Professional Documents
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Cambridge Legal Studies Preliminary
Cambridge Legal Studies Preliminary
LEGAL STUDIES
PRELIMINARY
SECOND EDITION
Paul Milgate
Kate Dally
Phil Webster
Daryl Le Cornu
Tim Kelly
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Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, So Paulo, Delhi
Cambridge University Press
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
www.cambridge.edu.au
Information on this title: www.cambridge.org/9780521134699
Paul Milgate, Kate Dally, Phil Webster, Daryl Le Cornu, Tim Kelly 2010
First published 2006
Second edition 2010
Edited by L. Elaine Miller, Otmar Miller Consultancy Pty Ltd
Designed and typeset by Mason Design
Printed in China by Printplus
National Library of Australia Cataloguing in Publication data
Milgate, Paul.
Cambridge preliminary legal studies / Paul Milgate [et al.].
2nd ed.
9780521134699 (pbk.)
Includes index.
Bibliography.
For secondary school age.
LawAustraliaTextbooks.
LawExaminationStudy guides.
Higher School Certicate Examination (N.S.W.)Study guides.
Milgate, Paul
Dally, Kate.
Webster, Phil.
Le Cornu, Daryl.
Kelly, Tim.
349.94
ISBN 978-0-521-13469-9 paperback
Reproduction and Communication for educational purposes
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Please see the le licence.txt on the Student CD-ROM that is packed with this book.
Aboriginal and Torres Strait Islander people are respectfully advised that photographs of
deceased people appear in this book and may cause distress.
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Contents
viii
Acknowledgements
ix
Introduction
xi
xiv
10
12
Chapter review
14
16
18
Common law
18
22
Statute law
27
The Constitution
31
43
International law
48
International organisations
51
55
Chapter review
56
58
60
65
70
73
Chapter review
74
iii
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iv
C H APT ER 4 L AW R E FO RM
76
78
78
Agencies of reform
88
92
Chapter review
94
C H APT ER 5 L AW R E FO RM I N A C TI O N
96
98
98
101
109
110
110
114
116
117
118
118
120
122
124
Chapter review
125
129
130
132
133
136
143
Chapter review
146
148
Introduction
150
150
154
158
Chapter review
167
168
170
171
178
Rights in cyberspace
182
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183
Future directions
185
Conclusion
188
Chapter review
189
192
CHAPTER 9 C H IL DR EN AN D Y OUNG P E O PL E
192
Introduction
194
201
201
205
Conclusion
209
Chapter review
210
CHAPTER 10 WOMEN
212
Introduction
214
214
220
227
Conclusion
230
Chapter review
231
234
234
Introduction
236
236
240
244
Conclusion
247
Chapter review
248
250
Introduction
252
252
258
260
Conclusion
263
Chapter review
264
266
266
268
274
C o n tents
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279
281
Chapter review
282
C H APT ER 14 OUT L AW M O TO RC YC L E G A NG S (O M C G s )
284
286
293
301
Chapter review
302
AR EA 4: C R IMIN AL O R C I V I L C A SE S TH AT RA I SE I SSU ES
OF IN T ER ES T T O S T U DENTS
304
C H APT ER 15 F IL E SH A RI NG A ND DI G I TA L C O P YRI G H T
304
306
308
314
316
Chapter review
318
C H APT ER 16 DR UG TE STI NG
320
Introduction
322
326
335
Conclusion
337
Chapter review
338
340
Glossary
341
Index
348
Student CD Contents
Additional chapters
C H APT ER 17 GR OU PS O R I NDI VI DU A L S SU FFERI NG DI SA DVA NTA G E :
MIGR AN T S
Introduction
Migrants and the law
Mechanisms for achieving justice for migrants
Responsiveness of the legal system to migrants
Future directions
Chapter review
vi
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C o n tents
vii
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Paul Milgate
Kate Dally
Daryl Le Cornu
Tim Kelly
Phil Webster
Phil Webster BA DipEd MEd
MACE is Head Teacher of Social
Scence at Mosman High. He
has over 20 years experience
in HSIE as a teacher of Legal
Studies, Society and Culture,
and Business Studies, with
a particular interest in the
changing role of law in society.
Phil is passionate about issues
of human rights, justice and
fairness in a rapidly changing
world a world in which the
balance of power between the
individual and state is constantly
brought into question.
viii
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Acknowledgements
ix
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Introduction
To the student
Congratulations on choosing Cambridge Legal
the law, and gain insight into how the law works
9780521734699part_01_3pp.indd 10
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Using Cambridge
Legal Studies Preliminary
1 Student Book
4 Teacher CD-ROM
preparation.
2 Student CD
3 Study Toolkit
The Study Toolkit packaged with the Student
Book contains a wide range of material to help
you succeed in Legal Studies, including:
s exam preparation and study tips
s additional multiple-choice, short-answer and
extended response questions for each part of
the course
GUID E T O IC ON S
This icon lets you know that there is some additional information or activities on the
Student CD at the back of the book.
This icon lets you know that you will need to access the internet in order to
complete an activity or research task.
xi
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CHAPTER 2
exclusive powers
ex parte
external affairs power
federation
indictable offences
inquisitorial system
jurisdiction
legislative powers
mediation
natural justice
obiter dicta
opinio juris
original jurisdiction
o d d l aw
In DPP v Darby [2002] NSWSC 1157, the
government prosecutor appealed the decision
of a magistrate that the actions of a police
sniffer dog named Rocky, who put his nose on
the defendants trouser pocket, constituted an
illegal search. The Supreme Court of New South
Wales held that Rockys action was not a search,
but the search that the police ofcers did carry
out (which found prohibited drugs) was legal
because they had formed the opinion necessary
for its legality and that opinion resulted from
information conveyed by the actions of Rocky.
precedent
ratify
ratio decidendi
referendum
residual powers
sanction
stare decisis
summary offences
statute law
terra nullius
treaty
ultra vires
164
C h a p t e r 2 : S o u rc e s o f c o n t e m p o r a r y A u s t r a l i a n l a w
Statutory bodies
R EVI EW 7 . 5
of internal review of a
government agencys
these deaths.
internal review?
NSW ( A D B)
the
Independent
Commission
Against
discrimination laws.
freedom of information
legislation.
3 Describe the role
administrative and other
tribunals play in settling
legal disputes. Give an
example.
4 Outline the ways in
which peoples privacy is
protected in NSW.
5 What is judicial review?
How does it differ from
review of the merits of a
decision?
6 Outline the role of an
ombudsman. How is an
ombudsman limited in
solving disputes?
R ES EA R C H 7 . 2
http://www.lawlink.nsw.
gov.au/ADB
Supreme Court.
recommendations,
ADB.
report
containing
17
c h a p te r o b j e cti v e s
Media clip
A number of current media
articles are provided to help
you understand how the
law operates in real-world
situations.
xii
adversarial system
appeal
appellate jurisdiction
bicameral
bill
committal hearing
common law
concurrent powers
customary law
defamation
delegated legislation
domestic law
equity
m e dia c lip
16
Activities
Review and Research
Throughout each chapter you
will nd a number of different
activities. Review activities
are designed to help you
test your knowledge of key
concepts and skills. Research
activities are designed to
extend your knowledge by
researching relevant cases or
issues using source material.
re le v a n t la w
In this chapter, students will:
s identify and apply legal concepts and terminology
s describe the key features and operation of the
Australian and international legal systems
s discuss the effectiveness of the legal system in
dealing with relevant issues
s explain the relationship between the legal system
and society
s describe the role of the law in conict resolution and
its ability to respond to and initiate change
s locate, select and organise legal information from a
variety of sources
s communicate legal information by using wellstructured responses.
k e y te r m s/v o c a b u l a ry
Chapter openers
Each chapter of Cambridge
Legal Studies Preliminary
begins with a chapter opener
that contains:
s #HAPTER OBJECTIVES
s +EY TERMS
s 2ELEVANT LAW INCLUDING
important legislation and
signicant cases)
s /DD LAW IN #HAPTERS n
Sources of contemporary
Australian law
165
9780521734699part_01_3pp.indd 12
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Providers (ISPs).
of Cyberspace.
mobile
phones,
digital
cameras,
Protecting children
display by
andMay
distribution of from
our own
images.
This case was the
an appeal
getting
into ginger beer
One of thecontractual
most signicant
concerns
duty of
care, butabout
also cyber-
August
2008), www.alrc.gov.au/media/2008/mr1108.html
space is the
need oftoLord
protect
children,
not only
original decision. The
defendants
s an efcient system of inspection
because
Atkins
neighbour
David Weisbrot,
(Media release,
Donoghue, the plaintiff
in the ALRC President
bottles,
and ALRC, 11
REVIEW 8.4
children.
Child
pornography
a is,
legal
and moral
[T]here
must be, is
and
some
House of Lords.
clear bottles that would make
it
1 Mrs
HowDonoghue
are cyberbullying,
cyberstalking
and cyber-racism
problem that general
goes beyond
the legality
of images or
conception
of relations
was bought
easier
to inspect.
different
fromby
their
counterparts
in the
world?
text on the internet
or other
media.
giving rise
to a duty
of care, of
some
ginger beer
a friend
in
The physical
court held
that a
2 Should
against
these acts bemanufacturer
specically drafted
In the United
laws drafted
to protect
whichStates,
the particular
cases found
the
town oflaws
Paisley,
Scotland.
is underto
a legal duty
cyberspace,
or are existing
laws
adequate?
children from
inappropriate
be
in the
books are butmaterial
instancesmust
...
Therelate
gingertobeer
was in a dark
to the
consumer
to take reasonable
3 List
somewhich
non-legal
ways that could
bethat
used
drafted in such
way
asyou
notare
to to
violate
the right
Thearule
that
love your
glass
bottle
prevented
care
thetoarticle will not cause
against
cyber-racism
and online
to freedom of
expression
contained
the First
neighbour
becomes,
in law,inyou
Mrsprotect
Donoghue
fromcyberbullying,
seeing the
injury to health.
predators.
the following agents
in your
answer:
Amendment.must
Another
difculty
that if a law is too
not injure
yourisneighbour;
contents.
SomeConsider
ginger beer
Lord Atkin,
one
of the presiding
it can
tooneighbour?
much including
that
is my
receives content
a
case of Heaven v Pender (1883)
11 prohibit
s olderto
teenagers
(e.g.ofsiblings,
friends
or which
mentors
of
is unlikely torestricted
be accessed
children
or to have
reply.byYou
must take
proceeded
pour the rest
the
QBD 503,
established
that
to do
with thecare
victimisation
of children.
reasonable
to avoid acts
gingeryounger
beer intochildren)
Mrs Donoghues
under certain circumstances,anything
one
s and
software
This and other
issues will
be you
further
or omissions
which
can examined
glass
it was companies
then that a
man may owe a duty to another,
parents
wass poured
into a glass for her,
s teachers
which
she drank.and
Herschools
friend then
s internetsnail
service
providers
later in the discussion
the proposed
clean
reasonablyofforesee
would be
likelyfeed
decomposing
came
out of
even though there is no contract
4 How
might
digital tattoo
posethem.
problems
legislation in to
Australia.
injure your neighbour. Who,
the
bottle.
This someones
made her feel
between
He went further
forill,him
her she
in the
List some
hypothetical
quite
andorlater
alsofuture?
suffered
than the
narrow decision in Heaven,
scenarios,
then outline ways
can prevent
this dicta of
Reno
from
severe gastroenteritis.
Mrs that you
however,
citing obiter
the
passed a law
known
the Communications
to have
themas
in contemplation
care to anyone in a position where
Act of
Two when
provisions
as 1996
being(CDA).
so affected
I am of the
Mrs Donoghue alleged that
failing to use care and skill inDecency
his
For further information on digital
CDAofprohibited
the knowing
directing
my mind transmission
to the acts on the
Stevenson had failed in his duty of
conduct would cause danger
safety issues, see the Australian
internet of obscene
or indecent
communior omissions
that aresexual
called in
care to provide:
injury.
governments Net Alert website:
cations or images
to people under 18 years of age.
question.
s a system of working his business
Until Donoghue v Stevenson,
www.netalert.gov.au/
which would prevent snails
individuals had no rights againstThis was seen by many as a violation of the
to less regulation.
248
Cam b r i d g e L e g al S t u d i e s P rel i m i na r y
Ch ap te r su m m a r y t a sk s
C h a p t e r 8 T h e in d ivid u a l a n d t e ch n o lo g y
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16840 Cam
Glossary terms
All of the key terms in each
CHAPTER AND MORE ARE
dened for you in the margin
and in the glossary at the
end of the book. These
denitions are designed to
help you learn and revise key
terms from the syllabus.
le ga l l i n k s
Inof1996, due by
to my
public
pressure,
US Congress
act that
I oughtthe
reasonably
extended the notion of a duty
le ga l lin k s
v American
Liberties
answer seems Civil
to be persons
who
from happening
with
respect to your
online judge,
activities.
Union, 521
US
844
are so
closely
and(1997)
directly affected
Donoghue
sued David
Stevenson
dissenting
Brett MR, who
Internet Service
Providers (ISPs)
companies that offer
customers access to
the internet