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Legal Prelim notes

Table of Contents
Core 1: The legal system 1
1. Basic legal concepts 1
Meaning of law 1
Customs rules and laws 1
Values and ethics 1
Characteristics of just laws 1
The nature of justice 1
Procedural fairness 1
The rule of law 1
Anarchy 1
Tyranny 1
2. Sources of contemporary Australian law common law 1
British origins 1
Court hierarchy 2
Statute law: 2
The constitution 3
Aboriginal and Torres Strait Islander Peoples’ customary laws 3
International law: 4
3. Classification of law 5
Public law 5
Private law 5
Criminal and civil court procedures 6
Common and civil law systems 6
4. Law reform 6
Conditions that give rise to law reform 6
Agencies of law reform 6
5. Law reform in action 7
Native title 7
Young people 7

Core 2: The individual and the law 7

1. Your rights and responsibilities. 7
The nature of individual rights 7
The relationship between rights and responsibilities 7
2. Resolving disputes 8
The roles of the federal and state police and other law enforcement agencies 8
Resolving disputes between individuals 8
Tribunals 9
Courts 9
Resolving disputes with the state 9
3. The individual and technology 10
Impacts of technology on the individual 10
Legal implications 11
Difficulties with enforcing rights 11
Future directions – the role of law reform 11
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Core 1: The legal system

1. Basic legal concepts

Meaning of law
The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by
the imposition of penalties.

Customs rules and laws

Customs Rules Law

Are patterns of behaviour that Are enforceable guidelines that apply Legally enforceable guidelines reflective of
develop overtime to a particular group in society societies morals and apply to everyone

Values and ethics

➔ Values: are personal and social attitudes regarding a variety of issues
➔ Ethics: are accepted behaviour within an organisation

Characteristics of just laws

➔ Protect human rights
➔ Promote equality
➔ reflect social values

The nature of justice

Justice is a subjective concept that changes bases upon changing social values
Fairness Equality Access
What society deems as an appropriate response Everyone is treated equally before the law The ability to access and use the legal
➔ freedom of speech ➔ equal pay for equal work system and helpful measures
➔ life imprisonment for murder (max 20- ➔ anti-discrimination
25) ➔ children deserve differentiated
➔ mandatory minimums treatment

Procedural fairness
The idea that there must be fairness in the process that resolves disputes.
Natural justice: everyone should be treated fairly in legal situations. Principles are:
➔ the right to be heard and to know the case against you

➔ the right to a hearing free from bias

➔ the right to a trial based on sound and legally obtained evidence

➔ the right to appeal the decision up to a certain point

The rule of law

Is a fundamental legal principle with two main aspects:
➔ no one is above the law

➔ the law is effectively enforced

Anarchy
A state of lawlessness.

Tyranny
A state where all power is controlled for the benefit of a small group of people.

2. Sources of contemporary Australian law common law

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British origins

� The development of common law:

Common law: judge made law which establishes precedent bound on all lower courts.
Common law will be made:
- If the law is silent – Dolly incapax, cyber warfare, BWS
- If social values change – gay marriage, gay panic
- If legislation needs to be interpreted
In a common law judgment, there are 2 components:
- ratio decidendi - the precedent and the reasoning
- Obiter dicta – remarks / impressions made relation to the case
Persuasive precedent: influenced by other decisions- i.e. Higher court considers lower court’s decision, decision in overseas case is used
➔ Equity and precedent:
Equity: moral principles on which equitable decisions were based were called the rules (or maxims)
The 1970’s merge of courts now allows judges to apply the rules of common law or equity (or both) in a particular case.
➔ Systems:
Adversarial: used in the common law countries, two advocates represent their parties' case before an impartial person or group (usually a
judge or jury) who attempt to determine the truth and pass judgment accordingly.
Inquisitorial: the court, or a part of the court, is actively involved in investigating the facts of the case.
Court hierarchy
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Statute law:

➔ Role and structure of parliament: Refers to laws made by parliament

In both NSW & the commonwealth the parliament is bicameral, thus allowing a check on power and to ensure just bills are passed
Commonwealth (federal) parliament NSW parliament
Head of state (Queen's Governor General State governor
representative)

Upper house Senate Legislative council

Lower House House of representatives Legislative assembly

➔ Legislative process: Once a bill is given royal assent it becomes binding law.
Statute law will be made:
- To update existing law
- When the law is silent – e.g. tech laws
- To accept and codify common law
- To overrule common law
- Changing social values & ethics
- Fulfill the legislative mandate e.g. terrorism laws
- To protect society
➔ Delegated legislation: When the government appoints a body to make laws in the bodies field of expertise. This includes:
- Regulations
- ordinances
- rules
- by-laws

The constitution
The Australian Constitution came into effect in 1901, providing the legal and structural framework of Australia. Includes:
● Establishing the high court

● Division of powers

● Sep of powers

● A number of human rights:

- Sec 41. Right to vote
- Sec 51. Right to just compensation for compulsorily acquired property
- Sec 80. The right to trial by jury for indictable & serious indictable offences
- Sec 116. Freedom of religion
- Sec 117. Freedom from discrimination on the basis of state/territory of resistance

➔ Division of powers: Contained within sec 51 &52 of constitution, delegates the law-making mandate of different levels of Gov. CERL
- Concurrent – both fed & state / but in conflict sec 109. says fed prevails e.g. marriage, taxation & trade
- Exclusive powers – only fed govt e.g. defence & immigration
- Residual – only state govt e.g. crime, health & education
- Legislature - the Commonwealth has the power to make laws
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➔ Separation of powers: Seeks to ensure no one branch of govt had too much power. When the 3 arms of govt are independent, each
act as a check on each other, ensuring no branch abuses its power & that civil liberties are protected. LEJ
- Legislative – the law makers (parliament)
- Executive – the ministers and govt who administer the laws made by parliament
- Judiciary- the courts which interpret and apply the law
There is overlap between L & E. For a democracy to operate in the interest of justice, Judiciary must be independent.
➔ Changing the constitution: it can only be changed via a referendum

➔ The role of the high court:

- Interpret and apply the constitution
- Hears cases with special federal significance
- Hears appeals
- Original and appellate jurisdiction
Common law Statute law Constitution

Dietrich v the queen Education act Commonwealth v Tasmania

Dietrich was charged in County Court of Victoria on four charges relating to Clean energy act The commonwealth had signed a united treaty
drug trafficking under the Customs Act 1901 (Cth). During the trial he had no Crimes act putting franklin river on world heritage list
legal rep. He appealed to the High Court of Australia. Anti- Tas govt wanted to build a dam in this area,
- The right to legal rep discrimination act commonwealth succeeded in stopping
Anti-terrorism act construction
Osland v R Used external affair powers
Osland was found guilty in the Victorian Supreme Court in 1996 of killing her Recognised the WHS and validity under
husband. She used the defense of ‘battered woman syndrome’ to justify the constitution
murder. Her defense was unsuccessful, launching a women’s rights campaign, - High court of Aus. always prevails over state
sparking reform of homicide defense in Victoria. decisions
- Battered woman syndrome defense
Murphy’s v Queensland
Donoghue v Stevenson Use to trade and commerce power in order to
Donoghue v Stevenson [1932] was a landmark court decision in Scots delict shut down a business even though it was legal to
law and English tort law by the House of Lords. It laid the foundation of the be operating
modern law of negligence, establishing general principles of the duty of care. - Consequence in terms of div of powers more
- Duty of care power to feds

Aboriginal and Torres Strait Islander Peoples’ customary laws

Diverse nature of customary laws: there are many elements to customary laws due to so many different communities.

Spiritual basis, significance of land and water: land and water is sacred and is collectively owned. All members of the group live
together, with no concept of individually owned plots of land.

Family and kinship: Aboriginal people have family and kinship responsibilities that are not typical of non-Aboriginal families.

Ritual and oral traditions: Customary laws have been passed from generation to generation by word of mouth and through
rituals, such as stories, songs and dances.

Mediation and sanctions: elders and family are involved in mediation and sanctions due to the different values ATSI holds.

Relevance to contemporary Australian law: concept of mediation (key feature of customary law) is now used in a number of
areas of law in Australia.
International law

Differences between domestic and international law:

International law: to a set of rules that seek to regulate the behaviour between nations, states & intergovernmental
organizations (IGO’s). Consists of agreements, treaties, maritime conventions, etc. that pertain to relations between countries
and/or apply to activities in international waters.
Domestic law: National/federal laws are enforced internally by the relevant nation and are not binding outside the nation's
borders.

State sovereignty:
Refers to the states right to make laws itself free form external influence. Intl law has increasingly sought to regulate domestic
laws, thus, compromising the existence of SS.
A nation state can have SS if it has:
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� A functioning govt that can enter into intl. agreements

� A permanent population

� A permanent territory/ a clear one

Sources:
� Customary Intl law – laws that are intl. agreed upon thus are enforceable upon all NS
- E.g. genocide, ethnic cleansing, slaver
- IGO’s create it through negotiation
� Intl instruments: Declaration/treaties
- Declaration- a formal statement of a state’s position on a particular issue
- Treaty- international agreements between states in written form and governed by international law (Bilateral, multilateral)
- For an intI. law to become domestic law it must be ratified and then enacted
▪ Ratified – when a state accepts treaty

▪ Enacted – Putting it into domestic law through statute law

� Legal decisions and writings

- Decisions of courts and tribunals
- Writings of philosophers, lawyers etc. are important in influencing the direction of law making

Role of the United Nations:

� Chief organization involved in international law

� Aims to establish and maintain global peace and security

� Promotes and protects human rights

Role of Courts & tribunals:

� Deals with aspects of international law
- International court of justice
- International court of criminal law – deals with people accused of committing the most serious crimes against international
law (genocide, war crimes)

Role of Intergovernmental organizations (IGO):

� to create a mechanism for the world's inhabitants to work more successfully together in the areas of peace and
security, and also to deal with economic and social questions
� examples: The United Nations, the World Bank and the European Union

Role of Non-governmental organizations (NGO):

� NGO’s are private organizations that seek to promote & resolve a particular issue
- Although private- can impact govt issues
- Red cross
- World vision
� NGO’s focus on promotion and enforcement:
- raise awareness (websites, media)
- provide direct assistance (world vision – children)
- shape social values & ethics
- name and shame
- lobby govt to dev. Enforceable measure in relation to the issue
- assist in dev of legal responses

Relevance to contemporary Australian law:

International laws are embedded in Australian laws – areas such as environment, employment, human rights and national
security. Section 61 of the constitution allows Australia to enter treaties.
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3. Classification of law

Public law
Laws that regulate the behaviour between private citizens & the govt. Criminal, administrative and constitutional.

� Criminal law: A crime is an act or omission deemed contrary to social values (embedded in laws) for which a
punishment should be given after guilt has been determined in a judiciary hearing
Actus Reus (guilty act) Men’s rea (guilty mind)
All 3 must be established: Only 1 must be proved:
🡪 an act or omission occurred 🡪 direct intent – intended for outcome to occur

🡪 the defendant committed the act/omission 🡪 recklessness – could foresee outcome could occur but proceeded anyway

🡪it was voluntary 🡪 negligence – did not foresee the outcome but a reasonable person would have
- Manslaughter- killed victim through negligence
- Strict liability crimes - men’s rea does not need to be established (Speeding, Drink driving, Drug possession)

� Administrative law: The case of law about disputing the fairness of govt decision. The 3 ways to challenge are:
- Internal review – the govt body responsible for decision reviews it (Cheap, high knowledge // bias)
- External review – independent arbiter reviews decision (No bias// costly & time consuming)
- Judicial review – court reviews decision (Most enforceable // costly, time consuming)

� Constitutional law: Refers to disputes arising out of the constitution

Private law
Laws that regulate the behaviour between private citizens. Contract, property and tort.
� Contract law: A contract is a legally binding agreement between 2 or more parties (usually verbal). Contracts include:
- parties
- definitions
- duration
- rights
- responsibilities
- dispute resolution
- termination procedures
Stages: Offer, acceptance, consideration

If there is injury, parties can seek:

- Damages – monetary companion
- Injunction- an order to stop something
- An order for specific performance

� Property law: Associated w/ disputes regarding property

- real property – land or things ‘fixed’ to the land
● Fencing

- personal property- tangible items

● Divorce, prenup, gifts

- intellectual property – part of person property

● Trademark / brand

● Patent – ideas/inventions
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● Copyright – creative works e.g. piracy

� Tort law: A tort is a civil wrong. Tort law gives the ability of an injured party to sue and seek redress from the party that
inflicts the damage. 5 types:
- negligence – when an act or omission is committed by a party who owes a duty of care
◆ Donahue v Stevenson

- Defamation- slander/liable that negatively portrays an individual’s character & slander is false
◆ Rebel Wilson

- Trespass – has caused injury to the person, property, real property (reasonable person would not have done it)

- nuisance –causing damage to a person land, enjoyment of land or enjoyment of life (reasonable person would
foresee)

-
civil conspiracy – when 2 or more parties conspire to the determent of another party (reasonable person would
not engage)
Criminal and civil court procedures
Criminal
1. Indictment is read to the accused, who may plead guilty/not guilty
2. Prosecution begins with opening address facts and evidence
3. Each side calls upon witness and examines them
● Examination in chief allows the prosecution to establish facts and defense to disprove the case

● Cross Examination questions the opponent's version of facts and witness' credibility
4. Closing address
5. Judge sums up the case and instruct the jury on how to reach a verdict
6. Jury goes to another room to deliberate until a verdict is reached (if guilty, sentencing occurs)
Civil
1. Plaintiff files official complaint
2. Build case and find evidence
3. Go to trial
● both sides will present their evidence, witnesses, and arguments to a judge
● judge will determine guilty or innocent on the balance of probabilities
● judge will decide how much the damages are worth $

Common and civil law systems

Common law: not created by means of legislation but is based mainly on case law (precedent).
Civil law: the main principles and rules are contained in codes and statutes, which are applied by the court’s codes.

4. Law reform

Conditions that give rise to law reform

➔ Changing social values:
● Gay marriage

● Sex discrimination

● Environment laws

● Torture & assault

➔ Technological advancements:
● Cyber bullying

● Anti-piracy laws

● Plutonium disposal agreement

● Meta data
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● NPPT
➔ Changing concepts of justice:
● Gay panic

● Police powers – security is increasing at the expense of individual liberty

● Death penalty

● Arbitrary arrest

● Terrorism

● Mandatory sentence to one punch

Agencies of law reform

Bodies that advocate & make recommendations regarding the need for reform
➔ Law reform commissions: specific govt bodies that are non-partisan & make recommendations to the legislature
◆ ALRC (Australian law reform commission)
● No bias, can make recommendations directly to legislature

● doesn’t provide enforceable outcomes, legislature can ignore

➔ Royal commission: investigatory and legal commission to review area of concern and present finding to govt
● responsive to certain issue, Legal power (compel witness to give evidence), can make
recommendations to legislature
● can’t reform a law, legislature can ignore, resource inefficient (time & money), can be politically
motivated
➔ Parliamentary committees: bodies formed by the legislature to monitor & oversee a particular legal issue
● the ability to be a partisan, responsive to the need for law reform, legislature directly reviewing law

● politically motivated & partisan, can’t directly dev law reform

➔ Media:
● broad reach – mass market, raises awareness of law reform issues, can pressure govt

● bias due to commercial interests, emotional responses, no power

➔ NGO: bodies devoted to respond to a particular issue

● respond to specific issue, can pressure govt
● bias- lead to neg reform
5. Law reform in action

Native title
The right of indigenous peoples to own their traditional lands and waters, as recognized by common law.
� Mabo v Queensland – 4 men fought for the right to their land in the eastern Torres strait, the law reformed terra nullius
(land belonging to no one) & set the president for native title act.

� Native title act – recognizes the traditional rights and interest to land and waters, legislation that removed terra nullius
native title rights now recognised by Australian law

� Wik v Queensland (1996) – the plaintiff claims to have native title over land used for pastoral purposes, high court held
that native title rights could co-exist on and held by pastoral leaseholders, if rights in conflict native title prevails

� Native title amendment act – amended in response to Wik decision by the high court of Australia It placed some
restrictions on native title claims
o Introduced registration tests for NT applications
o Changes to the status of NT Tribunal – giving some powers to fed govt
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� Proposal for constitutional recognition – efforts to recognizes aboriginal people in the Australian constitution

Young people
� Dolly incapax – age of responsibility

� 2 legislations:
- children criminal proceedings act (dolly incapax recognized & alternate forms of sentencing)
- Young offender act (warnings, cautions and youth justice conference)
� 4 cases:
- Bulger (UK lead to abolishing rebuttable presumption at the age of 10 responsible) – reaction to bulger that lead
to law reform
- R v LMW (common law for rebuttable presumption- not in statute aw)
- R v GDP (focus needs to be on rehab)
- R v Pham and Ly (stronger punishment, society safety comes before rehabilitation)

Core 2: The individual and the law

1. Your rights and responsibilities.

The nature of individual rights

Individual rights can be found in:
� the constitution

� statute law/legislation

� common law

� international law
5 broad categories of human rights:
� Civil rights

� Political rights

� Economic rights

� Social rights

� Cultural rights.
Magna Carta: established the principle that everyone is subject to the law- even the king- and guarantees the rights of
individuals, the right to justice, and the right to a fair trial.
Note: Australia has no bill of rights

The relationship between rights and responsibilities

RIGHTS: something to which you are entitled and RESPONSIBILTIES: an obligation to undertake a
can’t be taken away from you. certain form of behaviour

The right to vote The responsibility to vote

The right to education Principals have the responsibility to allow a disabled

student their right to attend the local school by
establishing ramps, etc.

The right to marriage The government is responsible to ensure people of a

suitable age are allowed to marry.

2. Resolving disputes
The roles of the federal and state police and other law enforcement agencies
Law enforcement agencies have the responsibility to:
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● Enforce the law

● Deter non-compliance with the law

● Recommend charges and assist the prosecutor in evidence determining guilt

BODY WHAT IT DOES
NSW POLICE o Detect and investigate.
o Prevent injury, death, and damage to
property by coordination rescue operations.
AUSTRALIAN o Established in 2016, making Australians
CRIMES security a priority
COMMISSION o Emerging crime threats
o Purpose is to deter organized crime
o Access metadata, phone interceptions, flight
paths.
AUSTRALIAN o Counter terrorism and national security
FEDERAL POLICE o Enforced the commonwealth criminal law
ASIO o Main counterterrorism and
counterespionage intelligence agency.
o Eradicate terrorism
o Domestic body with a domestic focus
ASIS o Gathers evidence from overseas and other
nation states and can determine if an attack
is going to be carried out in Australia.
o Australia spying on other states
EFFECTIVENESS
o Patrols –reduce crime
o Prevents anarchy
o Sense of safety is established
o However, can breach civil rights, e.g. PDO’s.
o Can exercise poor judgement/corruption,
discretion
o Coercive powers= effective,
o Compels evident security procedures in order to
ensure safety.
o More power than the police
o Mutual assistance in criminal matters- can be
detrimental, e.g. the Bali 9. AFP intelligence can
frequently cause issues.
o Access metadata- breach of civil liberties.
o Apart of the 5 eyes surveillance alliance- effective
in reducing terrorism and domestic cyber- crime.
o Minimal terrorist attacks.
o ASIO is struggling when it comes to
counterintelligence, because of the economic and
security power of china. If there is a cyber warfare,
we will not be able to protect ourselves.
o Extremely secret.
o Comprising the right to privacy, speech.

CUSTOMS o Investigations in illicit functions and
immigration malpractice.
o Reduce harm to communities
NSW SHERIFF o Responsible for the security in courts
o Administer of the NSW jury system.
Resolving disputes between individuals
o Can be ineffective because only 1% of shipping
cargo is invested.
o Enforce orders on behalf of courts
o Disadvantages- social welfare, limitations of their
power.

Alternative dispute resolution: processes used to resolve disputes outside of courts or tribunals.
� Negotiation- discussion between two parties, trying to come to a compromise. E.g. negotiation of contract

� Mediation- a neutral independent mediator assists parties in dispute resolution (guides conversation). The mediator
doesn’t add to the discussion. E.g. family disputes
� Conciliation- A third party who is similar to a mediator, however, a conciliator offers a solution. ‘Specialist knowledge’
can provide technical and legal suggestions. E.g. complex issues
� Arbitration- parties dispute the argument, showing evidence to the third-party arbitrator who makes a binding
decision. This is the most formal form of ADR, lawyers ae often involved.
Tribunals
A body established to settle certain types of dispute. Also defined as a court of justice. Tribunals can be
� civil (private disputes)

� administrative (disputes with the state)

Advantages Disadvantages
● Less formal ● You may not get the outcome desired

● Cheaper ● Could be taken advantage of by the other side. (a person vs. a big
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business.
● Time efficient
● If representing self, then other person may have more legal
● Less likely to be manipulated by legal experience
arguments
● Accounts evidence
Courts
Used when ADR has failed.
Types of courts- refer to part 1.
1. Starting the Process:
Individuals commence civil court proceedings by filing requires documentation w/ appropriate court.
Local and district courts Statement of claim
Supreme court Statement of claim or summons.

2. Pre- Trial Hearing:

● Will be encouraged to settle.

● Hearings to determine the estimated length of the cause, the prevision of evidence, and set a hearing date.

● Only 5% of all civil cases proceed to a hearing.

3. Hearing:
● Plaintiff (person claiming money) opens their case, then the defendant (person responding to the plaintiff) responds.

● Documentary evidence (affidavit) presented.

● Witness evidence is presented

● Plaintiff and defendant cases are ‘closed’

● Final submissions

● Immediate of reserved judgement.

4. Judgement and reinforcement:

● ‘bound’ by the judge’s decision.

● Either party is entitled to an appeal

- Garnishee order-
o Order to an employer or bank to deduct amount of earnings to pay the amount owing.
- Examination Notice
o Used to get more info about a person’s financial circumstances.
- Writ of Execution
o The sheriff is directed to take possession of ad sell property of the person owing the money (forfeiture of
assets)

5. Settlement:
● Individuals can settle even when the matter is in court.

● ‘terms of settlement’- details. They are legally enforceable.

Resolving disputes with the state

Non legal methods:

� Media: the main means of mass communications e.g. tv, radio, newspaper, podcasts
Positives Negatives
● Communicates the message to a large mass of people ● Issue may not be broadcasted

● Usually easy to contact ● Generally, only shows one side of the dispute
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● Pressures the government ● Can be biased

� Members of Parliament: elected by voters to represent a particular area or electorate

Positives Negatives
● Have a direct input into government activities ● Relatively hard to access

● Can likely make changes specific to the area ● Issue may not be prioritized

● Intermediary

� Trade Unions: groups of people in various industries form these to protect their rights and conditions of employment
Positives Negatives
● Can bargain for higher wages ● May cause unemployment due to debates

● Can represent workers at employment tribunals ● Can create inflation due to increased wages

● Can help bring in new working practices which increase labour ● May create further confrontation between employees and
productivity employer
● Represent interests

� Interest Groups/NGOs: groups that share political values and aims

Positives Negatives
● Communicate at all levels of government ● May not have funds

● Expertise ● Solutions may not work

● Lobby government for change based of their research and reports

Legal methods:

� Internal review: the government body that made the decision itself, reviews the decision.
Positives Negatives
Cheap, time efficient, best experience. potential for bias.

� External review: reviews undertaken by external government organizations

- Administrative and other tribunals: review administrative decisions that governments make.
▪ Informal, inexpensive, time efficient. Effective
- Judicial review (the courts): judge reviews based off: procedural fairness, outside power, error in law, unreasonable.
▪ Expensive, formal, legally binding. Moderately effective
- The office of Ombudsman: investigates reports about the government.
▪ Reports of recommendation, not enforceable. Limited in effectiveness
- Privacy Bodies: complaints against the government or private organizations.
▪ Helps protect privacy, gives out information about laws. Limited in effectiveness
- NSW Statutory bodies: legislation established the body; therefore, it is a government body, however it is independent
of the government.
▪ Australian Human Rights Commission (AHRC) Limited in effectiveness

⮚ Resolving complain of discrimination or breaches of human rights under federal laws

⮚ Providing independent legal advice to assist courts in cases that involve human rights
principles
⮚ Undertaking and coordinating research into human rights and discrimination issues

⮚ Advice, reports, not legally binding

▪ Independent Commission against Corruption (ICAC) relatively effective

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⮚ Can initiate investigation without a complaint being made

⮚ Has a wide range of investigative powers

⮚ Power to interrogate and produce reports

▪ Royal Commissions can be effective

⮚ Commissions of inquiry with strong powers with respect to calling witnesses

⮚ Effective in law reform and cultural change in organizations

⮚ Ability to produce a report containing recommendation of the criminal prosecution,

however, does not have power to prosecute
⮚ Make recommendations to the government after an investigation

Positives Negatives
no real prospect of bias, cost and time effective may not have the best knowledge in the area. In contrast to internal
review, its more expensive, and more time inefficient.

3. The individual and technology

Impacts of technology on the individual

Advantages
● Inexpensive access to a multitude of information on a
variety of many topics
● The ability to associate and communicate with people
from different cultures and nations through social media
and online forums
● The ability to conduct commerce online via online
transfer of funds
● The use of technology in development of medicine
● New methods of food production
Disadvantages
● The difficulty that geographical jurisdictions face in terms
of developing laws to ensure the orderly use of
technology
● Problems that exists with enforcing laws (ineffective
enforceability)
● The development of cybercrime and crimes associated
with theft and fraud
● Negatively impacted on and increased the area of
criminal law, making it much more complex to contain
within one jurisdiction

Legal implications
➔ Hacking: Unauthorized access to data and information and using this information to defraud people or businesses of
money.
➔ Internet fraud: Using the internet to misinterpret information or conceal information or to mislead or deceive
individuals
◆ Identity theft: When an imposter obtains key pieces of personal information which can be uses to obtain
credit, merchandise and services in the name of the victim
◆ Cyber defamation: Action of damaging the good reputation of a person via the internet
➔ Intellectual property: copyright, trademarks and patents need to be international
➔ Online financial transactions: Banking and the transfer of money
● Purchases of goods and services
● Payment of debts
● Management of superannuation accounts

Difficulties with enforcing rights

� Intrusions into privacy

� The development of technology is increasing more rapidly in comparison to the laws that regulate the development of
technology
� Use of technology raises problem of geographical jurisdiction
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� Perpetrator has the ability to hide behind anonymity or untraceable social media/email accounts

� Laws that should be more carefully looked at: privacy, metadata, safety and protecting children

Future directions – the role of law reform

� National:

● Statutes
o Crimes Act 1900 (NSW)
▪ Computer offences and hacking

▪ Legislation: Crimes Amendment (Computer Offences) Act 2002 (NSW)

o Spam Act 2003 (Cth)
▪ Pertain cyberspace activity
o Cybercrime Legislation Amendment Act 2012 (Cth)
� International:

● United Nations

● World Intellectual Property Organisation (WIPO)

o United Nations
o Protects intellectual property through treaties
● European Union (EU)
o Council of Europe Convention on Cybercrime (2001)
o Addresses crimes committed via the internet, dealing with infringements of copyrights, computer-related
fraud, child pornography, violations of network security
● World Trade Organisation (WTO)

● Internet Corporation for Assigned Names and Numbers (ICANN) [non-profit]

● Internet Assigned Numbers Authority (IANA)

� Challenges to government control of cyberspace:

● New technology makes it easier to violate the law in some way

● Censorship contradicts freedom of speech

o i.e. China, Saudi Arabia