Legal Studies Syllabus NotesJUST LAWS

- Equal, applied fairly, does not mean result will necessarily be equal as punishment can affect others differently

- Based on widely held values- Utilitarian- Address inequality- Minimise delay, major criticism- trials take years- Not to be retrospective, for future- Must be known before enforced, publicized

NATURE OF JUSTICE

- Equality, fairness and access- Most societies symbolized by ‘lady justice’- Blindfold-Impartiality, Scales-weigh

evidence, Sword-decision

EQUALITY

- Non-discriminatory- Applied equally- Equal enforcement

FAIRNESS

- Ensuring that it doesn’t have harsh effects- Right to appeal- Some argue that in bid for fairness equality has been lost

ACCESS

- Ability to access the law- Access to legal information & assistance and understand law- Legal Aid representation requires fulfillment of strict criteria in Australia, meaning that

some self-represent with limited legal knowledge and training, thus inhibiting fair trial.

PROCEDURAL FAIRNESS

- ‘Natural Justice’- RIGHT to participate in legal proceedings- RIGHT of accusation to be known- RIGHT to hearing- RIGHT impartial court- RIGHT to test presented evidence, ‘cross examination’- RIGHT to not have previous criminal convictions brought up, ensuring evidence relating

to current case in used to make decision

RULE OF LAW- key principle in democratic society

- Restriction of arbitrary law- Governments act strictly within powers- Law must be known- Applied fairly

KEY FEATURES

- Independent judiciary- Enforcement agency regulations- Accused’s defence free to operate without interference- Informed of allegations- Never retrospective- Government bound by constitution- Human rights protected and maintained

ANARCHY

- When society is left without effective legal system and enforcement inoperable constituents acts arbitrarily, usually after war or natural disaster.

TYRANNY

- No limit on power of law enforcement - No rule of law as constitution is not present or disregarded- ‘Police States’- No distinction between law makers, enforcers and courts, all are same organization,

therefore justice is impossible.

COMMON LAW

- Derived from England- When no statute law is in place, judges look to common-law to make decisions- Collection of legal principles and rules from higher courts- PRECEDENT- Statute always has precedence

EQUITY- Part of Common Law system

- Punishment is usually injunctions or specific performances- Based on keeping with concept of fairness- Modify a remedy in common law that’s deficient- Develop remedies for cases common law does not recognize

PRECEDENT- Main factor of Common Law

- ‘A judgment made by a court establishing a point of law’- Legal process of following, ‘stare decisis’ = ‘to stand by a decision’- Discretion to overrule is limited- Created when there is no statute or precedent in place- Derived from common sense & principle of law in making decisions- How judges interpret legislation- Only applies if case is sufficiently similar.

BINDING PRECEDENT-Rule

- When in same jurisdiction, court must always follow regardless of opinion- NSW precedent is always binding- ‘Ratio Decidendi’- reason for decision, always bound- ‘Orbiter Dicta’- other statements made by judges about case, may be taken into account,

but not bound.

PERSUASIVE PRECEDENT- Rule

- May influence, but not bound- Judicial statements or decisions made by courts in other jurasdictions- Judges eminence and level of court will determine persuasion

AVOIDING PRECEDENT

- Avoid when provably unjust- ‘Distinguishing the Case’- Facts are sufficiently different- ‘Reversing a Judgement’- If an appeal is upheld in higher court- ‘Overruling a Decision’- If a higher court rules differently to a lower court on two

occasions

- ‘Disapproving a Decision’- Case from another jurisdiction referred for consideration but refused by judge

ADVERSARY SYSTEM

- English & Australian systems- Two opposing sides argue before court presided by third party- Both have control of evidence- Test opposing through ‘cross examination’- Presider or jury decides- Main criticism is that most persuasive wins rather than evidentiary links

COURT HIERARCHY

- State & Federal with each having structure- Constitution grants power respectively

STATE COURT- Inferior, Intermediate & Superior Courts

INFERIOR- Local-Coroner’s- Children’s-Land & Environmental

LOCAL COURT

- Cheap and quick- Criminal Jurisdictions- Summary Offences & Committal Proceedings- prelim hearings

for indictable offences, establishing ‘prima facie’.- Civil Jurisdictions- Minor matters, up to $60 000

CORONER’S COURT

- Investigate unexplained deaths and fires

CHILDREN’S COURT

- Summary or Indictable matters, <18

LAND & ENVIRONMENTAL

- Involving environmental planning & land compensation- Appeals to local council’s decisions

INTERMEDIATE COURTS- District Courts

- Criminal Jurisdiction- Indictable offences- Civil Jurisdiction- matters between $60 000-$750 000- Appellate Jurisdiction- Appeals from inferior courts

SUPERIOR COURTS

SUPREME- Criminal, Civil, Appellate

- Most serious matters- Court of record (Precedent), therefore important in establishment of common law.- Criminal Jurisdiction- Most serious indictable offences, murder, sexual assault,

kidnapping- Civil Jurisdiction- >$750 000- Appellate Jurisdiction- Supreme court appeals

FEDERAL COURTS

FEDERAL MAGISTRATES SERVICE

- Areas of Family Law- Bankruptcy & Trade Practices Law- Commonwealth Tribunal Appeals

FAMILY COURT OF AUSTRALIA

- Family matters- Divorce- Custody- Maintenance - Division of property

FEDERAL COURT OF AUSTRALIA

- Broad Jurisdiction - Trade, Industry- Intellectual Property- Taxation- Immigration

HIGH COURT

- Constitutional matters

ROLE AND STRUCTURE OF PARLIAMENT

- Pass Statute laws- Representative from electorates, representing people in a geographic location- LOWER HOUSE- House of representatives- UPPER HOUSE- Senate

HOUSE OF REPRESENTATIVES

- Most powerful, majority, PM- 150 members, each representing electorate- Key role is to make new laws and amend existing- Key role is to make laws and amend existing

SENATE- ‘State’s House’

- 12 senators each state and 2 for territories - Reviews House of Rep. proposed legislation- Not allowed to amend ‘Money Bills’- Taxes, Govt. expenditure

GOVERNOR GENERAL

- Queen’s rep in Aus- POWER to elect prime minister in hung parliament- POWER to dismiss Prime Minister who’s lost confidence- POWER to dissolve House of Reps- Ensures that Federal Executive Council acts lawfully- ‘Royal Assent’- Last phase in cementing bill.

DELEGATED LEGISLATION

- Legislation made by bodies subordinate to Parliament e.g. Govt departments & Local Councils.

- Authority only extends so far through ‘enabling act’

REGULATIONS

- Legislation made by Governor General, State Governments or Member of Executive Council

ORDINANCES

- Laws made for territories, usually by Governing bodies

RULES

- Delegated legislation regulating Government departments.

BY-LAWS

- Laws made in accordance with ‘Local Government Act 1993’, where councils have laws made to only apply to a Local Govt. area.

CONSTITUTIONAL LAW

- Document outlining rules that a nation’s governing body must adhere to.- Controls and regulates power, authority and operation of parliament- Constitution aims to create a distinction between Commonwealth Government and State

Governments- Division of Power- All bound

CONSTITUTIONAL DIVISION OF POWER

- Dividing power between the states and Commonwealth Parliament- MAJOR ASPECT- So that one level does not have all power

EXCLUSIVE POWERS- Commonwealth Parliament’s powers

- Trade- Foreign Relations- Defence

RESIDUAL POWER- State’s powers

- Health- Transport- Education- Law & Order- Therefore diversity amongst state’s laws

CONCURRENT POWERS- Shared between Commonwealth & State

- E.G. Healthcare- State has hospitals, ambulances etc. whereas Commonwealth responsible for health care funding

- Commonwealth holds supremacy if conflicting matters arise

SEPERATION OF POWERS

- Purpose of constitution, ensuring that no one body can dominate- Authority is distributed evenly- Constitution strictly outlines Parliamentary powers- Constitution also outlines Federal Executive Council’s authority- Constitution also outline court’s or judicature’s authority

CUSTOMARY LAW- Aboriginal

- Oral traditions passing down a complex legal system, strongly linked to notion of kinship- Greatly diverse, thousands of variations- Morality, religion & norms of social behavior are all considered- Strong relationship with land & spiritual basis reflected in law

LAND AND WATER

- Land is sacred and collectively owned - Forms basis of religious beliefs and laws- Great significance

FAMILY & KINSHIP

- Kinship is defined as relationship with family & extended ties- Essential feature of Indigenous societies & community- Basis of laws- Central to communities

RITUALs & ORAL TRADITIONS

- Strong emphasis on rituals in customary law

MEDIATIONS & SANCTIONS

- Seen as favoured method of resolving issues- Strong respect for mediating elders - Through discussion with elders and accused

OTHER PUNISHMENTS

- Victim’s family revenge- Trial by Ordeal

- Fighting ridicule and isolation

CONSIDERATION FOR CUSTOMARY LAW TODAY

- Circle sentencing using principles of elder mediating, high Abo. Populated areas- Recognition of customary law has caused much debate and scrutiny

INTERNATIONAL LAW

INTERNATIONAL LAW

- Body of law governing relationships between nations- Assists in trade and commerce- Regulates behavior between nations- Applies to those that agree to be bound through treaties- Made through negotiations between countries- ‘State Sovereignty’ applies

DOMESTIC LAW- Applies to all, law enforced without exemption

RATIFICATION

- Imperative process to all International treaties- Before signed, countries make domestic laws accepting terms and conditions

STATE SOVEREIGNTY- Presents dilemma in implementation of Int. Law

- Similar to ‘nation state’ in that all nations are fundamentally equal- Each nations ruler has right to make decisions on behalf of nation- Means that nations can refuse participation in International Laws, even hearings &

tribunals- Means that nations can disregard global community and follow own agenda- However, means that benefits of being treaty bound are not received e.g loans, protection,

trade- Only bound by ratified treaties

TREATIES & OTHER INTERNATIONAL AGREEMENTS

- Voluntary agreements between nations & when signed become ‘parties in the agreement’, bound by conditions and rules established

- Two Types; Bi-Lateral & Multi-Lateral

Process of making treaties

- Negotiation- Discuss clauses and conditions- Consent- Signatory phase

- Ratification- Passing domestic law- Reservation- Withdraw or Join

NATURAL LAW- Derived from God, considered superiorPOSITIVE LAW- Parliaments, Monarchs, Courts

INTERNATIONAL ORGANISATIONS

UN

- End of WW1, 1945, with contextual aim of establishing peace- Criticised as unable to mediate a country’s civil problems, only between two nations, yet

civil conflicts are most prevalent- Largest promoter of world peace- Human rights advocates, reducing disease and hunger- Established legal framework for prosecution of International criminals

ICJ- Nations only

- Main judicial org. of UN- Resolves disputes between nations- Legal advice on International Law matters- Scrutinized as being ineffective as ‘State Sovereignty’ permits countries to not participate

in matters

WAR CRIMES TRIBUNAL- ad hoc (when needed)

ICC- Serious International Crimes, Genocide, severe war crimes

IGOs- Organisations representing Government members e.g. UN, European Union, African Union

NGOs- Not Government affiliated, yet apply political pressure to nations to abide by International Laws.

CLASSIFICATION OF LAW

PUBLIC LAW

Criminal Law

- Usually established through statute, however, in some criminal cases, laws can be created through common law

- Instead of the victim’s name being used, the citation ‘R’ is used, Regina, representing Queen

Types

- Crimes against persons – involve injury or threat of injury to another person, homicide or assault

- Crimes against property – Theft or damage to another’s property, robbery or larceny- Crimes against the state or sovereign – Damaging the country or its people, sedition or

treason- Public order offences – Minor offences, public indecency or drunkenness - Traffic offences - White collar crime – Tax evasion, fraud, computer hacking- Drug offences – Importation, manufacturing, possession, trafficking, distribution, supply

of prohibited narcotics

Administrative Law

- Pertaining to the operation of government and its departments- Government departments must pass a law establishing the department

Constitutional Law

- Legal document outlining the powers and operations of the government - To ensure no-one is exempt from the law nor holds too much power- Extensively deals with the rights of citizens- Division of power between the federal and state and territory government - Separation of power between the parliament, High court and the Commonwealth

Executive Council

PRIVATE OR CIVIL LAW

- Legal relations between individuals and organisations- Plaintiff brings the matter - Defendant is the person whom the action is brought against

Contract Law

- Legally binding agreement began two or more parties- Civil Law intervenes when one party believes that the other party has failed to fulfill the

requirements of the contract

Tort Law

- Complex area involving civil wrongs- Four torts- Negligence – Revolves around ‘duty of care’, every person and organization has the

responsibility to ensure that their actions don’t cause harm to other s or their property

- Nuisance – A person’s rights are being undermined by another person. E.g. neighbour’s loud music

- Defamation – Damaging another’s reputation with fallacious information that is either published or broadcasted Plaintiff must prove falsity of claims

- Trespass – Person interferes with the property of another

CRIMINAL AND CIVIL COURT PROCEDURES

Judges and Magistrates

- Judges in intermediate and superior courts, issuing sentences and rulings, sometimes in conjunction with juries

- Magistrates sit in the inferior courts, determining cases

Court Procedures in Criminal Law Proceedings

- Office of the Director of Public Prosecutions conducts the prosecution- 12 randomly selected jurors to determine the case

Standard and Burden of Proof in Criminal matters

- Standard of Proof – Beyond reasonable doubt- Burden of Proof – Always relies on prosecution to prove the case

Proving Guilt in Criminal case

- Mens rea – ‘guilty mind’, referring to the intention to commit the crime- Actus rea – ‘criminal act’, accused having actually committed an offence- Causation – onus on prosecution to establish a link between the act and crime

Court Procedures in Civil Proceedings

- Plaintiff issues a ‘Statement of claim’, outlining details and circumstances of dispute- Defendant issues a ‘Statement of defence’

Standard and Burden of Proof in civil matters

- Determined on ‘balance of probabilities’ based on evidence presented, believability

LAW REFORM

- Commonwealth and State parliaments reform or amend existing laws with the theoretical aim to improve justice and efficiency

Failure of Existing Laws

- Laws can become obsolete or unnecessary over time

- Poorly worded, ambiguous legislation

International Laws and Conventions

- Promote certain ideals between countries- Ratification means that Australian law must reform to comply with their International

obligations

New concepts or justice

- Increasing multiculturalism means that law will have to evolve to keep up with social change legal acknowledgement of different religions

- Increased emphasis on social justice and human rights saw abolition of death penalty and physical punishment for children looked down upon

New Technology

- Constant technological advances warrants revision of laws and development of new laws- Justice Kirby has raised issue with Australia falling behind in ethical and legal problems

associated with advances in genetic science. Parents now able to see if unborn baby has genetic defect and act accordingly, termination. This has posed as an issue and needs to be considered

Changing social values and morality

- Society has become conscious of discrimination against minority groups, anti-discrimination laws have thus been introduced

- More tolerant with people caught with very small quantities of recreational drugs, reflected in legislative changes

AGENCIES OF REFORM

Australian Law Reform Commission

- 1975, permanent full time body assigned to provide advice of law reform - Australian Law Reform Commission Act 1996 (Cth) governs the ALRC- To modernize, develop, improve access and eliminate defects and anachronisms in law- Considerable community input in acknowledging areas of reform- However, there are nine jurisdictions of law in Australia, thus rendering consistency an

issue in approaching criminal law reform and limiting ALRC’s contribution- Therefore, state commissions are implemented

Law Reform Commission of New South Wales

- Strictly within NSW, reviewing and recommending changes to current laws

- Attorney-general writes to the commission, asking for an inquisition- Identifies issue and seeks community input- Released to media to hear public opinion- Widespread public consultation; public meetings, phone-ins, public opinion surveys and

meetings for special groups needed for support and public acknowledgement

Parliamentary committees

- To make recommendations and investigate their designated area of parliamentary concern, e.g. road safety committee

Royal Commission

- Set up to investigate a specific area of law, usually to lead an inquiry, the Wood Royal Commission and its investigation of corruption in police

MECHANISMS FOR REFORM

The Courts

- Judges can exercise discretion and the common law system and reform law through precedent

- However, seen as somewhat illegitimate, criticized for engaging in ‘judicial activism’ – referring to judges allowing their own personal and political beliefs to influence judgements

Parliament

- Responding to community, committee and commissions concerns by introducing and amending legislation, remaining primary body, overriding all common law

NATIVE TITLE

Terra Nullius

- Legal term meaning ‘land of no-one’, applied by the British whenever new land was discovered

European invasion of the Australian continent

- European ‘doctrine of reception’ was used to undermine Indigenous Australians land, meaning that once land was discovered, British laws applied

- The tenuous nature of customary law meant Indigenous Australians were not seen as having a solidified political culture or system of law, incomparable with Britain’s intricate system

THE ROLE OF THE HIGH COURT AND PARLIAMENT

Overturning the doctrine of terra nullius

- 1967 Referendum saw more than 90 percent of Australian voters chose to count Indigenous people in the census Aboriginal thought they could pursuit more reforms, including land rights

- Aboriginal Land Rights (Northern Territory) Act 1976 (Clth) – Granted traditional Aboriginal land in the NT

- Aboriginal Land Act 1991 (QLD) and Torres Strait Islander Act 1991(QLD) – Land in Queensland that was occupied by Indigenous Australians was transferred to them

Major Native Title decisions

- Native Title Act 1993 (Cth) – following Mabo v. Queensland (No. 2), Commonwealth Government passed to recognize rights and interests in regions where traditional links can be proven

- Native Title Amendment Act 1998 (Cth) – Howard aimed to diminish the scope of the act and ensure security for Australians that would lose entitlement to land under new legislation

YOUR RIGHTS AND RESPONSIBILITIES

- Something to which you’re entitled and are unable to be taken away- However, imprisonment is theoretically a violation as right to freedom is taken away,

thus law is able to take such away

Legal Rights

- Natural Law – rights given from God or other form of higher authority, unchangeable by law

- Positivists – argue that natural law is incorrect and only rights that are granted by the law or authority exist

- Most of Australia’s rights are found in Parliament; Anti-Discrimination Act 1977 (NSW) – prohibiting discrimination on basis of race, gender, age, disability etc.

- The rights of those accused – innocent until proven guilty, right to silence, right to lawyer

Rights under International law

- UN Declaration of Human Rights- International Covenant on Civil and Political Rights- Covenant on Economic, Social and Cultural Rights

- International Human Rights Committee, approachable to anyone whose rights are violated

ENFORCING RIGHTS

ROLE OF FEDERAL AND STATE POLICE

NSW Police Force

- Chiefly enforce the Crimes Act 1900 (NSW) and the Road Transport (General) Act 1999 (NSW) – Preventing and investigating crime and prosecuting offenders

- Must comply with jurisdiction

Australian Federal Police

- Collaborate with other overseas organisations in controlling trans-border crime- Jurisdiction includes counter-terrorism, fraud and especially drugs and people smuggling- Due to increasing technological advances, currently also dealing with cyber-crime

Australian Security Intelligence Organisation

- Warn governments about security threats from politically motivated violence

DISPUTES BETWEEN INDIVIDUALS

Alternative Dispute Resolution

- Negotiation – most informal dispute resolution method, minimizes conflict, least expensive

- Mediation and Conciliation – third party mediator attempting to resolve, facilitated solution, revolves around compromise

- Arbitration – less formal than court, arbitrator is neutral knowledgeable in field, arbitrator reaches a decision, widely used in International commercial disputes

- Courts – Small percentage of disputes resolved in court, expensive and supposedly stressful, strict rules of evidence and maintaining rights

DISPUTES WITH THE STATE

- Negotiation for informal disputes

The Media

- Critical pressure on Government, whether it be for just or unjust purposes- Haneef, media duress into setting up Clarke Inquiry

Members of Parliament

- MPs can represent their constituents and concerns in Parliament, questioning politicians on certain issues that are affecting rights

Trade Unions

- Under law, unions have the provision to represent the concerns of workers in industrial relations tribunals

- Protect the rights of workers in underpayment, unfair dismissal, harassment and bullying, health and safety

FORMAL METHOD OF DISPUTE RESOLUTION

Internal Review

- A person whose rights are affected by a Government decision are to apply for an internal review, reviewing the department itself

Judicial Review

- Examines the way in which a decision maker determined the case- Ensuring elements of ‘natural justice’ have been fulfilled- Decision was ultra vires – meaning that it was made outside authority that granted

legislation (separation of powers has taken place)- Determine whether the decision was unreasonable, that no other reasonable decision

maker could make the same conclusions

Commonwealth Ombudsman

- Investigates decisions made by federal government departments and agencies- Provision for malcontent citizens to complain in regards to unfair treatment- Will conduct investigations if the actions of an administrator or legislation that are

unreasonable, unjust, oppressive, improperly discriminatory

Types

- Defence Force- Immigration- Taxation- Postal Industry- Law Enforcement

NSW Ombudsmen

- Encourages the improvement of complaint mechanisms for certain Government bodies

Regarding

- Local government- Police- Community services- Child protection- Correctional centres- Whistle-blowing in relation to maladministration

STATUTORY BODIES

Australian Human Rights Commission

- Responsible for administering and maintaining Federal Human Rights and Discrimination Laws

- E.g Human Rights and Equal Opportunity Commission Act 1986 (Cth) & Racial Discrimination Act 1975 (Cth)

TRIALS OF MOHAMMED HANEEF

2nd July 2007 –

- Arrested under Anti-Terrorism Act 2004 (Cth) amendment of Crimes Act 1914 (Cth)- Detained under Anti-Terrorism Act (No.2) 2005 (Cth) amendment of Criminal Code

1995 (Cth)- On suspicion of terror-related activity, referring to attempted Glasgow car bombing, 30

June 2007

Context

- Post David Hicks debacle, pervasiveness of terrorism provoked great political pressure and coercion to use full power of law when dealing with suspected terrorists

Evidence and Allegations

- Family relationship – First cousins, once removed with Kafeel and Sabeel Ahmed, driver and accessory to the attempted bombing

- Sim card – Sabeel’s flat, prosecutors allege found in jeep- One-way ticket – After crime, Haneef bought one-way ticket, without employer notice,

to Bangalore, suspicion of absconding

- Shared flat – Allege that lived in UK flat with both suspects- Contact with suspects – Alleged continual contact, financial transactions proved false

Charging

- After 12 day detention (Crux of criticism, human rights issue), 14 July 2007, after consultation with CDPP, charged under 102.7(2) of the Criminal Code 1995 (Cth)

- Offence of providing support to terrorist organization, being reckless as to whether it is a terrorist organization

Visa Cancellation

- Hours after bail granted, Kevin Andrews exercised ministerial discretion in revoking visa if bail met, Haneef detained under different laws

- Permitted under Migration Act 1958 (Cth) - Law options expired due to lack of evidence, visa cancellation was plausible option as

evidentiary requirements are low Negligent as impacted right to fair trial

Clarke Inquiry – 13 March 2008

- Found evidence to be completely deficient- Found that coordinating officer, Ramzi Jabbour, had ‘lost objectivity’ - Concluded that Anti-Terrorism Act 2004 (Cth) be comprehensively reviewed - Concluded that Immigration Minister should, in the future, be informed of relevant

evidence, before unsubstantiated action is taken

CHILDREN AND YOUNG PEOPLE

CROC

- Civil, political, economic, social and cultural rights for the child- Defines all Australian legislation pertaining to the child- UN committee upholds monitors the respective 193 countries

Family Law Act 1975 (Cth)

- Claims a ‘paramount consideration’ for children in custody disputes

Children (Criminal Proceedings) Act 1987 (NSW)

- Defines age of criminal consent- Section 5 displays ‘doli incapax’ – notion that no-one under 10 can be convicted of a

crime

Young Offenders Act 1997 (NSW)

- Primarily aims at providing diversionary measures for young offenders, applying only to summary and indictable offences

- Three tiered system – warnings, cautions and youth justice conferences

Department of Community Services

- Responsible for care and protection of children- Co-operates with non-government organisations and government agencies- Provides accommodation for children who need to live away from families

Legal Aid

- All children are required to receive representation - Variety of matters, welfare proceedings in Children’s court to family matters in Family

court

SPORT AND THE LAW – Essay

- Due to the nature of sport, the Government doesn’t wish to over-regulate, leaving administrators and players liable

In some cases, resulting in ambiguity, thus turning to common law In others, broad legislation applies yet discrepancies can be seen as sport’s

inherent lack of regulation contradicts the law

Duty and Standard of Care

- A ‘duty of care’, is an assumed responsibility, applying to sporting administrators, coaches or other officials

- This duty must comply with a ‘standard of care’, based on what a reasonable person would have done in similar circumstances This presents an immediate issue as ‘reasonable’ revolves around subjectivity and is left to case law to dictate

- Case law of Bolton v. Stone (1951) details a cricket ball hitting a crowd member Court decided that accident was foreseeable, yet likelihood so low that ‘a reasonable man would not have felt called upon to either abandon the game or increase the height of the existing fence’

o Elucidates discrepancy as charges were cleared despite ‘duty of care’ was apparent, yet disclaimer of ‘reasonable’ is subjective Some could argue that accident was forseeable

o Thus, requires legislative revision, regardless of non-regulatory attitude towards sport

Drugs In Sport

- Player pressure to be at peak, competitive fitness has pressured some to take steroids and hormone treatments that have been banned

- Regular doping tests instituted Australian Sports Drug Agency, established under Australian Sports Drug Agency Act 1990 (Clth), banning or fining

- However, doping seems comparable to the number of performance enhancing options and technologies that privileged athletes are accustomed to –

like lighter, smoother, stronger, more aerodynamic, scientifically engineered suiting

equity divisions that exist within countries national wealth, development and politics and the relative financial benefits to sport

variety of nutritional, medicinal aids for energy, recovery, pain and stress relief- Renders doping vigilance disproportionate to what’s legally available

Female participation in male-dominated sports

- Female exclusion from male-dominated sports is apparent, potentially labeled as discrimination

- Currently discretion is left to administrators in deciding gender participation of sport - Primarily argument against is women are more likely to suffer injuries in body contact

sports against males- However, there is subsequent social disparity in female sport

Another recent SMH article, Women in sport hit the grass ceiling, published in 2010, details that women’s sport accounts for

2 percent of total sports broadcasting on television 1.4 percent on the radio 10.7 percent of reporting on the news Thus the view could be formed that such disparity could transfer to the

discrimination women receive in all facets of life This is where the Sex Discrimination Act 1984 (Clth), currently repressed in

sport, should be considered and implemented in the media

Racial Discrimination

- The Anti-Discrimination Act 1977 (NSW) and the Racial Discrimination Act 1975 (Clth) prohibit discrimination against minority groups, translating to the sporting field

- Racism in sport has resulted in public condemnation, banning and fines to spectators and occasionally sportsmen

- However, though they apply locally, International sporting competitions, that Aus. Participates in, sees discrimination presenting great discrepancy

- A SMH article, Women want the chance to bend it like Beckham, headscarves and all details FIFA’s banning of the hijab in international competitions

Thus restricting Australian, Muslim players from playing for Australia by virtue of their cultural abidance

THE INDIVIDUAL AND TECHNOLOGY – Essay

- Impossible to predict the technological advances, thus the law is reactive when legislating- Legislators have been productive in reacting to the emergence of new technology,

however, there is always scope for delay

Cybercrime

- Extremely difficult to regulate, allowing criminal activity to pervade- The convenience of the internet has allowed the provision for Internet banking

propensity for fraudsters to prey on the vulnerable and ill-informed- As most Internet crime is trans-national, authorities must work in conjunction with each

other to attempt to regulate such a covert medium- One area of moderate success has been enhanced International co-operation in the area of

child pornography as authorities have worked in conjunction to convict- Cyber Crime Act 2001 (Clth) has been implemented to combat the local concerns,

outlawing the online accessing of unauthorized, restricted and classified data and the spreading of computer viruses

- The increasing vigilance associated with technological advances has seen the Government recently propose laws that would allow the web and telecommunications data of all Australians to be stored for two years

Resulted in great criticism as detailed in recent SMH article, Internet data tracking proposal seen as ‘a police state’

Victoria’s acting privacy commissioner, Anthony Bendell states, “Not only does this completely remove the presumption of innocence which all persons are afforded, it goes against one of the essential dimensions of human rights and privacy law”

Surveillance Technology - CCTV

- The use of CCTV has been widely used to combat and deter crime in public and private places Constantly informed in media of compelling CCTV evidence used to convict

- An area where the technology has come under scrutiny, workplace where employees feel job security is at risk if incessantly monitored

Government has responded to such by introducing the Workplace Surveillance Act 2005 (NSW), restricting employers from filming workers specifically unless prior notice has been given.

An amendment to the Workplace Surveillance Act 1998 (NSW) – Elucidating responsiveness of the law as CCTV technology develops

Gene Technology

- Raise considerable ethical, moral and legal arguments - Arguments particularly revolve around growth of human stem cells for medicine, status

of embryos and human cloning - Government has attempted to respond to ethical concerns

o Gene Technology Act 2000 (Clth) saw mandatory licensing to individuals that use gene technology, in light of the emergence of gene technology

o Human Embryos Act 2002 (Cth) regulates the growing of human embryos to conduct genetic experiments

o Prohibition of Human Cloning for Reproduction Act 2002 (Clth) criminalizes any activity that seeks to create human embryos for the purpose of cloning, established as ethical debate arose over the use of human embryos in medical procedures.

o Further, the establishment of The Embryo Research Licensing Committee was created to monitor the individuals and organizations to conduct research in this area

o However, in 2005, debate arose between lobby groups, ethicists and scientists challenging effectiveness of gene research Law Reform Commission in conjunction with the Australian Health Ethics Committee released inquiry, Essentially yours: The protection of Human genetic Information in Australia Elucidating Government’s promptness respond to areas of controversy that will inevitably arise with new technology

Drones

- The recent emergence of drone technology is a primary example of the law’s decline in advances

- Primarily used in the military, the technology is spreading rapidly

- A recent SMH article entitled, ‘The sky is no limit as smarter drones appear on technology’s horizon’ details the main criticism of the technology,

“This potential has been accompanied by fears among scientific critics and human rights groups that downgrading the ‘man in the loop’ means devolving life and death decisions to aiborne robots”

Although technology mainly used in US for attacks on Al Qaeda, it is now being used for police surveillance Will inevitably become an issue for Australian legislators in the future Highlighting the law’s reactive response to technological advance