Critical Analysis of Fundamental Elements in the Australian Law - Coursework Example

Introduction to Australian Law Name: Course: College: Lecturer: Date: Introduction to Australian Law Introduction Understanding some basic issues in Australian law is very crucial for any Australian residence or any business corporation operating or intending to operate in Australia. Many people and business organizations have found themselves in the wrong side of the law due to lack of understanding the basic factors of the Australian law. Due to introduction of internet technology, spam has become a major problem. Marketing companies as well as individuals misuse the internet technology by using spam to advertise their products. However, though Australian government introduced a Spam Act in the year 2003, more still need to be done since the rate of spamming has increased significantly. In addition, political leadership in Australia is also outlined clearly in the Australian constitution. However, many people still wonder whether Australia is still under the English colony since the queen of England is also the queen of Australia. The path line towards legal independence of Australia from the United Kingdom is also a basic issue to note in the Australian Law. Critical analysis of fundamental elements in the Australian law will help individuals and business entities to always be on the right side of the law and also know more about the constitutional history of Australia. Australian Approach to Spam Regulation Definition and Components of Spam Australian government developed and implemented Spam Act in the year 2003 to ensure that business organizations do not take advantage of the internet technology and sent commercial messages to potential customers without the customers’ consent. Though various sources have defined spam differently, utilizing the Spam Act’s definition of spam is essential. According to the Spam Act, spam is “unsolicited commercial electronic messages’. In other words, any business oriented massage sent to a person or party without the party’s consent is termed as spam. Commercial electronic messages which considered as spam by the Act include both mobile phone based messaging and internet –based messaging. Mobile phone based messages considered as spam include multimedia message service (MMS) and short message services (SMS) which are not authorized or requested by the recipients (Bender, 2008). However, there are some forms of messaging which are exempted from the definition of spam even though the recipient may not have requested for them. These include voice to voice communication via telephone as well as messages send through facsimile. Voice to voice communication also entails voice over internet protocol (VOIP). Non-electronic messages such as flyers and ordinary mails are also exempted from definition of spam. Besides internet advertisements such as banners and pop up windows that emerge on World Wide Web sites are also excluded from the definition of the spam. However, the definition of spam has been left open to provide chances of necessary amendment so as to accommodate the ever changing technology. For instance, regular text messaging to massive fixed telephone lines has been considered as a sperm of late. This is because it is a new technology which was not there during the Act development. The definition of spam by the Spam Act does not protect consumers from all unnecessary messaging emanating from manufacturers and marketers (Bender, 2008). Conditions of a Spam For the Spam Act to apply various conditions must be satisfied or must be notable. To start with, for a message to be termed as spam, the message or one of its elements must be commercial. In other words, any message which suggests advertisement of a business organization or its products is termed as a spam and one can be sued under the Spam Act (2003). Due to emergence of internet technology and mobile phone technology, some business organizations have taken advantage by advertising their products without incurring any substantial cost. However, such messages are normally not perceived well by recipients since it’s hard for a business organization to identify specific need of each customer at a specified period of time. Consequently, the government of Australia came into rescue of consumers by introducing the Spam Act in the year 2003. The commerciality of a message is determined through examination of the content, purpose as well as message presentation. Besides, contents which can be located through the links provided by the sender of the message are also used to determine commerciality of a message. Many business organizations or parties send messages with no commercial content but provide a website link which leads the customer to commercial content. Having realized this strategy by business organizations, the government ensured that the contents of such links are used in determining commerciality of an electronic message. Besides, telephone numbers or any other contact information provided to receiver of an electronic message is usually used to determine commerciality of an electronic message. According to the Act, information likely to be provided through contact information provided for further business inquiries is considered to be part of message thus is usually used to determine the commercial status of the message (Bender, 2008). According to the Spam Act, a commercial message is one where it can be ascertained that purpose or one of its purposes is to advertise, promote or offer products, services, and business investment opportunities or provide a prospective supplier. In this case, any element in the message noted to attract customers or inform customers about a service or good, makes the message a commercial one. Business organizations have a tendency of pretending that they are informing people on certain social issues in the name of social responsibility while at the end of the message or in between they provide contact or link to promotion details. Such elements make an electronic message to fall on definition of spam. Seemingly, the administration of Australian government reserves the responsibility characterize content and nature of a message in an endeavour to determine the existence of any breach of the Spam Act. The administrative government has the obligation to scrutinize a message send to individuals and determine whether it contains elements of a spam (Bender, 2008). According to section 6 of the Spam Act, messages that aid or enable an individual or business organization to dishonestly obtain a gain, property or financial advantage from another party by deception are also classified as commercial messages. As a result, they are treated as spasm if the receiver received them without consent or request. It has to be noted that, the fact that the goods or services exists or not is immaterial in determining a commercial message as a spam. Anyone who sends commercial messages to another person without are consent is guilty for breaching the Spam law irregardless of whether the goods or services mentioned in the message exists. This section of the Spam Act was developed to ensure that internet fraudsters are also charged if they send commercial messages to individuals without their consent. Moreover, it is also immaterial whether acquisition of the goods is unlawful or not. For instance, people who send commercial messages advertising for illegal goods such as cannabis sativa and cocaine are guilty of breaching the spam law if the receiver had not requested for such information. In other words, Spam Act covers both legal and illegal business transactions (Bender, 2008). The Act also entails the aspect of bulkiness of messages. According to the Act, bulkiness of a message does not matter in determining a spam. The Act states that a single message can be considered as spam so long as it has commercial content and the recipient had not requested for it. Lack of prior consent either inferred or express from business and conduct as well as other relationships on recipients’ sides is also a determining factor of unsolicited commercial message under the Spam Act. However, consent to receive a certain message can not be inferred from a mere reason that the address of the recipient has been published. In other words, business entities are not supposed to take advantage of published addresses to promote or advertise their products. For instance, contacts in postal directories and social websites should not be utilized by business organizations to sent promotional messages. In this regard, a business organization is supposed to seek consent from the individual or business organization targeted before sending any commercial message. Whoever uses published contacts of business organizations or individuals to sent commercial messages without prior consent breaches the Spam Act (Bender, 2008). Using electronic address harvesting software is also addressed in the Spam Act. In fact, the Spam Act prohibits use of address harvesting software when the party intents to use the gained information to send unsolicited commercial messages. Besides, list of particulars generated using the electronic address harvesting software is not supposed to be utilized by a party to send unsolicited electronic commercial messages. According to section 16, of the Act, any activity which facilitates sending of unsolicited commercial electronic a message is illegal thus one is subject to prosecution. Electronic address harvesting software is only supposed to be used for data collection, marketing or website maintenance purposes only. Prohibition of use electronic address harvesting software to produce conducts for sending unsolicited commercial messages extends to cover any lists produced before implementation of the Act in the year 2003. As a result, any business organization or individual who had produced a list of addresses for sending unsolicited commercial messages is not supposed to continue keeping the list leave alone using it. Keeping the list of addresses is a clear indication that a party is intending to use the list to continue sending unsolicited commercial messages. According to this section, it is evident that, intention to use gathered addresses to send unsolicited commercial message amounts to a crime (Bender, 2008). Liabilities for Spam The Spam also went further to define liabilities which should be bared by any party involved knowingly in spam exercise. To start with, the Act asserts that ancillary liability should be suffered or incurred by any party who authorizes, abets, counsels, aids, conspires, induces or is knowingly engaged into contravention. This section has been put across to ensure that business organizations and individuals in particular do not assist other people in carrying out spam operations. However, carriage service providers; Internet Service Providers (ISPs) are excluded from ancillary or primary liability if they are involved unknowingly in a breach. Similarly, business organizations or parties whose accounts, networks, services and computers are utilized by spammers without being informed or consenting are exempted from both primary and ancillary liabilities. This section ensures that innocent parties or individuals are not punished due to breach caused by another party (Bender, 2008). However, carriage service providers are required to come up with effective technology which prevents spammers from using their services to carry out their illegal missions. The practice of hijacking computers, networks, and websites and search engines of third parties who are innocent is more common among spammers. Bearing in mind that spammers take advantage of loopholes in security measures of networks, computers and search engines, parties have an obligation to develop effective security measures which will block spammers from being successful. Due to this obligation and the need to protect customers, many corporations and ISPs have implemented technical solution. For instance, major ISPs have introduced open relay blocking, firewalls as well as other technical security measures. These technical solutions are very essential because they prevent spammers from utilizing other people’s network, search machine or computers to promote their products (Bender, 2008). Even though third parties whose resources have been hijacked by spammers do not suffer any liability under the Spam Act, potential liability lies in tort law when the parties fail to develop effective measures to control further hijacking. For instance, parties that fail to develop effective measures to prevent their resources from being used by spammers have liability under law of tort. According to law of tort, ones facilities or resources are not supposed to continue causing harm to another party without effective actions being taken. According to the law of tort, any person who discovers that his facility is harming another party, he is supposed to develop effective measures as soon as possible to curb such happenings. In this regard, parties who fail to take protective or preventive measures once they discover that their facilities are being utilized by spammers, they breach the law of tort thus are liable for prosecution. The Spam Act has adopted an Opt-In approach. In this approach, the receiver of the electronic commercial message must accept before a person or a business organization sends such messages. Though other developed countries such as United States have adopted ‘Opt-out’ approach to curb the spam vice, Australian authorities are more cautious by requiring that the receiver of the message agree first. The Opt-Out approach used in other countries does not require consent of message receiver prior to sending but instead gives an opportunity to receiver to request removal. Once a receiver has requested for removal, the sender is entitled to refrain from sending electronic commercial messages. However, Australia has opted to protect its citizen from reading unnecessary messages before asking to be removed. Any message send must have the consent of the receiver first before being send (Wong, 2007). Penalties Any person or party that breaches the Spam Act 2003, is supposed to be penalized of up to $1.1 million. This is an implication that spamming carries major weight in Australia. Apart from the penalty of up to $1.1 million, injunction of the sending of the commercial messages is also imposed on a person or party found guilty. Any person who is prosecuted for spamming is supposed to stop such activity lest more penalties be imposed on him. While deciding the amount of penalty to be imposed on spammers found guilty, the court considers the intensity of the harm caused by the spam messages and also the benefits gained by the spammer. The high the intensity of harm and the higher the benefits, the higher the amount of fine imposed on a spammer. However, it has to be noted that the amount of penalty is not supposed to exceed the provided limit, $1.1 million (CAUBE, 2008). Effectiveness of the Australian Approach to Spam Regulation Critical analysis of the status of spamming operations in Australia shows clearly that the Australian approach to spam regulation has not fully been able to protect the public against spam. One of the major short-coming of the Australian approach to spam regulation is that, it has failed to cooperate fully with other foreign governments to curb the vice together. As a result, control of foreign-based spammers has been difficult for the government thus exposing the public to international spammers. Spam issue is a global issue which needs to be addressed by embracing international legislation. Studies have shown that the proportion of spasm originating in Australia is very law as compared to proportion of spasm originating outside the country. According to the Chief Executive Officer of the Australian Inter net Industry Association, only 2% of the total spasm in the country originates in Australia. The other large percentage of spam comes through servers in Russia, Korea, US and South America (Wong, 2007). Based on the fact that, sources of spam are likely to increase substantially in the near future, the Australian approach to control spam remains vulnerable. For instance, the “Opt-Out” option adopted by United States to curb the vice of spamming has many loopholes as that of Australia. As aforementioned, the United States approach allows business organizations and individuals to sent electronic commercial messages to other parties without seeking for their consent first. However, receivers of the message have an option to request the sender to stop sending the messages. The approach encourages many business organizations to start sending spam messages in order to advertise their products at a lower cost (Wong, 2007). Besides, the current substantial growth in major Asian economies such as India and China renders the Australian approach to spam control weaker. Economic growth is usually accompanied by increased use of internet and growth of business organizations. In this regard, many business organizations will opt to use spam to reach more customers. Bearing in mind that about 98% of the spam received by residents of Australia emanates from foreign countries, the Australian authority has no choice than to cooperate with foreign governments in order to curb the vice effectively. Though the government of China has stern measures to control usage of internet within its jurisdiction, the issue of spam is yet to be addressed in the country. This implies that business organizations are not restricted from sending electronic commercial messages to potential customers. As a result, spam remains to be a global issue which can be controlled effectively if Australia cooperates with other countries (Bender, 2008). Figure 1: Percentage of Spam Origin Penalties imposed on a person found guilty for spamming are not severe enough to deter people or business organizations from utilizing spam to market their product. The Spam Act provides infringement notices as the first action for any party convicted for going against the Spam Act. The most severe penalties include application for injunction, civil penalty as well seizure of facilities or equipments. It is evident that these penalties are not severe enough to deter parties from using spam as their marketing strategy. To add insult to injury, compliance with these less severe penalties is yet to be seen. In other words, imposing these penalties has proved to be hard for the government authority. According to review of Spam Act 2003 submitted to the Australian government by the Computer Emergency Response Team in the year 2006, spam levels continued to increase at a higher rate despite implementation of the Spam Act. According to the review, only 13 fines had been imposed on five individuals and companies for going against the Spam Act. In addition, the review provided that only one prosecution was successful based on the requirements of the Spam Act (Bender, 2008). Nevertheless, statistics released by the Message Labs in the year 2006 shows that the spam levels in Australia had dropped at a very low rate since implementation of the Spam Act. The research organization reported that spam levels in Australia had dropped by only 3.2% in the year 2006 since implementation of the Spam Act in 2004. To make matters worse, the report indicated that 48% of all emails received by residents of Australia were spam. This implies that the Spam Act needs to be adjusted to make parties refrain from using spam for the benefits of their businesses. In this regard, it is evident that harsher penalties need to be introduced in the Act to deter parties from using spam. In other developed countries such as United States and Italy, harsher penalties such as imprisonment for people found guilty of facilitating spam operations are imposed. According to Sophos, an anti-spam software company, the harsh penalties on spam facilitators in other countries such as United States has driven spammers to other jurisdictions without harsher penalties such as Australia (Bender, 2008). Figure 2: Proportion of Spam Mails in 2006 Another major weakness of the Spam Act 2003 is that, it does not provide any grounds for civil action. Individuals and corporations have no right to directly sue spammers. This right is only preserved for Australian Communication and Media Authority (ACMA). The Spam Act did not put into consideration that civil action was necessary in helping to curb the spam vice. Consequently, civil causes of action can only be addressed through other Acts such as Trade Practice Act 1974 and other bodies of the government such as the Australian Consumer and Competition Commission. This is one of the reasons why the number of fines issued to parties which went against the Spam Act was only 13 for five companies and individuals. This is a major loophole which needs to be addressed for the Spam Act to be more effective in achieving its objectives (Bender, 2008). Sincerely, the Spam Act 2003 has got many loopholes which need to be addressed in order for the government to attain its objectives and people Of Australia to enjoy a spam free environment. Effective cooperation of the government with other foreign authorities, introduction of harsher penalties and provision of civil action grounds under the Spam Act are essential measures which need to be taken by the Australian government to curb the increasing rate of the spam vice in the country. Australia Still an England Colony Many Australian citizens have posed the question of whether Australian has gained full independence or it is still an England colony. This is one of the hard questions which some leaders in Australia and many people can give a precise answer. The fact that the queen of England is also the queen of Australia leaves many people wondering whether Australia is still a colony of England. Critical analysis of the Australian constitution on government structure reveals that Australia is still placed underneath England or rather Britain. Though it will be too harsh to say that Australia is still a colony of England, it is evident that political structure of Australia is headed by the Queen of England (Ross, 2008). In the preamble of the Australian Constitution, it is stated clearly that “colonies of Australia have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland”. This is a clear indication that government authority of Australia must act under the government of United Kingdom. Besides, political leaders of Australia including the president during their oath of allegiance they are supposed to swear to the Queen or King of the United Kingdom. Swearing to the Queen of United Kingdom implies that the Australian leaders must be obedient to the Queen of England thus the will of the Queen of England will always prevail in Australia (Ross, 2008). Moreover, according to the Commonwealth of Australia Constitution Act Section 8, it is stated that the Australian commonwealth can be regarded as a “self-governing colony”. Though the status of Australia has changed with time to a collection of various colonies, self-governing dominion and primarily to an independent country, Australia is still place under the rule of Queen of England. This is an indication that the Queen of England has power to control political operation in Australia by imposing rules. Even though the Queen of England is not an Australian citizen and does not take advice from Australian leaders, she is the one with legal authority to appoint the governors of the states and the Governor-General of Australia. Besides, the Queen of England forms an integral position of the Australian parliament (Patrick and Varsanyi, 2008, p377). In other words, the commonwealth’s executive power is vested on the Queen of England. The fact that high executive leaders are appointed by the Queen of England implies that the political leaders can not make major decisions without consulting the Queen. Though people of Australia can be seen as independent citizens, it is evident that they are subjects of the Queen of England (Ross, 2008). According to section 44 of the Australian constitution, Australia is treated as Britain since it states that all Senators and Members of the House of Representatives must not be a subject of foreign power. Britain is not included in this clause as a foreign power since all MHRs and Senators by the year 1949 were British. Mentioning Britain as a non-foreign power in Australia is a clear indication that Australia is still a British colony though not directly as before. In addition, the fact that legislation of United Kingdom is still applied in Australia as an established under law, implies that Australia is still a colony of England. For instance, Acts such as the Queensland: imperial Acts Application 1984 and the Victoria: Imperial Acts Application Act 1980 are still applicable in Australia. It can be concluded that, Australia is not fully an independent state since it is headed by a foreign leader, Queen of England (Byme, 1995, p.5). Though the High Court of Australia ruled in 1999 in a case Sue vs., Hill that the Commonwealth is fully independent and the United Kingdom was a foreign power, it is evidence that the independence is not fully attained since the Queen of England continue to be the Head of Australia. Australia’s Path toward Legal Independence from the United Kingdom Though Australia has been declared independent, there is no specific period of time when it can be said that Australia attained independence. This is because the process of attaining independence was gradual. The constitution was not changed during the journey of Australia towards attaining independence. Due to this fact, some colonial signs are still present in Australia. Though the states of the Commonwealth no longer depend on Britain, the states are still parts of the larger country thus are not independent fully in real sense. Specifically, the commonwealth states which include Australia have limited power to legislate any issue outside their territory thus can not participate in international treaties by their own. The path of Australian independence can be divided into various stages (Lindell 2006). The first stage of the path to Australian independence ranges from 1904 to 1919. During this period of time, the journey to independence started when Australia and other larger British colonies played a major role in World War 1. The Colonial Conference was changed to Imperial Conference to portray that Australia and other larger colonies were playing a major role to help Britain win the war. As a result, Australia as well as other larger colonies demanded to be consulted whenever Britain entered into international agreements or commitments which affected them. Australia among other larger colonies was included in the British Imperial War Cabinet as well as other major discussions immediately after the World War 1 in the year 1919. Besides, Australia became a member of the League of Nations in 1919 thus being involved in major decision making conferences (Lindell 2006). In the year 1926, another major step towards independent was attained by Australia when the Imperial Conference accepted that both King and Governor-General were supposed to receive advice from the government of Australia alone in matters concerning Australia. In the year 1930, another resolution was passed by the Imperial Conference which aide Australia moving forward in its endeavour to attain independence. During this year, the controversial appointment of Australian-born Governor General, Isaacs forced the Conference to accept that the monarch was only supposed to act on advice of the country in subject rather than the British Government while appointing Governor-General (Lindell 2006). In the year 1931, a major phase occurred which facilitated the Australian quest towards attaining independence. During this year, the British parliament passed the Statute of Westminster which released the country from many restrictions. For instance, the statute released the restrictions imposed on Australia not to enact any legislation concerning other countries. The country was also released from the overriding force of British Law which existed by then. Besides, British legislation had to be requested or consented by Australian authorities in order to be applicable in the nation. Passing of the first Australian Citizenship Act in the year 1948 was also another major stage in gaining independence. The Act defined citizens and their rights thus locking out non-citizens such as British from enjoying the benefits of Australian citizenship. Besides, in the year 1953, the Queen was given the title “Queen of Australia” officially. In addition, end of taking court appeals to the British Privy Council ended in the year 1968 paving way for Australian domestic courts to handle appeals (Hudson and Sharp 1988, p.38). In the year 1986, a major step was also taken towards independence when both Australia and Britain passed the Australia Act. The new Act provided that, Britain was not supposed to continue legislating for Australia and appeals to Privy Council were ended. In addition, the Australia Act made it formal that State Governors were no longer British Government representatives. The role of the Queen was also limited to only appointing and dismissing sate governors. Nevertheless, the Queen was also supposed to exercise these roles while putting into account the advice of State Premier. According to this Act, the British law was no longer superior to the Australian Law. Indeed it is hard to tell the exact date when Australia gained independence since the process was gradual (Hudson and Sharp 1988, p.38). References Bender, RM, 2008, Australian’s spam legislation: a modern day king Canute, viewed 15 March 2010, < http://docs.google.com/viewer?a=v&q=cache:ZDAOOj79FzUJ:www.buseco. monash.edu.au/blt/wclrg/working-pape 2.pdf+Australian+approach+to+spam+ regulation&hl=en&gl=ke&pid=bl&srcid=ADGEESj_cCMOdkLU-GShNZCHr YlrfPs91j6j-dYLSPW_YBIq8ixb3CLiAs48oDauX3AOC0YEvrTauFKubkJ XlIC7qS4Okfk57WiKrv0uxEc2RZh5F-WJBw_uOtbTwuSYNI9rHONhVrZn&sig= AHIEtbQe7HvXh8t-q2Cof58zee8gnHfMdg> Byme, W, 1995, ‘Republic vs. monarchy: The Institute of Australia Culture, Victoria, Watsonia, p.5. CAUBE, AU, 2008, The situation in Australia, Viewed on 16 March 2010, < http://www.caube.org.au/australia.htm>. Hudson, JW, and Sharp, PM, 1988, Australian independence: colony to reluctant kingdom, New York, Melbourne University Press. Lindell G, 2006, ‘Why is Australia’s constitution binding? The reasons in 1900 and now and the effect of independence’ Federal Law Review, vol.16, no.29, pp.22-25. Patrick, D, and Varsanyi, J, 2008, International law in Australia, California, University of California. Ross, T, 2008, Colony and empire: Australia’s subservient relationship with Britain, Viewed on 17 March 2010, . Wong, A, 2007, The impact of Australia’s anti-spam legislation, Viewed on 17 March 2010, < http://www.zdnet.com.au/the-impact-of-australia-s-anti-spam-legislation-139116020.htm>. Read More