, industrial and bankruptcy
matters.
Family Court of Australia: Complex family law cases (divorce, custody, division of
property). Most family law cases go through mediation (high court costs)
High Court: Highest court in Australia. Hears constitutional cases. Does not need to
follow precedent. Deals with appeals from all state and federal courts.

Statute law

Role and structure of parliament

All state and federal parliaments except QLD have a Lower and Upper House.
The Legislative Council is the upper and the Legislative Assembly the lower.
Parliaments with two chambers are bicameral.
Governor General must give royal assent to both referendums and bills.

Legislative Process

Any MP can introduce a bill from public demand; a backbenchers bill is a private
members bill.
A bill goes through: Draft bill (Cabinet), first reading (distribution), second reading
(detailed speech), committee stage (debate and amendments), third reading (vote), Upper
House (repeats process), Royal Assent (Governor General).

Delegated Legislation
 Delegated legislation is less important laws made by non-parliamentary subordinate
bodies such as departments or councils which have been delegated responsibility. Laws
are be made by experts and frees up parliamentary time.
Four types: regulations (by executive council), ordinances (for Australian territories), rules
(inside departments), by-laws (local council laws).

The Constitution

A constitution is a set of rules which applies to a group. The Australian Constitution is the
Commonwealth of Australia Constitution Act 1900.

Division of Powers

The Constitution divides the powers between the state and federal governments; this was
because during federation the states were nervous about losing their power.
Section 51 sets out the power of the federal government to make laws relating to the
matters in s51. These powers are also concurrent and are shared with states e.g.
education, health, transport. Powers not listed here are residual powers of the states e.g.
police, prisons, power, water.
Section 114/52 set out the exclusive powers of the Commonwealth parliament e.g.
immigration, defence, taxation.
Section 109 states that Commonwealth law always overrules state law.
- In Commonwealth v Tasmania [1983] HCA (Franklin Dam case), Tasmania wanted to
build a dam but the Federal Government passed the World Heritage Conservation Act
1983 (Cth). The High Court ruled using s109 that the Commonwealth law overruled the
state law.
Section 128 sets out the process for referendum; majority of people in majority of states
must vote yes, must have absolute majority and pass both houses. Only 8/44 referendums
have been successful.

Separation of Powers

The first three chapters of the constitution set out the three arms of government. It
ensures a check on each institution and ensures power is not abused.
Legislative is the parliament and Governor General and is responsible for making and
passing the law.
Executive is the Prime Minister and Ministers and departments, responsible for carrying
out and enforcing the law.
Judicial is the courts and applies and makes judgements about the law.
However, the Executive is part of the Legislative, and High Court judges are appointed by
Executive.
Responsible government is the idea that the Executive is responsible to and must maintain
the support of the majority of the Lower House which is directly elected.
Role of the High Court

s71 created the High Court of Australia

The original jurisdiction concerns cases about the interpretation of the constitution. All
seven judges hear these cases.
- In Murphyores v Commonwealth [1976] HCA, Murphyores Inc., which held leases from
the QLD Government to export sand from Fraser Island, took the Commonwealth to the
High Court because it had prohibited the export of the sand under its trade and
commerce powers in s51. The High Court ruled that the Commonwealth had used its
constitutional powers validly and thus the law was upheld.
Appellate jurisdiction is the High Courts right to hear appeals from Federal Courts,
Supreme Courts and its original jurisdiction. They must be granted special leave, and they
generally relate to disputed legal contentions or significant matters.
- In Harriton v Stephens [2006] HCA, Alexia Harriton, a severely disabled woman, bought
action against her mothers doctor. The mother had contracted rubella virus when she was
pregnant, and claimed she would not have had the baby if she had known she was sick;
the High Court ruled that there was no way of comparing damages for life and non-life.
Judicial review involves the review of a governments decisions by a court of law. The
Federal Court undertakes judicial review under Administrative Decision Act 1977 (Cth) and
appeals go to the High Court. The Administrative Appeals Tribunal is non-judicial review
which can review on merits rather than strict criteria.

Aboriginal and Torres Strait Islander Peoples customary law

ATSIC law is based on tradition, rituals and customs. It is known as customary law, meaning it
has developed over time as principles according to the customs of the people.

Diversity of customary law

Australia is a large land mass, and there are many different Aboriginal groups which have
over 200 languages and customs.
However there are still common aspects, such as the involvement of community in
punishment and respect for elders.

Spiritual basis, significance of land and water

The source of ATSIC law is the Dreaming, which is the history of the Indigenous peoples
and explains how the land, sky and animals were created.
Land and water belongs to a group and not an individual, thus each tribe has distinct
responsibilities to their land and water.
Loss of land means loss of culture and history.

Family and kinship

All family relationships are important and dictate how everyone treats each other
 Elders receive the most respect.

Ritual and oral traditions

Customary law is passed down orally through the generations through songs, dance and
stories.
Some laws are only known to certain genders or certain age groups. There are
punishments for learning forbidden secrets.
- In R v Sydney Williams [1976] SASC, Sydney Williams killed his wife for speaking
forbidden secrets but the judge ruled that provocation was extreme and it was a tribal
matter. He was charged with manslaughter and a good behaviour bond.

Mediation and sanctions

Offences may be breaches of laws or offences against others or their property.

Elders are often directly involved in mediation and conciliation.
Relatives of the victim may be involved in punishment through payback, which can involve
spearing in the thigh, ridicule or death.
- In R v Wilson Walker [1994] SCNT, Wilson Walker killed a man and was charged.
However the judge gave him a good behaviour bond because of his difficult background
but required that payback be performed. However sufficient time had already elapsed
since the murder so payback couldnt be performed.

Relevance to contemporary Australian law

In sentencing of Aboriginal offenders, customary law can be taken into account, e.g. circle
sentencing, where the magistrate and elders sit to discuss the offence and develop a
sentence, as well as in payback and mitigating factors (above).
Aspects seen in Australian law: Mediation used in in family, industrial relations and young
offenders cases, also environmental sustainability
There is much debate about the recognition of customary law. This includes the legality of
traditional (child bride) marriages, needing to accommodate other minoritys laws, and the
rejection of the rule of law. Legislators have been reluctant to formally incorporate ATSIC
law into Australian law.

International Law

Differences between international and domestic law

International law relies on agreement between nations.

Thus it lacks enforcement. No state can be forced to obey a law; however sanctions and
occasionally peacekeeping forces can be used.
Based more on customary law, treaties and agreements rather than statues. Countries
follow international law because of reciprocity (so others do too) and legal responsibility
(want to be seen as law abiding).
State sovereignty

State sovereignty is the authority which a state has to make and enforce rules for its
population.
It means international law cannot be enforced and does not need to be followed. States
may ignore international law if they feel it is in their best interests.

Sources of International Law

International customary law is non-written law based on traditions followed by many

nations. It includes condemnation of slavery, genocide and war. Some principles of
customary law are jus cogens, meaning they are so widely accepted they are considered
fundamental principles. Sometimes customary law is adopted into treaties. Opinio juris is
the idea that a state follows a law because it is law.
Legal instruments are international agreements between states in written form. Treaties
can be bilateral or multilateral. A country must ratify a treaty (formally confirm it will be
bound by it) and in some cases, codify it (adopt it into domestic legislation). Declarations
are not legally binding provisions. Rather they clarify a states position on issues, such as
the Universal Declaration of Human Rights or Rights of Indigenous Peoples.
Legal decisions are decisions made by international courts such as the International Court
of Justice, which deals with disputes between states. There is no binding precedent but it
can be persuasive. There is also the International Criminal Court (for individuals) and the
European Court of Human Rights.
- In Congo vs. Rwanda [2002] ICJ, Congo accused Rwanda of launching armed attacks
across its border. Rwanda was not a signatory to any relevant conventions and thus the
ICJ had no power.
- In Australia and New Zealand vs. France [1974] ICJ, the two countries launched a case
against Frances nuclear Pacific testing, fearing nuclear contamination. However France
refused to accept the ICJs authority and the ICJs decision had no impact.
Legal writings are writings of lawyers, judges and academics used in ICJ decisions or
interpretations of treaties, e.g. the Independent International Legal Panels 2007 advice to
the Australian Government on the legality of Japanese whaling.

Role of International Organisations

The United Nations is the chief organisation involved in international law. It has 193
members. Its main objective is to maintain global peace and security, develop
international relationships and achieve international cooperation in issues. It has six main
arms: the General Assembly (main forum for multilateral discussion), Security Council (has
final say over security and peacekeeping operations, has five permanent and ten non-
permanent members, needs unanimous permanent votes), ICJ (15 permanent members),
Secretariat (administrative staff), Economic and Social Council (economic, social, health
 educational issues) and Trusteeship Council (supervises independence of nations,
disbanded in 1994).
Courts and tribunals include the ICJ, as well as the ICC which was set up by the Rome
Statute 2002. It deals with individuals charged with serious crimes against humanity e.g.
Darfur situation. Ad hoc/war crime tribunals are set up to try individuals convicted of war
crimes e.g. Nuremberg Trials, International Criminal Tribunal for Rwanda (1994).
Intergovernmental organisations are organised groups of nation states, pursuing mutual
interests in areas such as refugees, finance and environment. Examples include WHO, IMF,
EU and APEC.
Non-governmental organisations are groups based around common aims separate from
governments. They contribute to such areas as world peace, human rights, poverty and
the environment through lobbying and awareness. E.g. Greenpeace, Oxfam, the Red
Cross and Amnesty.

Relevance to contemporary Australian law

Australia is a party to many international treaties e.g. Convention on the Rights of a Child
incorporated into Family Law Act 1975 (Cth) and organisations such as WHO and
UNESCO. Treaties must be codified.
Australia has been part of UN peacekeeping activities in East Timor.
International law has been used in domestic cases, e.g. UNESCO World Heritage listing of
the Franklin River, Convention on the Rights of a Child in Minister for Immigration and
Ethnic Affairs v Teoh [1995] HCA.

3. Classification of law

Public law

Public law deals with the relationship between the government and the people.

Criminal law is the body of law under which acts are punishable by the state. It maintains
safety and social order. It is the responsibility of each state. Crimes Act 1900 (NSW).
Administrative law regulates government decision making. It ensures the accountability of
government actions. It can be achieved through: internal review (by another in an agency),
external review (ombudsman, tribunals), and judicial review (federal and high courts).
Constitutional law relates to interpretation of the Constitution of Australia. Can deal with
separation and division of powers. Only in High Court, heard by one or more judges and
has binding decisions.

Private law

Private law deals with the relationships between individuals, companies and organisations.
 Contract law deals with agreements and promises between parties. Damages are the
general remedy and compensate the plaintiff. Plaintiff can seek an injunction (order to do
or not do something) or specific performance (performing the contract out)
Tort law deals with civil wrongs. Torts are someone interfering with the rights of someone
else or their property. Unlike contract law, there does not need to be a legal relationship
between the parties. Torts include: negligence, nuisance, trespass, false imprisonment,
defamation. (Donoghue vs. Stephenson case)
Property law deals with things and interests that can be owned and have a commercial
value. Can include physical (real property) or intangible interests (shares, patents,
copyright, intellectual property). Can be dealt in either criminal or civil courts and usually
involves breach of contract law.

Common and civil law systems

Civil law systems have a pre-set of rules (code of law) which are applied by judges in cases, comes
from the Roman system, with inquisitorial trials. However, in common law, the rules are derived
partly from precedent.

4. Law Reform

Law reform is the improvement and change of law to recognise changes within society.

Conditions that give rise to law reform CAUSES

Changing social values: Social values are the standards that guide people in their thinking.
The law must reflect the social values of the majority of the community to stay relevant.
Public morality continues to evolve; the law usually lags behind. E.g. rights for de facto and
same sex relationships which are now seen as normal in De Facto Relationships Act 1984
(NSW)
New concepts of justice: When the law is unable to deliver just outcomes to the
community, new concepts of justice need to be formulated. For example capital
punishment is no longer seen as effective or moral; the concept of justice shifts from
retribution to punishment. This is also seen in Youth Justice Conferences in Youth
Offenders Act 1977 (NSW), NSW Drug Court, Circle Sentencing.
New Technology: Advances in technology pressure the law to remain current.

Agencies of reform INVESTIGATION AND REPORTING

Law reform commissions: Established by parliaments to independently recommend

modernization of the law. E.g. Australian Law Reform Commission and NSW Law Reform
Commission.
Parliamentary Committees: Scrutinise government actions such as policy and
administrative decisions, where there may be insufficient time for the parliament to do so.
Can be set up by either house and can be a joint committee (MPs and Senators). A
 standing committee is for the whole term, a select committee is once off. Can hear
witnesses, evidence, experts and public.
The Media: Keeps citizens informed which allows for public pressure to be put on
government. Can also bring attention to individuals badly affected by law e.g. sexual
abuse victims.
Non-governmental organisations: Can be a source of information on specific issues and
lobby governments for change. Some are very powerful e.g. Amnesty, RSPCA

Mechanisms of reform HOW IT HAPPENS

Courts: Achieve law reform through precedent. They do not actively seek law reform and
it happens over time. The High Court has delivered reforming decisions e.g. Mabo case.
Parliaments: As parliament makes law, law reform is most released here, through the
passing of bills. The impetus comes from conditions and agencies of reform.
United Nations: For law reform between nation states. Can occur through courts or
through treaties and subsequent domestic legislation.
Intergovernmental Organisations: Decides upon issues and thus contribute to international
law reform through treaties and agreements.

5. Law Reform in Action

Native Title

Native title is the name for general ownership rights and interests of Indigenous peoples to their
traditional lands. It differs from land rights, which is the specific legislative response regarding
leases for land.

Terra Nullius

Terra Nullius is a doctrine which states that a land has no civilised inhabitants and is thus
unoccupied. It was applied by the British to Australia in 1889 and thus extinguished any rights
Aboriginals had to the land.

Roles of the High Court and Federal Parliament

Only the Federal and High Court can determine native title. The High Court is a court of last resort
and has thus handed down important decisions regarding native title. The Parliament enacts
legislation to recognise native title, usually in response to public pressure, debate and lobbying.

Major Native Title Decisions and Legislation

In Mabo v Queensland (No.2) [1992] HCA, the High Court ruled that Australia was not
terra nullius, native title may have been extinguished, and that the Merriam people had
rights to possess and use the Murray Islands.
Native Title Act 1993 (Cth) was passed in response. It provided recognition of native title,
and most importantly, provided procedures for determining native title claims and
 subsequent dealings. The Act created the National Native Title Tribunal which mediates
native title issues, such as negotiating agreements between parties with interests.
In Wik Peoples v Queensland [1996] HCA, the Wik people of Cape York launched a native
title case to pastoral lease land. The High Court ruled that native title and pastoral rights
can co-exist, but that the farmers rights would prevail if there was conflict.
Native Title Amendment Act 1998 (Cth) ruled that the rights could co-exist, that tough
tests are required for native title, and that pastoralists do not need to consult those with
native title interests.
In Yorta Yorta People v Victoria [2002] HCA, the High Court upheld that the Yorta Yorta
people did not have native title, as they didnt have continuous, uninterrupted observance
of traditional customs on the land, which had a significant effect on the future of native
title law, showing the amount of evidence needed to prove native title.
In Yarmirr v Northern Territory [2001] HCA , the Yarmirr people sought to have native title
over an area of sea around Croker Island. They were granted native title, but this was not
exclusive as it would contravene common law fishing rights and international maritime
rights.

Drug Use and the Law

Conditions for law reform

New concepts of justice: War on drugs is seen as a failure (Australia 21 report);

criminalisation simply creates a cycle of drug use, more focus on rehab and harm
reduction approach.
New Technology: Clinical trials have disproved beliefs about health effects of marijuana
Changing social values: It is still socially unacceptable but stigmas have relaxed; seen as a
social health problem; Colorado and Washington marijuana is legal.

Agencies of reform

Law Reform commissions: e.g. Legal Affairs committee Law Reform Issues Regarding
Synthetic Drugs pushed for drug law reform
The Media: publishes sympathetic articles e.g. Changing drug laws is a political problem
SMH
Parliamentary committees: e.g. NSW Legislative Council Drug Treatment Inquiry 2012
NGOs: The Buttery and Lyndon Community provide drug treatment in a residential
environment.

Mechanisms of Reform

Courts: Drug Court of NSW deals with criminal offences involving a drug addiction and
prescribes treatment.
MERIT system (Magistrates Early Referral into Treatment) provides Local Court defendants
with rehab as a condition of bail.
 Parliaments: Drugs Misuse Trafficking Act 1985 (NSW) prohibits certain drugs, with
different severities for possession and commercial supplying, aimed at deterring drug
dealing.
Customs Act 1901 (Cth) controls exports of drugs, reducing the amount of drugs traded
overall.
Summary Offences Act 1988 aims to reduce syringes and drug dealing in prisons and
detention.
United Nations: UN Drug Convention 1988 ( war on drugs); United Nations Office on
Drugs; Convention on Narcotic Drugs 1961 (prohibits specific drugs)
Intergovernmental Organisations: Kings Cross Injection Room supervises drug injections
under registered nurses, reduces discarded syringes and emergency scenarios.
Methadone Maintenance Treatment involves the long term prescribing of methadone as
an alternative to opioid (e.g. heroin) addiction.

THE INDIVIDUAL AND THE LAW

1. Your rights and responsibilities

The nature of individual rights

Rights are entitlements by moral or legal authority which cannot be taken from a person.

Responsibilities are legal or moral obligations which a person has to others or to the state.

Types of rights include: legal rights (e.g. right to religion, right to silence), civil/political rights (right
to expression), economic/social/cultural rights (right to fair work, right to education),
environmental rights (clean water), and consumer rights.

Relationship between responsibilities and rights

All rights have corresponding responsibilities. Where someone has a responsibility to another
person, that person has a right to be treated that way. Where citizens have particular rights, the
state has a responsibility to ensure they arent violated.

2. Resolving Disputes

Roles of police and law enforcement agencies

Each state and territory has its own police force. Federal police enforce federal law and crimes
across states. It can sometimes prevent and detect Commonwealth crimes by Australians
overseas.
Also note: Australian Customs and Border Service; Australian Crime Commission (cross jurisdiction
organised crime); Australian High Tech Crime Centre; ASIO

Resolving Disputes between individuals

Alternative dispute resolution: Dispute resolution processes which are alternatives to

traditional court proceedings, which can be very costly. There are three main types:
- Negotiation (discussion between the parties in order to reach a mutually beneficial
solution),
- Mediation (a third neutral party skilled in mediation helps with negotiations)
- Conciliation (the conciliator provides alternatives/input as they are educated in the
matter)
- Arbitration (dispute referred to an independent arbitrator who imposes a decision)
Tribunals: Tribunals are made up of members and are set up to provide faster, more
informal processes for settling disputes. There are hundreds of tribunals, such as the
Administrative Appeals Tribunal, the Migration Review Tribunal and Consumer, Trader and
Tenancy Tribunal
Courts: Is the more expensive option.

Resolving Disputes with the state

Non legal methods

Media: Citizens inform the media of unjust/unfair decision which can influence
government actions.
MPs: Citizens speak to local MPs who may take the issue back to Parliament for debate.
Trade Unions: Unions can help negotiate workplace disputes with employers and discuss
agreements, wages and changes. E.g. Teachers Federation in 2008/2009
Interest groups: Can appeal to these groups in order to affect government and public.

Legal methods

Internal review
- Government reviews can be undertaken internally and although it is cheaper, it may
have a biased result
External review
- The Administrative Appeals Tribunal hears appeals against federal decisions, also note
the NSW Administrative Decisions Tribunal.
- The Ombudsman acts as a formal external control, with legal power to investigate
citizens complaints.
- The NSW Anti-Discrimination Board ensures people are protected from discrimination
and can issue fines.
- Royal Commissions are set up to investigate serious state/federal matter, and produce
a report containing recommendations.
 - ICAC investigates alleged government corruption. It cannot prosecute but reports on
the issue.
- Australian Human Rights Commission advocates for a more tolerant and equitable
community and conducts research and investigates complaints.

3. The Individual and technology

Impacts of Technology on the Individual

Privacy: Now more advanced CCTV technologies (e.g. facial recognition) which can help
prevent crime but may infringe on liberties. E.g. Opal card information can be given to police
Opal card privacy is no protection for users SMH 2014
Gene technology and DNA: Genome mapping could be used in insurance; has ethical issues
as patient may wish to not know that they are at risk of contracting an illness; could be used
by employers discriminatorily.

Legal Implications and Difficulties with Enforcing Rights

Technology crime is global, facilitates anonymity and creativity.

Rapid advances in technology mean new laws must be created; there is very often law lag.
Many crimes such as keylogging, hacking occur out of the jurisdiction of countries e.g.
Malaysian Airlines Facebook pages and fraud.
Hacking: Provisions to the Crimes Act 1900 (NSW) were added to s308 in 2001 which set out
computer offences such as hacking, also the Spam Act 2003 (Cth)
Workplace surveillance: Workplace Surveillance Act 2005 (NSW) sets out strict rules
(employees must have prior notice of any surveillance; no blocking of emails/internet relating
to industrial matters)
Copyright: Copyright Act 1968(Cth) has needed to be changed over time; originally the
internet didnt exist.
Must happen through case law e.g. Universal Music Australia v. Sharman Holdings [2005] FCA
where copyright holders claimed Kazaa had breached their copyright by authorizing
downloads of copyrighted materials. The court found that the site breached the Copyright
Act and the site was suspended.
International treaties include WIPO Copyright Treaty (1996) which provided additional
copyright protection in face of new technology.
Gene technology: DNA testing can be used to solve cold cases and crimes, often after many
years, which creates privacy issues. Juries often believe that DNA evidence is irrefutable which
is not always the case (they might have just been at the scene)
Gene Technology Act 2000 (Cth) requires licences for gene technology. Prohibition of
Human Cloning Act 2002 (Cth) criminalises creation of human embryos for cloning. Crimes
(Forensic Procedures) Act 2000 (NSW) sets detailed procedures for DNA collection.
Amendments have been made defining which crimes DNA testing can be used for (s 11) and
how long samples can be kept (s 88).
Technology and the law case studies

Examples of technologica challenges to existing laws

- Consumer
- Discrimination
- Family
- Employment

Legislation

- Work place Surveillance Act

- Copyright Act
- Gene technology Act 2000 (Cwlth)
- Human Embryos 2002 (Cwlth)