Cambridge Legal Studies Preliminary

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CAMBRIDGE

LEGAL STUDIES

_{P R E L I M I N A R Y}

S E C O N D E D I T I O N

Paul Milgate

Kate Dally

Phil Webster

Daryl Le Cornu

Tim Kelly

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CAMBRIDGEUNIVERSITYPRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São 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. Law—Australia—Textbooks. Law—Examination—Study guides.

Higher School Certiﬁcate 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 ﬁle ‘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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Part I: The legal system

1

C H A P T E R 1 – B A S I C L E G A L C O N C E P T S 2

The meaning of law 4

Customs, rules and law 5

Values and ethics 7

Characteristics of just laws 8

The nature of justice 8

Procedural fairness and the principles of natural justice 9

The rule of law 10

Anarchy and tyranny 12

Chapter review 14

C H A P T E R 2 – S O U R C E S O F C O N T E M P O R A RY A U S T R A L I A N L AW 16

Australia’s legal heritage 18

Common law 18

Court hierarchy: Jurisdiction of state and federal courts 22

Statute law 27

The Constitution 31

Aboriginal and Torres Strait Islander Peoples’ customary laws 43

International law 48

International organisations 51

Relevance of international law to Australian law 55

Chapter review 56

C H A P T E R 3 – C L A S S I F I C AT I O N O F L AW 58

Public law and private law 60

Criminal and civil court procedures 65

The legal profession 70

Common and civil law systems 73

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C a m b r i d g e L e g a l S t u d i e s – P re l i m i n a r y

C H A P T E R 4 – L AW R E F O R M 76

What is law reform? 78

Conditions that give rise to law reform 78

Agencies of reform 88

Mechanisms of law reform 92

Chapter review 94

C H A P T E R 5 – L AW R E F O R M I N A C T I O N 96

Topic 1: Law reform and native title 98

Conditions that lead to law reform on native title 98 Operation of the legal system in relation to native title 101 Effectiveness of law reform in relation to native title 109

Topic 2: Law reform and sport 110

Conditions that lead to law reform in sport 110 Agencies of law reform in sport 114 Mechanisms of law reform in sport 116 Effectiveness of law reform in the sporting world 117

Topic 3: Law reform and sexual assault 118

Conditions that lead to law reform relating to sexual assault 118 Agencies of law reform relating to sexual assault 120 Mechanisms of law reform relating to sexual assault 122 Effectiveness of law reform relating to sexual assault 124

Chapter review 125

Part II: The individual and the law

129

C H A P T E R 6 – Y O U R R I G H T S A N D R E S P O N S I B I L I T I E S 130

What are rights and responsibilities? 132 The nature of individual rights 133 Individuals’ rights and responsibilities in relation to the state 136 International protection of rights 143

C H A P T E R 7 – R E S O LV I N G D I S P U T E S 148

Introduction 150

Law enforcement agencies 150 Disputes between individuals 154

Disputes with the state 158

C H A P T E R 8 – C O N T E M P O R A RY I S S U E S : T H E I N D I V I D U A L A N D T E C H N O L O G Y 168

The scope of new technology 170

Legal issues in cyberspace 171

Privacy, safety and censorship 178

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Part III: Law in practice

A R E A 1 : G R O U P S O R I N D I V I D U A L S S U F F E R I N G D I S A D VA N TA G E 192

C H A P T E R 9 – C H I L D R E N A N D Y O U N G P E O P L E 192

Children, young people and the law 201 Mechanisms for protecting the rights of children and young people 201

Responsiveness of the law 205

Conclusion 209

C H A P T E R 1 0 – W O M E N 212

Women and the law 214

Mechanisms for achieving justice for women 220 Responsiveness of the legal system to efforts to achieve justice for women 227

Conclusion 230

A R E A 2 : E V E N T S W H I C H H I G H L I G H T L E G A L I S S U E S 234

C H A P T E R 1 1 – T H E B A L I B O M B I N G S 234

9/11 and global terrorism 236

Mechanisms for achieving justice after the Bali bombings 240 Legal responses to terrorism 244

Conclusion 247

C H A P T E R 1 2 – T H E P O RT A RT H U R M A S S A C R E 250

The Port Arthur massacre 252 Mechanisms for achieving justice after the Port Arthur massacre 258 Responsiveness of the legal system to the Port Arthur massacre 260

Conclusion 263

A R E A 3 : I N D I V I D U A L S O R G R O U P S I N C O N F L I C T W I T H T H E S TAT E 266

C H A P T E R 1 3 – M O H A M E D H A N E E F 266

A brief history of the Mohamed Haneef case 268 Mechanisms for achieving justice in the Mohamed Haneef case 274

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The future for Australia 281

C H A P T E R 1 4 – O U T L AW M O T O R C Y C L E G A N G S ( O M C G s ) 284

Outlaw motorcycle gangs in Australia 286 Mechanisms for achieving justice in relation to OMCGs 293

A R E A 4 : C R I M I N A L O R C I V I L C A S E S T H AT R A I S E I S S U E S

O F I N T E R E S T T O S T U D E N T S 304

C H A P T E R 1 5 – F I L E S H A R I N G A N D D I G I TA L C O P Y R I G H T 304

File sharing, digital copyright and the law 306 Mechanisms for achieving justice in relation to digital copyright 308 Responsiveness of the law 314 The future of digital copyright in Australia 316

C H A P T E R 1 6 – D R U G T E S T I N G 320

Mechanisms for achieving justice in drug testing 326

Conclusion 337

Answers to multiple-choice questions 340

Glossary 341 Index 348

Student CD Contents

Additional chapters C H A P T E R 1 7 – G R O U P S O R I N D I V I D U A L S S U F F E R I N G D I S A D VA N TA G E : M I G R A N T S Introduction

Migrants and the law

Mechanisms for achieving justice for migrants Responsiveness of the legal system to migrants Future directions

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C H A P T E R 8 – C O N T E M P O R A RY I S S U E : T H E I N D I V I D U A L A N D T E C H N O L O G Y C H A P T E R 9 – G R O U P S O R I N D I V I D U A L S S U F F E R I N G D I S A D VA N TA G E : C H I L D R E N A N D Y O U N G P E O P L E C H A P T E R 1 0 – W O M E N : G R O U P S O R I N D I V I D U A L S S U F F E R I N G D I S A D VA N TA G E C H A P T E R 1 1 – E V E N T S W H I C H H I G H L I G H T L E G A L I S S U E S : T H E B A L I B O M B I N G S C H A P T E R 1 2 – E V E N T S W H I C H H I G H L I G H T L E G A L I S S U E S : T H E P O RT A RT H U R M A S S A C R E

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Paul Milgate

Paul Milgate DipTeach BEd is Head of Legal Studies, Business Studies/Commerce and Economics at Xavier Catholic College on the north coast of NSW. He has extensive experience in Legal Studies, having taught it since its inception. He was a foundation member of the North Coast Legal Studies Teachers Association, which conducts student seminar days and provides funding for professional development in collaboration with Southern Cross University Faculty of Law and Justice.

Kate Dally

Kate Dally BA DipEd is Head Teacher of Social Sciences at Birrong Girls High School in Sydney. She has extensive experience, having taught Social Sciences for the past 17 years. Her experience also covers HSC marking in both Legal Studies and Business Studies. She has also written for Success One Business Studies for a number of years.

Daryl Le Cornu

Dr Daryl Le Cornu BA (Hons) DipEd PhD is currently HSIE Head Teacher at Mount Annan High School. He has taught Legal Studies for 16 years and is also very experienced in teaching other senior humanities courses. Daryl completed a doctorate in 2005 on the intellectual origins of multilateral cooperation and collective security in Britain during World War I. He is an experienced HSC marker for Legal Studies and Modern History. Daryl is also the Education Program Ofﬁcer for the WCAA (World Citizens Association of Australia) and is a member of ACUNS (Academic Council on the United Nations System).

Tim Kelly

Tim Kelly BA DipEd DipLaw obtained his BA DipEd from the University of New South Wales in 1984 and completed his Diploma in Law from the Legal Practitioners Admissions Board in 1996. He began teaching Legal Studies in 1993 at St Mary’s Maitland. Since 1998, Tim has been the HSIE Coordinator at St Mary’s in Casino. Tim is also a tutor at Southern Cross University in HSIE Curriculum Specialisation and is a current HSC marker for Legal Studies.

About the authors

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.

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Acknowledgements

Thanks to my wife, Barbara, my daughter, Ebony, and my son, Zach – a great team!

PAUL MILGATE

Thanks to all of my family and friends who put up with me as I wrote my chapters.

K ATE DALLY

To the boys at Hells Angels MC – thanks for your assistance with OMCGs. To Katie Wood at Amnesty – huge thanks for your support and research. To Abby, Frankie and Kobe, Daddy is not on the computer tonight!

PHIL WEBSTER

I would like to dedicate this book to the ‘Class of 2008’ HSC Legal Studies students at Mount Annan High School.

DARYL LE CORNU

To Amanda, Jack and Hannah – thanks, inﬁnity times, always.

TIM KELLY

The authors and publisher wish to thank the following sources for permission to reproduce material:

Cover: iStockphoto/Anthony Brown.

Images: Shutterstock, pp. 1, 4, 5, 9, 10 left & right, 12 right, 13 top, 19, 21, 26, 28, 58, 59, 63, 64, 65, 69, 76, 77, 81, 85 bottom, 86, 90, 92, 96 left & right, 97, 110 left & centre, 113, 118, 119, 129, 130, 131, 134, 135, 141, 148, 149, 150, 153, 154, 158, 163, 168, 169, 170, 172 left & right, 173, 174 top & bottom, 178, 179, 180, 185, 187, 191, 192, 193, 194, 195, 197, 200, 201, 204, 206, 216, 221, 224 top, 226, 234, 235, 250, 251, 258, 272, 284, 285, 294 top left, 304, 305, 306, 307 left & right, 309, 313, 315 top right, 317, 320, 321, 323, 327, 328 left, 330, 332 left & right, 333, 337; iStockphoto/ Anthony Brown, pp. 2, 3; Wikimedia Commons/ Fir0002, p. 7 / Infrogmation, p. 12 top left /Hanhil, p. 50 /David Shankbone, pp. 52, 291 top left /Thalan, p. 73 left /Jeremy, p. 78 /Yann Forget, pp. 93, 176 /Enoch Lau, p. 137 top /Schutz, p. 159 left /lkiwaner, p. 208 / Fanny Schertzer, p. 253 left /Tirin, p. 225 /Francis Tyers, p. 269 top /Simon Wedege Peterson, p. 269 bottom right /Manuel Gonzalez Olaechea y Franco, p. 269 bottom left /Klaus Enslin, p. 288 top right /Dori, p. 288 bottom right, These images are licensed and freely available under the ‘GNU Free Documentation’ License; Wikimedia Commons/ Chris Metcalf, p. 12 bottom left /Wilson Afonso, p. 39 / Patrick Gruban, p. 53 bottom /Chris Johnson, p. 144 /Joi Ito, pp. 171, 311 top /Library of Congress, p. 207 /Robert Scoble, p. 218 /Ruth Elison, p. 243 bottom left, These images are licensed and freely available under the ‘Creative Commons Attribution 2.0’ License; Wikimedia Commons/Public domain, pp. 13 bottom left, 40, 54, 68, 73 centre & right, 84, 101, 137 bottom, 152, 202, 215, 243 bottom right, 244, 268 right, 288 top left, 294 top right; Wikimedia Commons/ TwoWings, p. 13 bottom right /2002 Dustin M Ramsey, p. 44 /Thomas Schoch, p. 139, These images are licensed and freely available under the ‘Creative Commons Attribution ShareAlike 2.5’ License; Dreamstime/ Krystof, pp. 16, 17 /Alfonsodetomas, p. 166 / Silviaantunes, pp. 212, 213 /Yellowcrest, p. 267 /Aspectimages, p. 266; Photolibrary/ Mary Evans Picture Library, p. 20 /North Wind Pictures Archives, p. 324. © State Library of Queensland, Negative Number 16964, p. 32 left; © Gordon H Woodhouse, Unoccupied White Australia, H15362/37, State Library of Victoria, p. 32 right; © John D Chesworth, p. 33; © Ross Scott, Courtesy of the Tasmanian Wilderness

Society, p. 35; © National Library of Australia/ ‘Yes’ for Aborigines, nla.aus-vn3116836-1x-v, p. 37 /Joseph Lycett, Aborigines using ﬁre to hunt kangaroos, nla.pic-an2962715-s20-v, p. 47 top /Lyn McLeavy, Land Council Meeting, Fitzroy Crossing, nla.pic-an23389398, p. 47 bottom /The Australian Constitution, 16211, p. 62 /Captain Cook’s landing at Botany, nla.pic-an7890396-m, p. 100 top; © Ron Tandberg for The Age, p. 42; © Aboriginal Studies Press, AIATSIS and Auslig/ Sinclair, Knight, Merz, 1996, p. 46; Wikimedia Commons/Agencia Brasil. This image is licensed and freely available under the ‘Creative Commons Attribution 2.5 Brazil’ License. p. 53 top; Wikimedia Commons/ Bidgee, pp. 60, 151, 299 /Socrates2008, p. 140 /samh_78, p. 159 right /John Erling Blad, p. 182 /author unknown, p. 214 / Paul 1953, p. 325 top /Angelo Tsirekas, p. 326, These images are licensed and freely available under the ‘Creative Commons Attribution ShareAlike 3.0’ License; Getty Images/ Michael Kelley, p. 66 /Bernd Opitz, p. 156 /Spencer Platt, p. 237 bottom; Corbis/ Epa, Peter Foley, p. 72 /Penny Tweedie, p. 109 /Epa, Mast Irham, p. 142; Wikimedia Commons/Dedda71. This image is licensed and freely available under the ‘Creative Commons Attribution 3.0 Unported’ License. p. 79; Wikimedia Commons/ Richard Johnstone, p. 80 /Timeshift9 p. 132, These images are licensed and freely available under the ‘Creative Commons Attribution ShareAlike 2.0’ License; Wikimedia Commons/ Salim Fadhley. This material is licensed and freely available under the Free Art License at <http://artlibre.org/licence/lal/en> p. 85 top; © ActionAid Austalia (formerly Austcare), p. 91; Newspix/ News Ltd, pp. 98, 104, 259, 295 /Kym Smith, pp. 110 right, 245 /James Knowler, p. 115 /Braden Fastier, p. 157 /Nathan Edwards, p. 237 top left /Sam Rosewarne, p. 256 /Jodie Richter, p. 275 /Craig Borrow, p. 291 top left /Robert McKell, p. 315 bottom /Jeff Darmanin, p. 325 bottom; © National Archives of Australia: A6180, 12/12/73/107, p. 100 bottom /A8598, AK6/5/80/11, p. 103; Fairfax Photos/ The Age, p. 102 / Bruce Miller, p. 291 bottom /AMH/Penny Bradﬁeld, p. 297; AAPImage/ Jonathan Ng, p. 111 /Alan Porritt, p. 164 /Itsuo Inouye, p. 237 top right /AAPImage, pp. 237 bottom left, 239 left /Radar Bali, p. 238 / Anwar Mustafa, p. 239 right /Dita Alangkara, p. 241 /Steve Holland, p. 254 /Torsten Blackwood, p. 255 /Jenny Evans, p. 258 /Aijaz Rahi, pp. 268 left, 277 left /Dave Hunt, p. 278 /Pool/Steven Siewert, p. 286 /Asahi Shimbun, p. 287 /Shannon Morris, p. 308; © Jonas Liebschner/ JL Photography, p. 116; © NSW Rape Crisis Centre, p. 121; © Manly Council, NSW, p. 123; © ACTU, pp. 160, 224 bottom; © Amnesty International Australia, p. 166; © Coca Cola, p. 177 left; © Cadbury, p. 177 right; © Facebook is a registered trademark of Facebook Inc. p. 178 left; © Sheila Smart/Sheila Smart Photography, p. 219; © UN Photo/Ryan Brown, p. 228; © National Security Department, p. 242; Wikimedia Commons/Arnaud Gaillard, pp. 243 top left & right, These images are licensed and freely available under the ‘Creative Commons Attribution ShareAlike 1.0’ License;

Reuters/David Gray, p. 262; © Inkcinct Cartoons, p. 277 right; Wikimedia Commons/CC-BY-SA-2.0-DE. This image is licensed and freely available under the ‘Creative Commons Attribution ShareAlike 2.0 Germany’ License. p. 288 bottom left; © F.R.E.E. Australia Party, p. 301; © Esther Dyson via Flickr, at <http://www.ﬂickr.com/photos/ edyson/1742438> p. 311 bottom; © AFACT, p. 315 top left; © Australian Defence Force, p. 328 right.

Text: Cigarette beach ban goes up in smoke in Sydney, The Australian, January 11, 2009 <http://www.theaustralian.news.com.au/ story/0,25197,24895070-5006784,00.html> p. 11; © Geoff Earle, NY Post. p. 138; Extract from ABC News ‘Channel Seven guilty in Corby defamation case’ first published by ABC Online, 29 May 2008, is reproduced by permission of the Australian Broadcasting Corporation and ABC Online. (c) 2008 ABC. All rights reserved. p. 142; Matthew Benns, Courtesy of The Sun-Herald p. 155; Belinda Merhab, Courtesy of The Australian, p. 164; Extract from ABC News ‘Controversial bikie laws pass NSW Parliament’ first published by ABC Online, 3 April 2009, is reproduced by permission of the Australian Broadcasting Corporation and ABC Online. (c) 2009 ABC. All rights reserved. p. 299; © Australian Institute of Health and Welfare, p. 322; Andrew West, Courtesy of The Age. p. 329; Extract from ABC News ‘School drugs test a ‘waste of money’’ by Michael Turtle first published by ABC Online, 26 March 2008, is reproduced by permission of the Australian Broadcasting Corporation and ABC Online. (c) 2008 ABC. All rights reserved. p. 331.

Every effort has been made to trace and acknowledge copyright. The publisher apologises for any accidental infringement and welcomes information that would redress this situation.

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Introduction

To the student

Congratulations on choosing Cambridge Legal

Studies – Preliminary (Second Edition). This edition

has been completely updated to meet the require-ments of the 2009 Stage 6 Legal Studies Syllabus in New South Wales.

Legal Studies was ﬁrst introduced into the NSW Curriculum in 1989. Since then, thousands of students have ﬁnished their secondary schooling better informed citizens, able to think more critically about the processes and institutions that shape their lives on a daily basis.

The rights people enjoy within democratic societies have at times been eroded by governments when electorates become apathetic about their freedoms and liberties. Legal Studies will allow you to explore the power vested in our democratic institutions and wielded by our elected leaders. It explores issues that will challenge the way you see

the world and how you understand the concept of achieving justice through the law.

Cambridge Legal Studies – Preliminary (Second

Edition) is a comprehensive resource that intro-duces you to a dynamic and challenging subject. It brings the law to life for you, both inside and outside the classroom.

You will discover a wealth of material that introduces you to the Australian legal system, how the individual interacts with and is affected by the law, and gain insight into how the law works in practice in a variety of contexts. You will be engaged and stimulated by up-to-date case law and recent legislative developments. Practically, updated research and review activities will assist to build your research skills and make sure that you are ready for your exam.

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Using Cambridge

Legal Studies – Preliminary

The Cambridge Legal Studies – Preliminary resource package consists of ﬁve components:

1 Student Book

The Student Book contains all topics in Part I, Part II (including additional topics under Law Reform in Action), and a range of contemporary high-interest topics in Part III.

2 Student CD

The Student CD can be found at the back of the Student Book. It contains:

an electronic version of the Student Book s

two additional chapters for Part III – Migrants s

and Aboriginal and Torres Strait Islanders additional resources for Chapters 8–12 s

all Review activities in electronic format. s

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:

exam preparation and study tips s

additional multiple-choice, short-answer and s

extended response questions for each part of the course

legal research tips and information to help you s

understand case citations.

4 Teacher CD-ROM

The Teacher CD-ROM contains a wide range of material to support students and teachers, with course, lesson, assessment and homework preparation.

5 Student and teacher website

The Cambridge Legal Studies website is a free resource that presents additional activities, web-links, teaching plans and curriculum documents to support students and teachers.

G U I D E T O I C O N 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.

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Key features of the Student Book

CHAPTER 2 Sources of contemporary Australian law chapter objectives key ter ms/vocabulary

In this chapter, students will: identify and apply legal concepts and terminology s

describe the key features and operation of the s

Australian and international legal systems discuss the effectiveness of the legal system in s

dealing with relevant issues explain the relationship between the legal system s

and society

describe the role of the law in conﬂict resolution and s

its ability to respond to and initiate change locate, select and organise legal information from a s

variety of sources communicate legal information by using well-s structured responses. adversarial system appeal appellate jurisdiction bicameral bill committal hearing common law concurrent powers customary law defamation delegated legislation domestic law equity exclusive powers ex parte external affairs power federation indictable offences inquisitorial system jurisdiction legislative powers mediation natural justice obiter dicta opinio juris original jurisdiction precedent ratify ratio decidendi referendum residual powers sanction stare decisis summary offences statute law terra nullius treaty ultra vires 1 6 C a m b r i d g e L e g a l S t u d i e s – P re l i m i n a r y

The legal system

re l e v a n t l a w o d d l a w

I M P O RTA N T L E G I S L AT I O N

Commonwealth of Australia Constitution Act 1900 (UK)

Australia Act 1986 (Cth) Administrative Decisions (Judicial Review) Act

1977 (Cth)

S I G N I F I C A N T C A S E S

Gutnick v Dow Jones & Co. Inc [2001] VSC 305 Commonwealth v Tasmania [1983] HCA 21 South Australia v Commonwealth [1942] HCA 14 Murphyores v The Commonwealth [1976]

HCA 20

R v Brislan; Ex parte Williams [1935] HCA 78 Osland v R [1998] HCA 75 Roper v Simmons, 543 US 551 (2005)

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 defendant’s trouser pocket, constituted an illegal search. The Supreme Court of New South Wales held that Rocky’s action was not a search, but the search that the police ofﬁcers 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.

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 w1 7

1 6 4 C a m b r i d g e L e g a l S t u d i e s – P re l i m i n a r y C h a p t e r 7 – R e s o l v i n g d i s p u t e s1 6 5

The individual and the law

Statutory bodies

Statutory bodies are authorities created by statute for a public purpose. The follow ing statutory bodies can investigate com plaints and disputes of certain types.

A N T I - D I S C R I M I N AT I O N B O A R D O F N S W ( A D B )

The Anti-Discrimination Board of NSW is part of the NSW Attorney General’s Department and was established under the Anti-Discrimination Act 1977 (NSW). Its role is to promote principles and policies of equal opportunity throughout NSW, to ensure that people are protected from discrimination on the basis of characteristics such as disability, age, race and sex. It advises the government and also provides an inquiry service to inform people about their rights and responsibilities under anti-discrimination laws. The Board will investigate and conciliate complaints when action is necessary. It has the power to issue ﬁnes for behaviour that violates anti-discrimination laws.

C O M M I S S I O N S O F I N Q U I RY

Commissions of inquiry are set up to investigate serious matters at both state and federal level. They are not judicial proceedings, but fact-ﬁnding exercises. Royal Commissions are commissions of inquiry with particularly strong powers with respect to calling witnesses. In the past, such inquiries have investigated issues such as Aboriginal deaths in custody (Commonwealth, 1987) and corruption in the NSW police service (NSW, 1995).

Commissions of inquiry do not have the power to prosecute offenders. At the end of an inquiry, the commission will produce a report containing recom mendations, which may include recommending crimi nal prosecution of individuals. The govern ment may decide to act on the commission’s rec-om mendations: a number of police ofﬁcers

were sent to gaol as a result of the NSW Royal Commission). However, it has been argued that the inquiry into Aboriginal deaths in custody has failed to produce signiﬁcant improvements in the conditions leading to these deaths.

I N D E P E N D E N T C O M M I S S I O N A G A I N S T C O R R U P T I O N ( I C A C )

While the Ombudsman has the power to investigate complaints made by the public, the Independent Commission Against Corrup tion (ICAC) has greater power. The

ICAC Act 1988 (NSW) created the ICAC as an

independent statutory body to investigate alleged corruption in government. ICAC attempts to protect the interests of the pub-lic, prevent breaches of public trust, and inﬂuence the behaviour of public ofﬁcials.

Some examples of corrupt behaviour include bribery, fraud and theft. ICAC has the power to investigate the activities of pri-vate citizens if such behaviour affects the proper administration of public ofﬁces.

ICAC has the authority to ask the police service to assist in its investigations, and is therefore able to search for and seize evidence where it sees ﬁt. It does not have the power to prosecute offenders (that is the job of the Director of Public Prosecutions). At the end of an investigation it can report to parliament that corrupt behaviour has occurred, who committed it, and what further action should be taken. If a citizen feels that he or she has been wrongfully accused of corruption, he or she may seek judicial review in the New South Wales Supreme Court.

In 2005, ICAC investigated a claim that a private tutoring ﬁrm was assisting English Extension II students with work that was ultimately submitted as part of their HSC assessment. Although ICAC did not ‘prove’ that students had been assisted, it raised serious concerns about assessment tasks in the HSC that are of a ‘take-home’ nature.

R E V I E W 7 . 5

1 Explain the process of internal review of a government agency’s decision. What are the potential problems with internal review? 2 Explain the function of

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 people’s 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? 7 Explain the importance of

natural justice as the state attempts to enforce laws.

R E S E A R C H 7 . 2

1 Visit the ADB website: http://www.lawlink.nsw. gov.au/ADB

2 Choose ‘Resources and links’ from the left-hand menu and follow the link to ‘Legal cases from Equal Time’.

3 Discuss two cases and evaluate the effectiveness of the ADB in bringing about just outcomes. You should include a case that has been dismissed by the ADB.

media clip

Figure 7.13 The use of Taser guns by the police is a controversial issue.

NSW Ombudsman calls for freeze on Taser guns

By Belinda Merhab

The Australian, 20 November 2008

THE NSW Ombudsman has recommended a two-year freeze on further roll-outs of Taser guns, saying police standards for their use are inadequate, and the health risks are unknown. Bruce Barbour told state parliament yesterday that general-duties police, who were issued the stun guns last month, were using Tasers at a higher rate than special operations police, who began using them in 2002.

‘It is clear the number of incidents where Tasers will be used in the future will increase signiﬁcantly,’ Mr Barbour said.

‘There is already evidence of this. Tasers have been used on people on five occasions in the first two weeks of general-duties use. This compares with only 48 incidents over a five-year period’ by special unit officers.’

The Ombudsman’s investigation found officers from special units had predominantly used Tasers from a distance, but in the first two weeks of use by general-duties officers, in four out of the five incidents the Tasers were used in drive-stun mode, where the gun is applied directly to skin or clothing.

The use of Tasers, which stun a victim by emitting a 50 000-volt electric shock, have been linked to heart complications and death.

Queensland police last week Tasered a 16-year-old girl who had ignored police instructions to move on, because she was waiting with a sick friend for an ambulance to arrive.

In another case, a 56-year-old NSW man who had threatened police with a frying pan died 12 days after receiving three Taser shocks.

According to his death certiﬁcate, the man, who had heart disease, hepatitis C and schizophrenia, died of a heart attack.

Mr Barbour was unable to say whether the Taser played a role in the man’s death.

NSW Police Commissioner Andrew Scipione said he was only made aware of the man’s death through the Ombudsman’s report on the case.

Mr Scipione said there was a training manual for the use of Tasers, and ofﬁcers had to get an 80 per cent pass rate in a written exam before they were accredited to use the weapon.

Mr Scipione said Tasers had been drawn, but not necessarily used, 70 times since last month’s roll-out of the weapons. He said there had not been related injuries to police or citizens.

Every Taser use was recorded by an inbuilt camera and was then downloaded and reviewed by Deputy Police Commissioner Dave Owens, he said.

But Mr Barbour said general-duties police were inadequately trained and informed on Tasers and the associated dangers.

‘They do not give adequate guidance about situations where they shouldn’t be used,’ the Ombudsman said. ‘It must be remembered that Tasers are not a non-lethal weapon, they are just a less lethal weapon.’

Mr Barbour recommended a two-year review into Taser use, and said the standards that deemed Tasers safe applied only to healthy people.

Chapter openers

Each chapter of Cambridge

Legal Studies – Preliminary

begins with a chapter opener that contains:

s s

s important legislation and signiﬁcant cases)

s

Media clip

A number of current media articles are provided to help you understand how the law operates in real-world situations.

Activities –

Review and Research

Throughout each chapter you will ﬁnd 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.

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x i i i

Using

Cambridge Legal Studies – Pr

eliminary

2 4 8 C a m b r i d g e L e g a l S t u d i e s – P re l i m i n a r y C h a p t e r 1 1 – T h e B a l i b o m b i n g s2 4 9

Law in practice

The attacks on the World Trade Center and s

the Pentagon on 11 September 2001 (9/11) mark the beginning of terrorism as a global phenomenon.

The Bali bombings was carried out by s

Indonesian Islamic extremists on 12 October 2002. Bombs were exploded at Paddy’s Bar and the Sari Club, both popular with Australian tourists.

While no group took immediate responsibility s

for the bombing, the radical Islamic association, Jemaah Islamiyah, was suspected. Amrozi, Imam Samudra and Mukhlas stood s

trial for the Bali bombings and were found guilty. They were sentenced to death by ﬁring squad and executed in November 2008.

Outline the situation regarding global terrorism before the Bali bombings. What is the ‘war on terror’? What was known about Jemaah Islamiyah

before the Bali bombings? Explain the connection between Hambali and

the Bali bombings. Who was Abu Bakar Bashir and why was he a

suspect?

Why are good relations between Australia and Indonesia important from the Australian government’s point of view? Non-legal responses include the establishment

s

of anti-terrorism media campaigns and the establishment of memorials to the victims of the bombings.

The Bali bombings revived debate about the s

death penalty.

The Bali bombings saw the introduction of s

Australian anti-terrorism legislation and the strengthening of the enforcement agencies responsible for homeland security. This legislation has come under criticism by s

those who believe it jeopardises civil liberties and key legal rights.

Who were the main suspects arrested for the Bali bombings?

What was controversial about the trial of Abu Bakar Bashir?

Why was the Australian government’s policy towards the death penalty controversial? What key changes in anti-terrorism legislation

have occurred in Australia since the Bali bombings?

Chapter summary Chapter summary tasks

Multiple-choice questions

T

opic r

eview

Which of the following is NOT true of terrorism?

AIt can be utilised by fundamentalist religious groups or political groups. BIt can be constituted by a threat of violence

directed at a population in order to induce a government to change its policies. CIt is intended to cause death, not fear. DIt was used prior to 2001. Jemaah Islamiyah was:

Aa peaceful Islamic organisation Ba foreign terrorist organisation that

established a branch in Indonesia Cunder suspicion from the CIA for having

links with Al Qaeda well before the Bali bombings

Dthe name of the Indonesian counterterrorism force Which of the following alleged suspects

responsible for the Bali bombings ended up walking free?

AIman Samudra BAbu Bakar Bashir CAmrozi DAli Ghufron

Which of the following was not a result of Australian–Indonesian cooperation since the Bali bombings?

AAustralian police involved in the identiﬁcation of victims of the Bali bombings

Bthe establishment of the Australian Federal Police

Cthe establishment of the Jakarta Regional Cooperation Team Dthe establishment of the Jakarta Centre for

Law Enforcement Cooperation Which of the following types of provision was

contained in the anti-terrorism legislation passed by the Commonwealth after the Bali bombings?

Adetention of persons suspected of terrorism offences for the purpose of investigation Bdetention of illegal immigrants from

countries known to harbour terrorists Cimmunity of anti-terrorism legislation from

judicial review

Dimmunity of any Commonwealth employee from prosecution

E X T E N D E D R E S P O N S E

Discuss the anti-terror legislation, with reference to the arguments for and against a bill of rights.

Outline how the Australian and Indonesian governments have cooperated since the Bali bombings.

Outline the key stages in the investigation of the Bali bombings. Contrast the ‘war on terror’ and the ‘rule of

law’ approaches taken in the ﬁght against terrorism.

Describe the Australian government’s policy towards the death penalty.

Marking criteria for the extended response questions can be found at www.cambridge. edu.au/education. Refer to these criteria when planning and writing your response.

1 8 0 C a m b r i d g e L e g a l S t u d i e s – P re l i m i n a r y C h a p t e r 8 – T h e i n d i v i d u a l a n d t e c h n o l o g y1 8 1

The individual and the law

Although the federal Privacy Act is only 20 years old, it was introduced before the advent of super computers, the Internet, mobile phones, digital cameras, e-commerce, sophisticated surveillance devices and social networking websites – all of which challenge our capacity to safeguard our sensitive personal information. The Privacy Act has worked pretty well to date, but it now needs a host of reﬁnements to help us navigate the Information Superhighway. These days, information privacy touches almost every aspect of our daily lives, including our medical records and health status, our ﬁnances and creditworthiness, the personal details collected and stored on a multiplicity of public and corporate databases, and even the ability to control the display and distribution of our own images.

David Weisbrot, ALRC President (Media release, ALRC, 11 August 2008), www.alrc.gov.au/media/2008/mr1108.html

Protecting children

One of the most signiﬁcant concerns about cyber-space is the need to protect children, not only from inappropriate content and online predators, but from serious criminal offenders who victimise children. Child pornography is a legal and moral problem that goes beyond the legality of images or text on the internet or other media.

In the United States, laws drafted to protect children from inappropriate material must be drafted in such a way as not to violate the right to freedom of expression contained in the First Amendment. Another difﬁculty is that if a law is too broad in the scope of what should be prohibited, it can prohibit too much – including content that is unlikely to be accessed by children or to have anything to do with the victimisation of children. This and other issues will be further examined later in the discussion of the proposed ‘clean feed’ legislation in Australia. Reno v American Civil Liberties Union, 521 US 844 (1997) In 1996, due to public pressure, the US Congress passed a law known as the Communications

Decency Act of 1996 (CDA). Two provisions of the

CDA prohibited the ‘knowing’ transmission on the internet of obscene or indecent sexual commu ni-cations or images to people under 18 years of age. This was seen by many as a violation of the principle of freedom of expression. One of the

groups that held this view was an advocacy organi-sation called the Electronic Frontier Foundation (EFF), an international non-proﬁt group based in the US and particularly concerned with preserving freedom of speech in the context of the internet. John Perry Barlow, mentioned above, was a founding member of the EFF and the CDA was the stimulus for his ‘Declaration of the Independence of Cyberspace’.

Following a federal court’s ruling that the CDA violated the First Amendment, the US government appealed to the Supreme Court. A broad coalition of individuals and groups had joined the American Civil Liberties Union (ACLU) as plaintiffs in the original case, including not only the EFF, but also organisations and trade unions of editors and publishers, high school journalism teachers, and Human Rights Watch. The ‘Reno’ in the title of the case was Janet Reno, Attorney General of the United States from 1993 to 2001.

The Supreme Court, afﬁrming the lower court’s decision, held that the indecency provisions of the CDA were an unconstitutional restriction of free speech. The court found that the terms ‘offensive’ and ‘indecent’ were vague, and the provisions of the CDA overly broad, concluding that the CDA was not sufﬁciently narrowly tailored to the goal of protecting minors from potentially harmful material. Moreover, there is no effective way to determine the age of an internet user.

The court’s view was that online communi-cation differs signiﬁcantly from broadcast media, in that a user will seldom encounter content ‘by accident’. The internet should therefore be subject to less regulation.

A clean feed?

Similar concerns about offensive and obscene content have been raised in Australia more recently. The idea of ‘clean feed’ legislation origi-nated during the Howard federal government and involved the establishment of a ﬁltering scheme that would be imposed on all Internet Service Providers (ISPs).

The Labor government that was elected in 2007 continued to consider the proposal. The $70 million plan would block web pages listed in a ‘blacklist’ maintained by ACMA. It was argued that not only would this prevent internet users from seeing unwanted and inappropriate material, but would combat child pornography itself. Two potential types of ﬁlter were canvassed. Either all pornographic material would be blocked, or an ‘opt-in’ scheme would allow users to continue receiving ‘adult material’.

The mandatory proposal was much more restrictive than the voluntary ISP ﬁlter schemes operating in some European countries, which block only child pornography. One version of the scheme in Australia would include a wider range of material, some inappropriate for children but not necessarily involving pornographic or violent content. ‘Social themes’ upsetting to children could include divorce and euthanasia.

It has been pointed out that criminals distributing child pornography seldom use sites that are accessible on the World Wide Web. Increasingly, they are using less public methods such as peer-to-peer networks, which allow single computers to communicate with each other; encrypted networks, or smaller networks using codes that only the members know; or other systems that prevent public access. Consequently, blocking websites is not an effective means of stopping the spread of child pornography.

Some internet service providers dislike the proposal because it is too easily bypassed by users, and because enforcement would be too onerous. Another objection is the risk that the ﬁlter would block material that has nothing to do with the type of content that the law aims to ﬁght.

R E V I E W 8 . 4

1 How are cyberbullying, cyberstalking and cyber-racism different from their counterparts in the physical world? 2 Should laws against these acts be speciﬁcally drafted to

relate to cyberspace, or are existing laws adequate? 3 List some non-legal ways that could be used to

protect against cyberbullying, cyber-racism and online predators. Consider the following agents in your answer: sparents

steachers and schools

solder teenagers (e.g. siblings, friends or mentors of younger children)

ssoftware companies sinternet service providers 4 How might someone’s ‘digital tattoo’ pose problems

for him or her in the future? List some hypothetical scenarios, then outline ways that you can prevent this from happening with respect to your online activities.

For further information on digital safety issues, see the Australian government’s Net Alert website: www.netalert.gov.au/

legal links

Internet Service Providers (ISPs)

companies that offer customers access to the internet

World Wide Web

a system of documents that are accessible on the internet and that are connected to each other through hyperlinks on which the user can click to be taken to another location. The World Wide Web is not the same thing as the internet.

For full text of the decision in Reno v American Civil Liberties Union,

521 US 844 (1997) see http:// caselaw.lp.ﬁndlaw.com/cgi-bin/ getcase.pl?court=us&navby=case &vol=000&invol=96-511

legal links

Figure 8.13 Does digital security exist?

Glossary terms

All of the key terms in each CHAPTER deﬁned for you in the margin and in the glossary at the end of the book. These deﬁnitions are designed to help you learn and revise key terms from the syllabus.

Case space

A number of relevant legal cases appear throughout the text. Each case allows you to apply your knowledge of the legal system to real-world situations. Many cases are followed by a range of questions to help you test what you’ve learnt.

Legal links

In addition to the activities, there are suggested links to internet resources and activities in each chapter. These will help you extend your knowledge and stay up-to-date with changes in the legal system.

Chapter review

At the end of each chapter, you will ﬁnd a summary of the chapter, multiple-choice questions and chapter tasks. In Part III you will also ﬁnd extended response activities.

6 4 C a m b r i d g e L e g a l S t u d i e s – P re l i m i n a r y

case space

This case was an appeal by May Donoghue, the plaintiff in the original decision. The defendant’s appeal had succeeded; Mrs Donoghue then appealed to the House of Lords.

Mrs Donoghue was bought some ginger beer by a friend in the town of Paisley, Scotland. The ginger beer was in a dark glass bottle which prevented Mrs Donoghue from seeing the contents. Some ginger beer was poured into a glass for her, which she drank. Her friend then proceeded to pour the rest of the ginger beer into Mrs Donoghue’s glass and it was then that a decomposing snail came out of the bottle. This made her feel quite ill, and later she also suffered from severe gastroenteritis. Mrs Donoghue sued David Stevenson (the respondent), who was the manufacturer of the ginger beer.

Mrs Donoghue alleged that Stevenson had failed in his duty of care to provide:

a system of working his business

s

which would prevent snails

from getting into ginger beer bottles, and an efﬁcient system of inspection

s

of the bottles before they were sold to the consumer, including clear bottles that would make it easier to inspect. The court held that a manufacturer is under a legal duty to the consumer to take reasonable care that the article will not cause injury to health.

Lord Atkin, one of the presiding judges, referred to the precedent case of Heaven v Pender (1883) 11 QBD 503, which established that ‘under certain circumstances, one man may owe a duty to another, even though there is no contract between them’. He went further than the narrow decision in Heaven, however, citing obiter dicta of the dissenting judge, Brett MR, who extended the notion of a duty of care to anyone in a position where failing to use ‘care and skill in his conduct … would cause danger of injury’.

Until Donoghue v Stevenson, individuals had no rights against

suppliers with whom they didn’t have a contract. As May Donoghue did not actually buy the ginger beer and thus had no contractual relationship with the manufacturer, in normal circumstances she would not have been able to sue.

Donoghue v Stevenson became

a landmark decision and formed the basis of the tort of negligence worldwide, not only because of the judgment relating to non-contractual duty of care, but also because of Lord Atkin’s ‘neighbour principle’:

‘[T]here must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances ... The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.’

Donoghue v Stevenson (1932) AC 562

Figure 3.4 A decomposing snail found in ginger ale formed the basis of litigaton.

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x i v

Glossary of key words

Syllabus outcomes, objectives, performance bands and examination questions have key words that state what students are expected to be able to do. A glossary of key words has been developed to help provide a common language and consistent

meaning in the Higher School Certiﬁcate docu-ments. Using this glossary will help students and teachers understand what is expected in responses to examinations and assessment tasks.

Account

account for: state reasons for, report on; give an account of; narrate a series of events or transactions

Analyse

identify components and the relationship between them; draw out and relate implications

Apply

use, utilise, employ in a particular situation Appreciate MAKE of Assess MAKE outcomes, results or size

Calculate

ascertain or determine from given facts, ﬁgures or information

Clarify

make clear or plain

Classify

arrange or include in classes or categories

Compare

show how things are similar or different

Construct

make; build; put together items or arguments

Contrast

show how things are different or opposite

Critically (analyse/evaluate)

add a degree or level of accuracy, depth, knowledge and understanding, logic, questioning, REmECTION evaluate)

Deduce

draw conclusions

Deﬁne

state meaning and identify essential qualities

Demonstrate

show by example

Describe

provide characteristics and features

Discuss

identify issues and provide points FOR

Distinguish

recognise, note or indicate as being distinct or different from; note differences between

Evaluate

MAKE determine the value of

Examine

inquire into

Explain

relate cause and effect; make the relationships between things EVIDENT

Extract

CHOOSE details

Extrapolate

infer from what is known

Identify

recognise and name

Interpret

draw meaning from

Investigate

plan, inquire into and draw conclusions about

Justify

support an argument or conclusion

Outline

sketch in general terms; indicate the main features of

Predict

suggest what may happen based on available information

Propose

PUT view, idea, argument, suggestion) for consideration or action

Recall

present remembered ideas, facts or experiences

Recommend

provide reasons in favour

Recount

retell a series of events

Summarise

concisely express the relevant details

Synthesise

put together various elements to make a whole

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1 The legal system

PART I

The legal system

T h e l e g a l s y s t e m

40% of course time

1 Basic legal concepts

Meaning of law

s

Customs, rules and law

s

Values and ethics

s

#HARACTERISTICS

s

.ATURE

s

fairness and access Procedural fairness

s

Rule of law

s

Anarchy and tyranny

s Common law s Statute law s The Constitution s

Aboriginal and Torres Strait

s

Islander customary law International law

s

0UBLIC

s

law, administrative law, constitutional law)

0RIVATE

s

law, tort law, property law)

Criminal and civil court

s

procedures including legal personnel

Common and civil law systems

s

Conditions that give rise to law

s REFORM VALUES new technology) !GENCIES s

law reform commissions,

parliamentary committees, media)

-ECHANISMS

s

courts, parliaments, United Nations, intergovernmental organisations)

Native title

Law reform and sport

Law reform and sexual assault

2 Sources of contemporary Australian law

3 Classiﬁcation of law

4 Law reform

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2

CHAPTER 1 Basic legal concepts

chapter objectives

key ter

ms/vocabulary

In this chapter, students will:

identify and apply legal concepts and terminology s

identify the changing nature of law s

describe the interrelationship between customs, s

rules and laws

explain the relationship between the legal system s

and society

DISCUSS s

fairness and access

discuss the concept of procedural fairness and the s

rule of law

discuss the concepts of anarchy and tyranny s

communicate legal information by using well-s structured responses. anarchy customary law customs equality ethics fairness JUSTICE law legal system NATURAL procedural fairness rule of law rules tyranny values

2

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The legal system

o d d l a w

In New South Wales under the Crimes Act 1900 S lND states the following:

Whosoever corruptly takes any money or reward, directly or indirectly, under pretence, or upon account, of aiding any person to recover any dog which has been stolen, or which is in the possession of any person other than its owner, shall be liable to imprisonment for one year.

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4 The mea n i n g of law

The law is a dynamic thing – a complex mecha-nism, evolving from hundreds of years of tradition, culture and values.

In general terms, the law can be deﬁned as a set of enforceable rules of conduct which set down guidelines for relationships between people and organisations in a society. The law provides methods for ensuring the impartial treatment

of people, and outlines punishments for those who do not follow the agreed rules of conduct.

Despite the fact that it often seems to be playing catch-up, the law attempts to keep pace with our ever-changing society.

To understand how these rules (known in modern society as ‘the law’) came

about, we also need to understand why we live in a society.

A society is a group of human beings who are linked by mutual interests, relationships, shared institutions and a common culture. In earliest history, people usually banded together for basic survival and would agree to live by rules that protected their lives and their property.

This tradition has carried on throughout history. As groups of people formed societies, and cultural groups within these societies, they established and enforced rules about the conduct of relationships. Laws today are imposed by the administrative institutions that govern a society; they cover all members of society and there are consequences that follow if they are breached.

law

a set of rules imposed on all members of a community which are ofﬁcially recognised, binding and enforceable by persons or organisations such AS courts values principles, standards, or qualities considered worthwhile or desirable within a society rules regulations or principles governing procedure or controlling conduct

R E V I E W 1 . 1

1 List the areas of law related to the images provided below.

2 What other areas of law can you think of? List at least ﬁve.

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#HAPTER

5 The legal system

Cu s toms, ru les a n d law

Customs

Put simply, customs are established patterns of behaviour among people in a society or group. Customs vary depending on the culture, religion and history of a group of people, society or country. For example, in Australia it is customary for men to shake hands when greeting a friend, whereas in Europe this greeting may be in the form of a kiss on each cheek.

Where a custom is followed by most of the population over time, it may become part of the laws of that society. Because of differences between societies, not all customs become law.

Customary law consists of established patterns of behaviour that are accepted within a particular social setting. These principles and procedures develop through general usage according to the customs of a people, nation-state or group of nation-states. Customs arose to deal with problems in the most harmonious ways. Over time, these customs become accepted as legal requirements. Three areas in which customary law has inﬂuenced the Australian legal system are:

Aboriginal and Torres Strait Islander customary s

law

English customary law s

international customary law. s

In many societies, most customary law is never written down, as is the case with Indi ge-nous Australian customary law. In other societies, customary law eventually is recorded and trans-ferred into written law in formal legal systems.

Rules

If you were to look in a dictionary or on the internet, you would ﬁnd many deﬁnitions of the word ‘rules’. Generally, rules refer to prescribed directions for conduct in certain situations. Rules are generally made by groups and only affect people within those groups. These rules often vary between groups and are not enforceable by the state. For example, there are rules for playing games, behaviour in the classroom, and so on. If these rules are broken, there is some form of punishment attached,

enforce-able by those involved in the making of the rules (e.g. sus-pension, detention). Rules can also be altered by these people in order to deal with changes in situations. This usually happens after consultation with the group members involved.

In a legal sense, rules form the basis of laws. However, rules can be changed quite quickly with the agreement of those involved. Laws, as you will discover, are much more difﬁcult to change and punishment is not always a simple process.

The NSW Bar Association provides easy-to-read information about the Australian legal system:

www.whyshouldi.com.au

The State Library of NSW provides information on the history of the legal system in Australia: www.sl.nsw.gov.au/ discover_collections/history_

nation/justice/index.html

legal links

customs

collective habits or traditions that have developed in a society over a long period of time

customary law

principles and procedures that have developed according to the customs of a people or nation, or groups of nations, and are treated as obligatory

nation-state

a politically independent country

Figure 1.2 There may not be a law about wearing school uniform, but there is often a rule.

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6 R E V I E W 1 . 2

1 Complete the lists below by adding three additional examples of rules.

H O U S E H O L D R U L E S

a Always inform your parents when you are going out.

b

c

d

S C H O O L R U L E S

a Students must always wear correct school uniform on school grounds.

b

c

d

S O C I A L E T I Q U E T T E

a Always cover your mouth and nose when sneezing in public. b c d ethics governing the conduct of a person or the members of a PROFESSION branch of philosophy, which investigates the nature of values and of right and wrong conduct

Law

The law, as we know it, is made up of the formal rules of society. These ‘legal rules’ have been agreed upon by the group and govern their behaviour and activities.

Laws are different from rules. For example, at the shopping centre, a sign on the escalator requests that you stand to the left and do not take strollers on it. These rules exist for the safety and comfort of shoppers. However, they are just rules, and that is why you will still see people standing on the right and taking their prams on the escalator. There are also signs telling you that you can’t smoke in shopping centres. This is a law and if someone did ‘light up’, they would be asked to leave the shopping centre by security or the police,

and they might incur a ﬁne. The consequences of breaking rules are comparatively minor, however inconsiderate it may be to break them.

Laws allow and prohibit a whole variety of activities, from where rubbish should be placed to how we should treat fellow human beings. Failure to follow these regulations incurs penalties ranging from a ﬁne to imprisonment.

Laws have certain characteristics that make them different from rules:

1 Laws are binding on the whole community. This means that they apply to all members of society.

2 Laws can be enforced. This means that penalties apply if a law is broken.

3 Laws are ofﬁcially recognised. This means that governments and courts recognise laws and enforce them.

4 Laws are accessible (or discoverable). This means that people can ﬁnd out which law applies to a particular situation.

5 Laws relate to public interest. This means that laws exist for things that concern the whole of society, and that interest is considered to outweigh the costs or drawbacks of the government’s involvement in enforcing them.

6 Laws reﬂect rights and duties. This means that everyone in society has responsibilities to others, such as the duty to drive safely, and that everyone has the right to be treated in the same way by others.

In Australia today, the laws of society are mainly decided on by elected government ofﬁcials at local, state or federal government levels. Judges also have the power to make laws in certain cases when they set a precedent. This will be discussed in greater detail in the following chapters.

It is expected by society that the law will look after all members of the group, and therefore that any laws made will be fair, just and equitable. It is also expected that they will reﬂect traditional and current ethics and values. Although this represents the ideal situation, what is actually attainable may be another matter.