Courses Arts Legal 1535888209 2018 Legal Studies Notes

LEGAL NOTES:
1-BASIC LEGAL CONEPTS: THE LEGAL SYSTEM
What is law?
Law can be defined as a set of enforceable rules of conduct which set down guidelines for relationships
between people and organisations in society.
Laws are rules that have been made by a sovereign power and apply to everyone in the area they
control.
Balance of Probabilities: The standard of proof required in civil cases, i.e. it is more probable than not
what the person says happened is true. (In criminal cases, the standard of proof is beyond reasonable
doubt)
Beyond reasonable doubt: the standard of proof required in criminal cases.
Burden of Proof: The obligation to prove what is alleged. In criminal cases, this obligation rests on the
prosecution, which must prove its case beyond reasonable doubt. In civil cases, it rests on the plaintiff,
who must prove his or her case on the balance of probabilities. Sometimes, however, this burden shifts,
for example, where the defendant raises particular defenses.
Standard of Proof: The required level to which something must be proved in court. In criminal matters,
the standard is "beyond reasonable doubt"; in civil matters, "on the balance of probabilities".
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Sovereign power: Person or institution that has the authority Prajapati-
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laws. E.g. Legal Studies
Courts, parliaments and
organisations to which parliaments have delegated law-making power.
Legal terms:
Law: These are rules that have been made by a designated authority and are officially recognized. They
apply to everyone in that situation and are enforceable.
Customs: Traditional ways of behaving. People in a community behave this way so often that it becomes
expected all the time.
Rules: Instructions on what is allowable behavior in certain situations. They may be written down or
shown through symbols. Rules differ from laws in the sense that they are not legally enforceable, and
rules differ to customs as they are written instead of being expected.
Values: These reflect society’s judgement about a situation and what is important.
Ethics: This is the right way to behave in a situation. Ethics are usually reinforced by laws that suggest
the correct behavior.
Just laws: This concept of whether a law is just or not depends on the society and on the values and
ethics held by an individual. It is a subjective concept.
Justice: This is a combination of equity, fairness and access. It is an ideal that the legal system strives to
achieve.
Equality: This means that everyone should be treated in the same manner; that is be given equal
opportunities or equal treatment.
Fairness: Means to be free from any bias or dishonesty. This differs from equality because its aim is to
achieve equal outcomes for people.
Procedural fairness: Rules or procedures to be followed to ensure justice is done.
Natural Justice: This is a concept that all people will be heard and be able to have their case conducted
fairly.
Access: This refers to the right to see and use information, availability of legal processes and the
opportunity to meet with legal counsel.
Rule of law: Meaning that no-one is considered above the law; not even the sovereign power who made
the law. The law applies to everyone.
Anarchy: “No laws”; a situation where society is in chaos because there is no one to enforce the law.
Tyranny: Cruel, harsh, unfair government where a person or a group has power over everyone else.
Laws, rules and Customs
Laws Rules
To be obeyed by all citizens of a society To be obeyed by specific individuals or groups
Made by a law-making body Made by individuals or groups
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Consequences of a breach results in a Consequences of a breach are at the discretion of
sanction/penalty by the court the leader of the group.
CUSTOMS:
- Customs are traditional ways of behaving

- Develop when behavior in a particular situation becomes so common that the members of a
community expect it to happen all the time.
- Customs are not recorded in written form.
- Customs are enforced by social pressure.
- When a custom is followed by most of the population over time, it may become part of that
society.
VALUES AND ETHICS:
- For a society to operate effectively it must reflect the values and ethics of society.
- They both concern what is good or right or fair.
- Values are principles or attitudes that we hold as important.
- Ethics are a set of moral beliefs governing behavior and are concerned with what we should do
and what is right in a particular situation.
- Living according to our ethics means doing things that we consider to be morally right.
- Lawmakers try to incorporate these values and ethics into our laws.
CHARACTERISTICS OF A ‘JUST’ LAW:
- Justice is a principle of upholding generally accepted rights and enforcing responsibilities.

- A just law is one that allows everyone to receive fair treatments and outcomes and ensures that
human rights are recognized and respected.
THE NATURE OF JUSTICE:

- The idea of justice relates closely to the ideas of equality, fairness, values and ethics.
- The law attempts to be just, but a legal system can only be as just as the society from which it
stems.
- The role of the legal system is to ensure that all people have access to the law and that the law
provides equality, fairness and justice to all members of society.
- Equality, fairness and justice are important concepts as we use them to distinguish a good law
from a bad law.
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Equality means that all people are treated equally with Prajapati-
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civil rights
and opportunities.
- Fairness and justice are usually associated with each other.
o Fairness is about achieving equal outcomes for all.
o Justice is more related to the law.
PROCEDURAL FAIRNESS AND THE RULE OF LAW:
- Procedural fairness refers to the idea that there must be fairness in the processes used to
resolve disputes. – Also referred to as the doctrine of natural justice.
- Natural justice refers to the fact that everyone should be treated fairly in legal situations.
- There are two main principles of natural justice:
o The right to be heard, includes the right to a fair hearing (fair hearing rule)
o The right to have a decision made by an unbiased decision-maker. (no bias rule)
2-Sources of Contemporary Australian Law: The Legal System
LEGAL PROCESSES:
- Legal processes and practices used in Australia today are based on the model developed in
England. They brought with them the law that applied in Britain, known as common law.
COMMON LAW:
- The term ‘common law’ has several meanings depending on the context in which it is used.
Common law in Australia refers to the following:
o Laws that come from the decisions of judges as opposed to the laws that come from
parliament. (statute law)
o System of law that the country uses. The common law system refers to the system of
court-based law used in Britain and other former colonies of the British Empire.
- Today, common law is the law developed by the courts, the decisions of judges and the use of
the doctrine of precedent.
PRINCIPLES OF EQUITY:
- Equity is one of the unique developments of the British legal system.

- Was designed to supplement the common law.
4 - Over time, two types of judge made law developed:Mohnish
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law and equity law. Legal Studies
- If rules of equity and common law clashed, the rules of equity were applied.
- Common law usually requires a person to pay a sum of money as damages to another party.
- Equity law provides other remedies such as inunctions and specific performance orders.
Common law Equity law

A complete legal system A series of isolated principles
Common-law rights are extended to all Rights of equity are only valid to those people
people specified by the court.
Common-law remedies are enforceable at Equitable remedies must be applied for
any time promptly
Common-law is non-discretionary and must Equity is discretionary.
follow precedent
THE SYSTEM OF PRECEDENT:
- The doctrine of precedent is the rule that a legal principle that has been established by a
superior court should be followed in other similar cases by that and lower courts.
- The doctrine of precedent was developed to promote consistency in decision-making by judges,
on the basis that like cases should be determined in a like manner.
- The purpose of precedent is to ensure that people are treated fairly, and the law develops in a
consistent fashion.
- Generally, a judge in any court must follow the decisions that have been made in a higher court.
A judge is bound to follow decisions made at the same level of the court hierarchy to ensure
consistency, but in higher courts a judge is able to make a decision about the law that is
different from the precedent, if the precedent is declared to be wrong.
- When a judge makes a decision in a case, there are two main parts to the decision:
o Ratio decidendi- The rule of law in which a judicial decision is based.
o Obiter dicta- a judge's expression of opinion uttered in court or in a written judgement,
but not essential to the decision and therefore not legally binding as a precedent.
- There are two kinds of precedent:
o Binding, which means that the precedent must be followed if precedent is relevant and
the circumstances of the case are sufficiently similar. A precedent is binding on a court if
made by a superior court that is higher in the hierarchy of courts (e.g., decisions of the
High Court are binding on all courts in Australia, but a decision of the Supreme Court is
not binding on the High Court, and a decision of the District Court is not binding on the
Supreme Court).
o Persuasive, which means that the precedent should be seriously considered, but is not
required to be followed. A precedent is persuasive if it was established by a superior
court that is not higher in the hierarchy of courts. For example, a precedent established
by the Supreme Court of New South Wales is persuasive but not binding on the
Supreme Court of Victoria. Decisions of superior overseas courts, particularly from the
5 UK, are persuasive precedents in Australia. Mohnish Prajapati- Preliminary Legal Studies
THE ADVERSARIAL SYSTEM OF TRIAL:
- Adversarial System of Trial: System of trial used to resolve disputes, in common law countries
such as Australia and England, where two sides of the case present their cases to an impartial
decision-maker.
- Features of the Adversarial System of Trial:
o Each party is usually represented by a barrister or a solicitor who presents evidence to
support of their case
o Both parties have the opportunity to test the evidence of the opposing side by
questioning their witnesses – this is called cross examination
o The court does not conduct its own investigation, or construct its own version of events
and the judge cannot cross‐examine a witness
o the outcome of the case is decided by a judge/magistrate or jury
o If a jury is present, they will decide issues of fact and the verdict (decision) and the judge
will decide matters of law
o Judge/magistrate takes a passive role in the case and makes a decision based on the
evidence before them.
- The adversarial system may be contrasted with the inquisitorial system which is used in
countries such as France, Germany and Japan. It is based on civil law rather than common law.
- Important features of the Inquisitorial System:
o There are two opposing parties in the case.
o Each party presents their version of the facts to the court.
o The judge questions the submissions of the parties to try and decide the facts of the
case.
o The judge may not have been a lawyer prior to becoming a judge.
o The judge is actively involved in conducting the trial and determining what questions to
ask.
o The judge is able to call witnesses to appear before the court.
o Witnesses are not subject to cross-examination by the other party.
THE COURT HEIRARCHY:

- Local Courts:
o All states in Australia have a system of lower courts located in most major towns and
metropolitan centres.
o They are presided over by judicial officers called magistrates.
 Magistrates are appointed from members of the public service, practicing
barristers, solicitors or academics.
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o Local courts hear minor civil matters involving money up to $60,000 and they hear a
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summary criminal matters; which are crimes such as stealing, assault and possession of
drugs.
o One of the most important functions of local courts is to conduct committal hearings for
indictable offences (serious offences).
o A committal hearing is a hearing to determine whether the prosecution can establish
that there is sufficient evidence of a case against the accused person for the prosecution
to proceed to trial in the District Court or the Supreme Court.
 If the accused pleads guilty to an indictable offence at the committal hearing,
the Local Court can commit the person to a higher court for sentencing.
- District Courts:
o Intermediate level of court between the Local Court and Supreme Court.
o Have both civil and criminal jurisdictions, and are presided over by judges
o Are established under the District Court Act 1973.
o Hears a wide range of matters, and regularly sits in regional areas.
o Judges of District Courts are appointed from practising solicitors with at least 7 years’
experience or practising barristers with at least 7 years’ experience.
o District Court has a wide jurisdiction and hears matters such as:
 Serious criminal offences, including drug offences, manslaughter and serious
sexual offences, but not murder or treason.
 Civil cases such as debt recovery or personal injury claims involving money up to
$750,000- or larger amounts if the parties agree to the District Court dealing
with the matter-
 The court has an unlimited jurisdiction in claims for damages for personal injury
arising out of a motor vehicle accident
 Appeals from the Local Court and the Children’s court.
o The District Court hears most of the serious criminal cases that come before the courts
in the state.
o Criminal cases are heard before a judge and a jury of 12 citizens.
o The jury decides the accused’s guilt or innocence, while the judge controls the
proceedings, and if the accused is guilty, the judge imposes the sentence.
o In civil cases, sometimes have a jury of 4 citizens to decide questions of fact and to
assess the damages.
- Supreme Court:
o Each state or territory has a Supreme Court, presided over by a Chief Justice and a
number of judges.
o Usually high experienced solicitors or barristers.
o Title is ‘The Honourable Justice’
o NSW Supreme Court was established in 1823 and is regulated by the Supreme Court Act
7 1970. Mohnish Prajapati- Preliminary Legal Studies
o The Supreme Court hears serious civil cases involving amounts of money over $750,000
and hears serious criminal cases involving murder, treason and piracy.
o Areas of civil law dealt with by the Supreme Court include:
 Contracts and torts
 Equity (such as matters involving trusts)
 Probate (matters involving the validity of wills and the functions of executor of
wills, or administrators if the deceased died without a will.)
 Admiralty (matters involving ships)
 Commercial (such as building disputes)
o The Supreme Court may also hear matters under the Commonwealth where the
Supreme Court has been vested with federal jurisdiction.
o The Supreme Court has powers that are not available to lower courts. E.g. the Supreme
Court has the power to prerogative writ to a lower court or to a government officer if
the court or officer has made a decision that is outside their jurisdiction, or has failed to
perform their duty, or has made an error of law.
LOWER COURT → DISTRICT COURT→ SUPREME COURT → HIGH COURT (left to right: lowest ranked to
highest ranked)
- Land and Environment Court:

o NSW Land and Environment Court is a specialist superior court established in 1979
under the Land and Environment Court Act 1979 to hear disputes relating to:
 Land development
 Local government
 Land tenure
 Land valuation
 Environmental crimes such as pollution and some Native Title and Aboriginal
Rights matters.
o Has status that is equal to the Supreme Court, but in some circumstances, they can
operate in a more informal matter, without being bound by the rules of evidence and
procedure.
o Not all decisions and verdicts of the Land and Environment Court are made by judges;
the Land and Environment Court has Commissioners and Assessors.
 Commissioners hear cases involving building applications, development
applications and valuations
 Assessors make expert assessments. Judges of the Land and Environment Court
only hear cases involving criminal offences, civil enforcements, appeals against a
decision of a Commissioner or Assessor, or cases that raise important issues of
law.
- State Coroner (Coroners’ Court)
o The function of coroners are to investigate certain deaths, suspected deaths, fires and
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explosions, as set out in the Coroners Act 1980 (NSW).
o The State Coroner overseas and coordinates coronial services in NSW, assisted by the
Senior Deputy and Deputy State Coroners.
o Certain deaths must be reported to the coroner. E.g. the death of a person who died in a
violent or unnatural death, or a death where a medical practitioner has not issued a
certificate stating the cause of death, are reportable.
o The coroner will hold an inquest if the law requires an inquest to be held, or if the
coroner believes an inquest is necessary.
o An inquest is a court hearing to determine the identity of the deceased and the date,
place, manner and cause of death.
o A coroner must conduct an inquest if:
 The person’s identity, date, place, manner and cause of death have not been
sufficiently disclosed.
- Children’s Court:
o Children’s court has the same status as the Local Court.
o Established under the Children’s Court Act 1987.
o The Chief Magistrate of the Local Court may appoint magistrates of the Local Court as a
specialist Children’s Magistrates, including a Senior Children’s Magistrate.
o To qualify as a Children’s Magistrate, a magistrate must have had training in the social
or behavourial sciences or experience in dealing with children.
o Criminal:
 The Children’s Court deals with children (under 18s) charged with summary
criminal offences, and some indictable offences, if the child was under 18 when
the offence was committed and under 21 when the offence comes to court.
 Proceedings in the Children’s Court are generally closed to the members of the
public.
- Federal Magistrates Court:
o Was created in 2000 with the aim of providing faster and cheaper legal outcomes.
o Some areas of the Federal Magistrates Court deal with include
 Family law matters
 Bankruptcy cases
 Consumer protection cases
 Appeals from the Commonwealth tribunals such as the Australian Human Rights
Commission
 Doesn’t deal with criminal cases.
- The High Court:
o Highest court in the Australian judicial system.
o Established in 1901 by section 71 of the Constitution.
o Functions of the High Court are to interpret and apply the law of Australia; to decide
cases of special federal significance including challenges to the constitutional validity of
laws.
o The full bench of 7 justices is used.
o The court also hears appeals from Federal and State courts
STATUTE LAW:
- Statute law is made by parliament. Also known as ‘legislation’ or ‘Acts of parliament’
- A piece of statute law is referred to as a ‘statute’
- In Australia, statute laws are made by parliament.
- Statute law is considered to be superior to common law.
- Legislation has the power to alter common law and, in cases where common law and statute law
conflict, statute law has precedence (applies).
ROLE AND RESPONSIBILITIES OF THE AUSTRALIAN PARLIAMENT:
- A parliament is a body of elected representatives.

- The role of parliament is to debate proposed legislation, pass or reject it and amend legislation.
- All state parliaments and federal parliaments are bicameral- meaning that they have two
houses: an upper and lower house.
- In NSW the lower house is called the Legislative Assembly and the upper house is called the
Legislative Council.
- In federal parliament, the houses are the Senate (upper house) and the House of
10 Representatives (lower house). Mohnish Prajapati- Preliminary Legal Studies
- The government is formed by the political party that has the majority of seats in the lower
house.
- The Governor-General is the representative of the Queen in Australia.
THE LEGISLATIVE PROCESS:
- The Australian Constitution determines which areas of the law each level of government has the
power to make laws about.
- A proposed new law is called a ‘bill’
- Ministers are members of parliament who have a special responsibility for a particular
department such as education or defence which is referred to as a portfolio.
- The Governor-General performs a large number of functions which are defined by the
Constitution but fall roughly into three categories: constitutional and statutory duties, formal
ceremonial duties, and non-ceremonial social duties. On virtually all matters, however, the
Governor-General acts on the advice of the Ministry.
STEPS INVOLVED IN PASSING LAWS THROUGH THE FEDERAL PARLIAMENT:
THE HOUSE OF REPRESENTATIVES:
Key facts about the House of Representatives
Known as the lower house
Each member represents an electorate or approximately 80,000 voters.
There are 150 members
Members are elected for terms up to 3 years
Members are called ‘MPs’ (members of parliament) or MHR (members of the house of
11 representatives) Mohnish Prajapati- Preliminary Legal Studies
Party that wins a majority of seats in the lower house forms the government
Political party or parties who have the remaining seats in the lower house form the
opposition.
THE SENATE:
Key facts about the Senate
Known as the upper house
There are 76 senators- 12 are selected for each of the 6 states, and 2 each for each territory
(ACT and NT)
The Senate has been regarded as the State’s house: the states enjoy equal representation in
the Senate, regardless of their population
Has an important role in reviewing legislation that is proposed by the House of
Representatives.
The Senate has a highly developed committee system and Senators spend much of their time
on Committee work.
THE GOVERNOR-GENERAL:
- The Governor-General is the representative of the monarch
THE CONSTITUTION:
THE AUSTRALIAN CONSTITUTION:
- The Australian Constitution is the set of legal principles by which Australia is governed.
- It describes how parliament is composed, how parliament works and lists the powers of
parliament, defines how state and federal parliaments share power, refers to the role of the
High court and many other things.
CONTENTS OF THE AUSTRALIAN CONSTITUTION:
Chapter & Section Contents

Chapter 1: The parliament Sections 1-60 describe the composition and
power of the Federal parliament
12 Chapter 2: The Executive Council Mohnish61-70
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most
formal elements of executive government
including the Queen, Governor-General, and
the Federal Executive Council
Chapter 3: The Judicature Sections 71-80 describe the composition and
power of the High Court, Federal court and
State courts.
Chapter 4: Fiance and Trade Sections 81-105 describe rules for money,
property and inter-state trade.
Chapter 5: The Sates Sections 106-120 describe the rights and
powers of the States.
Chapter 6: New States Sections 121-124 deal with carious issues
regarding states and territories.
Chapter 7: Miscellaneous Sections 125-126 deal with establishing a
seat of government and the Queen’s power
to authorise the Governor-General to appoint
deputies.
Chapter 8: Alteration of the Constitution Section 127-128 describes a basic procedure
for altering the Australian Constitution
HOW THE AUSTRALIAN CONSTITUTION CAN BE CHANGED:
- Referendum:
o The Constitution may only be changed by a referendum. In a referendum, each eligible
Australian over the age of 18 votes on a specified change to the Constitution. A
referendum is only passed if it is approved by a majority of voters in a majority of states,
and by a majority of voters across the nation as a whole. Since 1901, of 44 proposed
changes to the Constitution only 8 have been passed.
DIVISION OF POWERS:
- The Division of Powers refers to the separation or allocation of law making powers to the
Commonwealth and the States determined at the time of the federation.
- The Division of Power incorporates 4 sections:
o Specific Powers: These are law making powers that were given to the Commonwealth to
make laws. They are enumerated (listed one by one) under section 51 & 52 of the
Constitution.
o Exclusive Powers: Exclusive powers are ones that only the Commonwealth can make
laws for and the States cannot. These include areas of national concern such as
immigration, defence and currency. These law-making powers are part of specific
13 powers, but they are considered and termed differently
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from legislating on them.
o Concurrent Powers: Within the set of law making powers given to the Commonwealth
as discussed above, a number of these law-making powers are also non-exclusive and as
such are shared with the states. These are known as concurrent powers because both
the Commonwealth and the States have the authority to legislate in these areas. These
areas are marriage, divorce and bankruptcy.
o Residual Powers: These law-making powers are not found within the Australian
constitution. At the time of federation, colonies wanted to retain some of their law-
making powers and not completely give up their legislative authority to the
Commonwealth. As such, they retained a set of law making powers that each state can
legislate based on the need of their states. These areas of law making include education,
criminal laws and health.
- The division of powers refers to the allocation of law making powers between the
Commonwealth and the States. Within this structure there are four division. Specific powers are
enumerated in the Constitution and are given to the Commonwealth to make laws for the
'peace, order and good government' of Australia. These include postal, fisheries and lighthouses.
Within Specific powers certain powers are exclusive. Exclusive powers refer to a set of law
making powers only the Commonwealth can legislate on which include immigration, currency
and defense. Concurrent powers are law making powers shared between the Commonwealth
and the States these include marriage, divorce and bankruptcy. Finally, residual powers are not
found in the Constitution and are left over to the States. These include criminal law, education
and health.
SEPARATION OF POWERS:
- The Constitution says that the power is divided between 3 groups of bodies, so they can balance
14 out each other. Mohnish Prajapati- Preliminary Legal Studies
- Each body checks the power of the other 2.
- The division of power stops one person or a group of people from taking over all power to
govern Australia.
- Legislative power means the power to make laws and is concentrated in the parliament.
- Executive power means the power to implement laws and is given to the government.
- Judicial power gives the High Court to decide whether laws are legal according to the
Constitution.
- Separation of power means that people in one of these three arms should not control the other
two.
THE ROLE OF THE HIGH COURT:
- The court has 3 main functions:

o To protect the Constitution by ensuring that governments act within their constitutional
powers and do not exceed their constitutional authority.
o To exercise its original jurisdiction. This means hearing certain categories of cases in
which a dispute is brought directly to the High Court, without being referred in appeal
from a lower court. These include constitutional challenges- cases where the actions of
the Commonwealth are being challenged as unconstitutional.
o To act as the final Court of Appeal within the Australian legal system. The High Court can
hear an appeal from any of the state Supreme Courts or from the Federal Court.
(appellate jurisdiction).
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLE’S CUSTOMARY LAWS:

DIVERSITY OF ABORIGINAL AND TORRES STRAIT ISLANDER LAWS:
- Before 1788, Aboriginal people lived a traditional, nomadic existence as hunter-gatherers. It is

important to note that there is no single Aboriginal nation. There are approximately 500 known
Aboriginal and Torres Strait Islander nations, each with a number of clans. Each of these clans
has its own territory, traditions and rituals and, importantly, its own laws. Consequently,
Aboriginal and Torres Strait Islander customary law has thousands of variations.
- It is therefore not possible to treat Aboriginal and Torres Strait Islander customary law as a
single entity. We can, however, look at those aspects of the law that are common to all groups;
for example, the importance of the Dreamtime to the establishment of the law, and the role of
the land and spirituality in Aboriginal and Torres Strait Islander customary law.
THE SPIRITUAL NATURE:
- There is no single system of Aboriginal law. Instead, the 500 or so separate Aboriginal nations
that can be identified in Australia have each developed their own unique laws, which
nonetheless do share common aspects. Most importantly, all are spiritually based and are linked
15 to the land. Mohnish Prajapati- Preliminary Legal Studies
- Aboriginal and Torres Strait Islander peoples did not develop the type of industrial society that
exists in Europe. Industrial societies define the value of nature and the land in terms of their
ability to be exploited for the resources they provide whereas Aboriginal and Torres Strait
Islander societies value the land and the natural world for their great spiritual significance.
SIGNIFICANCE OF LAND AND BODIES OF WATER:
- The land is central to all Aboriginal and Torres Strait Islander cultures, forming the basis of their
religious beliefs and their laws, and is considered sacred. Bodies of water also hold special
significance.
- As we know, when the British took possession of the continent in the eighteenth century it was
declared terra nullius. In effect, this took away the rights of Aboriginal and Torres Strait Islander
peoples to their traditional lands, including access to scared sites and hunting grounds.
- Aboriginal and Torres Strait Islander customary law is oral law. This means that it is not written
down but is passed on by word of mouth instead. Each generation must remember the laws and
then pass them on to the following generation. Songs, dance and stories are used to help people
remember the various laws that apply to their group.
- One of the main differences between the European legal tradition and Aboriginal and Torres
Strait Islander customary law is in the area of land ownership. A principle of European law is the
right to possess and own property- in particular, land. Land, however, is sacred to Aboriginal and
Torres Strait Islander peoples. There is no such thing as an individual plot of land, and no
concept of its ownership as Europeans understand it. Instead of ‘owning’ the land, people saw
themselves as custodians of the land for future members of their group. This collective
stewardship is reinforced in the customary law.
RITUAL AND ORAL TRADITIONS:
- The rituals that each clan practiced came from the various interpretations of the Dreamtime.
These rituals were found in all areas of life, and therefore customary law also had a strong ritual
element. For example, it was common for tribal elders to paint their faces in red ochre before
passing judgment. Europeans often found such rituals unusual, but many Indigenous Australians
are likely to find British legal rituals, such as the wearing of robes and wigs, similarly unusual.
- One of the main problems associated with oral law is the danger that it will be forgotten or
misinterpreted. As the law is passed on from one generation to another it is easy for it to be
unwittingly modified. When a law had changed to the point that it had become unjust,
Aboriginal people overcame the problem by simply ignoring it. This flexibility is one of the main
advantages of oral law.
Key features of Aboriginal and Torres Strait Islander Customary Law:
FAMILY AND KINSHIP:

- Modern European families typically have a nuclear structure: mother, father and children. The
concept of family in Aboriginal and Torres Strait Islander systems is much wider, and
encompasses uncles, aunts, grandparents and cousins. The kinship ties between individuals in
the family override almost all other duties and responsibilities.
CONCILIATION AND MEDIATION:
- As a consequence of the strong bonds between family members (and ultimately the clan),
conciliation and mediation are favored methods of dispute resolution. When a person breaks a
tribal law or custom, it is seen to be better to have a family member talk to the individual and
attempt to resolve the problem by discussion, rather than to hand out a punishment.
- Conciliation involves the elders of the clan meeting with the people in conflict and attempting to
assist them in resolving their dispute through discussion and dialogue. This type of dispute
resolution has been uncommon in European Australian law, although now the value of
conciliation and mediation is becoming more apparent and widely used.
ENFORCEMENT AND SANCTION:
- For most offences against tribal law, conciliation and mediation were adopted. However,
punishments were imposed for very serious offences. For example, if a member of the clan
breached religious laws, such as disobeying rules about sacred sites, they could be punished by
death.
o Revenge: When a person had committed murder, the family of the victim was often
given the right to take revenge on the perpetrator of the crime. Revenge was more
about retribution than punishment and could often lead to long-lasting feuds within or
between clans.
In some cases, the revenge would be taken out and the perpetrator’s family or clan.
Consequently, relatively minor incidents could result in tribal war.
o Trial by Ordeal: Trial by ordeal was common in many Aboriginal and Torres Strait
Islander societies, particularly in Arnhem Land in the Northern Territory (where it was
called ‘magarada’.) The ‘trial’ was held sometime after the offence had occurred in order
to give time for tempers to cool.
The ordeal usually consisted of the accused, and commonly their relatives, running past
the victim and their relatives, who would throw spears and shout abuse. The spears had
the blades removed in order to prevent serious injury. The accused was permitted to
dodge the spears but could not throw them back or reply to the verbal abuse.
The accused and their relatives were then requires to run past the victims again, but this
time the blades were left in the spears. Finally, the accused would dance from one side
of the victim’s group to the other. If the accused was speared in the thigh then the
matter was at an end; the accused was forgiven, and everyone joined in dancing. If the
accused was not speared, this meant that they were not forgiven, and further revenge
would be necessary.
o Inquest: It was common for Aboriginal and Torres Strait Islander societies to hold and
inquest after a person had been murdered. At the inquest the tribal doctor would
attempt to determine the cause of death and also who had caused the death.
o Fighting, insulting, social ridicule & isolation: Fighting was another common way to
punish suspected murderers. However, one of the problems with this type of
punishment was that if the accused was a good fighter, others were injured while the
accused suffered no injury at all.
Insulting the offender, social ridicule and isolation were also common. Aboriginal and
Torres Strait Islander societies were close-knit communities, and social interactions
were very important. Having the whole clan ignore a person was therefore a very
effective punishment.
CONTRASTING CUSTOMARY LAW WITH THE ADVERSARIAL LEGAL SYSTEM:
RELEVANCE OF ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES’ CUSTOMARY LAW IN

MODERN AUSTRALIA:
- There are noticeable differences between the modern Australian legal system based on English
common law and Indigenous customary laws. However, features of customary law are beginning
to play a far greater role in modern Australian law. The concept of mediation, which is a key
feature of customary law for Indigenous Australians, is increasingly being used in industrial and
criminal law (especially where young offenders are involved. In 2000, the New South Wales Law
Reform Commission produced a report on sentencing for Aboriginal offenders. It noted that
judges should take into consideration that Indigenous Australian often face tribal punishments
and judges should take this into consideration when sentencing.
- The recognition of customary law in Australia has been contentious and has created
considerable debate. In 1986 Australian Law Reform Commission report The Recognition of
Aboriginal Customary law, was the first time the concept was really considered. This important
report stated that customary law should be recognised where appropriate but that a separate
legal system should not be established for Indigenous Australians, as this would undermine the
entire legal system.
- There are a number of areas in the criminal justice system that are inclusive if Indigenous
Australian perspectives. Over time the law is doing better at reflecting the needs of Aboriginal
and Torres Strait Islander peoples’ in applying criminal justice. Specifically, circle sentencing - a
process by which community leaders and a magistrate together decide on a punishment for
offenders is increasingly used.
INTERNATIONAL LAW:
STATE SOVEREIGNTY:
- International Law governs the relationship between nations. International law enables nations
19 to participate in trade and commerce and relieves areas
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International law also covers fundamental human rights, making illegal to do such things as
torture political prisoners or to commit genocide.
- International law has a major problem in its enforcement: it relies on countries consenting to
cooperate in the enforcement of these laws. As the world is made up of diverse cultures and
values, not all countries will agree with all international laws and may ignore a law if they feel
that it is irrelevant to them
WHAT IS THE DIFFERENCE BETWEEN INTERNATIONAL LAW AND AUSTRALIAN LAW?
- The most significant difference between international law and the Australian legal system is the
way the two systems are enforced. In Australia, we have a court system and a police force to
ensure that laws are actually obeyed.
- The international community has a permanent court, the International Court of Justice (ICJ),
which sits in The Hague in the Netherlands. The powers of the Court are however quite limited:
it can only hear cases involving countries, rather than individuals, and countries must agree
voluntarily to submit disputes to the Court.
- There is no international police force to help in implementing international law. The
international community is made up of nation states which are very protective of their
independence and sovereignty and they have never agreed to establish proper enforcement
procedures.
THE ROLE OF THE UN:

- The aims of the United Nations are:
o To keep peace throughout the world
o To develop friendly relations between the nations
o To work together to help people live better lives, to eliminate poverty, disease, illiteracy,
to stop environmental destruction and to encourage respect for each other’s rights and
freedoms.
o To be a centre for helping nations achieve these aims.
- Principles of United Nations:
o All members of state have sovereign equality.
o All member states must obey the Charter.
o Countries must try to settle their differences by peaceful means.
o Countries must try to settle their differences by peaceful means.
o Countries must avoid using force or threatening to use force.
o The UN may not interfere in the domestic affairs of any country.
o Countries should try to assist the UN.
THE GENERAL ASSEMBLY:
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- All member nations sit in the General Assembly and its primary role is to pass resolutions in
relation to the operations if the UN.
- The assembly also passes resolutions relating to conflicts between nations and has the power
to create new UN bodies.
- For example, in 1950 a High Commissioner for Refugees (UNHCR) was appointed by the General
Assembly. The commission’s role is to ensure that the human rights of all refugees are protected
throughout the world.
THE SECURITY COUNCIL:
- The United Nations charter (Article 24) assigns the primary responsibility for maintaining peace
to the Security Council. The Council consists of five permanent members: Great Britain, the
United States of America, Russia, China and France. In addition, there are ten non-permanent
members who serve for two years each. The five permanent members are those nations that
were the victors in the Second World War. Each has the power to veto any decision taken by
the council. This means that one of the permanent members can block a proposal even is all the
others agree to it.
- Article 39 of the UN Charter allows the Security Council to instigate military action if it feels
there is a ‘threat to the peace, breach of the peace, or an act of aggression’.
- In 1950 the UN activated Article 39 of the United Nations Charter for the first time, following the
invasion of South Korea by the North Korean army. The Security Council called on all member
states to provide military assistance to South Korea. The troops were in theory under a unified
UN command, although in reality the force was commanded by the United States, which
provided most of the troops.
- ** the power to veto is the right to reject any proposal .
INTERNATIONAL COURT OF JUSTICE:

- The International Court of Justice (ICJ) is the main judicial organization of the United Nations.
The court consists of fifteen judges, each representing a different geographical region. The court
has two main functions:
 To decide on disputes brought before it by member nations

 To offer legal advice on international law matter when a nation requests it.
- ICJ is a court at which only nations have standing. Individuals, corporations or other
organisations cannot bring a matter before the court, although nations are authorized to bring a
case before the court on behalf of a citizen.
- The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.
- It was established in 1946 and its main functions are to settle disputes submitted to it by states
and to give advisory options on legal questions submitted to it by the General Assembly or
Security Council or other bodies as permitted by the General Assembly. The ICJ can only hear
disputes if the nations involved accept the jurisdiction of the court.
- There are two distinct types of cases upon which the court may rile.
o The first is on contentious issues between states in which the court produces binding
rulings between states that agree or have previously agreed, to submit to the ruling of
the court.
o The second is advisory opinions, which provide reasoned but non-binding rulings on
properly submitted questions of international law, usually at the request of the United
Nations General Assembly. Although advisory opinions do not have to concern particular
controversies between states, they often do.
- In addition to the ICJ, there are several other specialized international courts and tribunals that
can also establish aspects of international law.
OTHER INTERNATIONAL ORGANISATIONS:

- International government (IGOs) are usually subsidiaries of the UN. These bodies are established
to meet and decide upon certain international issues such as refugees, tariffs and wealth. The
International Labour Organisations is an example of an IGO. Its aim is to ensure the safe and fair
treatment of workers.
- Regional organizations also play an important role in international decision-making. The
European Union is an example of a regional organization. It consists of European nations and has
power to regulate the economies of member nations for the common good. These regulations
cover such things as human rights, the environment and trade.
- Non-government organizations (NGOs) such as the Red Cross and Greenpeace unofficially
contribute to world peace, human rights and other issues. They do this by lobbying
organizations and informing the global public about the infringements of human rights and
environmental concerns.
3-Classification of Law: The Legal System
CLASSIFICATION OF LAW:
- There are many ways of classifying law. One way is to divide it into two separate categories:
o Public law: the body of law that deals with the law-making capacity of governments and
disputes between the state and its citizens.
o Private law (civil law): the body of law that deals with the relationships between
individuals.
PUBLIC LAW:
- Public laws are referred to as social norms- laws that set the general standards of behavior
expected by a society.
o Criminal law:
 Usually established by statute. In some cases, criminal law can be made through
common law.
 Is considered public law because when a person breaks a criminal law, they are
said to be harming all members of society.
 Consequently, the victim in a criminal case is all of society; hence the case is
brought by the police and prosecution on behalf of society.
 Types of criminal law:
 Crimes against persons. These crimes involve the injury or threat of injury
to another person, such as homicide (the intentional killing of another person)
and assault (the crime of causing or threatening to cause an injury to another
person).
 Crimes against property. These crimes involve the theft of or damage to
another person’s property. Much of the criminal law in Australia relates to this
type of crime. Examples include larceny (removing another person’s property
without their consent) and robbery (the use or threatened use of violence in
order to take another person’s property).
 Crimes against the state or sovereign. These laws are often thought of as
being from medieval times, but they are still used today. They involve crimes
that damage the country and its people. There are two main types: sedition
(the crime of encouraging a hatred of the country) and the more serious
offence of treason (the crime of actively trying to bring about the collapse of
the country or assisting the enemies of the country).
 Public order offences. These crimes disrupt the activities of a society. They
are minor offences such as being drunk in a public place or swearing in a
public place.
Traffic offences. These are the most common offences committed in society.
Most offences, such as speeding, are dealt with by on-the-spot fines. More
serious traffic offences, such as drink driving, require a court hearing.
 White-collar crimes. This covers a wide variety of crimes that are usually
committed by professional people; hence their name. Tax evasion, fraud and
computer hacking are all examples of this type of crime.
 Drug offences. These are offences against the state and include the
importation, manufacture, possession, trafficking, distribution, supply and use
of prohibited narcotics. Some drug offences are Commonwealth crimes (such
as importation) and other are state offences (manufacture and distribution).
o Administrative law:
 Administrative laws are those that relate to the operation of the government
and its various departments
 Based on the English model and exists to ensure the accountability of the
administrative actions and decisions made by the government and its
departments.
 Administrative law cannot be used to challenge all government dealing. E.g.
increase in taxes. However, the actions of the departments that are set up to
administer these policy decisions can be challenged.
o Constitutional law:
 A constitution is a legal document outlining the powers and operation of the
government.
 The High Court of Australia deals with all matters relating to the constitution law
in Australia.
PRIVATE LAW:
- Private law is often referred to as civil law and deals with the legal relations between individuals
and organisations.
- Key difference between criminal law and civil law is the role of the individual.
- Under civil law, it is a matter between individuals.
- The person who brings the action is known as the plaintiff, while the person against whom the
action is brought against is known as the defendant.
- There are three types of private law:
o Contract law:
 A contract is a legally binding agreement between two or more parties. Many
civil law matters deal with contracts where one party believes that the other
party has failed to fulfill the requirements of the contract.
 Contract law stipulates that in order for a contract to be valid and therefore
enforceable there must be:
1) An ‘invitation to treat’
2) An ‘offer’
3) ‘Consideration’. Under contract law, both parties in a contract must
benefit from it.
4) ‘Acceptance’
o Property law:
 Anything that can be bought or sold is considered property.
 There are numerous laws that govern the way that property transactions are to
take place.
 E.g. The Trade Practices Act 1987 (Cwlth) and the Fair-Trading Act 1987 (NSW)
are example of statutes that ensure that businesses act appropriately when
selling property.
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o Tort law:
 Complex areas of law that involve civil wrongs.
 Torts are not criminal matters but involve the actions of one person
inconveniencing the other, or their breach of rights.
 Divided into 4 areas:
 Negligence: Common tort law that involves ‘duty of care’. This concept states
that every person or organisation has the responsibility to ensure that their
actions do not cause harm to others or their property. Concept of ‘duty of care’
was established through common law in the famous case of Donohue v
Stevenson.
 Nuisance: Involves one person interfering with another person’s rights. Many of
the cases that are heard in community justice centers involve this tort.
 Defamation: Involves damaging another person’s reputation. When misleading
information about a person is published or broadcast and this information
damages this person’s reputation, defamation is said to have occurred.
 Trespass: Typically takes place when a person interferes with the property of
another person. There is also the tort of trespass against the person, in most
cases criminal laws, such as assault, would apply. E.g. unlawful imprisonment
would be trespass against the state.
4-Law Reform: The Legal System
WHAT IS LAW REFORM?
- Law reform is the process that reviews our existing laws and recommends or introduces changes
to them, with the aim of improving efficiency or improving justice.
- It is the responsibility of the state to introduce legislative reforms they believe are desirable.
- If law reform did not take place, laws would lose relevance over time and could create, rather
remove justice.
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CONDITIONS THAT GIVE RISE TO THE NEED FOR LAW Prajapati- Preliminary Legal Studies
REFORM:
- Changing social values:

o As society changes, the challenges for law is for it to continue to reflect and embody
society’s morals and values.
o An example of social change leading to law reform is in the area of the laws response to
the multicultural nature of contemporary Australian society by amendments to the
Oaths Act 1900 (NSW). Swearing an oath on the Bible is no longer the only way that a
witness or juror can be validly sworn in. A witness or juror may instead make an
affirmation, swear an oath simply to tell the truth or swear an oath on the holy text of
their faith.
o Laws can fail because they can become obsolete as they no longer reflect or relate to
the expectations and values of society.
- New concepts of justice:
o Justice is a complex concept. In criminal law it asks the question, justice for who?
 The accused?
 The victim?
 The community?
o Justice for the victim has received increasing legislative attention this past decade and is
reflected in the fact that many victims of crime are now entitled to apply for
compensation under a Statutory Scheme in accordance with the Provisions of the
Victims Support and Rehabilitations Act 1996 (NSW).
- Failure of existing laws
o Laws can become obsolete or unnecessary over time. It is most unlikely that many of
the laws in use one hundred years ago could still operate effectively today. Obsolete or
irrelevant laws can be left in place but simply not enforced.
o Changes to obsolete laws have been made in relation to some summary offences,
including vagrancy.
o Under the Vagrancy Act 1902 (NSW), persons who slept on park benches at night and
who had ‘no visible means of support’ could be detained overnight in police cells. This
was regarded as harsh treatment by most members of the public and the offence was
removed by repealing the Act and replacing it with a section of the Summary Offences
Act 1970 (NSW) (now repealed and eventually replaced by the Summary Offences Act
1988 (NSW).
o There was an unfortunate unexpected consequence to this action. Many homeless
people who were then left to sleep in parks and in the open died of exposure to the
elements. Death rates went up, particularly in winter.
o Fortunately, steps were then taken to ensure that vagrants were fed and housed
whenever possible. However, this highlights the need for law reform that is carefully
thought through and is not just a ‘knee-jerk’ reaction to a problem.
- New technology:
27 o New technology has led to significant law reform,
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New technology impacts law reform in 2 main ways:
 Through the development of more highly sophisticated crime investigation and
evidence gathering techniques which has meant that new laws had to be
enacted to deal with, for example, advances in forensic science such as the use
of DNA. Such new laws must try to strike the difficult balance of allowing police
to make use of such technologies but at the same time protecting the rights of
the accused.
 new technology has led to new areas of computer related crime such as hacking
and the deliberate transmission of viruses. Parliaments both state and federal
have responded to the ever-increasing breadth of criminal activity by passing
new legislation and amending existing legislation. For example, in NSW Part 6 of
the Crimes Act 1900 (NSW) now deals with computer offences such as
unauthorised modification of data with intent to cause impairment (section
308D) and unauthorised impairment of electronic communication (section
308E). These amendments were added to the Crimes Act with the passage of
the Crimes Amendment (Computer Offences) Act 2001. In the Federal sphere
the parliament has passed the Cybercrime Act 2001 (Commonwealth).
o New technology may render old laws irrelevant. It is the role of parliament to amend or
revoke out of date laws to ensure that our laws continue to serve society.
- International law:
o Changes in international law can lead to change in Australia’s domestic law through the
process of Australia signing and international convention and then passing domestic
legislation to implement the terms of the covenant.
o Whilst the Federal Government is responsible for signing international treaties they
clearly have an impact upon laws within a state. For example, the provision of the Young
Offenders Act 1997 (NSW) clearly reflect the spirit of the United Nations Conventions on
the Rights of the Child (CROC) which Australia become a signatory to in 1990. Article 40
(s) (b) of CROC states that ‘wherever appropriate and desirable, there should be
measures for dealing with such children (i.e. children who have broken the law), without
resorting to judicial proceedings, providing that human rights and legal safeguards are
fully respected.
o Australia’s federal and state laws can and do conflict with Australia’s international treaty
obligations. For example, many would argue that the federal government’s Anti-
Terrorist Act 2004 (commonwealth) violates CROC as it provides for the detention,
without charge, for a period of up to 14 days, of terrorist suspects from the age of 16.
Further, current mandatory sentencing legislation pertaining to young offenders in WA
is also in conflict with CROC.
AGENCIES OF LAW REFORM:
- There are several key agencies for law reform in Australia and NSW:
o Parliamentary bodies:
o Law reform commissions:
o NGO’s:
o The media:
MECHANISMS OF LAW REFORM:
- Mechanisms of law reform are the ‘machinery’ that actually bring about the changes.
- These include judicial and legislative branches of government, as well as international
organisations.
- Mechanisms of law reform are crucial as they ensure that much-needed law reform actually
takes place.
- The courts adapt the law to changing sets of circumstances and rule on issues that are not
always clear in legislation.
- State and federal parliaments implement most law reform by introducing new laws or modifying
existing laws to achieve justice and greater relevance in law.
- Intergovernmental organisations promote the adoption of international agreements and the
human rights they seek to protect.
- They also foster greater cooperation between countries for mutual benefit.
o Mechanisms of law reform: Parliaments:
 Parliaments today are the institution where most law reform is realized.
 The process of changing the law occurs through the passage of bills.
 The reason for this type of change usually comes from other sources: Namely
the conditions that led to law reform and the agents of reform.
 Detailed knowledge of the subject matter is often required to report and
comment accurately on areas where reform is needed, and parliamentarians’
expertise does not always extend to this level.
 The parliament is still a place where propose laws are debated.
 Can be a rigorous and intense process, especially if a proposed law is
controversial or is a radical departure from previous laws.
 If a political party holds government, it is obviously has a greater chance of its
bills being passed.
 A bill’s fate, may depend on which party or parties holds the balance of power in
the Senate.
 Political parties present their policies to the voters prior to each election, and if
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o Mechanisms of law reform: Courts:
 The manner in which courts make law through precedent can be considered a
means of law reform.
 Precedents made in higher courts clarify what the law should be, in cases where
the is an early stage of development or where there is a need to clarify the
meaning of words contained in legislation.
 Courts do not consciously set out to reform the law.
 The role of judges is to deal with the matter before them, and as such
law reform in the courts comes about in an ad hoc or a piecemeal way.
o Mechanisms of law reform: Intergovernmental organisations:
 IGOs are organisations that have sovereign states (individual countries) as
members.
 The ‘member states’ have certain common goals; for instance, an international
body might be keen to promote peaceful co-existence and stable government.
E.g. of such organisations include: The United Nations, the European Union, the
World Trade Organisation.
 Intergovernmental organisations have become increasingly important, both in
facilitating conflict resolution between countries and also dealing with major
conflicts within countries. They are able to:
 Encourage co-operation between countries or ‘states’
 Provide a forum for countries to air a dispute.
 Support members by being information providers; in particular, this may
benefit reform processes in countries suffering from internal division
and corruption.
 Promote long-term benefits of cooperation and encourage states to
look past short-term causes of conflict.
 Exhibit an unbiased approach, which enhances their credibility in
conflict resolution.
5-Law Reform in Action: The Legal System
A-NATIVE TITLE:
WHAT IS NATIVE TITLE?
- Native title is the collection of individual or group rights and interests held by Indigenous people
in relation to land and water.
- A collective right is any right that is shared by a group of people. Native title can be considered a
collective right because an individual cannot claim native title.
- People seeking to have their native title affirmed must show that:
o The indigenous population have observed their traditional customs and laws.
o The indigenous population have a connection to the land or water through these laws
and customs.
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o These rights and interests are recognized under Australian common law.
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- Note: Native title is customary law access to the land for communal use. It is not land rights,
which is legal ownership of the land.
DOCTRINE OF TERRA NULLIUS:
- Terra nullius means ‘land belonging to no-one’

- First appeared as a legal concept in English law in the early 17 th century and was based on the
notion that the British took English law with them whenever they discovered a ‘new land’.
- The British decreed that lands where the inhabitants had not created an original system of
government with recognized law was to be declared terra nullius. This became known as the
doctrine of reception.
MAJOR NATIVE TITLE DECISIONS:

- The Mabo case (Mabo v. Queensland (No.2) (1992) 175 CLR 1) and the Wik case (The Wik People
v. The State of Queensland) marked major turning points in native title law in Australia. Their
most significant contribution is that they overturned the declaration that Australia was terra
nullius at the time of the European invasion.
- Throughout the nineteenth century Australia developed a unique system of land tenure built on
the concept of leases. These leases- pastoral, agricultural and mining – allowed people to lease
Crown land for a specific purpose (such as raising cattle or mining) for a set period of time.
- The Mabo case established that native title could not exist once the ownership of Crown land
had been transferred to another person. Private land therefore could not be subject to native
title, but problems arose with Crown land that had been leased to a third party. The Crown still
legally owned this land and therefore it was uncertain as to whether native title could exist.
NATIVE TITLE ACT 1993 (CWLTH):

- Subsequent legal developments in common and statute law:
o Native Title Act 1993 (Cwlth)
 Passed by the Commonwealth parliament in response to the Mabo decision, the
Native Title Act 1993 (Cwlth) recognized the existence of native title.
 However, the Act stopped short of defining native title, instead creating the
Native Title Tribunal whose function is to determine the validity of native title
claims. Where native titleholders are unable to exercise their rights, the tribunal
determines the extent of compensation to be paid.
NATIVE TITLE AMENDMENT ACT 1998 (CWLTH):
- The growing concern in rural Australia after the Wik decision prompted the Howard
Government to pass the Native Title Amendment Act 1998 (Cwlth).
- The Act created considerable controversy and saw the longest parliamentary debate in
Australian political history before the Senate agreed to pass it.
- Among the provisions are:
o Native title extinguishment: The Act extinguished native title over a land that was
considered privately owned prior to 1 January 1994.
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pastoral
lease, the pastoralist cannot be stopped from using the land for primary production,
including ‘farm stay’ accommodation.
o Native title test. The Act imposed tougher tests for determining if native title could be
claimed. Under the Act at least one person in the claimant groups must prove a
continuous link with the traditional lands. This could include someone who was forcibly
removed.
B-Sport and the law:
SPORT AND RISK:

- Duty of care in sport:
o A person or organisation will, in certain situations, owe a ‘duty of care’ to another
person or organisation to take reasonable care to prevent them from being harmed.
o Whether duty of care exists will depend on the relationship between those concerned.
In sport, those who may have a duty of care include people who assume responsibility
(e.g. by agreeing to coach an athelete or referee a game), or those who have relevant
skills or expertise (e.g. a sports administrator)
CONDITIONS THAT LEAD TO LAW REFORM IN SPORT:
- The standards to which players and coaches are held go beyond the ordinary expectations of
etiquette owed to the team and to competitors, as not only the club but the sporting code and
the sponsoring companies are brought under scrutiny by antisocial behaviour. Athletes’
movements off the field are just as closely scrutinized by the public and fans as their on-field
performance. The media are not hesitant about reporting behaviour that is not appropriate for a
‘role model’, and some players such Ben Cousins of the AFL and Greg Bird of the NRL have
incurred suspensions from their sporting bodies for drink-driving and drug use, respectively.
- Government has also taken a greater role in sport over the past three decades. The
Australian Institute of Sport (AIS) was established in 1981 after more than eight years of
government commissioned studies of sports institutes in Europe. The purpose of the AIS is to
develop the highest quality of sport by providing facilities and funding to athletes and
organisations.
- In addition to changes in the way sport is seen, there have been broader social changes that
affect the ways in which sport and the law interact. Greater willingness to hold others
accountable for harm and to seek civil remedies for real or perceived wrongdoing has affected
both amateur and professional sport.

AGENCIES OF LAW REFORM IN SPORT:
- The agencies of law reform refer to the organisations and institutions who may call for reform of
the law.
- The Australian Human Rights Commission (TAHRC)
o Is an independent statutory organisation, established in 1986.
o Investigates and reports to federal parliament about issues of human rights compliance;
resolving discrimination complaints and breaches of human rights; holding public
inquiries; provides advice and submissions to parliament; and conducts research into
human rights and discrimination issues.
 these issues cover a range of areas such as, including:
 employment
 education
 the provision of goods and services
 sport
o TAHRC can investigate complaints of discrimination and assist in reaching agreement
between a complainant and the organisation or company against which the complaint is
made- does this through conciliation- in which it acts as an impartial referee while the
parties talk through their concerns and look for solutions.
- The Australian Sports Commission (ASC):
o The ASC is a statutory authority of the Australian government
o Established throught the Australian Sports Commissions Act 1989 (Cwlth)
o Plays a role in the development and operation of sport at all levels.
o Provides advice to the government and funding to national sporting organisations.
o The Australian Institute of Sport (AIS) is one of its divisions.
MECHANISMS OF LAW REFORM IN SPORT:
- The mechanisms of law reform are the bodies or organisations who can actually change the law;
they draw on information provided to them by agencies of reform to change (as well as
improve) the existing law.
- The courts:
o The courts’ role in interpreting legislation as applied to a particular case is to clarify its
meaning.
o Where a higher court sets precedent, it is making a statement about the purpose of
legislation and the way the law should be applied in the future.
o A court’s consideration of a situation and the arguments for and against a claim can
reveal unfairness or injustice in the legislation itself.
- The Court of Arbitration for Sport (CAS):
o CAS was established in 1984 as a part of the International Olympic Committee.
o It is an international arbitration body set up to settle disputes related to sport.
o Is based in Lausanne, Switzerland and has courts in New York and Sydney.
o The CAS settles disputes through arbitration, where the parties have agreed to its
jurisdiction, and its decisions are binding. It hears 2 types of disputes:
 Contract disputes, sponsorships and telvision rights, as well as civil liability
claims, such as athletes’ accidental injuries during competition.
 Disciplinary, including drug-related problems, violence on the field and abuse of
the referees.
o Disciplinary cases are generally first dealt with by the ‘competent sports authorities’, for
example the Australian Olympic Committee.
o Appeals may go to the CAS.
o Many of the disputes brought before the CAS are quite serious.
 A recent case is that of Nick D’Arcy, a swimmer chosen for the Australian
Olympic team in 2008. At a celebration party on the night he was chosen, D’Arcy
was involved in an argument over alcohol with a fellow swimmer. D’Arcy
punched Simon Cowley, breaking his nose, eye socket and jaw, and was
subsequently convicted in the NSW Local Court of recklessly inflicting grievous
bodily harm. The Australian Olympic Committee dropped him from the Olympic
team for bringing the team into disrepute. D’Arcy unsuccessfully appealed to
the Court of Arbitration for a place on the 2008 Olympic team. No precedent
was set in this case. After discussions with Swimming Australia, the sport’s
governing body, D’Arcy agreed that he would not swim competitively until
August 2009.
- Parliaments:
o When a legal decision reflects new social patterns or attitudes, parliaments may enact,
amend or repeal legislation to ensure that the statute law stays current and credible.
o This often happens after extensive consultation with bodies such as law reform
commissions, human rights commissions, or- in the case of sport law- Australian sports
Commission.
EFFECTIVENESS OF LAW REFORM IN THE WORLD OF SPORT:

- The law and law courts are generally reluctant to get involved in the private matters of any
individual. This extends to their sporting activities and their relationships with sporting clubs.
Parliament will legislate to protect players’ safety but will not direct clubs to all follow the same
rules or mandate how clubs should run their affairs. There is still ‘freedom to contract’ in
Australian sport.
- The governing body of a sport still controls the behaviour of persons engaged in its sport
through various rules, codes and regulations to manage the way the sport is played and to
protect the integrity of the sport. The rules will usually deal with issues such as violence, racial
vilification, performance-enhancing drugs and conduct at public venues. There is usually a
general provision in the code of conduct requiring players not to bring the game or sport into
disrepute. Many clubs will also insist that their players spend a certain number of hours visiting
hospitals, schools and training sessions for junior players.
- There are circumstances where the legal system has to be involved and this often occurs when a
player’s conduct affects the public image of their sport. A player will often feel harshly treated
for what they regard as a minor breach of a code of conduct. Judicial review is usually available
to such a player, though the courts remain reluctant to intervene in internal disputes within a
club or sporting body. The chance of a successful appeal to the courts against a sporting body’s
disciplinary findings are slim. The disciplinary ruling would have to be ‘so aberrant that it cannot
be classed as rational’ according to Judge Tadgell in Australian Football League v. Carlton
Football Club Ltd [1998] 2 VR 546 (the Williams case). This means that unless a disciplinary
finding is without any logical basis an appeal against it will not succeed. A court will not
generally review the merit of a tribunal decision. There must be a mistake at law for an appeal
to the courts or no evidence at all of improper conduct.
- Harm suffered in sports:
o A greater readiness to sue and the professionalization of sport are two social factors
contributing to players’ preference for civil remedies rather than the criminal law. While
the sums of money involved are relatively large in professional sport, the purpose of tort
law remains the same: to compensate people for losses or damage suffered as a result
of wrongs done to them.
o Clubs, teams and referees are under a duty of care to safeguard their players’ health
and welfare, especially with respect to reducing the risk of injury.
- Athletes’ behaviour and the law:
o Ben Cousins is a high profile Australian Rules football player. He spent most of his career
playing for the West Coast Eagles in the AFL competition. During his 11 years with the
West Coast Eagles, he won several of the league’s highest individual awards, including a
Brownlow medal and a premiership medallion. He was selected six times in the All-
Australian team, was club champion for four seasons and captain for five seasons. His
football career seemed over when details of his off-field antics received massive media
coverage.
- Drugs in sports:
o The pressure on players to perform at peak fitness and to recover from injuries as
quickly as possible encourages some to take steroids or other hormone treatments.
Even dietary supplements are questionable. A significant percentage of supplements
tested by the IOC contain enough steroids or hormones for an athlete to fail a doping
test. There are also many performance enhancing drugs that an athlete may consider.
As doping tests have become more sophisticated and are held more often, it has
become far harder for offenders to avoid detection. This partially explains why some
athletes refuse to give urine or blood samples when randomly asked to do a drug test.
This can raise privacy issues if an athlete can be asked at any time to undertake a drugs
test and this problem is still to be adequately resolved by many sporting bodies.
o The Australian Sports Drug Agency (ASDA) was established under the Australian Sports
Drug Agency Act 1990 (Cwlth) to collect samples from athletes and arrange testing.
Most tests are now conducted outside actual competition days. Australia’s drug testing
procedures are in accordance with the World Anti-Doping Agency’s (WADA) Code. The
WADA Code’s prohibitions include ‘the presence of a prohibited substance or its
36 markers in an athlete’s bodily specimen’. ‘Intent’
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take the drug does notLegal
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to be
established; a cold cure could inadvertently breach the Code. The use or attempted use
of a prohibited substance and refusal to comply with a request to supply a sample,
including evading dope test officials, are all violations of the Code.
1-Your Rights and Responsibilities: The Individual and the Law
WHAT ARE RIGHTS?
- Something which you are entitled and that someone cannot take away from you.
WHAT ARE RESPONSIBILITIES?
- Responisbilities are legal or moral obligations that a person may have to another person, to a
group or the state, society, or other people generally.
- There are responsibbilities to act in certain ways as well as responsibilities to refrain from
certain acts. E.g. A parent has a legal and moral responsibility for taking care of their children.
HOW ARE RIGHTS AND RESPONSIBILITIES LINKED?
- For every right that exists, it is someone’s responsibbility to provide what that person is entitled
to under that right. E.g. Our duty of care under common law is coupled with the right of the
victim of negligence to be compensated.
TYPES OF RIGHTS:
WHAT ARE LEGAL RIGHTS?

- Legal rights are those that are recognised by the courts and can be enforced. E.g. some legal
rights are contained in the Australian Constiution, such as the freedom of religion
o Statutory rights: A statute law is a law passed by parliament. It is also called a piece of
legislation or an act. Example of a right which is protected by statute is the right not to
excluded or restricted on the basis of race, colour or ethnic origin. This right is contained
in the Racial Discrimination Act 1975 (Cwlth).
o Common law rights: Other rights are protected by common law. Example, if one party
breaches a term of contract, the other party has the right to end the contract. E.g. if one
party had said they would pay the other party $200,000 for their house, and then
refused to pay the money, the owner of the house is able to terminate the contract.
However, the protection of rights through common law is not always considered to be
particularly stable. Rights established through common law can be subsequently
overturned if a statute law is passed that overrides them.
WHAT ARE CUSTOMARY RIGHTS?
- Customary rights is a right that comes from the habits within a society.
- Customary rights are those that have developed over time and have as their basis the accepted
way of doing things within a community. E.g. An elderly person to be given a seat on the bus by
a younger person.
WHAT ARE MORAL RIGHTS?
- Come from the principle of how a person is to behave as set out in religious beliefs.
- Even people without religious beliefs are guided by their conscious,
- Moral rights include issues of equality, human dignity and the need to care for the
disadvantaged in society.
- Moral rights are not enforced until they have been enshrined in common law or statutes.
WHAT ARE INTERNATIONAL RIGHTS?
- International rights are those claims an individual has because of the international protection of
human rights.
- Where domestic rights arise from activities within a country, international rights evolve from
activities from international activities.
- A large number of human rights have been created in the years following WWII.
o These treaties provide rights such as the right to life, the rights against arbitrary arrest
and detention, the right to marry and found a family, equality before the law, rights
against enslavement, torture and against discrimination, etc.
LEGAL RIGHTS AND THE AUSTRALIAN CONSTITUTION
- Most of the rights Australians enjoy are protected by acts of parliament and the common law.
- The High Court is responsible for interpreting the Constitution.
- In the 1990s, the High Court began to use this power to recognise rights that had not been
explicity stated in the Constitution. – these are implied rights.
- The High Court claims that it is clear that the Constitution intends us to have these rights
because without them, the constitution would not be able to operate properly.
- E.g. An example of an implied right is the freedom of speech.
FREEDOM OF SPEECH AND DEFAMATION:
- Another factor complicating the exercise of freedom of expression is the risk of defamation.
- To what extent can you critise another person without harming their reputation?
- You are legally protected from being sued if:
o What you say is true,
o It is your honest opinion, not a statement of fact, on a matter of public interest, and the
facts on which the opinion is clearly stated
RESPONISBILITIES AND THEIR RELATIONSHIP TO RIGHTS:
- Responsibilities are also referred to as duties or obligations.

- There are moral or legal obligations that a person may have to another person, society, etc.
DIFFERENT TYPES OF RESPONSBILITIES:
- Social responsilities: Duties that we owe to the society we belong to. They help to ensure the
smooth running of society. E.g. the responsibility of giving up a seat to an elderly person.
- Cultural responsibilities: Duties which relate to the cultural group to which people belong. E.g. a
Moslem is required to pray 5 times a day.
- Moral responsibilites: Obligations that people feel they have because of beliefs that they hold.
E.g. People feel it is wrong to murder someone, so they do not because of a sense of moral duty.
The duty is also imposed by the law.
- Legal responsibilities: Those duties which people owe because the law imposes them. If people
do not fulfil these duties, the law will impose sanctions on them.
o In Australia, some of the legal responsibilities that citizens have are to:
 Obey the law
 Defend Australia should the need arise
 Serve on a jury if canlled to do so
 Vote in federal and state or territory elections, and in a referundum
2-Resolving Disputes: The Individual and the law
LAW ENFORCEMENT:
ROLE OF THE AUSTRALIAN FEDERAL POLICE
- NSW Police force

o The prinicple roles of the police are to prevent crime, investigate crime and arrest and
prosecute offenders.
o They chiefly enforce the Crimes Act 1900 (NSW) and the Road Transport (General) Act
1999 (NSW).
40 o The NSW Police force has jurisdiction within NSW. Prajapati- Preliminary Legal Studies
Mohnish
o They only have powers within the boundaries of the state and must seek the assistance
of other police services for crimes that extend the state borders.
o State police have significant powers, they may question anyone when investigating a
crime.
- Australian Federal Police
o Founded in 1979 with the aim of dealing with the threats of terrorism and smuggling.
o The AFP collaborate with overseas and domestic policing organisations to fight trans-
border crime (crime outside the borders).
o The main areas of their operations include:
 Counterterrorism
 Major fraud
 Smuggling operations- especially drug trafficking and people smuggling.
o Increasingly electronic crime, especially internet fraud is becoming an important part of
their work.
o The AFP also provide police for the United Nations and other international
peacekeeping operations.
- Australian Customs and Border Protection Services
o Australian customs controls the security of Australian borders.
o Works with the AFP, Australian Quarantine and Inspection Service, Immigration
department and the Australian Defence Force to detect unlawful movement of goods
and services across Australia’s borders.
o Also has the responsibility for ensuring that those people entering Australia do so
lawfully.
o Priorities are:
 To protect Australians against importation of drugs, illegal firearms and other
dangerous goods.
o It inspects ships, planes, cargo, postal items and travellers.
- Australian Quarantine and Inspection Service
o The advent of the global trade and tourism has meant that it is much easier now for
hazards to reach Australia and cause considerable damage.
o It is the role of the Australian Quarantine and Inspection Service to protect Australian
borders from importation of biologically hazardous material such as plants and animals
that may in any way be harmful to the environment.
- Australian Security Intelligence Organisation
o Is Australia’s national security service.
o Its main role is to warn the government about security threats from politically motivated
violence and from persons who promote violence in different communities within
41 Australia. Mohnish Prajapati- Preliminary Legal Studies
RESOLVING DISPUTES BETWEEN INDIVIDUALS:
- Alternative Dispute Resolution

o Uses a variety of methods to resolve disputes between individuals.
o ADR allows the participant to save time and money, also has more control over the
proceedings.
o ADR may be as simple as two parties talking through their dispute, or as complex as
court-ordered mediation or arbitration.
o Mediation involves a third party who attempts to help the parties come to an
agreement.
o In arbitration, the neutral third party will make a decision that is binding on the parties
involved in the dispute.
o ADR is a cheaper and easier way of resolving disputes than going through the courts.
o Initally it involves negotiation, or in case of failure, mediation.
 This is a process where an independent third party assists disputing parties to
reach a settlement of their differences.
o Arbitration involves a neutral party reaching a decision by which the disputing parties
must abide. In commercial contracts, the arbitrator is usually nominated by the parties
in advance.
- Negotiation
o Negotiation refers to the simple process of speaking to someone with whom you have a
problem with and attempting to resolve it.
o The idea behind negotiation is that most disputes should be able to be resolved by
goodwill and give-and-take by the parties are that is the least expensive option and is
likely to leave the parties more personally satisfied.
- Mediation and Consiliation
o Mediation & consiliation are very similar process that are used in a variety of areas.
o Mediation involves two parties attempting to resolve their disputes between them with
a third party.
o The third party is a mediator, whose role is to help the disputing parties to discuss and
resolve the issues between them.
o Mediation may be voluntary or it may be directed as part of a pre-court hearing.
o The mediator helps the parties to identify issues and assist them to arrive at a
settlement that both parties feel to be satisfactory.
o A wide range of legal issues can be resolved through mediation, including:
 Family law issues
 Disputes over wills
 The recovery of smaller debts
42  Contract disputes Mohnish Prajapati- Preliminary Legal Studies
 Workplace issues
- Arbitration
o Arbitration means decision-making and is the final stage in the dispute resolution
process.
o If the parties cannot resolve their issues through conciliation, the dispute will move on
to arbitration at the relevant industrials tribunal.
o Arbitration is a more formal process involving lawyers, the requirement of each party to
present their case.
o The independent arbitrator then makes the decision for the best resolution for the
situation.
o The decision made is legally binding, therefore, all parties must comply with the
decision.
o In case if one party is unsatisfied with the decision, they have the right of appeal.
o Advantages of ADR:
 ADR gives parties in dispute the opportunity to work through conflicting issues
through the means of negotiation, rather than the courts.
 The ADR is generally faster and less expensive than pursuing litigation through
the courts.
 When used in appropriate cases and in the appropriate times, ADR can:
 Put the parties in control, rather than using their legal representatives
 Focus on the real issues in dispute, rather than the strict legal rights and
obligations of the parties.
 Preserve the relationship between the parties, instead of establishing
one winner and one loser.
 Be less expensive and quicker than traditional adversarial litigation.
 Keep private disputes private.
 Deliver more flexible remedies than the court.
- Courts:
o In practice, only a small percentage of legal disputes are resolved in courts.
o Only a small proportion of civil disputes are resolved in courts.
o During the court case, the defendant’s right to a fair trial is protected by rules of
evidence and procedure and rights of appeal.
o Victims have rights to compensation and to make a statement of the impact of the
offence on them, which the court may take into account if it regards this as appropriate.
o Rules of standing ensure that state resources are not wasted.
o In civil proceedings, there is the rule of ‘legal standing’. The rules of standing only allow
those who have an interest in property or those who have suffered economic loss to
sue.
o Land and Environment Court:
 The Land and Environment Court of New South Wales (LEC) is a specialist court
with a wide jurisdiction.
 It has the same status in the court hierarchy as the Supreme Court of NSW and
is responsible for interpreting and enforcing environmental law in NSW.
 The LEC’s jurisdiction is granted by more than 60 NSW Acts.
 It does not have the power to hear matters outside that statutory jurisdiction.
 It deals with environmental, development, building and planning disputes, and
certain types of native title claims.
 Alternative dispute resolution is integrated within its procedures.
 Among the statutes granting the court jurisdiction is the Trees (Disputes
Between Neighbours) Act 2006 (NSW).
 This Act allows the court to make judgments on issues involving the removal or
pruning of trees and who should pay.
RESOLVING DISPUTES WITH THE STATE:
- Legal Methods:
o Internal Review:
 Internal review allows the reviewing body to indicate that an earlier decision
was wrongly decided.
 The reviewing body sends it back to the original decision-maker to reconsider all
the evidence or not to consider some evidence. E.g. This is usually what happens
under common law when the courts review a decision.
 Internal review process has a number of positive aspects:
 It has the potential to be quick and relatively inexpensive.
 It provides a review process for the large number of people who would
not undertake the more expensive and time consuming avenue of
external review.
 It can function as a quality control mechanism because it can pick up
systematic problems much earlier than can be achieved by external
review.
 Against the good points, there can be a major disadvantage to internal review.
 There is a possibility of lack of confidence in the reviewed decision
because it is made internally, that is, by an officer of the same
department or agency.
o External review:
 With external review, another person or reviewing body is given the power to
examine the decision of an agency or government department and ‘review it on
its merits’.
 The reviewer’s decision is substiuted for that made previously.
 External review always requires legislation authorising review, because the
review body is separate from the body being reviewed.
 A variety of reviews of the action of government departments and agencies
exist which are made outside those agencies.
 These include courts, tribunals, Ombudsmen and statutory bodies
established to protect citizens’ individual or group rights.
 JUDICIAL REVIEW:
 Judicial review means that a court considers whether a decision made
by a government body has been correctly made.
 Legislation is not needed for a court to review a decision.
 When a court reviews a decision, it is not looking at the correctness of
the decision but its legality. This involves two concepts:
o Ultra vires (a Latin term meaning ‘beyond the limits’)
o Procedural fairness, or natural justice.
 An ultra vires decision is one that is a made outside the limits set by the
relevant legislation. Sometimes the breach is technical and can be
ignored, so the original decision stands.
 Procedural fairness also known as natural justice, has developed as part
of common law and has two elements:
o The first is a person’s right to be heard before a decision is
made about him or her.
o The second is that the person (or persons) making the decision
should not be biased.
If the court believes that the decision has not been legally made, it
will send it back with the order that the correct procedures should
be followed. It cannot substitute its own decision.
Judicial review usually takes place in the Federal Court or state Supreme
Court, though in some circumstances they may take place in the Land
and Environment Court. If a judicial review finds that a government
decision was made incorrectly, remedies are available under the
common law using various writs. These are available at both federal
and state levels.
 The courts have a wide range of remedies available to them:
o Declaration: for example, that a decision was unlawful
o Injunction: an order that a particular action be taken or not
taken
o Mandamus: an order requiring an official or public body to take
action it failed to take
o Prohibition: an order to a lower court to cease proceedings
o Certiorari: an order to quash the decision of the decision maker
because jurisdiction was improperly exercised, or the process
lacked procedural fairness.
 Although a court can order a government body to remake its decision,
the court cannot make the decision itself.
 Standing means that a person must be affected by a government
official’s decision to have a matter considered by court.
o In legal terms this means the person has to have ‘locus standi’
or standing.
 A person desiring judicial review must have standing: that is, he or she
must be directly affected by the issue.
 Common law rules of ‘locus standi’ are hard for an individual to have
sufficient standing for a case to be heard.
 Judges have interpreted federal locus standi rules narrowly, especially
for environmental matters.
 Judicial review can be slow and is expensive. Under common law the
grounds for review are limited.
 The federal law traditionally allowed much wider grounds for judicial
review than the state law in New South Wales, though the situation is
now changing.
 OMBUDSMEN:
 The Office of the Ombudsmen have the power to investigate the
administration of government departments and to recommend
changes. State and Commonwealth Ombudsmen exist.
 Concept behind the Ombudsmen is the need to investigate complaints
about poor administration within any particular government
department.
 This is because poor administration has many effects:
o It produces decisions that have not been fully considered.
o It can mean that staff are placed in positions for which they are
not adequately trained.
o It can allow administration practices to develop without
adequate review.
 An Ombudsman can be called in to investigate bad or wrong decisions
or a rude member of staff.
 An Ombudsman does not merely establish that the decision was wrong
or that the staff member was rude.
 Ombudsmen tend to go further and look for systemic problems in the
administration of an organisation and, as a result, their reports will
seldom critisise individuals.
 It can be seen that Ombudsmen have two roles:
o To identify and resolve disputes
o To improve administration
 An Ombudsman can only recommend a decision or administrative
procedure to be changed.
 The Ombudsman’s power of investigation lets them obtain the
necessary documents which are required for the decision under
investigation.
 The media does publicise the Ombudsmen’s reports. This can lead to
considerable publicity, and this is unfavourable publicity that the
government departments try to avoid.
 An Ombudsman cannot investigate Parliamentary Members or
Committees, or their officers or Royal Commissions and Commissions of
Enquiry.
 COMMONWEALTH OMBUDSMEN:
 The Commonwealth Ombudsman’s office investigates complaints made
by citizens about federal government departments and agencies.
 Citizens who feel that they have been treated unfairly by a government
agency can complain to the Ombudsman.
 Complaints can be made in writing, by phone or in person.
 Specific areas for the Commonwealth Ombudsmen are:
o The Defence Force Ombudsman
o The Immigration Ombudsman
o The Taxation Ombudsman
o The Postal Industry Ombudsman
o The Law Enforcement Ombudsman
 Most complaints are resolved by the Ombudsman without a formal
report.
 If necessary, an investigation may be carried out, with a report
containing recommendations where the Ombudsman had a view that
the actions of the administrator were unreasonable, unjust, oppressive,
improperly discriminatory, unsupported by the facts or not properly
explained by the government agency.
 The Ombudsman may also comment on legislation that was
unreasonable, unjust, oppressive or improperly discriminatory.
 A report is given to the relevant Minister and agency.
 If the Ombudsman’s recommendations are not accepted, the report
may be given to the Prime Minister.
 The Commonwealth Ombudsmen cannot override the decisions of the
agencies which they investigate, nor issue directions to their staff.
Instead, they resolve disputes through consultation and negotiation,
and if necessary, by making formal recommendations to the most senior
levels of government.
 Since the inception of the Commonwealth Ombudsman's office in 1977,
The Commonwealth Ombudsmen have assisted in resolving many
thousands of individual complaints and brought about significant
improvements in the quality of government administration.
 NSW OMBUDSMAN:
 The New South Wales Ombudsman, like its Commonwealth
counterpart, is independent of the government of the day. Its role is to
help ensure that government departments are aware of their
responsibilities to the public and that they act reasonably and comply
with the law when carrying out their duties.
 Complaints can be made to the NSW Ombudsman regarding such
matters as:
o Local government; for instance, not complying with the law or
not enforcing the conditions of a consent to develop land.
48 Mohnish
o The police; for instance, Prajapati-
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or harassment,
failure to take action in cases of domestic violence, bias or
excessive use of force.
 STATUTORY BODIES:
 A number of bodies have been created by statute to deal with reviews
of government bodies. Some of these agencies include:
o The Australian Human Rights Commission (AHRC)
o The Independent Commission Against Corruption (ICAC)
 INDEPENDENT COMMISSION AGAINST CORRUPTION:
 Established in 1988.
 Its aims are to ‘protect the public interest, prevent breaches of public
trust and guide the conduct of public officials’
 The Commission’s role is to investigate and prevent corruption by public
authorities and public servants, and to educate public officials and the
community generally about the detrimental effects of corruption on
administration and on the community.
 The ICAC is a public authority completely independent of the
government. It is directly accountable to the NSW Parliament.
 The ICAC’s principle functions are set out in the Independent
Commission Against Corruption Act 1988.
 The jurisdiction of the ICAC extends to all NSW public sector agencies
(except the NSW police force) and employees, including government
departments, local councils, members of Parliament, ministers, the
judiciary and the governor.
 The ICAC’s jurisdiction also extends to those performing public official
functions.
 THE AUSTRALIAN HUMAN RIGHTS COMMISSION:
 The Australian Human Rights Commission (AHRC) was formerly known
as the Human Rights and Equal Opportunity Commission.
 The Commission plays a central role in contributing to the maintenance
and improvement of a tolerant, equitable and democratic society.
 It provides information through public education programs aimed at the
community, government and business sectors.
 It also holds public inquiries, advises parliament, conducts research and
investigates discrimination complaints.
 The AHRC is responsible for administering the following federal human
rights laws:
o Human Rights and Equal Opportunity Commission Act 1986
(Cwlth).
o Racial Discrimination Act 1975 (Cwlth).
o Sex Discrimination Act 1984 (Cwlth).
o Disability Discrimination Act 1992 (Cwlth).
o Age Discrimination Act 2004 (Cwlth).
 ROYAL COMMISSIONS:
 At times the government perceives that there is a serious problem that
needs extensive and independent inquiry to ascertain appropriate facts
and to make recommendations concerning any illegal or wrong
conduct.
 In such instances, the usual practice is to establish a commission of
inquiry known as a ‘Royal Commission’.
 Because of the basic role of fact finders, traditionally the person
appointed to the position of commissioner and heading the inquiry will
be a legally qualified person.
 The Royal Commissions Act 1902 (Cwlth) allows the Commonwealth to
establish inquiries into any matter of public importance.
 Two relatively recent Royal Commissions were the Food For Oil Inquiry
where even the Prime Minister and federal government ministers were
required to give evidence at the Food for Oil inquiry.
 There is no Commonwealth equivalent of the Independent Commission
Against Corruption and a specific Royal Commission would need to be
set up to deal with serious corruption issues.
 TRIBUNALS:
 Administrative Tribunals:
o Administrative tribunals are bodies that review specific
administrative decisions of government agencies.
o They offer a time‐efficient, low‐cost means of resolving legal
disputes and problems.
o They are different from courts, as they have narrow areas of
jurisdiction, are less formal, usually do not allow legal
representation and are not bound by rules of evidence and so
can take into account a variety of factors in finding a solution.
o Some examples of tribunals include: The Administrative Appeals
Tribunal (AAT) and The Administrative Decisions Tribunal (ADT).
 The Administrative Appeals Tribunal (AAT):
o The Administrative Appeals Tribunal (AAT) hears appeals against
decisions of federal government departments and agencies on
their merits.
o If a decision of an agency can be heard by the ATT, the agency
must inform the person that they have this right.
o The jurisdiction of the ATT changes constantly and is set out in
its annual reports.
o If a person has been affected by a decision of a government
body that is reviewable, the body must give reasons for the
decision if an affected person asks for them.
o A request for a review must be made in writing. If the parties
agree, alternative methods of dispute resolution such as
mediation are usually used to resolve the problem.
o The hearings are fairly formal, and lawyers or other trained
advocates may appear.
o However, in some areas of law this does not occur – for
instance, with social security cases. Evidence is heard, and
written argument is accepted but the ATT is not bound by the
rules of evidence and is able to inform itself in whatever way it
considers best.
o The AAT has significant power to request government
documents or require persons to answer questions.
o It can even do this in some circumstances when the
Attorney‐ General has decided that a person cannot receive
information because it is a threat to security, national defense
or part of the deliberations of the Cabinet. In this last case it
may only inform itself and cannot divulge Cabinet deliberations
to anyone else.
o The Tribunal will normally hear matters in public, but it may
close proceedings at its discretion.
o The Tribunal may affirm the decision under review, vary the
decision or set the decision aside and make a new decision
itself, or give advice to the decision maker on making a new
decision. Only questions of law may be appealed to the Federal
Court or Federal Magistrates Court.
 The Administrative Decisions Tribunal (ADT):
o The Administrative Decisions Tribunal (ADT) of New South
Wales can review the decisions of officers of government
department.
o The ADT makes decisions in discrimination cases, professional
discipline cases and tenancy cases.
o It also makes decisions in other areas, but not until an internal
review has taken place.
o The ADT is required to give reasons for its decisions.
o Legislation determines who has the right to seek a review; for
example, under the Freedom of Information Act 1989 (NSW)
only a person ‘aggrieved’ by a decision is entitled to seek
review.
o Many applicants before the tribunal are not represented by a
lawyer, but government agencies are.
o The ADT reviews decisions on their merits, making use of any
relevant material brought to its attention.
o The type of decision made is similar to those of the federal
Administrative Appeals Tribunal: affirm, vary, return the matter
for the original decision maker to reconsider taking into account
the ruling of the Tribunal, or substitute its own decision for that
of the original decision maker.
- Non-legal Methods:
o When an individual doesn’t agree with a decision made by a government department or

agency, there are a number of methods by which these decisions and disputes can be
challenged or dealt with. Some of these are informal or ’non-legal’ methods whilst
others involve using formal legal channels
o Media:
 The media has become one of the great powers in any democratic form of
government.
 The power of the media is based on its ability to provide wide access to
information in an extremely fast time.
 The information may not always be accurate, but the fact that it has the
potential to shape society’s opinion about issue, particularly political issues,
before any official statement of substance is made upon the matter.
 The media, which is less accountable to society and therefore less concerned
with standards than the government, is able to use its electorate-informing
power and question the abuse of state power.
o Members of Parliament:
 Members of parliament are elected representations of society.
 A member’s role is to represent the interests and legal concerns of the
electorate.
 In the event of a problem relating to the use of state power, a member will
often be asked by an anxious individual for assistance.
 If the use of power does not harm their political aspirations, the member may
use government contacts and political power to attempt to have the grievance
resolved in favour of the individual challenging state power.
 By acting in this way, a member of parliament is able to develop a favorable
reputation within an electorate and continue to be re-elected.
o Trade Unions:
 Trade unions work to protect the rights of workers and bargain on their behalf
with employers, which protects their rights to a fair wage and fair conditions.
 The law protects the rights of workers to join a trade union or remain outside
the trade union.
 Under both state and federal law, unions automatically have standing to
52 Mohnish
represent workers in industrial relation Prajapati- Preliminary Legal Studies
tribunals.
 Under federal and state law it is an offence to dismiss a worker because they are
a member of a trade union or, conversely, because they are not a member of a
trade union.
 Unions help to protect the rights of workers in areas of underpayment of wages,
unfair dismissal, harassment and workplace bullying, workplace health and
safety; and they generally provide advice to workers about their rights.
 Unions also play a wider role, lobbying governments on a range of industrial and
social issues such as maternity leave.
 In return for the benefits of membership, union members have the
responsibility to pay their membership fees and obey the rules of the trade
unions.
o Interest Groups including Non-Government Organisations (NGOs):
 The term Interest groups (also known as lobby groups) refers to a group of
people who come together in support of a common idea or goal and tries to
influence public policy to meet those concerns.
 When a government decision affects a large number of people, it can often be
effectively challenged through pressure put on the government by a lobby or
interest group.
 People can form a group to lobby about a particular issue and can pressure the
government to change its decision, or introduce new laws, by organizing
petitions, media releases, public protests and letter writing campaigns.
 An example of an interest group in Australia is the New South Wales Council for
Civil Liberties.
 The New South Wales Council for Civil Liberties (NSWCCL) aims to bring about
equal rights for all people, as long as these rights do not infringe on the rights of
other people. It is opposed to the abuse of power by the state against its
people. The NSWCCL attempts to influence public debate and government
policy on a range of human rights issues.
 It lobbies for parliament to amend law and alter policy, where there is a lack of
respect for human rights.
 The NSWCCL accepts individual complaints and provides volunteers who assist
members of the public to resolve civil liberties problems.
 It produces publications such as The Prisoners’ Rights Handbook which is aimed
at helping prisoners be informed about their basic rights and entitlements while
serving time in NSW gaols.
 Recent work by the NSWCCL includes, Federal Court cases on the rights of
asylum seekers, including Australia’s obligations under the International
Agreement Convention against Torture and numerous submissions to federal
and state parliaments on issues such as human rights, anti-terrorism legislation
and same-sex marriage.
 Non-government organisations (NGOs) are organisations that have no affiliation
with the government.
 Instead they rely on the support of the individuals and other organisations.
53 People can also form groups whereMohnish Prajapati-
they share politicalPreliminary LegalorStudies
values or aims have a
specific goal of challenging a state decision.
 Individuals can choose to join these groups and engage in activity of various
types or donate money to fund their activities.
 For example, Greenpeace, a non-government organisation, was actively
involved in the protest and prevention of Japanese whaling in 2006. By
maneuvering their boats to positions that were directly in line with the
whaling boat harpoons, the activists prevented the whale hunters from
firing at whales.
 NGOs spread the views of their members to the wider community and are
frequently used as lobby groups to initiate changes to government policy or to
established or proposed laws.
 Typically, NGOs are involved in issues such as: environmental issues; human
rights; welfare and related social justice issues including labour reform and
international trade policy.
3-Contemporary Issue: The Individual and Technology:
MOBILE PHONES:
IMPACTS OF TECHNOLOGY ON THE INDIVIDUAL:
- Most modern mobile phones are now equipped with a digital camera.
- These small and easy‐ to‐use cameras are convenient but they are also easy to conceal, and this
has raised concerns about their inappropriate use.
o For example, police and beach inspectors have found that a small number of people
have used their phones to record, store and transmit images of people at the beach, and
in some cases even in changing rooms.
- This raises serious issues about privacy and, in some cases, illegal activity.
- Camera phones (mobile phones with in‐built digital camera technology) are being used to both
take and distribute/publish photographs of people without their consent.
- Also, because of their dual use and the popularity of mobile phones in Australian society,
camera phones may increase the likelihood of photos being taken which are intrusive or
otherwise an invasion of privacy.
- Mobile phones have also created a range of issues which the law needs to address, such as the
use of mobiles to:
o Take photos (or video footage) of individuals (often without their knowledge of
permission) and circulate that material to others (‘snaperazzi’). For example, if
someone takes a photo of a person in the shower and sends it to other people, they
could be charged under the Summary Offences Act (NSW) with indecent filming
(maximum of 2 years in jail), with the ‘use of a carriage service (i.e. mobile phone) to
menace, harass or cause offence’ under the Criminal Code (Cwth) (maximum penalty of
3 years)
o Engage in bullying (‘m‐bullying’) and stalking behaviour
o Send inappropriate images (‘sexting’), which could be considered to be child
pornography
o Track the location of people using their mobile phone via GPS technology
o Engage in criminal activity.
LEGAL IMPLICATIONS:
- Privacy:
o Privacy has been sometimes referred to as:
 The right to be left alone
 The right to exercise control over one’s personal information
 A set of conditions necessary to protect our individual dignity and autonomy.
o There is no constitutional right to privacy in Australia, but there are some pieces of
legislation which afford certain but incomplete protections.
o The Privacy Act (Cwth) was enacted in 1988 before the advent of the Internet, mobile
phones, digital cameras, sophisticated surveillance devices and social networking
websites—all of which challenge our capacity to safeguard our sensitive personal
information.
o A related problem is confidentiality. While privacy only protects individuals, an
organisation may have secrecy or confidentiality concerns.
o Small and hidden cameras, whether or not included in a mobile phone, can be used to
take images of documents, information, products or practices which are supposed to be
confidential.
o Organisations which ban the use of camera phones inside their premises may be
protecting their corporate secrets or confidentiality, as well as being concerned about
the privacy of individuals.
o Confidentiality and secrecy are different concepts to privacy, and are not regulated by
privacy laws.
- Tracking:
o Locating or positioning individuals by using their mobile phone touches upon delicate
privacy issues, since it enables someone to check where a person is without the person's
consent.
o Strict ethics and security measures are strongly recommended for services that employ
positioning, and the user must give an informed, explicit consent to a service provider
before the service provider can compute positioning data from the user's mobile phone.
o There are also concerns that this technology may be misused.
 For example, there is the potential for child sex offenders and other criminals to
make contact with children through their mobile phones (via the Internet).
FUTURE DIRECTIONS- THE ROLE OF LAW REFORM:

55 - Mohnish
Some examples of law reform relevant to the use of mobile Prajapati- Preliminary
phones include the: Legal Studies
o Crimes Legislation Amendment (Mobile Phones in Places of Detention) Act 2007 The act
was created to amend the Summary Offences Act 1988, the Crimes (Administration of
Sentences) Act 1999 and the Crimes (Administration of Sentences) Regulation 2001 to
prohibit inmates using mobile phones in places of detention (detention centres,
correctional centres).
Under the act Section 27DA of the Summary Offences Act 1988 makes it an offence for an
inmate to have in their possession, or to use, a mobile phone, a SIM card or a mobile phone
charger. The offence carries a maximum penalty of imprisonment for 2 years or a fine of $5,500,
or both.
CYBERSPACE:
IMPACTS OF TECHNOLOGY ON THE INDIVIDUAL:
- Cyber law is a term used to describe an emerging body of law relating to the internet and
electronic commerce. Much of this law involves the application of traditional laws to new
technology, for example, the application of defamation law to some internet communications.
- When a person conducts a transaction on the Internet, this transaction may involve the laws of
at least three jurisdictions:
1) The laws of the state/nation in which the user resides, apply to the transaction
2) The laws of the state/nation apply where the server hosting the transaction is located
3) The laws of the state/nation apply to the person or business with whom the
transaction takes place.
LEGAL IMPLICATIONS & THE DIFFICULTIES WITH ENFORCING RIGHTS:
Cyber bullying has been defined as the involvement and use of information and communication
technologies to support deliberate, repeated, and hostile behaviour by an individual or group that is
intended to harm others. Examples of cyber bullying include:
 Spreading rumours in chat rooms and on social networking sites such as Facebook
 Posting threats on websites
 Forwarding private communication to other people
 Posting embarrassing photos or video footage on the web
 Constantly sending text messages and making phone calls to a victim
- Where cyber bullying is serious, it may be appropriate for the law to step in to impose penalties
on bullies.
- In cases where bullying involves a threat to kill or seriously injure a person, state‐based criminal
legislation could be used to lay criminal charges against bullies for assault.
- However, where bullying does not include such threats, but is more in the realm of emotional
cruelty, legal protection offered to victims is not clear.
- Under the NSW Crimes Act it is a criminal offence to harass or intimidate a school student while
the student is at school.
- This offence can be applied to traditional off‐line bullying but has its limits as it applies only to
56 activities done at school. As cyber bullying can occur exclusively
Mohnish outside
Prajapati- the schoolLegal
Preliminary yard,Studies
it is
quite possible that cyber bullying would not be covered by this provision.
- In the absence of specific and effective laws dealing with cyber bullying, victims must rely on
laws largely designed to apply in the off‐line world and, in many cases, developed before the
advent of the internet.
- Such laws include defamation law (which may offer some redress to victims about whom false
statements have been published online) and laws preventing harassment of individuals on the
basis of race, religion and sexual orientation.
- Some state governments have specifically expanded the scope of the off‐line harassment laws to
cover online activities.
o In Victoria, for example, the stalking provisions of the Crimes Act could extend to catch
cyber bullies who post information about a victim on the internet, intending the post to
cause mental harm to the victim, or to cause the victim to fear for his or her safety.
- However, even where specific legislation designed to apply to such online activities exists it has
been of little effect, with no cases of successful prosecution for cyber‐ bullying in Australia.
-
FUTURE DIRECTIONS- ROLE OF LAW REFORM:
57 - The lack of specific laws on cyber bullying raises questions
Mohnishabout enforcement
Prajapati- andLegal
Preliminary the ability
Studiesof
the legal system to address technology-based offences. Issues of enforcement and effectiveness
include:
o As quickly as technology related laws are changed, the nature of the offences seems to
change
o Difficulties with jurisdiction in terms of state and federal areas of responsibility (note
that telecommunications are a federal responsibility)
o Social networking site (e.g. Facebook) responsibility and failure to act to address cyber
bullying which is occurring via their site
o Lack of uniform legislation and specific offences makes taking action against cyber
bullies a major problem
o Hesitancy to use criminal sanctions – if the abuse isn’t physical, is it still assault?
o  cost of taking civil action (for defamation) versus the possible remedy which may be
achieved.
- In response to the increasing occurrence of cyber bullying and the staging and filming of fights
and attacks, the Queensland government introduced the Criminal Code (Filming or Possessing
Images of Violence Against Schoolchildren) Amendment 2010 (Qld) to address this issue. The
amendment allows for the confiscation of electronic devices (such as mobile phones) used to
record or transmit images of bullying against children through the Internet on social networking
sites such as Facebook and YouTube.
- In 2009 a bill titled Criminal Code (filming or possessing images of violence against children) was
introduced into the NSW Parliament. It is fair that this legislation will resemble the Queensland
example and will also attempt to address the issue of cyber bullying.
1-Contemporary Issues: File Sharing and Digital Copyright: Law in Practice:
DIGITAL COPYRIGHT AND INTELLECTUAL PROPERTY:
- Intellectual property is the term given to any idea that is legally protected.
- The ‘idea’ can be anything intangible ‐ a song, poem, movie, invention or theory, for example.
Intellectual property is protected by copyrights, patents and trademarks.
- When someone else wishes to use all or part of something that is the intellectual property of
another, they must ask permission and usually pay a fee. For example, file sharing sites have
made it very difficult for musicians and recording companies to protect their intellectual
property rights.
- The rise of the internet and other digital technologies has caused a broad reconsideration of the
rules of copyright.
- In general, copyright refers to the rules that govern copying and distribution of original works.
The internet is awash in information, much of it with varying degrees of copyright protection.
Copyrighted works on the net include news stories, software, novels, screenplays, graphics,
pictures, and even email.
- In fact, the frightening reality is that almost everything on the internet is protected by copyright
law. Original material (also known as intellectual property) is protected by both domestic and
international copyright laws.
- Copyright is the right of a creator to ensure that their original work is not copied by others
without their permission. Historically, copyright law was confined to text‐based material, but
over time has expanded to include rights in a range of types of works, including books, films,
software and music.
- Copyright law has had to adapt to the new digital environment, and ‘digital copyright’ simply
refers to copyright as it applies to this relatively new medium. One of the most significant issues
59 Mohnish
in this area is digital piracy occurring by means of file Prajapati-
sharing. Preliminary
File sharing Legal Studies
means distributing
electronically stored information, often without authorization.
- Copyright laws differ from country to country which leads to much confusion when matters of
copyright violation arise.
- Australian law has responded to these challenges and gradually, through both case law and
statute law, copyright is being re‐established.
o For example, in Australian Performing Rights Association Ltd v. Telstra Corporation Ltd
[1995] 31 IPR 289, Telstra was ordered to pay the Association for the use of music
recordings it was using when Telstra customers were placed on hold.
INTERNET PIRACY:
- Internet piracy is intellectual property that is posted and transmitted globally via the internet
without the permission of the rights holders. It can be via websites, email or through peer to
peer transfers.
- In Australia it is understood that:
o Around 2.8 million Australians download music illegally via file sharing networks every
year. Of these, three quarters claim to download every month.
o 1 in 3 kids in the 14‐17-year age group illegally download music regularly.
o On average, Australians download approximately 30 songs a month. This totals
staggering 1 billion songs being illegally traded by Australians per year.
o Close to 70% of Australians agree that illegal file sharing is stealing. Only half of all 14‐
24-year olds agree with this statement.
o Almost half of illegal file sharers themselves agree that illegal file sharing is stealing.
o Over half of illegal file sharers question “why should they have to pay to download
music when they can get it for free via file sharing networks”.
o Among illegal file sharers, more than half admitted that they feel bad that artists lose
income because of illegal file sharing activity.
o Almost three quarters of the general population feel bad that illegal file sharing is
impacting on the lives and incomes artists.
o The majority of people that download music illegally rarely or never go on to purchase
the music legitimately.
CONSEQUENCES OF INTERNET PIRACY:
- Unauthorised uploading, downloading or copying of music and films over the internet is not free
as it is the musicians and the people who invest in the music who are paying the price. The
artists, record labels that have invested in them, the publishers who manage the copyright of
their songs and the thousands of people involved in the many different areas of the music
industry are all affected.
- Downloading and copying without permission doesn't fairly reward the efforts of those who
create, develop and record music, and who depend on it for their livelihood
- Increased internet piracy means less sales, and that means less money for companies to invest
in artists and music.
- This affects a whole community of people: the employee at the retail store that faces closure;
the aspiring artist who won't get a deal because record companies have less money to invest in
new talent; and the artist whose first album just failed to sell enough to turn a profit.
- There are the thousands of other people who depend upon music for their income: from the
sound engineers and CD factory workers to the band managers and graphic artists.
HOW DOES COPYRIGHT WORK IN A DIGITAL ENVIRONMENT?
- Material on the internet may be protected by copyright.

- In many cases, permission to download material from a website is given on the site itself, but
the fact that material is available to be viewed on a website or is accessible using peer to peer
software networks over the internet, or is contained in an email, does not, by itself, mean that
you can use it as you wish.
- Music and images in digital media on the internet are subject to copyright and require
permission for their use, unless there is a clear statement by their creator that they are
copyright‐free.
- Any 'substantial portion' of a work, that is a portion of a work that is instantly recognisable,
requires copyright permission if that portion is not used for study or review purposes.
‘EXPRESS’ AND ‘IMPLIED’ CONDITIONS;
Express conditions:
- You will have an “express” permission if, for example, there is a statement on a website which
states that you may do certain things (for example, where it states that you can download a
document for personal or non‐commercial uses).
- You will also have an “express” permission if, for example, you email a request for permission
and get a reply which expressly allows you to use the material.
- Your right to use the material, however, may be limited by the terms of the permission granted,
and/or by any conditions that the copyright owner imposes
Implied conditions:
- An “implied” permission, on the other hand, is a permission which is not spelled out, but which
is implied from all the circumstances. Generally, implied permissions are very limited in scope.
- The fact that something is on the internet does not mean that it is “copyright‐free”. You might
infringe copyright if you do any of the following:
o Print, email or save material from a website or a bulletin board without express or
implied permission
o Upload or download a pirated version of a movie or pirated copies of a song or
software.
61 LEGAL ISSUES SURROUNDING VIOLATIONS OF COPYRIGHT:Mohnish Prajapati- Preliminary Legal Studies
- Digital copying over the internet grew rapidly in popularity, as it allowed users to obtain music
and other media files freely, quickly, relatively simply, in the comfort of their own homes, and in
an easily transferable and shareable format.
- It also allowed users to store and transport their own music and media files much more easily
than on multiple CDs or DVDs, or the earlier and even bulkier videotape and cassette tape
collections.
- The music and other media industries were often accused of being slow to catch on and offer
accessible digital media solutions to meet this rapidly growing market demand.
- The law was also slow to change. For example, until 2006, it was still illegal under Australian
copyright laws for someone to copy legitimately purchased music from his or her own computer
to a portable music device, or to upload the contents of a legitimately purchased CD into his or
her computer’s digital music library.
- Recording a television program onto a videotape for later viewing or even making a music
compilation on a CD or cassette tape still constituted copyright infringement.
- The law has to constantly and rapidly keep adapting itself to meet the challenges for copyright
law and digital technology.
- Increasingly easy access to ‘free’ file sharing technologies began to put significant pressure on
the legal system to adapt.
- However, the absence of any adequate law reform eventually led to costly legal battles, both
local and international, instigated by music industry and other media bodies in an attempt to
protect their copyright and alleged loss of profit.
- Many of the legal issues relating to digital copyright and file sharing continue unresolved to this
day (this area will be discussed in the next unit of work).
- The Australian government is currently considering a three strike Internet Piracy law, which
would see downloaders warned and then banned from the Internet for up to a year. Under such
laws the government would allow Internet Service Providers (such as Optus, TPG or Telstra) to
handle these internet bans.
LEGAL RESPONSES TO FILE SHARING AND DIGITAL COPYRIGHT:
What is copyright and why do we need it?
- Copyright is a type of property that is founded on a person's creative skill and labour. These
creations are called “intellectual property”.
- Copyright is designed to prevent the unauthorised use by others of a work that is the original
form in which an idea or information has been expressed by the creator. Copyright is not a
physical thing.
- It is made up of a bundle of exclusive economic rights to do certain acts with an original work or
other copyright subject‐matter. These rights include the right to copy, publish, communicate
(e.g. broadcast, make available online) and publicly perform the copyright material.
Reasons for copyright:
62 1. Copyright laws create incentives for people to invest Mohnish Prajapati-
their time, talent Preliminary Legal Studies
and other resources in
creating new material which contributes to a more educated and cultured society.
2. It is wrong to steal. It is immoral and illegal to steal other people’s property unless they give you
permission to use it. Copyright is an extension of this moral principle and protects creative
works from being used without the copyright owner’s agreement. Australian law recognizes that
individuals have the right to make money from the sales of the copies of their work.
WHAT LAW GOVERNS COPYRIGHT IN AUSTRALIA?
- The Copyright Act 1968 (Cwth) legally grants and regulates the exclusive right of authors and
creators in Australia to control the use of their work and their means to earn a living from their
work.
- Copyright applies to literary, musical, dramatic and artistic works found in a wide range of
media, including material found on the internet and on CDs and DVDs. Although the Act dates
from 1968, it sets out how copyright applies for material created both before and after that
date. It has been regularly amended since 1968, to bring it up to date with evolving technologies
and concerns.
- Copyright and intellectual property matters are among the powers of the Commonwealth
parliament under Section 51 (xviii) of the Australian Constitution and are thus a federal
responsibility. The Copyright Act 1968 (Cwth) is known for being one of the largest and most
complex Australian statutes and currently runs to a total of 646 pages.
- The Copyright Act replaced an outdated Act based on older British copyright law.
63 POSSIBLE PENALTIES
Mohnish Prajapati- PreliminaryFOR THOSE
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WHO INFRINGE COPYRIGHT:
- Under Section 132 of the Copyright Act 1968 (Cwth) it is an offence for a person to manufacture,
sell, hire, distribute or offer for sale or hire, infringing (pirate) copies of films, in any format.
- The maximum criminal penalties for individuals under the Copyright Act can be as high as
$60,500 and up to five years imprisonment.
- A corporation may be fined up to $302,500. If a person advertises infringing copies of copyright
material for sale this is also a criminal offence.
- The maximum penalty for such advertising for an individual is $1,650, or six months
imprisonment, and for a corporation is $16,500.
- The Copyright Amendment (Parallel Importation) Act 2003 (Cwth) introduced a range of criminal
penalties for the infringement of copyright by importation to a maximum of $357,000 per
offence for corporations and a maximum of $71,000 per offence for individuals.
- This legislation also provides for the Federal Magistrates Court to have jurisdiction in various
civil matters. One of the main benefits of the Federal Magistrates Court having jurisdiction is its
availability as a quick, relatively cheap, forum for resolving routine cases.
- In situations where infringing material is imported from overseas, the Australian Customs
Service may be able to seize copies in anticipation of a court action by the copyright owner.
- Civil court action can result in a number of repercussions for people who infringe copyright
including; being made to compensate copyright owners for a loss of income, having equipment
that has been used to make infringing copies taken away by the copyright owner; and being
subjected to a court order (called an injunction) that is aimed at stopping further infringement.
AMENDMENTS TO AUSTRALIA’S COPYRIGHT LAWS:
- Since the year 2000, the Australian government has had to review and amend the Copyright Act
a number of times to adapt it to social, economic and technological changes
The Copyright Amendment (Digital Agenda) Act 2000 (Cwth):
- The Copyright Act 1986 was amended in 2000 in response to the rapid growth in use of the
internet. The Copyright Amendment (Digital Agenda) Act 2000 (Cwlth)gives the owners of
material on the internet certain exclusive rights. These include:
o The right to reproduce material (in electronic form 10% of the number of words is
allowed)
o The right to communicate the material to the public and
o Banned the making or distributing of devices designed to break technological protection
measures, which are the digital ‘locks’ put in place to limit copying or accessing of
copyright materials.
Australian USA Free Trade Agreement Implementation Act 2004 (Cwth):
- In 2004 Australia entered into an agreement with the US called the Australia-United States Free
64 Trade Agreement (AUSFTA). Mohnish Prajapati- Preliminary Legal Studies
- As part of the agreement, Australia was required to amend a number of its copyright laws to
bring them more into line with USA laws and with certain international treaties.
- Australia agreed to extend its copyright expiration period from 50 to 70 years after the author’s
death. Another significant provision affecting digital copyright was to limit the liability of
internet service providers for copyright infringements committed by their customers (Copyright
Act 1968 (Cwth) Part V, Division 2AA).
Copyright Amendment Act 2006 (Cwth:
- In 2006, a major piece of copyright‐amending legislation ‐ the Copyright Amendment Act

2006 ‐ was passed by the Commonwealth Parliament.
- The legislation completed changes required by the Australia United States Free Trade
Agreement (AUSFTA).
- The Act introduced strict liability offences for some copyright infringements, and a system of
'Infringement Notices' (on the spot fines).
- The stated aim of these provisions is to make copyright easier to enforce, particularly against
commercial infringers.
- The Act also introduced a series of new exceptions into Australian copyright law. The most well-
known are the private copying exceptions, which follow on from proposals by former Attorney‐
General, Philip Ruddock, to allow people to record most television or radio program at home to
watch at a later time with family or friends, and to 'format‐shift' their music (make copies from
CDs onto personal computers and portable music players such as iPods).
- The Act also permits the copying of music from format to format or device to device for personal
use, known as space‐shifting and the recording of television or radio broadcasts for later
viewing, called time‐shifting.
INTERNATIONAL TREATIES ON COPYRIGHT:
- As technology develops, copyright works can be reproduced and communicated beyond

national borders with ease.
- International copyright protection is essential for copyright works to retain their value. If a work
protected under Australian law is copied freely in a foreign country, where that work is not
protected, the distribution of illegitimate copies will undermine the market, eroding the value of
legitimate copies.
- The copyright laws of each country are concerned only with actions that take place within that
country. Through a web of multilateral and bilateral treaties, copyright protection in certain
foreign countries is guaranteed to meet established international standards.
- In Australia, international treaties must be incorporated into domestic legislation before they
can become binding, and so the most important provisions of Australia’s international treaties
should already be incorporated into the Copyright Act or other relevant legislation.
- While no creative work is automatically protected worldwide, there are international treaties
which provide protection automatically for all creative works.
- The main treaties relating to copyright include:
o Berne Convention for the Protection of Literary and Artistic Works (accepted by
65 Australia in 1928) Mohnish Prajapati- Preliminary Legal Studies
o Australia United States Free Trade Agreement (AUSFTA) (accepted by Australia in 2004)
o World Intellectual Property Organization Copyright Treaty (accepted by Australia in
2007).
- Many countries are working together to crackdown on music and movie pirates, with the 2nd
World Copyright Summit being held in June 2009.
- At this summit, USA policy makers suggested the idea of a “three strikes policy” for repeat
copyright offenders.
o On the first strike: the person should receive an email warning;
o The second strike: a letter.
o With the third strike, their internet account should be blocked for a year.
- However, for this to be successful Internet Service Providers would have to work with the
copyright community.
CASE LAW ON COPYRIGHT:
- Civil or criminal actions can be brought against people or organisations that infringe digital
copyright. The type of action taken depends on the nature of the infringement.
- A civil action is one that is between two or more private people, while a criminal action relates
to infringements that impact on a wider community and is initiated by the Crown.
- Civil actions often involve a copyright owner suing a person or an organisation that has infringed
copyright for the income that the copyright owner has lost as a result of the infringement, In
many cases, Australian courts have had to decide how the Copyright Act is to be interpreted and
applied.
- As the internet is international by nature, the court challenges have occurred worldwide, with
some of the most important cases occurring in the USA and Australia.
- The first major case to address copyright laws and peer to peer file sharing heard in the USA
court with A&M Records Inc. v Napster Inc (2001).
- Napster was started in 1999 by Shawn Fanning, then an 18 year old freshman who designed an
internet service for users to access and download compressed digital music.
- Complaints of copyright infringement had been received from some of the most high‐profile
recording artists, including Metallica and Madonna.
- After a failed appeal to the Ninth Circuit Court, Napster shut down its entire network in order to
comply with a court injunction and agreed to pay music creators and copyright owners a $26
million settlement for past, unauthorized uses of music, as well as an advance against future
licensing royalties of $10 million.
- In order to pay these fees, Napster attempted to convert their free service to a subscription
system.
- Despite the outcome of the Napster case, new file‐sharing networks quickly arose, with one
called Kazaa emerging as the most popular.
- By 2004 Kazaa had over 3 million users at any one time. This resulted in some of the most brutal
66 legal battles related to file sharing. Mohnish Prajapati- Preliminary Legal Studies
o For example, in 2003 the US Recording Industry Association of America (RIAA) launched
a series of lawsuits against some 261 individual users of Kazaa for copyright
infringement through file sharing. Australia followed suit with the Universal Music
Australia Pty Ltd v Sharman License Holdings Ltd (2005) FCA 1242. On 5 December 2005,
the Federal Court of Australia ruled that downloads of Kazaa software should be
stopped in Australia. Internet users with an Australian internet address were greeted
with the message "Important Notice: The download of the Kazaa Media Desktop by
users in Australia is not permitted" when visiting the Kazaa website. On 27 July 2006, as
part of a global settlement Kazaa agreed to pay the recording industry $US115 million
and change their business model.
- To combat internet piracy the global music industry has begun civil action against individuals. As
of July 2006, the Recording Industry Association of America (RIAA) had brought lawsuits against
more than 20,000 people in the United States suspected of internet-based copyright
infringement.
- In 2007, Australia was the first country that had “The Simpsons Movie” pirated. A 21-year old
Sydney man had filmed the movie on his camera phone and then uploaded it onto the Internet.
He was charged with copyright theft and fined $1,000.
- One of the most significant cases against file sharing was launched against Internet Service
Provider (ISP) iiNet. In the case Roadshow Films Pty Ltd & Ors v iiNet Ltd FCA 24 (2010), it was
claimed that iiNet infringed copyright by failing to stop users engaging in illegal file sharing. On
February 4, 2010 The Federal Court ruled in favour of iiNet. This case has established a
precedent that ISPs are not responsible for what their users do with the services the ISPs
provide them. An appeal of the decision is pending.
NON-LEGAL RESPONSES TO FILE SHARING AND DIGITAL COPYRIGHT:
- It is often expensive, lengthy and difficult for those in the music industry to pursue persons who
are illegally downloading files.
- It is also disputed whether pursuing ordinary computer users is an effective option. Corporations
have tended to take legal action against only serial offenders, as a deterrent, and against those
who are making a profit through copyright infringement.
- In addition, it would obviously not be possible for a company to bring a law suit against every
individual who is infringing copyright.
- Instead, consumer markets have been forced to adapt, to offer alternatives to illegal file sharing
to meet the growing demand. A number of industry and non-industry bodies have been
established, seeking to educate the general public and to report on the ongoing developments.
How has the market and industry responded?
- Illegal downloading and file sharing is rampant throughout the internet.
- Despite many efforts to stop such activities the music and film industry has started to adopt this
technology and develop legitimate downloading services for their customers.
- Subscription services operate through users paying a small fee and given access to authorized
copyright material in a format they request.
- One of the largest players in this market has been the popular iTunes Music Store, launched in
2003 by the founder of Apple Inc., Steve Jobs.
- iTunes is a software program that allows user to contact to an online store and browse music,
movies, TV shows and podcasts. Artists from Bob Dylan to Jay‐Z are engaging fans in this new
way. Premium album downloads often outsell regular versions. During the first week of sales
iTunes, the online version of Michael Bublé’s Crazy Love, outsold the standard version by a ratio
of 3:1.
- The International Federation of the Phonographic Industry Digital Music Report 2010 shows that
more than a quarter of all recorded music industry revenues worldwide are now coming from
digital channels, as music companies license music in partnership with Internet Service Providers
(ISPs) and mobile operators, subscription services, streaming sites and hundreds of download
stores.
- However, despite the continuing growth of the digital music business ‐ with trade revenues up
12 per cent to an estimated AU$4.5 billion in 2009 worldwide ‐ illegal file‐sharing and other
forms of online theft are continuing to undermine investment and sales of music in major
markets including Australia.
INTERNET AND MOBILE PHONE PARTNERSHIPS:
- Internet Service Providers (ISPs) are increasingly looking to become commercial partners of
music and television companies.
- They can add value to the ISPs’ service offers as music and entertainment content help ISPs
retain customers as well as generate new revenues. In Brazil, Terra Networks, part of the
Telefonica Group, launched Sonora in 2006.
- The service offers unlimited music streaming through a “tethered” subscription service with a
fee bundled into the ISP bill. In February 2009 Sonora launched a new service, 20 hours of music
streams per month. The new offer attracted more than three million users in less than one
year.
The Rise of Streaming Services:
- A key development in 2009 was the growth of advertising‐supported services that offer music
streaming at no cost to fans.
- Streaming video is content sent in compressed form over the Internet and displayed by the
viewer in real time.
- With streaming media an internet user does not have to wait to download a file to play it.
Deezer is an example of a internet service in which users can access on any computer without
the need to download software. It offers music streaming and personalized internet radios and
has attracted more than 16 million users to date.
Digital file check software:

- People who want to be safe and legal on the internet can use free software that will help them
68 stop their computer being used for illegal file‐swapping of copyrighted
Mohnish music and movies.
Prajapati- Preliminary Legal Studies
- Digital File Check (DFC) helps to remove or block any of the unwanted "file‐sharing" programs
commonly used to distribute copyrighted files illegally.
- DFC also allows the user to delete copyrighted music and video files from the "shared folders" of
the computer from where they are commonly swapped illegally on the internet. DFC is free,
voluntary and does not tip‐off any anti‐piracy organisations.
GOVERNMENT AGENCIES AND INTEREST GROUPS:
- A number of government departments and interest groups exist to lobby the government and
educate the public on the proper use of digital file sharing.
THE FUTURE OF DIGITAL COPYRIGHT IN AUSTRALIA:
- “Unless we engage the ISPs in assisting in the protection of rights, then the value of copyright is
going to completely disappear.”
- Simon Renshaw, LA‐based artist manager. In February 2010 the Australian Federal Court
decision found that Internet Service Provider (ISP) iiNet was not liable for authorising copyright
infringements made by its customers.
- This case is being watched domestically and internationally with great interest. ISP cooperation
offers a potential solution to mass scale peer to peer digital piracy.
- The iiNet case has the potential to set major precedents in who is responsible for illegal
downloads, as Australia's laws in the area reflect that of the US and European Union.
- The Australian Federation Against Copyright Theft (AFACT) launched an appeal of this decision in
August 2010.
- Experience in Australia has shown that taking individual infringers to court did little to curb
illegal downloading.
- As a result, AFACT, along with the International Federation of the Phonographic Industry (IFPI),
continues to lobby the Australian Federal Government to change the Copyright Act and place
more responsibility with ISPs in cracking down on illegal downloads.
- A ‘graduated response system’ has been proposed as an alternative to mass civil legal actions
and prosecutions under existing laws.
- Under a ‘graduated response system’ the holders of accounts identified as being used for
infringement are sent notices by their ISP.
- The notice would advise them to stop infringing and suggest the use of a legitimate service that
respects copyright and rewards rights holders.
- An escalating series of warnings would result, as a last resort, in temporary internet account
suspension for those few who refuse to stop.
- In 2009, the governments of France and South Korea were among the world’s first to enact
legislation establishing new administrative authorities that will require ISPs to send warning
notices and impose a full range of criminal penalties to repeat offenders.
- Australia’s internet laws are also being revised.
- Internet censorship laws in Australia currently consist of a regulatory regime under the
Australian Communications and Media Authority (ACMA) which has the power to enforce
content restrictions on Internet content hosted within Australia and maintain a "black‐list" of
overseas websites which is then provided for use in filtering software.
- Since 2008, the Australian Labor Party has proposed to extend internet censorship to a system
of mandatory filtering of overseas websites which are, or potentially would be, "refused
classification" (RC) in Australia.
- This means that ISPs would be required to block access to such content for all users. It remains
unclear whether an internet censorship law would apply peer to peer networks or online chat
70 communities – the two places were illegal materialMohnish
is distributed mostPreliminary
Prajapati- often. Legal Studies
- The proposal to introduce mandatory filtering has generated substantial opposition and as of
June 2010, legislation to enact this policy still has not been drafted.
- Currently Australia is among more than a dozen countries that for more than two years have
been formulating the Anti‐Counterfeiting Trade Agreement (ACTA), which seeks to put pressure
on internet service providers to take greater responsibility for cracking down on copyright
breaches.
- ACTA would establish a new international legal framework that countries can join on a voluntary
basis and would create its own governing body.
- Negotiating countries have described it as a response "to the increase in global trade of
counterfeit goods and pirated copyright protected works".
- It is planned for ACTA negotiations to finish in 2010.

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LEGAL NOTES:

1-BASIC LEGAL CONEPTS: THE LEGAL SYSTEM

Beyond reasonable doubt: the standard of proof required in criminal cases.

Procedural fairness: Rules or procedures to be followed to ensure justice is done.

Laws, rules and Customs

- Customs are traditional ways of behaving

VALUES AND ETHICS:

CHARACTERISTICS OF A ‘JUST’ LAW:

- Justice is a principle of upholding generally accepted rights and enforcing responsibilities.

THE NATURE OF JUSTICE:

PROCEDURAL FAIRNESS AND THE RULE OF LAW:

2-Sources of Contemporary Australian Law: The Legal System

- Equity is one of the unique developments of the British legal system.

Common law Equity law

THE SYSTEM OF PRECEDENT:

THE COURT HEIRARCHY:

- Land and Environment Court:

ROLE AND RESPONSIBILITIES OF THE AUSTRALIAN PARLIAMENT:

- A parliament is a body of elected representatives.

THE LEGISLATIVE PROCESS:

THE AUSTRALIAN CONSTITUTION:

CONTENTS OF THE AUSTRALIAN CONSTITUTION:

Chapter & Section Contents

THE ROLE OF THE HIGH COURT:

- The court has 3 main functions:

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLE’S CUSTOMARY LAWS:

- Before 1788, Aboriginal people lived a traditional, nomadic existence as hunter-gatherers. It is

SIGNIFICANCE OF LAND AND BODIES OF WATER:

RITUAL AND ORAL TRADITIONS:

FAMILY AND KINSHIP:

ENFORCEMENT AND SANCTION:

17 Mohnish Prajapati- Preliminary Legal Studies

18 Mohnish Prajapati- Preliminary Legal Studies

RELEVANCE OF ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES’ CUSTOMARY LAW IN

THE ROLE OF THE UN:

THE GENERAL ASSEMBLY:

THE SECURITY COUNCIL:

INTERNATIONAL COURT OF JUSTICE:

 To decide on disputes brought before it by member nations

OTHER INTERNATIONAL ORGANISATIONS:

22 Mohnish Prajapati- Preliminary Legal Studies

3-Classification of Law: The Legal System

23 Mohnish Prajapati- Preliminary Legal Studies

24 Mohnish Prajapati- Preliminary Legal Studies

4-Law Reform: The Legal System

WHAT IS LAW REFORM?

- Changing social values:

28 Mohnish Prajapati- Preliminary Legal Studies

MECHANISMS OF LAW REFORM:

5-Law Reform in Action: The Legal System

WHAT IS NATIVE TITLE?

DOCTRINE OF TERRA NULLIUS:

- Terra nullius means ‘land belonging to no-one’

MAJOR NATIVE TITLE DECISIONS:

NATIVE TITLE ACT 1993 (CWLTH):

NATIVE TITLE AMENDMENT ACT 1998 (CWLTH):

SPORT AND RISK:

CONDITIONS THAT LEAD TO LAW REFORM IN SPORT:

33 Mohnish Prajapati- Preliminary Legal Studies

MECHANISMS OF LAW REFORM IN SPORT:

EFFECTIVENESS OF LAW REFORM IN THE WORLD OF SPORT:

WHAT ARE RIGHTS?

WHAT ARE RESPONSIBILITIES?