2.6 The Individual and the Law: Your rights and responsiblities Flashcards by Dinara Dammika

What are rights? responsibilities? meaning of tortious?

1/ legal or moral entitlements that people have.
2/ legal or moral obligations towards others.
3/ wrongful; constituting a tort or breach of suty to others.

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What is the legal basis of rights? What are the 2 types of rights?

1/- The Australian Constitution.
2/ - Express rights: section 116 gives the right of freedom of religion
- Implied rights: ‘freedom of speech’

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What do you mean by rights?
What are human rights?
What are responsibilities? explain?
Who have responsibilities?
What is the legal basis of rights?
How to legal rights flow in Australia?
6.1 What are legal rights also called in the law?
What are the 2 type of rights protected by law? which one is protected and written in the Australian Constitution?
Difference between moral rights and legal rights?

Understanding Rights and Responsibilities in Australia

Rights and Responsibilities
* Rights are entitlements that people have under the protection of the law and/or moral authority.
* Rights refer to a way that people should be treated, usually fair, respectful, and equal.
* Human rights are rights that are legally or morally prohibited from being taken from oneself.
* Examples include the right to attend a public school in a local residential area for students with disabilities.

Responsibilities
* Responsibilities are legal or moral obligations that a person may have to another person, a group, or the state, society, or other people generally.
* Examples include the legal and moral responsibility to act in particular ways and refrain from certain acts.
* States, groups, organizations, corporations, and societies have responsibilities, just as individuals do.

Legal Basis of Rights
* For a right to have a legal basis, it must be protected by law and be enforceable.
* In Australia, legal rights flow from the Australian Constitution, statutes, and common law.

Express and Implied Rights
* Express rights are clearly stated in the Constitution, and government and courts cannot pass legislation or make rulings that go against those rights.
* Implied rights, such as the right to ‘freedom of speech’, are not expressly written into the Australian Constitution.

Statute and Common Law
* Examples of rights protected by statute include the rights not to be excluded or restricted based on race, ethnic origin, or physical or mental disability.
* Other rights have their origins in common law, such as the right to a fair trial and the right to vote in elections.

Legal Basis of Responsibilities
* Legal responsibilities, also called ‘obligations’ or ‘duties’, are based on common law, such as the duty of care.
* Examples include the duty of care owed to employers to their employees and the breach of duty of care resulting in harm that could have been foreseen.

The Nature of Individual Rights
* Moral rights may be considered from differing viewpoints and may or may not be upheld by those in sociocultural authority.
* Moral rights and responsibilities may have binding force for everyone, but only those who believe they are binding are likely to behave accordingly.

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What is a bill of rights/ Charter of Rights ?
Why might Australia not have one?
What are the 5 key rights in the bill of rights?
Name 5 arguments for the Charter of rights?
Name 3 arguments against the Charter of rights?

The Marriage Amendment Legislation and the Charter of Rights

The Role of Bills of Rights
* Bills of Rights, a document in the United States, the UK, and New Zealand, outline what individuals are entitled to expect from their government.
* Australia, the only Western democracy without a Charter of Rights, does not have one.

Key Rights in Bills of Rights
* The right not to be subjected to torture or cruel, degrading, or disproportionately severe treatment or punishment.
* The right to freedom of thought, conscience, religion, and belief, including the right to adopt and hold opinions without interference.
* The right to freedom of thought, conscience, and religion, including the right to hold opinions and to receive and impart information and ideas without interference.
* The right to a speedy and public trial by a jury.
* The right to a fair trial, with everyone charged with a criminal offence presumed innocent until proven guilty.

Arguments for and Against a Charter of Rights in Australia

For/
* Australian law gives insufficient protection to fundamental freedoms, and a Charter of Rights would enshrine those rights.
* A Charter of Rights would make current laws more cohesive and accessible, rather than being ‘locked up’ in past judgments and statutes.
* A Charter of Rights would make Australia more internationalized and aware of international laws.
* A Charter of Rights would allow Australia to meet its international obligations more effectively.
* A Charter of Rights would protect the rights of minorities.
Against/
* Rights contained in a Charter of Rights can become outdated very quickly in a rapidly changing world.
* Enabling judges to strike down laws made by parliament that are inconsistent with a Charter of Rights would be undemocratic.
* A Charter of Rights would restrict rights, as once defined, a right is limited by the words that delineate it.

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Conflicts Between Rights and Responsibilities in Australia

In 2019, Australian newspapers blacked out front pages to protest against government secrecy and press freedom crackdown.
In June 2019, the Australian Federal Police (AFP) raided the offices of the Australian Broadcasting Corporation (ABC) to investigate potential criminal behaviour by two journalists, Sam Clark and Dan Oakes.
The journalists were accused of illegally obtaining information to use in a story about the behaviour of Australian Special Forces in Afghanistan between 2009 and 2013.
This incident highlighted a conflict between the rights of journalists to know and publish information regarding elite Australian soldiers and the responsibilities of the government to keep information about military operations secret.
The first time in history that Australian journalists were targeted as suspects in relation to three alleged offences: one under section 79(6) of the Crimes Act 1914 (Cth), one under section 73A(2) of the Defence Act 1903 (Cth) concerning ‘unlawfully obtaining information’ and another under section 132 1(1) of the Criminal Code Act 1995 (Cth).
In 2022, Ben Roberts-Smith initiated an unsuccessful defamation case against a range of media companies based around the work of Clark and Oakes. In June 2023, Justice Besanko dismissed Roberts-Smith’s defamation case. Roberts-Smith’s legal team appealed Justice Besanko’s decision before three Federal Court Justices in 2024, arguing that Justice Besanko had made errors of law in his earlier judgment and his findings should not stand.
Commonwealth prosecutors have declined to charge ABC journalist Dan Oakes over his reporting of alleged war crimes by Australian special forces in Afghanistan.
The use of mobile phones while walking is also a concern in Australia, as shown in a media report by the National Roads and Motorists’ Association (NRMA).
The NRMA report issued strong advice to pedestrians to ‘put their phones in their pockets’ but also calls to explicitly outlaw people from using their phones while walking.

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“Look Up” Study on Pedestrian Safety in Australia

The study was conducted in April and May 2019 at four intersections in Sydney and Parramatta.
It aimed to ban access to military operations information, mobile phone use while walking, and liquid carrying on aircraft.
It also aimed to force workers to receive vaccines during future pandemics.
Australia’s human rights treaties include section 80, freedom of religion, and the right not to be discriminated against based on one’s state of residence.
In 2009, social commentator Andrew Bolt was held accountable for comments about ‘light-skinned’ First Nations people, violating Section 18C of the Racial Discrimination Act 1975 (Cth).
The federal Coalition promised to repeal Section 18C before the 2013 federal election, but by 2018, federal law-makers decided against altering it.

Israel Folau’s Religious Expression and Discrimination Case
* Australian Rugby player Israel Folau was dismissed for posting anti-gay messages on Instagram, claiming people would go to hell if they didn’t follow Christianity.
* Folau argued he had the right to express his beliefs as a Christian and challenged his dismissal under section 72 of the Fair Work Act 2009 (Cth).
* Rugby Australia admitted Folau had breached the Rugby Australia Code of Conduct.
* Folau is suing Rugby Australia and Rugby NSW for unlawful termination of his $5.7 million contract, demanding his job back, an apology, and compensation.
* The federal government introduced the Religious Freedom Bills to protect individuals like Folau from scrutiny and persecution for publicly announcing their views.
* In December 2019, Rugby Australia and Folau settled their dispute out of court for an undisclosed sum.

Defamation and Freedom of Expression
* The risk of defamation complicates the exercise of freedom of expression.
* Legal protections against defamation include what is true, honest opinion, clear facts, or a legal, social, or moral duty to communicate something.
* Actor Geoffrey Rush won a defamation case against Nationwide News over two articles published by The Daily Telegraph in 2017.
* Justice Michael Wigney ruled that Nationwide News and journalist Jonathan Moran failed to prove the imputations published in two articles in late 2017 were true.

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International Law and Declarations

International Law and Treaties
* Treaties are formed between two or more nations and become binding upon ratification or domestic legislation implementation.
* In Australia, treaties must be implemented through domestic legislation to become binding.

Declarations
* Declarations express the international community’s aspirations regarding human rights.
* They are developed through the United Nations or other international organizations and are morally binding and influential in setting standards for the protection of rights.
* The Universal Declaration of Human Rights (1948) is an important declaration of the rights to which all humans are entitled.

Limitations of International Law in Protecting Rights
* International law requires the full participation and cooperation of nation states.
* Some states may choose to ignore declarations, treaties, and UN resolutions, but the consequences for nation states are seldom as immediate or certain as they are for individuals who ignore the law.

Rights of Peoples or Nations
* Self-determination is a key right of peoples, enshrined in the United Nations’ Charter, the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966).
* The United Nations Charter, Chapter 1, Article 1, Part 2 includes self-determination as one of the purposes or goals of the United Nations.

The Rights of First Nations Peoples
* The United Nations declared a decade for World Indigenous Rights from 1995 to 2004 to promote the rights, languages, and cultures of all indigenous peoples and to draft a Charter of Indigenous Human Rights.
* First Nations peoples have faced serious challenges to their political autonomy since European colonisation.

Circle Sentencing
* Circle sentencing courts have been established in several locations in New South Wales, the Australian Capital Territory, and Western Australia.
* Circle sentencing works in the following way: when an accused person in a criminal trial has pleaded guilty or been found guilty, and they are a member of a First Nations community, the magistrate travels to the accused’s community for the purpose of sentencing.

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Australia’s Law Enforcement Agencies and Drug Reform

The Australian government has a significant role in upholding laws at state and federal levels.
The Law Enforcement (Police Responsibilities) Act 2002 (NSW) outlines the laws that NSW Police officers must follow.
The Act covers powers of police officers to stop, search, detain people, enter and search premises, seize property, arrest, detain and question suspects, and the treatment of suspects and others.
Each state and territory in Australia has its own police force, with the NSW Police Force primarily enforcing criminal law.
The use of sniffer dogs for drug detection at music festivals has caused controversy, with a coronial inquiry in 2019 suggesting the trialling of pill-testing and an end to the use of sniffer dogs and strip-searching suspects.
The NSW Police Force responded by stating that if festival-goers did not take drugs to festivals, they would have nothing to fear from sniffer dogs or being searched under section 146 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
Drug reform advocates are concerned about NSW’s upcoming festival season, fearing drug deaths will reach crisis point before the government implements promised reforms.
NSW Premier Chris Minns has ruled out introducing pill testing ahead of the festival season, while NSW Police have confirmed drug detection dogs will be used at the festival as part of a ‘high-visibility police operation’.
Most of the drug policies of the former government remain in place as Minns has pushed back any reforms until after the long-promised drug summit.
Managing director of the Australian Festival Association Mitch Wilson said the delay in announcing a drug summit was ‘disappointing’.
President of Harm Reduction Australia and Pill Testing Australia Gino Vumbaca expressed concern about the upcoming festival season.

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Drug Sniffing Dogs at Music Festivals in Australia

Vumbaca, a musician, expressed concern over the potential use of drug sniffer dogs at music festivals, which have been linked to the deaths of three young people.
Over 4000 searches were conducted in the first six months of 2023 following a drug detection dog indication, compared to 6500 in the whole of 2022.
NSW Greens MLC Cate Faehrmann expressed concern over the risk of another series of overdoses if drug policy continued on its current trajectory.
The government is only going to act on drug reform after a crisis.
The government was determined to hold a drug summit, but had ‘a lot on [its] plate’.

Federal Police and Additional Law Enforcement Agencies in Australia

The Australian Federal Police (AFP) is responsible for enforcing federal law and criminal law where crimes cross state boundaries.
The AFP faces new challenges including terrorism, cybercrime, human trafficking, and sexual slavery.
The AFP may also be involved in the family law process if the Federal Circuit and Family Court makes specific orders requiring the involvement of the AFP.
The AFP has recently searched the home of Annika Smethurst and the ABC offices in Sydney to search for evidence of criminal activity by journalists.

Australian Border Force (ABF)

The Australian Customs Service was renamed the Australian Border Force (ABF) in 2015.
The ABF works closely with the AFP, the Australian Quarantine and Inspection Service, the Department of Immigration and Citizenship and the Department of Defence to detect and discourage unlawful movement of goods and people across the border.
The ABF employs more than 5500 people in Australia and overseas, has a fleet of sea patrol vessels, and uses two aerial surveillance planes for the surveillance of Australia’s borders.
A high priority is the protection of the Australian community by intercepting illegal drugs and firearms.

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Australian Criminal Intelligence Commission and High Tech Crime Centre
* Established by the Australian Crime Commission Act 2002, the Australian Criminal Intelligence Commission (ACIC) works at a national level to combat serious and organised crime.
* The ACIC collects and analyzes criminal intelligence data, provides advice on national criminal intelligence priorities, manages criminal intelligence systems, and investigates federally relevant criminal activity.
* The Australian High Tech Crime Centre (AHTCC) hosts the AFP and addresses serious and complex crimes involving computer technology.
* The AHTCC also polices and removes inappropriate and illegal internet content, including child pornography and racially based ‘hate’ sites.

Australian Security Intelligence Organisation (ASIO)
* It gathers information to help the federal government and other law enforcement agencies prevent attacks on Australia.
* ASIO employs approximately 1500 people and uses information from 75 government departments, the police, and senior decision-makers.

Government Departments
* The Australian Tax Office (ATO) has the authority to enforce specific laws for the protection and benefit of society.
* The ATO can investigate and prosecute individuals or companies in relation to tax offences under the Income Tax Assessment Act 1936.
* In December 2016, the federal government formed the Department of Home Affairs, which brings together Australia’s federal law enforcement, national and transport security, criminal justice, emergency management, multicultural affairs, and immigration and border-related functions and agencies.

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Dispute Resolution in Australia

Neighbourhood Disputes
* Neighbourhood disputes are common and can escalate into violent situations.
* The Trees (Disputes Between Neighbours) Act 2006 (NSW) highlights the significant role of vegetation in causing conflicts among neighbours.

Melbourne Man Jail for Double Murder
* Rodney Lee, a Melbourne man, was jailed for 30 years for double murder after a garden hose dispute with his neighbours.
* Lee had been actively maintaining communal areas since 2006, including tending to the garden.
* The relationship with neighbours deteriorated in 2020 when Lee took exception to loud music and alcohol consumption in communal spaces.
* The dispute escalated in January 2022 when Lee struck a man with a garden chair in a confrontation about the hose being turned off.

Alternative Dispute Resolution
* Alternative dispute resolution methods can save time and money and provide more control over proceedings.
* Mediation involves a neutral third party assisting parties in reaching an agreement, while arbitration makes a binding decision on the parties involved.

Negotiation
* Negotiation is a discussion between two or more parties aiming for a mutually beneficial outcome.
* Mediation and conciliation are similar procedures involving a neutral and independent third party.
* Community Justice Centres (CJCs) aim to resolve disputes through mediation.
* The Conflict Resolution Service (CRS) in the ACT has been a non-profit organization since 1988 to help resolve disputes between neighbours.

Arbitration
* Arbitration is a formal process where an independent third party determines how a dispute can be resolved.
* It is used when a contract specifies the use of arbitration to resolve disputes, in industrial relations matters, or in tenant and landlord disagreements.

Case Study: Australian Swimmer Shayna Jack’s Case
* In 2019, Australian swimmer Shayna Jack tested positive to Ligandrol, a prohibited substance, breaching Swimming Australia’s Anti-Doping Policy.
* She appealed this decision via the Court of Arbitration for Sport (CAS) in 2020.

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NSW Land and Environment Court and Tribunal Overview

The NSW Land and Environment Court (LEC) is a specialist court with wide jurisdiction, interpreting and enforcing environmental law in New South Wales.
Proceedings can include administrative or merits review, civil proceedings arising from a breach of the law, and criminal proceedings for environmental offences.
The LEC’s jurisdiction is granted by over 60 New South Wales Acts, and it deals with environmental, development, building and planning disputes, and certain types of native title claims.
The Trees (Disputes Between Neighbours) Act 2006 empowers the court to hand down judgments relating to tree removal or pruning.

Tribunals

Tribunals offer a less formal and less expensive method of dispute resolution than courts.
The person presiding over the tribunal may have specialist expertise rather than specific legal training.
The principles of natural justice are applied to ensure all parties have an opportunity to present their position.

NSW Civil and Administrative Tribunal (NCAT)

NCAT was established on 1 January 2014, combining the roles of 22 separate tribunals.
It deals with various types of disputes between individuals and between individuals and organizations.
Disputes between individuals are often heard by NCAT’s Consumer and Commercial Division.

Challenges to State Power

There are various avenues available to challenge state power or government decisions and policies, some of which are informal or ‘non-legal’.

Media Influence on Australian Decisions
* Citizens can report unfair decisions through various means such as letter writing, emails, telephone calls, and social media.
* Cases like Lynette Dawson and Keli Lane illustrate how media can overturn state decisions.
* Lynette Dawson disappeared in 1982, and her husband, Chris Dawson, was accused of an affair.
* In 2018, a media campaign led by Hedley Thomas and David Murray, along with the Dawson family, launched a podcast series detailing Dawson’s life.
* Dawson was arrested in 2018 and found guilty of murder and carnal knowledge.
* Keli Lane was convicted in 2010 for the murder of her child in 1996, despite the child’s body never being found.
* A documentary, EXPOSED: The Case of Keli Lane, was produced by journalist Caro Meldrum-Hanna, which was broadcast on the ABC in 2018.

Members of Parliament
* State and federal MPs are elected by voters to represent a particular area or electorate.
* Citizens can contact their MP about issues that may concern them, which can be taken back to Parliament.
* Members can also contact their federal or state MP or local councillor if they feel a government department or agency has wronged them.

Trade Unions
* Trade unions protect employee rights and working conditions.
* They negotiate workplace agreements and take action against harmful work conditions.

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Industrial Relations in Australia: Legislative Approach and Legal Methods

Historical Approach to Industrial Relations
* Legislative approach to industrial relations in Australia has traditionally been based on conciliation and arbitration.
* Strike action is considered a last resort.

Bob Hawke’s View on Trade Union Movement
* Bob Hawke, the future Prime Minister, advocated for a modernised trade union movement.
* In the 1970s, the Builders Labourers Federation banned workers from worksites protecting heritage sites in Sydney.
* The Australian Council of Trade Unions (ACTU) campaigned against Australia’s Free Trade agreement with China.

Challenges to State Decisions
* If the state refused to award the Higher School Certificate (HSC), individuals could challenge state power through interest groups, non-government organisations, or formal legal methods.

Internal Reviews
* In New South Wales, government departments can review their own decisions, procedures, or behavior.
* An example of an internal review was the Combined Pensioners and Superannuants Association of NSW (CPSA), which requested an internal review of the booking fee for country train fares.

External Reviews
* Reviews of government activities can also be undertaken externally.
* Administrative and other quasi-judicial tribunals review specific administrative decisions of government agencies.
* The NSW Civil and Administrative Tribunal (NCAT) is one such tribunal in New South Wales.

Privacy Bodies
* All individuals have a right to privacy.
* Laws have been enacted at both the state and federal level to prevent information about individuals from being released to companies, government departments, or other citizens.
* Government departments are obliged to fulfill legal responsibilities when collecting and storing personal information.

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Privacy Act 1988 and Criminal Records Act 1991 in New South Wales
* The Privacy Act 1988 allows individuals to report misuse of their personal information.
* The Criminal Records Act 1991 treats minor offences as’spent’ convictions, limiting their disclosure to potential employers, insurance agents, and banks.
* Unauthorized release of information about a spent conviction is subject to penalties.
* The Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 are the main privacy laws in New South Wales.

Judicial Review in Administrative Decisions
* Courts at both state and federal levels can review administrative decisions and actions.
* Judicial review is a process where a court can review a government department’s decision to determine its lawfulness.
* Requirements for a judicial review include natural justice, authorised by the Act, jurisdiction, justification by evidence, and no errors in law.
* If a decision is found flawed, remedies include prohibition, certiorari, mandamus, and injunction.

The Office of the Ombudsman in Australia
* Founded in 1809 by the Swedish Parliament, the Office of the Ombudsman was created in 1974 in New South Wales and federally in 1977.
* Acts as a formal external control, investigating complaints made by citizens.
* Public sector agencies and private sector agencies providing public services can use the Ombudsman’s office to deal with complaints against them or their officers.
* The Ombudsman does not have the power to impose any punishment or fine on a government agency or department.
* Main areas of complaint received include delivery of community services, child abuse and neglect, and the operation of the police force.
* Complaints must be in writing and are only followed through if a prima facie case exists.
* If a complaint is justified, the Ombudsman will make recommendations for rectifying the problem.

The Commonwealth Ombudsman’s Statement on High Court Decision in Immigration Detention
* The Commonwealth Ombudsman welcomed the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor.
* The Ombudsman has made many recommendations to the department of Home Affairs and relevant ministers to consider alternative arrangements for people facing prolonged or indefinite detention.
* The Commonwealth NPM will continue to monitor place of immigration detention and pursue systematic change under the mandate of preventing torture and ill-treatment in detention.

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The Power of Commissions of Inquiry and Independent Commission Against Corruption in Australia

Inquiry Powers
* Commissions of inquiry do not have the power to prosecute offenders.
* They produce a report containing recommendations, which may include recommending criminal prosecution of individuals.
* The government may decide to act on the commission’s recommendations.
* The Independent Commission Against Corruption (ICAC) has greater power than the Ombudsman.
* ICAC investigates alleged corruption in government and aims to protect public interests, prevent breaches of public trust, and influence public officials’ behavior.
* Examples of corrupt behaviour include bribery, fraud, and theft.
* ICAC can request police assistance in investigations and search for and seize evidence.
* If a NSW citizen feels they have been wrongfully accused of corruption, they may seek judicial review in the New South Wales Supreme Court.

Examples of ICAC Investigations
* In 2014, ICAC conducted a major investigation into New South Wales politicians and their alleged corrupt conduct.
* In 2021, serving NSW Premier Gladys Berejiklian resigned as Premier after an ICAC investigation exposed a ‘breach of public trust’ in relation to her relationship with serving MP Daryl Maguire.

National and International Bodies
* The Australian Human Rights Commission (AHRC) is a national government body responsible to the Federal Attorney-General.
* The AHRC plays a key role in ensuring a tolerant, equitable, and democratic society.
* The UN Human Rights Committee rules on individual complaints pertaining only to the International Covenant on Civil and Political Rights (1966) (ICCPR).

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Study These Flashcards

Impact of Digital Technology on Individual Wellbeing

The Evolution of Cyberspace
* The internet, created in 1983, has transformed the digital world, affecting all aspects of human life.
* Global internet companies like Google, Facebook, Amazon, and Apple have become the largest businesses globally.
* The digital revolution has implications for personal freedom, wellbeing, communities, economy, democracy, and sustainability of life.

Legal Responses to the Digital Revolution
* Legal responses are crucial to ensure technology serves humanity and is not used to enslave it.
* The lack of legal restraints on social media platforms presents challenges to governments worldwide.
* The unknown consequences of large-scale use of artificial intelligence tools on society, economy, and politics necessitate governments to use legal mechanisms.
* Government legislation needs global cooperation to be effective.

Risks and Challenges for Individuals
* Unmoderated screen time can have long-lasting effects on a child’s mental and physical health.
* The jurisdiction of cyberspace is unique as no government or court can claim it as its exclusive jurisdiction.

Nature of Digital Technology in Cyberspace
* Cyberspace facilitates anonymity, creativity, and globalization.
* Technology in cyberspace is constantly evolving, while the law struggles to keep up.
* Cyberspace lacks national boundaries, making it difficult for a nation state to control what happens within its territorial borders if activities take place in cyberspace.

Individual Wellbeing
* Johann Hari’s book, Stolen Focus: Why You Can’t Pay Attention, argues that tech companies are stripping humanity of the ability to pay attention to personal matters and global challenges.

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NSW Land and Environment Court and Tribunal Overview

The NSW Land and Environment Court (LEC) is a specialist court with wide jurisdiction, interpreting and enforcing environmental law in New South Wales.
Proceedings can include administrative or merits review, civil proceedings arising from a breach of the law, and criminal proceedings for environmental offences.
The LEC’s jurisdiction is granted by over 60 New South Wales Acts, and it deals with environmental, development, building and planning disputes, and certain types of native title claims.
The Trees (Disputes Between Neighbours) Act 2006 empowers the court to hand down judgments relating to tree removal or pruning.

Tribunals

Tribunals offer a less formal and less expensive method of dispute resolution than courts.
The person presiding over the tribunal may have specialist expertise rather than specific legal training.
The principles of natural justice are applied to ensure all parties have an opportunity to present their position.

NSW Civil and Administrative Tribunal (NCAT)

NCAT was established on 1 January 2014, combining the roles of 22 separate tribunals.
It deals with various types of disputes between individuals and between individuals and organizations.
Disputes between individuals are often heard by NCAT’s Consumer and Commercial Division.

Challenges to State Power

There are various avenues available to challenge state power or government decisions and policies, some of which are informal or ‘non-legal’.

Trade Unions
* Trade unions protect employee rights and working conditions.
* They negotiate workplace agreements and take action against harmful work conditions.

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Understanding the Spam Act 2003 and Cyberwarfare in Australia

The Spam Act 2003:
* Illegal to send or cause to be sent unsolicited commercial electronic messages via email, instant message services, telephone text messages, or multimedia message services.
* Passed due to public concerns about spam and privacy issues.
* The Australian Communications and Media Authority enforces the Act.

Data Breaches in Australia:
* 9.8 million Optus customers had their identification details stolen in 2022 due to a data breach.
* The statistics on data breaches might not fully reflect the problem.
* The five largest data breaches since 2020 have impacted Australia.
* Legislative changes have been made to address this problem.

Cyberterrorism:
* The use of information to intimidate or coerce a government or its people to further a group’s or person’s political agenda.
* Attacks could lead to economic loss, collapse of critical infrastructure, bodily injury or death.
* Terrorist acts could include attacks against internet nodes, defence systems, networks and computer systems, telecommunications infrastructure, stock market, nuclear power plants, critical infrastructure such as electricity grids, water supply, transportation systems, health infrastructure.
* Governments may never be fully prepared for serious cyberterrorist attacks.

Cyberwarfare:
* Cyberwarfare is an integral part of any war-fighting strategy.
* Methods of attack in cyberwarfare include propaganda, cyberespionage, probing attacks, distributed denial-of-service (DDoS) attacks, disruption of equipment essential for the defense services of an adversary country, and attacking essential infrastructure.
* The lines between cybercrime, cyberterrorism, hybrid war and cyberwarfare are blurred.
* Cyberattacks are a daily feature between powerful countries such as the United States, China, Russia and the United Kingdom.
* In recent years, cyberattacks on Australia by China and Russia have occurred frequently.

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Intellectual Property in Cyberspace

Definition and Protection of Intellectual Property
* Intellectual property refers to creations of the mind with commercial value, including inventions, literary works, artistic works, music, software programs, databases, plant varieties, trademarks, and designs.
* Intellectual property law protects the legal rights arising from a person’s intellectual creations, not the ideas themselves.

Types of Intellectual Property Rights
* Copyright: Protects works intended to convey information or enjoyment in literary form such as books, software, broadcasts, films, and music.
* Trademarks: Signs or symbols that give a person or corporation the legal right to use, license, or sell the product or service for which it is registered.
* Patents: Protects intellectual property in inventions, encouraging continued research or development of new products and technology.

Challenges in Intellectual Property Law
* The ‘culture’ of the internet has been a further issue for intellectual property law.
* The ease of obtaining material without paying for it clearly causes disadvantage to the people who produce that material.
* There is a need for government regulation in this area of human civilisation.

The Role of Tech Companies
* The world’s biggest tech companies are now more wealthy and powerful than many nation states.
* Only a few of the most powerful nations, such as the United States and China, have the means to regulate the tech companies.
* There is an increasing splintering of the internet between rival geopolitical blocs, with the West and its allies on one side and China leading the other side.

The Role of Platforms
* Platforms such as Facebook, X, and YouTube provide benefits in enabling people across the world to connect and share but can also be divisive.
* Since 2009, Facebook’s algorithm-based feed has created an online ‘outrage machine’ that has polarised society and poisoned politics.

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The Power of Commissions of Inquiry and Independent Commission Against Corruption in Australia

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Privacy and Surveillance Capitalism
* The Privacy Act of 2000 extended the privacy regime to private sectors, impacting how businesses collect, store, use, and disclose personal information.
* The Spanish Data Protection Agency initiated proceedings against Open AI, owner of the ChatGPT service, for a possible breach of regulations.
* The European Union passed a law for data protection and privacy for all citizens in May 2016, and the General Data Protection Regulation (GDPR) came into force in April 2018.

Surveillance Capitalism: The Economics of Control
* A new economic model has emerged, controlled by a few online companies, including Google, Meta, and Amazon, which use our data on an industrial scale.
* The data is collected by companies and organizations that interact with us online, particularly those that offer free online services.
* The big tech platforms rely on this data to make money, often from the same people who will ultimately be targeted by it.
* The big tech companies use predictive algorithms to predict our behaviour, aiming to influence and modify our behavior.
* The people who use online services are merely ‘users’ with no rights.
* The European Union has moved the fastest on this issue, drafting a set of rules in 2021 that deal with AI.

Artificial Intelligence (AI) and its Impact
* The European Union has moved the fastest on this issue, drafting a set of rules in 2021 that deal with AI.
* The European Union AI Act aims to ensure that AI systems that operate in the European Union are ‘safe, transparent, traceable, non-discriminatory and environmentally friendly’.
* However, there are concerns that the European Union approach is too risk-averse and may hinder people who could genuinely benefit from AI.

Case Study: Wikipedia – The Factual Netting for the Internet
* Wikipedia, created in 2001, has evolved into a universally accepted knowledge base for the entire online world.

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Cyberspace and its Impact on Humanity

The Role of Wikipedia in AI Model Training
* Wikipedia’s data is used to train AI models, including Google, Bing, Siri, Alexa, and YouTube.
* Jon Gerter warns that Wikipedia could be taken over by AI, leading to limited human input and oversight.

Legislating across National Boundaries
* National laws govern the use of the internet within nation states.
* The Australian Government operates from a weak position due to the presence of global big tech companies in Silicon Valley.
* Few international treaties specifically deal with cyberspace.

Roles of International Organizations in Cyberspace Governance
* United Nations: Limited control over the internet and cyberspace, except in intellectual property.
* World Intellectual Property Organization (WIPO): Specialized agency of the United Nations.
* European Union: Economic and political partnership of European nations with regulatory powers.
* World Trade Organization (WTO): Looks after trade matters between nations, including intellectual property.
* Internet Corporation for Assigned Names and Numbers (ICANN): Non-profit corporation managing the domain naming system.
* Internet Assigned Numbers Authority (IANA): One of the oldest internationally organized institutions.

Future Directions
* The internet is disruptive and disruptive, with large cultural, social, and economic changes occurring since the modern internet was born in 1983.
* The implications of changes since 1993, including new disruptive technologies like AI, are yet to be fully understood.

Big Tech Companies
* Google, Amazon, Apple, Facebook, Microsoft, Alibaba, Tencent, Xiaomi, and Baidu are the biggest tech companies.

2025 and Beyond
* The digital revolution has fundamentally transformed business, economy, news, information, politics, and daily life.
* Major developments include dealing with cybercrime, integrating cyberwar into general war strategy, geopolitical fault lines, ethics of online tech platforms, surveillance capitalism, technofeudalism, technocrats’ wealth and power, personal data harvesting,’stolen focus’ on human wellbeing, and proliferation of misinformation, conspiracy theories, and hate speech.

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Impact of Cyberspace on Civic Life, Human Rights, and Democracy

Urgent decisions are needed at personal, family, national, and global levels to address cyberspace’s impact on civic life, community, human rights, and democracy.
Unchecked issues could lead to a world where democracy ceases and human rights vanish.
The Center for Humane Technology’s Executive Director, Tristan Harris, held the first ‘AI Insight Forum’ in Washington DC, resulting in an AI policy roadmap.
The future path should consider the rights of all digital citizens, treating them with dignity and not exploiting their data.
The Universal Declaration of Human Rights (1948) could guide the creation of digital citizenship.
A human rights-based governance framework is the most desirable for cyberspace governance.
The Center for Humane Technology is working towards a more humane internet, focusing on making digital technology subservient to human rights.

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Review:

The Relationship Between Justice, Law, and Society

The Impact of the Internet on Society
* The internet and new technology have transformed society, making seeking justice challenging due to the constant catching-up of laws.
* Global technology companies, owned by billionaires, hold significant power and generate more revenue than many countries’ GDP.

Rights and Responsibilities
* Australians’ human rights are protected under statute, common, constitutional, and international law.
* Rights are balanced by responsibilities, such as ensuring products/services do not harm customers.
* Regulation of communications technology has been a significant challenge for the legal system.

The Role of Law in Regulating Technology
* Law enforcement agencies balance individual rights with state needs in dispute resolution.
* The Australian High Tech Crime Centre attempts to provide a national approach to technology crime, but the difficulty lies in identifying and arresting unknown perpetrators.

Reforms and the Global Nature of Cyberspace
* Jurisdictions have implemented laws relating to privacy, domestic violence, and children, but these are limited by the global nature of the internet and the lack of responsiveness of big tech companies.

Effectiveness of Legal Mechanisms for Achieving Justice
* Democratic governments and legal systems have attempted to bring about the rule of law in cyberspace, but success has been patchy due to the lack of treaties or global mechanisms.
* There are many bad actors that weaponize the internet for their own gain, including criminals and authoritarian regimes.
* International treaties are only robust enough to impose standards across the world in intellectual property.

what is the meaning of merits review?

Is focus is on the facts of the decision.

2.6 The Individual and the Law: Your rights and responsiblities Flashcards

(25 cards)