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Legal Studies - Year 11 Yearly > Term 2 - The Individual and the Law > Flashcards

Term 2 - The Individual and the Law Flashcards

1
Q

Define rights and give some examples.

A

Legal or moral entitlements or permissions.
Eg: Right to vote, freedom of speech, education, freedom of movement, religion.

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2
Q

Define responsibilities.

A

Legal or moral obligations to others.
Eg: Paying taxes, comply with laws, serve on a jury, anti-discrimination.

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3
Q

Define tortious.

A

Wrongful; constituting a tort or breach of duty to others.

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4
Q

What is required for a right to have a legal basis? Give an example of a common law and statue law protected right.

A

It must be protected by law and therefore enforceable.
Eg:
Statue: the Racial Discrimination Act protects against people being excluded due to race, colour or ethnic origin.
Common: Donoghue vs Steven 1932 duty of care law which can lead to people being sued for negligence.

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5
Q

What is the difference between moral and legal rights?

A

A legal right: those bestowed onto a person by a given legal system (can be modified, repealed and restrained by human laws).
A moral right: moral standards that people acknowledge but aren’t necessary codified in law. May have different interpretations.

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6
Q

What is the Bill of Right?

A

A list of constitutionally protected rights.

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7
Q

What are the three rights the Australian Constitution expressly protects?

A

1) S80: The right to do a trial by jury.
2) S116: Freedom of religion.
3) S117: Not be discriminated against on the basis of residence.

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8
Q

Define defamation.
In what cases is the person who defamed legally protected?
Provide examples of such cases.

A

The act of making statements or suggestions that harm someone’s reputation in the community.
Legally protected if:
- What the person said is true
- Facts are clearly stated
- Legal, social or moral obligation
Examples:
- Rebel Wilson Case
- Ben Roberts-Smith Case
- Bruce Leherman Case

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9
Q

What are the law reform agencies (7)?

A

1) NSW Police
2) Australian Federal Police (AFP)
3) Australian Custom and Border Protection
4) Australian Criminal Intelligence Comission
5) Australian High Tech Crime Centre
6) Australian Security Intelligence Organisation (ASIO)
7) Government Departments.

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10
Q

What is the job of NSW Police?

A
  • Enforce criminal law in line with Crimes Act of 1900 (NSW)
  • Covered by a cord of practice which covers: stop search and detain, enter and search, arrest, detain and question.
  • Meditation in family and neighbourhood disputes.
  • Apprehended Violence Orders (AVO’s)
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11
Q

What is the job of Australian Federal Police (AFP)?

A
  • Enforcing federal law and where crimes cross state boundaries
  • Legislation enforced include Cimes Act (1914) and the Criminal Code 1995 (Cth)
  • Powers are set out in the Australian Federal Police Act 1979 (Cth)
  • Respond to terrorism, human trafficking, cybercrime, family law (if the chid may be removed from Australia).
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12
Q

What is the job of the Australian Custom and Boarder Protection?

A
  • Works with other agencies to detect and sicourage unlawful movement of good and people across borders.
  • Immigration: moving legally across borders
  • Quarantine: goods harmful to animal and human life
  • Family Law: enforcing court orders
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13
Q

What is the job of the Australian Criminal Intelligence Comission?

A
  • Counters serious and organised crime
  • Covered by the Australian Crime Commission Act 2003 (Cth)
  • Intelligence and investigative functions
  • Collects and analyses intelligence data
  • Maintains system and controls
  • Investigating activity and forming task forces
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14
Q

What is the job of the Australian High Tech Crime Centre?

A
  • A national approach to technology crime
  • Deals with online fraud, mule recruitment, offensive and prohibited internet content
  • Technology enabled crime
  • Computer intrusions
  • Unauthorised modification of data
  • Malware
  • Child pornography
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15
Q

What is the job of the Australin Security Intelligence Organisation (ASIO)?

A
  • Gather information and work with other agencies to prevent and thwart attacks on Australia.
  • Works under the Australian’s national security service ASIO Act 1979 (Cth)
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16
Q

What is the job of Government Departments?

A
  • They enforce laws for the protection and benefit of society
  • Investigate and gather intelligence
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17
Q

What are the 3 methods of alternate dispute resolution (ADR)?

A

1) Negotiation: any dialogue intended to resolve disputes and/or produce and agreement on further courses of action.
2) Mediation/Conciliation: helps two parties with the presence of a third party to reach an agreement.
3) Arbitration: formal process where the third party actually makes the final decision.

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18
Q

What is the role of civil courts in resolving dispute between individuals?

A
  • Usually involve 1 party seeking a remedy or compensation to settle dispute
  • Standard of proof: balance of probabilities
  • Presided over by a magistrate or judge who is an independent referee. Hearing is open and transparent unless to do with a minor
  • Decisions made are binding
  • Parties may need legal representation which adds to cost
  • Process takes longer than ADR or Tribunals
  • Eg: Land and Environment Court
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19
Q

What is the role of tribunals when resolving dispute between individuals?

A
  • Deal with a specific area of law
  • Designed to be fair, informal, efficient, quick and less costly than courts
  • Parties don’t often need legal representation
  • Tribunal members play an active role in the proceedings
  • Hearings are open to the public
  • Eg: NSW Civil and Administrative Tribunal
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20
Q

What is the difference between resolving dispute between individuals and an individual and the state?

A
  • Dispute between individuals can be resolved informally and at a low cost, while dispute with the state involves formal legal methods, take longer and are more expensive since the state have greater resources than any individual and non-legal methods are indirect and take time to put pressure on the state.
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21
Q

What are the 4 non-legal methods of raising awareness on an issue and putting pressure on its resolve?

A

1) The media
2) Members of Parliament
3) Trade Unions
4) Interest Groups/NGO’s

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22
Q

What is the role of the media in solving dispute involving the state?
What are some examples?
What are the limitations?

A
  • It is very powerful and effective at publicly shining light on an issue
  • Can put pressure on government to change a law or reverse a decision
  • Eg: Robodept scandal, Claire Newland death, Skaf case.
  • Limitations:
    Coverage can sometimes be superficial, blows over easily.
    Media can be biased at how they from the issue; misleading.
23
Q

What is the role of members of parliament in solving dispute involving the state?

A
  • Constituents can visit their MP’s local electorate office and raise concerns about government departments
  • MP can write to their relevant minister and ask for the matter to be investigated and /or can raise the issue in Parliament (Private Member’s Statement)
  • Provide a link between citizens and the government
24
Q

What is the role of trade unions in solving dispute involving the state?

A
  • Can help negotiate a workplace agreement
  • Lobby for workers rights
  • Can marshall the support of their members (ie: strike)
  • Eg: teachers federation strike
25
Q

What is the role of interest groups/NGO’s in solving dispute involving the state?

A
  • Can use the media to publicise dispute with the state and pressure government to change
26
Q

What are the two types of legal methods in resolving dispute with the state? Describe them and their role.
State the 4 sub-types of the second legal method.

A

1) Internal Review
- Government departments review their own decisions and practices
- Internal review made by a different decision maker in the same department
- Effectiveness is impacted by potential bias and desire to “protect their own”
2) External Review
- One step above internal review when review is made externally by a separate agency, for eg; NCAT
- There are many avenues/bodies for external review, including:
- Judicial Review
- Office of Ombudsmen
- Royal Commissions
- Statutory Bodies (4)

27
Q

What does the judicial review involve?

A
  • NSW Supreme Court has the power to review government decisions and actions
  • Decisions can only be reviewed on the basis of:
    Lack of procedural fairness
    Jurisdiction (if government has exceeded their power)
    Error in law
    Lack of evidence
  • Outcomes can be: prohibition, injunction, or reversal
  • Limitations: decision is binding but process can be expensive
28
Q

What is the role of the office of ombudsmen in external review?

A
  • Is a “citizen’s defender”
  • Formal external control with legal power to investigate complaints
  • Limitation: cannot impose punishment but can make recommendations
  • Complaints made must be in writing
29
Q

What do the Royal Commissions involve? Provide some examples.

A
  • Temporary commission to conduct a formal inquiry into a particular issue (eg: deaths in custody, police corruption)
  • Administered by a commissioner who has more power than a judge
  • Outcome: presentation of report to parliament with recommendations
  • Limitations: can take many years to respond to an issue; government can ignore report recommendations
  • Eg: Royal Commission into the NSW Police Service
30
Q

Define a statutory body.

A

A body set out by statute law (parliament)

31
Q

What are the 4 types of statutory bodies?

A

1) NSW Anti-Discrimination Board
2) Independent Commission Against Corruption
3) Privacy Commissioners
4) Human Rights Commission

32
Q

What is the role of the statutory body NSW Anti-Discrimination Board?

A
  • Work under the Anti-Discrimination Act 1977 (NSW)
  • Equal opportunity promotion across NSW
  • Informs on rights and reponsibilities
  • Investigate and facilitate complaints
  • Issue fines
  • Eg: Pregnancy and Breastfeeding, Disability, Age, Transgender etc.
33
Q

What is the role of the statutory body Independent Commission Against Corruption?

A
  • Work under the ICAC Act 1988 (Cth)
  • Investigates corruption in the government
  • Bribery, theft, fraud
  • Search and seize evidence
  • Limitation: can make findings of corruption but it is up to the DPP to prosecute
  • Eg: Hurstville City Council Georges River - Operation Galley
34
Q

What is the role of the statutory body Privacy Commissioners?

A
  • The Privacy Act 1988 (Cth) gives the right to act if private information has been mishandled.
  • Can make complaint to Office of the Australian Information Commissioner
  • Health records being used by government agencies
35
Q

What is the role of the Human Rights Commission?

A
  • Investigates discrimination and human rights complaints
  • Provides education and information
  • Holds public inquiries, investigates breaches
  • Australian law must comply with UDHR (1948)
  • Investigate race discrimination, business and human rights, etc.
  • Eg: Toonen vs Australia
36
Q

What is the effectivity scale?

A

Significantly
Moderately
Somewhat
Limited

37
Q

Define cyberspace.

A

The “environment” in which electronic communication occurs.
- Outside the jurisdiction of any nation-state

38
Q

Define internet.

A

A global network of interconnected computer networks that allows users to share and obtain information.

39
Q

Define information technology.

A

The storage, sending and retrieval of information through computer systems.

40
Q

What is the difficulty the government faces with laws and regulations regarding the internet?

A

Technology is constantly changing and therefore gives rise to issues that have never or rarely been raised before. Governments have trouble making new regulations and laws on these changes - they are always behind/slower.

41
Q

State some examples of laws that were enforced regarding regulating the internet.

A
  • Spam Act 2003 (Cth)
  • Cybercrime Act 2001 (Cth)
  • Crimes Amendment (computer offences) Act 2001 (NSW)
42
Q

What is the problem with controlling cyperspace?

A

No government can claim cyberspace as it is exclusive jurisdiction and so it cannot be regulated.
Libertarian perspective: governments should not attempt to control or interfere with cyberspace.

43
Q

Define cybercrime. State the three main types.

A

Criminal activities carried out by mean of computers or the internet.
3 main types of cybercrime:
- Hacking
- Internet Fraud
- Spam

44
Q

Define hacking.
Under what laws can hackers be charged?

A

Unauthorised access to data, changing data or interfering with electronic communication between computers.
Hackers can be charged under The Cybercrime Act 2001 (Cth) and the R v Boden 2002 QCA 161.

45
Q

Define fraud.

A

Intentional misrepresentation or concealment of information in order to deceive or mislead.

46
Q

Define scams.

A

An attempt to obtain money through deception.

47
Q

Define intellectual property in cyberspace.
What are the 3 intellectual property rights?

A

Refers to the creations of the mind that have commercial value. These includes inventions, literary works, artistic works, music, software programs, databases, plant varieties, trademarks and designs.
Intellectual property rights:
1) Copyright
2) Trademarks
3) Patents

48
Q

Define copyright.

A

An exclusive right to publish, copy, publicly peform, broadcast or make an adaption of certain forms of expression, namely sounds, words or visual imagery.
It is a type of protection given to work intended to convey information or enjoyment of literary form under the Copyright Act 1968 (Cth).

49
Q

Define trademarks.

A

Words, names, symbols, devices or any combination of these, used to identify and distinguish goods and services of one company from those of another.

50
Q

Define patents.

A

Rights granted for any device, substance, method or process which is new, inventive or useful.
Aims to protect intellectual property but also encourage people to continue to research and develop new products or technology.

51
Q

What is the law covering privacy concern with the internet?

A

Privacy Act 1988 (Cth) “Privacy Principles” details how businesses should collect, store, use and disclose personal information.

52
Q

What is Dolly’s Law?

A

The law covers sending abusive emails, posing threatening or hurtful messages, photos or videos online or repeatedly sending unwanted messages. It also provides a bases for victims of cyber bullying to seek apprehended violence orders.

53
Q

What are the two approaches to rights in cyberspace?

A

The Laissaz-faire:
- Believes the internet should not be regulated and argues that individuals are capable of determining the quality of the internet content.
Interventionist:
- Government should intervene to ensure laws deal with online phenomena to ensure reasonable overall quality

54
Q

What are the two current sources of law in cyberspace? State the sub-sources.

A

1) National
- Statutes (Nation states have created numerous laws to govern the use of internet withing borders)
- Court decision (Superior Courts can create precedent)
2) International Law
- United Nations (has little control except about intellectual property which is governed by WIPO)
- The World Intelectual Property Organisation (WIPO)
- European Union (EU) (covers “all electronic communication networks and services”)
- World Trade Organisation (WTO) (looks after international trade which includes aspects of intellectual property)
- International Corporation for Assigned Names and Numbers (ICANN) (manages naming system)
- Internet Assigned Numbers Authority (IANA) (assigns unique addresses to all computers connected in networks)

Legal Studies - Year 11 Yearly (4 decks)

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