Legal Text Book
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Charbel FeghaliLegal Text Book
Uploaded by
Charbel FeghaliHSC
Cambridge
Legal Studies
Fourth Edition
Paul Milgate, Daryl Le Cornu, Alisha Murphy, Ann Miller, Tim Kelly,
Kevin Steed, Phil Webster, Sarah Hawke and Stephen Lippingwell
ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
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First Edition © Daryl Le Cornu, Ann Miller, Sarah Robinson, Tim Kelly and Kevin Steed 2006
Second Edition © Paul Milgate, Daryl Le Cornu, Ann Miller, Sarah Robinson, Tim Kelly and Kevin Steed 2010
Second Edition Contributions by Travis McGregor and L. Elaine Miller
Third Edition © Paul Milgate, Daryl Le Cornu, Sarah Hawke, Ann Miller, Tim Kelly, Kevin Steed and Phil Webster
2013
Fourth Edition © Paul Milgate, Daryl Le Cornu, Alisha Murphy, Ann Miller, Tim Kelly, Kevin Steed, Phil Webster
and Sarah Hawke 2016
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Third Edition 2013
Fourth Edition 2016
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Contents
About the authors vi Chapter 4 Sentencing and punishment 70
Author acknowledgements viii 4.1 Sentencing and punishment 72
Introduction ix 4.2 Statutory and judicial guidelines 72
How to use this resource x 4.3 The purposes of punishment 74
Components of Cambridge Legal Studies HSC xii 4.4 Factors affecting a sentencing decision 77
Glossary of key words xiii 4.5 The role of the victim in sentencing 78
Publisher acknowledgements xiv 4.6 Appeals 80
4.7 Types of penalties 82
4.8 Alternative methods of sentencing 88
Part I Crime 4.9 Post-sentencing considerations 90
Chapter summary 94
Chapter 1 The nature of crime 2 Questions94
1.1 The meaning of crime 4
1.2 Elements of crime 6 Chapter 5 Young offenders 96
1.3 Strict liability offences 7 5.1 Young offenders and the law 98
1.4 Causation 8 5.2 Age of criminal responsibility 100
1.5 Categories of crime 8 5.3 The rights of children and young people when
1.6 Summary and indictable offences 22 questioned or arrested 104
1.7 Parties to a crime 22 5.4 Children’s Court – procedures and operation 109
1.8 Factors affecting criminal behaviour 23 5.5 Penalties for children 111
1.9 Crime prevention: situational and social 26 5.6 Alternatives to court 114
Chapter summary 29 5.7 The effectiveness of the criminal justice
Questions29 system when dealing with young offenders 117
Chapter summary 122
Chapter 2 The criminal investigation Questions122
process30
2.1 Police powers 32 Chapter 6 International crime 124
2.2 Reporting crime 33 6.1 Defining international crime 126
2.3 Investigating crime 34 6.2 Categories of international crime 127
2.4 Arrest, detention and charge 40 6.3 Dealing with international crime 135
2.5 Court attendance notice, bail or remand 42 6.4 The effectiveness of measures dealing with
Chapter summary 45 international crime 143
Questions45 Chapter summary 147
Questions147
Chapter 3 The criminal trial process 46
3.1 Court jurisdiction: criminal courts 48 Themes and challenges for Part I Crime 148
3.2 The adversary system 54
3.3 Legal personnel in a criminal trial 55
3.4 Pleas and charge negotiation 57 Part II Human rights
3.5 Legal representation and Legal Aid NSW 58
3.6 Burden and standard of proof 59 Chapter 7 The nature and development
3.7 Use of evidence, including witnesses 60 of human rights 152
3.8 Defences to criminal charges 61 7.1 The definition of ‘human rights’ 154
3.9 The role of juries, including verdicts 65 7.2 The abolition of slavery 155
Chapter summary 69 7.3 Trade unionism and labour rights 158
Questions69
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CAMBRIDGE LEGAL STUDIES HSC
7.4 Universal suffrage 160 Issue 1 summary 231
7.5 Universal education 162 Issue 1 questions 231
7.6 Self-determination 164 Issue 2 summary 232
7.7 Environmental rights 166 Issue 2 questions 232
7.8 Peace rights 167
7.9 Formal statements of human rights 169 Themes and challenges for Part II Human rights 233
7.10 Early development of domestic and
international documents and treaties 173
Part III Options
Refer to additional digital-only material at the
end of the book Chapter 10 Option 1: Consumers 236
10.1 The nature of consumer law 238
Chapter summary 174 10.2 Contracts 240
Questions174 10.3 Consumer protection 249
10.4 Consumer redress and remedies 257
Chapter 8 Promoting and enforcing 10.5 Contemporary issue: Credit 264
human rights 176 10.6 Contemporary issue: Product certification 267
8.1 Introduction 178 10.7 Contemporary issue: Marketing innovations 272
8.2 Human rights in the international community 178 10.8 Contemporary issue: Technology 275
8.3 State sovereignty 179 Chapter summary 279
8.4 The role of the United Nations 181 Questions279
8.5 The roles of other international groups 186 Themes and challenges 280
8.6 Human rights in Australian domestic law 192
8.7 The role of the Australian Constitution 193 Chapter 11 Option 2: Global environmental
8.8 Other human rights roles in Australia 195 protection282
8.9 A charter of rights for Australia 199 11.1 The nature of global environmental protection 285
Chapter summary 202 11.2 The development of global environmental law 288
Questions202 11.3 The need for global environmental protection 290
11.4 The importance of ecologically sustainable
Chapter 9 Contemporary human rights development 294
issues204 11.5 The role of the state and state sovereignty in
responses to global environmental protection 297
Issue 1: Human trafficking and slavery 206
11.6 The role of the UN in response to global
9.1 Contemporary slavery 207
environmental protection 299
9.2 Human trafficking and slavery 208
11.7 Other international responses to global
9.3 Extent of human trafficking 209
environmental protection 302
9.4 Responses to human trafficking and slavery 211
11.8 Effects of Australia’s federal structure in
Issue 2: Child soldiers 217 responding to global environmental protection 313
9.5 Defining the issue of child soldiers 218 11.9 Contemporary issue: The law’s role in relation
9.6 Extent of the issue 219 to global environmental threats 316
9.7 Responses to the issue of child soldiers 222 11.10 Contemporary issue: The demand for
resources and global environmental protection 319
Issue 3: Exploitation of workers – refer to 11.11 Contemporary issue: Australia’s responses
additional digital-only material at the end to international initiatives 322
of the book 11.12 Contemporary issue: Barriers to achieving
9.8 Defining the issue of exploitation of workers an international response to global environmental
9.9 Extent of the issue protection 324
9.10 Responses to the issue of exploitation of workers Chapter summary 326
Issue 3 summary Questions326
Issue 3 questions Themes and challenges 328
iv
ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
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CONTENTS
Chapter 12 Option 3: Family 330 Chapter 15 Option 6: Workplace 380
12.1 The nature of family law 333 15.1 The changing nature of workplace law over
12.2 Responses to problems in family time382
relationships 348 15.2 Contracts 386
12.3 Contemporary issue: Recognition of same-sex 15.3 Awards, agreements and statutory
relationships 361 conditions389
12.4 Contemporary issue: The changing nature of 15.4 Regulation of the workplace 396
parental responsibility 365 15.5 Contemporary issue: Discrimination 405
12.5 Contemporary issue: Surrogacy and birth 15.6 Contemporary issue: Safety 409
technologies 367 15.7 Contemporary issue: Termination of
12.6 Contemporary issue: Care and protection of employment 414
children 372 15.8 Contemporary issue: Leave 417
Chapter summary 376 Chapter summary 421
Questions376 Questions421
Themes and challenges 378 Themes and challenges 423
Chapter 13 Option 4: Indigenous peoples – Chapter 16 Option 7: World order 426
this additional digital-only chapter can be 16.1 The nature of world order 428
found at the end of the book
13.1 Definition of indigenous peoples Refer to additional digital-only material at the end
13.2 Rights and legal recognition of the book
13.3 Responses to indigenous peoples
13.4 Australia’s federal structure 16.2 Responses to world order 435
13.5 Contemporary issue: Loss of cultural rights
including language Refer to additional digital-only material at the end
13.6 Contemporary issue: Land rights of the book
13.7 Contemporary issue: Legal rights to natural
resources 16.3 Contemporary issue: The principle of
13.8 Contemporary issue: Intellectual property ‘Responsibility to Protect’ (R2P) 454
rights 16.4 Contemporary issue: Regional and global
Chapter summary situations that threaten peace and security – the
Questions nuclear threat 456
Themes and challenges
Refer to additional digital-only material at the end
Chapter 14 Option 5: Shelter – this of the book
additional digital-only chapter can be
found at the end of the book 16.5 Contemporary issue: The success of global
14.1 The nature of shelter cooperation in achieving world order – East Timor
14.2 Purchasing shelter and UN intervention 461
14.3 Leasing 16.6 Contemporary issue: Rules regarding the
14.4 Securing other types of shelter conduct of hostilities – international
14.5 Dispute resolution mechanisms humanitarian law 465
14.6 Contemporary issue: Affordability Chapter summary 470
14.7 Contemporary issue: Discrimination Questions470
14.8 Contemporary issue: Homelessness Themes and challenges 471
14.9 Contemporary issue: Social housing and
community housing Answers to multiple-choice questions 474
Chapter summary Glossary 475
Questions Index 488
Themes and challenges Additional digital-only material 495
ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
v
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About the authors
Paul Milgate DipTeach BEd and Grad Cert in Theology and Masters in Educational
Leadership is the Executive Officer to the Director of Schools at the Catholic Schools
Office in Lismore. In the past he has been the Leader of Pedagogy and Head Teacher
of the HSIE (Human Society and Its Environment) Faculty at Xavier Catholic College,
on the North Coast of New South Wales. He has extensive experience in Legal Studies,
having taught it since its inception, and has assisted over many years in the planning
and running of HSC study days on the North Coast.
Dr Daryl Le Cornu BA(Hons) DipEd PhD has many years of experience teaching Legal
Studies in high schools. He has a passion for teaching about human rights, the United
Nations, global governance and nuclear disarmament. Daryl has also been involved in
curriculum development in New South Wales for many years. Currently, he is a History
Curriculum Lecturer at the Australian Catholic University, the Education Officer for the
United Nations Association of Australia, President of the World Citizens Association
Australia and a member of the Board of ICAN Australia (International Campaign to
Abolish Nuclear Weapons).
Alisha Murphy BA LLB Grad Dip Ed Post Grad Cert Ed RE obtained her BA LLB from the
University of New England in 2006. She obtained work in a small regional legal practice
specialising in legal aid, family law and criminal work for two years before completing her
Grad Dip Ed at Southern Cross University. In 2008 Alisha started teaching at St Mary’s in
Casino before obtaining her current position at St John’s College Woodlawn. She comes
from a teaching background of legal studies, society and culture, commerce and history.
Ann Miller BEd Grad Dip Ed Admin M Ed Admin is a teacher at Sir Joseph Banks High
School. Her background in over 30 years of teaching includes Economics, Commerce,
Business Management, Information Technology, History and Legal Studies. Ann is also
an experienced HSC marker in both Legal Studies and Economics.
vi ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
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ABOUT THE AUTHORS
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 and is currently an Education
Officer for the Lismore Catholic Schools Office. Tim is also a tutor in HSIE Curriculum
Specialisation at Southern Cross University and is a recent HSC marker for Legal Studies.
Kevin Steed BA LLB, BEd, MEd(Hons), DipTeach is a former Head Teacher and Deputy
Principal with the New South Wales Department of Education, holding degrees in Arts,
Law and Education. He is a highly experienced teacher of the social sciences having
taught and programmed Legal Studies over a 25-year period. Kevin regularly contributes
various articles for professional journals in the social sciences, particularly in the
curriculum area of Society and Culture. Currently Kevin is working with the Macquarie
University research community while completing his PhD.
Phil Webster BA DipEd MEd MACE is Head Teacher of HSIE at Mosman High. He has
over 25 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, indigenous affairs and justice in a rapidly
changing world.
Sarah Hawke BA DipEd is Deputy Principal at Sir Joseph Banks High School, where
she also teaches Ancient and Junior History. She comes from a background of Modern
and Ancient History, Geography and Commerce as well as Legal Studies. Sarah has
had many years of program, assessment and curriculum development across all KLAs
within her school as the Curriculum Coordinator. She has past experience in both School
Certificate and HSC marking.
Stephen Lippingwell has been working in various secondary schools for over 20
years. Stephen is currently completing his LLB while taking the position as Head of
Department for Social Science, and is working closely with Indigenous and Pacific
Islander communities to increase their engagement and success in education. He has
over 15 years’ experience with authority boards, holding positions such as District Review
Panel Chair for Economics and Legal Studies.
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Author acknowledgements
Thanks to my wife Barbara, my daughter Ebony and For Margaret, Amy, Liam and Riley.
my son Zach – a great team! Kevin Steed
Paul Milgate
To Katie Wood at Amnesty – huge thanks for your
To the American branch of the family – Jared, Katie, support and research. To Tristan Tipps Webster –
Ryker and Chiara. the ATSI guru – many thanks.
Daryl Le Cornu Phil Webster
To all of my family and friends for your constant To my husband and children for their support, and
support – especially Mum, Dad and Jason. to the victims and families of crime – may justice
Alisha Murphy prevail.
Sarah Hawke
A big thank you to the team at Cambridge, especially
Harriet. For Cynthia, a dedicated teacher, great head Many thanks to Nicholas Gangemi, Barrister-at-
teacher and better friend; and a special thank you to Law, who reviewed this book and the accompanying
Sandy, for your help and support. Teacher Resource material.
Ann Miller
My family and friends are fabulous. Well done,
Breakers (Hannah) and Trojans (Jack). Always.
Tim Kelly
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Introduction
To the student the world and how you understand the concept
Congratulations on choosing Cambridge Legal Studies of achieving justice through legal and non-legal
HSC Fourth Edition. This edition has been updated means.
to meet the changing processes of the legal system, Cambridge Legal Studies HSC Fourth Edition
while meeting the requirements of the current Stage is a comprehensive resource that builds on the
6 Legal Studies Syllabus in New South Wales. knowledge and skills introduced in the Preliminary
Since the introduction of Legal Studies as a course, as it thoroughly covers all key content areas
HSC discipline in 1989, the world has undergone of the HSC syllabus.
incredible change. Predictions of increasingly You will discover a wealth of engaging material
‘disruptive’ technologies will continue to challenge that critically examines the core areas of crime and
the ability of the law to balance the tension of human rights, as well as a wide range of options
individual and community rights. Regardless, in Part III. You will gain insight into how the law
Legal Studies continues to contribute to students operates in practice in each of these contexts. A
completing their secondary schooling as better range of interesting, up-to-date cases, media articles
informed citizens, able to think more critically about and statistics is provided to bring the law to life.
the processes and institutions that shape their lives Updated review and research questions will assist
on a daily basis. you to revise and build on your knowledge, and a
The rights people enjoy within democratic variety of HSC-style examination questions (in the
societies have at times been eroded by governments Student Book and the Study Toolkit) will give you the
when citizens become apathetic about their rights, best opportunity to succeed in your exam. We wish
freedoms and liberties. Legal Studies will allow you the very best of luck and much success in Legal
you to explore the power vested in our democratic Studies.
institutions and wielded by our elected leaders. It
explores issues that will change the way you view Paul Milgate
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How to use this resource
Part and chapter openers
Each part and chapter of Cambridge Legal Studies
HSC begins with an opener that contains:
• principal focus and themes and challenges
from the Stage 6 Syllabus
• information relating to the HSC external
examination.
• chapter objectives
• key terms/vocabulary
• relevant law (including important legislation
and significant cases)
• legal oddity.
In Court
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.
Media articles
A range of current media articles is provided to
help you understand how the law operates in real-
world situations.
Glossary terms
Glossary terms are bolded in the text, and
defined for you on the page in the print book, or
as pop-ups in the interactive version. They are
also gathered in the Glossary.
Review and research 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.
Legal Links
In addition to the activities, there are a number
of 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.
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HOW TO USE THIS RESOURCE
2018 updates
The content in this book was reviewed in 2018,
and updated where necessary. Margin icons
show where updated material is available.
Legal Info
A number of relevant legal concepts are explored
in order to give context to themes being explored.
Case studies
Examples, or groups of examples, are examined
in more depth to illustrate particular legal issues.
End-of-chapter sections
At the end of each chapter you will find a chapter
summary and a set of questions to help you
consolidate your learning from the chapter.
Video and audio
The interactive textbook contains video and audio
items enrich the learning experience.
Interactive activities
Also included in the interactive textbook are
automarked activities (for example, drag-and-
drop questions) to assist recall of facts and
understanding of concepts.
Downloadable Word documents
All review, research and end-of-chapter questions
are available as downloadable Word documents,
which can be accessed from within the interactive
textbook or via Cambridge GO.
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Components of Cambridge Legal Studies HSC
The Cambridge Legal Studies HSC resource package 3 Teacher Resource Package
consists of four components: The Teacher Resource Package contains a wide
range of material to support students and teachers
1 Student Book – print
with course, lesson, teaching plan, assessment and
The Student Book contains all topics in Part I and homework preparation.
Part II (including a wide range of contemporary
human rights issues), and five options in Part III. Guide to icons
The Cambridge GO icon in the print
2 Student Book – digital
book lets you know that there is
Your purchase of the print book gives you access to additional material available in the
the following digital resources on Cambridge GO: digital versions.
• Downloadable PDF textbook
A PDF of the print textbook, with additional The updated content icon lets you know
digital-only content, including: that this content has been updated in
– Chapter 9 – Contemporary human rights 2018, and so may be different from a print
issues – Issue 3: Exploitation of workers copy of the book. This is used for small,
– Chapter 13 – Option 4: Indigenous peoples crucial changes, such as statistics.
– Chapter 14 – Option 5: Shelter.
• Online interactive textbook The download icon lets you know that
An online version of the textbook has a further updated content within this section
host of interactive features to enhance the is available in a separate document,
teaching and learning experience. These downloadable from Cambridge GO. This is
include: used for places where the updated material
– video and audio is too extensive to easily fit into this PDF.
– drag-and-drop activities
– auto-marked multiple-choice quizzes
– additional digital-only chapters from the
PDF textbook.
• Other extra resources on the Cambridge GO
website include:
— all review, research and chapter questions
in electronic format
— marking criteria for the extended-response
questions from the Study Toolkit
— weblinks
— additional resources.
To access all weblinks, go to http://cambridge.
edu.au/hsclegal4weblinks
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Glossary of key words
Syllabus outcomes, objectives, performance bands describe
provide characteristics and features
and examination questions have key words that state
discuss
what students are expected to be able to do. identify issues and provide points for and/or against
A glossary of key words has been developed to
distinguish
help provide a common language and consistent recognise or note/indicate as being distinct or different
meaning in the HSC documents. Using this glossary from; note differences between
will help students and teachers understand what evaluate
make a judgement based on criteria; determine the value
is expected in responses to examinations and
of
assessment tasks.
examine
account inquire into
account for; state reasons for, report on; give an account
of; narrate a series of events or transactions explain
relate cause and effect; make the relationships between
analyse things evident; provide why and/or how
identify components and the relationship between them;
draw out and relate implications extract
choose relevant and/or appropriate details
apply
use, utilise, employ in a particular situation extrapolate
infer from what is known
appreciate
make a judgement about the value of identify
recognise and name
assess
make a judgement of value, quality, outcomes, results or interpret
size draw meaning from
calculate investigate
ascertain/determine from given facts, figures or plan, inquire into and draw conclusions about
information justify
clarify support an argument or conclusion
make clear or plain outline
classify sketch in general terms; indicate the main features of
arrange or include in classes/categories predict
compare suggest what may happen based on available
show how things are similar or different information
construct propose
make; build; put together items or arguments put forward (for example, a point of view, idea, argument,
suggestion) for consideration or action
contrast
show how things are different or opposite recall
present remembered ideas, facts or experiences
critically (analyse/evaluate)
add a degree or level of accuracy, depth, knowledge recommend
and understanding, logic, questioning, reflection and provide reasons in favour of
quality to recount
deduce retell a series of events
draw conclusions summarise
define express the relevant details concisely
state meaning and identify essential qualities synthesise
demonstrate put together various elements to make a whole
show by example
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Publisher acknowledgements
Commons Attribution-Share Alike 3.0 Unported license, 16.2a; U.S. Naval Historical
The author and publisher wish to thank the following sources Center Photograph / Wikimedia Commons, 16.2c; ©OECD, OECD Housing Pricing
database, and OECD Economic Outlook database in Focus on house prices http://www.
for permission to reproduce material: oecd.org/eco/outlook/focusonhouseprices.htm, 14.13; © Housing Industry Association
Ltd, 14.14. © Getty Images / Monty Rakusen, 11.1 / Bettmann, 16.1 / Delil Souleiman, 16.2
Cover: Used under licence 2016 from © Shutterstock.com / Alexander Raths / craighind.
/ Print Collector, 16.4 / NurPhoto, 16.5 / Lane Montgomery, 16.6 / Barcroft Media, 16.7 /
AFP Contributor, 16.9 / Keysonte-France, 16.13 / Sean Gallup, 16.14 / The Sydney
Images: Used under licence 2016 from © Shutterstock.com / Jerry Silwowski, inside
Morning Herald, 16.17/ Bertrand Guay, 16.18 / AFP Contributor, 16.21 / Ain McNamee,
cover (3), Part III options, Chapter 3 opener / Gina Buliga, inside cover (1) / Part I Crime /
16.22 / Universal History Archive, 16.23 / Shane McCoy / MAL, 16.28. © State of New
Couperfield, chapter 1 opener, 2.3 / pisaphotography 1.1 / frank_peters, 1.2 / Antonio
South Wales (Department of Justice). For current information go to www.justice.nsw.
Guillem, 1.3 / ChameleonsEye, 1.4, 6.9, Chapter 9 opener, 9.5 / LukTDB, 1.5 / Monkey
gov.au.’ http://creativecommons.org/licenses/by/4.0/legalcode, 5.13. © Australian
Business Images, 1.7, 4.2, 4.4, Chapter 5 opener, Chapter 12 opener, 12.6, 14.11 /
Institute of Health and Welfare 2018 / Creative Commons BY 3.0 (CC-BY 3.0) licence,
Photographee.eu, 1.8, 2.2, 3.3 / sdecoret, 1.9 / zstock, 1.12 / mrkornflakes, 1.13 /
12.12. Housing Affordability Graph: Source, ABS, 14.14.
Tupungato, 1.14 / DmitriMaruta, 1.15 / O Driscoll Imaging, 1.16 / arindambanerjee, 1.17 /
Vasin Lee 1.18 / Dziurek, 1.19 / Dave Nararoo Jr, 2.4 / Bikeriderlondon, 2.5, 2.6 / zimmytws,
Text: Media release, ‘two men sentenced in Australia’s largest insider trading case ©
2.7 / Vladislav Gajic, 3.6 / Rommel Canlas, 3.8 / Lisa S. 3.9 / Dragon Images, 3.10 /
Australian Securities & Investments Commission.’ Reproduced with permission, p17;
mauro_grigollo, 3.11 / Alexandru Nika, 3.13 / Everett Collection, 3.14, 7.1 / Offstock,
‘NSW Police take DNA from hundreds of ex-offenders to build crime-solving database’
Chapter 4 opener / aerogondo2, 4.1 / Katherine Welles, 4.3 / Fotoluminate LLC, 4.5 / Iakov
by Angela Lavoipierre © ABC All rights reserved, p36; ‘Law Enforcement (Powers and
Filimoniv, 4.6 / Phillip Minnis, 4.7 / SpeedKingz, 4.8, 5.7, 5.13 / dragon_fang, 4.9 /
Responsibilities) Regulation 2005’ © NSW Government, p39–40; ‘I’m glad it’s over: robber’s
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Part I
Crime
30% of course time
Principal focus
Through the use of a range of contemporary examples, students investigate criminal law, processes and
institutions, and the tension between community interests and individual rights and freedoms.
Themes and challenges
Themes and challenges covered in Part I include:
• the importance of discretion in the criminal justice system
• dealing with compliance and non-compliance in respect to criminal law
• the extent to which ethical and moral standards are reflected in the legal system
• how law reform is continually shaping the criminal justice system
• how the law works to protect the rights of victims, offenders and society
• achieving effective justice through legal and non-legal measures.
HSC external examination information
The HSC examination will be a written paper worth a total of 100 marks. The paper will consist of three
sections.
Questions relating to Part I of the syllabus – ‘Crime’ – will appear in sections I and II of the examination.
Section I: Core 20 marks total (15 of the possible 20 marks will
be based on ‘Crime’)
Section I will consist of objective response (that is, multiple choice) questions. Questions to the value of 15
marks will be drawn from ‘Crime’. Some of these questions may be based on, or refer to, stimulus materials.
Section II: Core 30 marks total (15 of the possible 30 marks will
be based on ‘Crime’)
Section II will be divided into two parts: Part A and Part B. Only Part B will relate to ‘Crime’. There will be
one extended-response question to the value of 15 marks. The question may refer to stimulus material. The
expected length of the response is around 600 words (approximately four examination writing booklet pages).
Chapters in this Part
Chapter 1 The nature of crime
Chapter 2 The criminal investigation process
Chapter 3 The criminal trial process
Chapter 4 Sentencing and punishment
Chapter 5 Young offenders
Chapter 6 International crime
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Photocopying is restricted under law and this material must not be transferred to another party.
Chapter 1
The nature of crime
Chapter objectives
In this chapter, students will:
• identify the meaning and nature of crime
• describe and recognise the different categories of crime
• define and discuss summary and indictable offences
• explore a range of factors that may lead to criminal behaviour
• discuss a range of social and situational crime prevention techniques
• discuss the effectiveness of the law in punishing offenders.
Key terms/vocabulary
accused involuntary manslaughter
actus reus larceny
affray manslaughter
aggravated sexual assault in company mens rea
assault mitigating circumstances
attempt murder
beyond reasonable doubt prosecute
break and enter provocation
causation recklessness
common assault riot
conspiracy robbery
constructive manslaughter sedition
crime sexual assault
criminal negligence sexual intercourse
criminology state
Crown strict liability offence
embezzlement summary offence
fraud tax evasion
homicide trafficking
indecent assault treason
indictable offence voluntary manslaughter
infanticide white-collar crime
insider trading
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Relevant law
IMPORTANT LEGISLATION
Crimes Act 1900 (NSW) Copyright Amendment Act 2006 (Cth)
Customs Act 1901 (Cth) National Security Legislation Amendment Act 2010
Crimes Act 1914 (Cth) (Cth)
Drug Misuse and Trafficking Act 1985 (NSW) Road Transport Act 2013 (NSW)
Summary Offences Act 1988 (NSW) Copyright Amendment (Online Infringement) Act
Criminal Code 1995 (Cth) 2015 (Cth)
Crimes Amendment (Computer Offences) Act 2001 Crimes Amendment (Intimate Images) Bill 2017
(NSW) (NSW)
Anti-Terrorism Act (No. 2) 2005 (Cth)
SIGNIFICANT CASES
R v Whybrow (1951) 35 CAR 141 R v AEM (Snr); R v KEM; R v MM [2002] NSWCCA 58
DPP v Newbury and Jones [1977] AC 500 Wallace v Kam [2013] HCA 19
Boughey v The Queen (1986) 161 CLR 10
Legal oddity
In the 18th century bce, the great Babylonian king Hammurabi had been expanding his empire by conquering
new territories, each of which had their own laws and customs. In order to unify the empire, Hammurabi
needed to come up with a single set of laws. He had a set of 282 laws drawn up, which became known as the
Code of Hammurabi. They were carved into a large stone monument over seven feet high. At the top of the
monument was a depiction of Hammurabi receiving the laws from the sun-god Shamash.
These laws are notable for a number of reasons. The punishments for breaking laws are often in the form
of retribution; the Code of Hammurabi is the origin of the phrase ‘an eye for an eye’. The Code is also one of the
earliest records of the presumption of innocence, which the Babylonians took very seriously. If you brought
a charge in front of the elders against another person, but did not prove the charge, you were put to death!
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CAMBRIDGE LEGAL STUDIES HSC
1.1 T
he meaning of crime
The word ‘crime’ is a broad term used to describe
many unlawful activities, from the extreme, such as
murder, to more minor offences, such as speeding.
A crime includes any act or omission that results
in harm to society at large and is punishable by
the state, including the court system and state or
Commonwealth bodies.
crime state
an act or omission against a government and the
the community at large people it governs; a
that is punishable by the country
state
Figure 1.1 Culture, history, legal traditions, social
A more detailed definition includes ‘any conduct
attitudes, religious beliefs and political systems are
which violates the rights of the community at large, factors in every society that combine to determine
punishable by a recognised criminal sanction upon how crime is defined and punished.
proof of guilt in a criminal proceeding initiated and
presented by officers of the crown or its agencies’ Director of Public Prosecution), as well as any victim
(S. Marantelli and C. Tikotin, The Australian Legal of the act. The criminal act is seen as an attack on
Dictionary). the ethical and moral standards of society, so it is the
But there is no definition that tells the community responsibility of all to punish those found guilty. This
what actually constitutes criminal behaviour and is why the state (acting on behalf of society) brings
activity. If a person wanted to know if certain criminal cases, even though it is also attempting to
behaviour was a violation of the law, they would redress an injustice committed against a specific
be none the wiser by the definitions provided. This victim or victims.
is because a crime is any act that law-makers in Crime is a constantly evolving area of the law. For
a particular society have deemed to be criminal, example, for centuries the practice of witchcraft was
which in itself causes injustice. considered a serious offence punishable by death
Many countries and societies have different throughout the British Empire. As society’s attitudes
views about what kinds of acts society needs to be evolved, the position was eventually reversed in
protected from and which acts should be considered Great Britain with the introduction of the Witchcraft
criminal. Culture, history, legal traditions, social Act 1735, 9 Geo II, c 5, which removed the offence of
attitudes, religious beliefs and political systems are witchcraft and instead made it a crime to pretend
factors in every society that combine to determine to practise acts of witchcraft. In Australia
how crime is defined and punished. In other words, today, such acts would be governed by consumer
what one society deems a crime, another may not; protection regulations that protect against
this in itself causes frustration for the legal system. fraudulent activity.
For example, the act of murder is considered a crime Similarly, new crimes are often created where
throughout the world, though with varying definitions none existed before. For example, the Crimes
and qualifications. However, other acts, which Amendment (Computer Offences) Act 2001 (NSW)
are entirely legal in Australia, such as sex outside introduced a new part titled ‘Computer Offences’
marriage, homosexual acts or the consumption of to the Crimes Act 1900 (NSW). The Commonwealth
alcohol, are deemed crimes in some societies. Copyright Amendment Act 2006 (Cth) also introduced
Therefore, most crimes are the result of moral a number of new offences aimed at dealing with the
and ethical judgements by society about an growing problem of internet piracy and copyright
individual’s behaviour. When a person commits a infringement. The Copyright Amendment (Online
crime, it is deemed to be committed against all of Infringement) Act 2015 (Cth), which commenced in
society (as represented by the state; for example, the June 2015, is a further amendment to the Copyright
4 ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
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1
CHAPTER 1 THE NATURE OF CRIME
Act 1968 (Cth). It introduces new laws to give rights from civil law, where an action against the
holders who discover infringing material online a alleged perpetrator is brought before the courts
way of requiring carriage service providers to take by an individual who is affected (the plaintiff).
reasonable steps to block access to the content, via
an injunction from the Federal Court. Crown
the state party that commences a criminal action in a
The government, courts and other statutory court of law; in New South Wales, the action is usually
bodies are constantly reviewing legislation to ensure commenced by the Director of Public Prosecutions; if the
alleged crime is against a federal criminal law, the action
that it meets the expectations of the community and is usually commenced by the Commonwealth Director of
is as relevant as possible to our rapidly developing Public Prosecutions
and changing society. Sometimes some groups
within our community are unhappy with these • The Crown must prove its case beyond
reforms and developments while others rejoice at reasonable doubt. If any other reasonable
their implementation. Criminal law is a particularly conclusion besides proving the criminal
controversial area of the law because any changes charges can be drawn from the evidence, there
will usually have wide-ranging effects on the rights is reasonable doubt. If there is any doubt as to
and freedoms of all members of society. As a result the guilt of the defendant, a ‘not guilty’ verdict
there is often tension between various legal and non- must be given. This differs from civil law, where
legal resources when attempts are made to change a much lower standard of proof is required (the
or update aspects of the criminal law. balance of probabilities).
Criminal law beyond reasonable doubt
the standard of proof required in a criminal case for a
Criminal law is the area of law that deals with person to be found guilty
crime. It has many aspects, including investigation,
enforcement, prosecution, defence, criminal trial, • The aim of criminal law is to protect the
sentencing and punishment. Criminal law has a community and to provide a sanction or
number of important characteristics that distinguish punishment to an offender who is found guilty
it from other areas of the law: by a court of law. This differs from civil law,
• Criminal law is about protecting society. A where the aim is to address the defendant’s
crime is punishable by the state because it is an wrong by way of a remedy or court order in
offence against society as a whole. This differs favour of the plaintiff.
from civil law, which relates primarily to rights Broadly speaking, the distinction between
and responsibilities between individuals. criminal and civil law depends on the legal
• Criminal actions can include crimes against
a person, the state and/or property. The law
provides for the state to take legal action
against an accused; that is, to prosecute
them in a court of law to achieve some type of
punishment or sanction.
accused prosecute
the person or alleged when the Crown or state
offender that the criminal takes action against the
action is being taken accused person in a court
against of law
• The decision to prosecute the offender in court
is made by the police and/or the Director of
Public Prosecutions. They are known as the
state or the Crown, and the offender is known
as the defendant or the accused. This differs Figure 1.2 New crimes are often created to address
changes in society.
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CAMBRIDGE LEGAL STUDIES HSC
proceedings that may follow from the act. If the act The actus reus must be a voluntary act but can
is a crime, then the offender faces investigation by also include an omission or failure to act, particularly
the police and prosecution. The case is heard in the in cases of criminal negligence, if the accused failed
criminal courts, and the accused may be convicted to take a course of action when they had a duty to
and punished. If the act is a breach of civil law, then do so.
the wrongdoer (the defendant) will be sued in a civil
court by the person bringing the action (the plaintiff). Mens rea
The plaintiff will be trying to gain a remedy such as Mens rea is a Latin term meaning ‘guilty mind’ and
compensatory damages or a court order prohibiting refers to the mental state of the accused. In order for
the conduct. the prosecution to succeed, it must be able to prove
that, to the necessary degree, the accused intended
to commit the crime.
Review 1.1
There is no widely accepted definition for
1 Define the term ‘crime’. mens rea. One common understanding, however,
2 Use one or more examples to describe a is that it is the state of mind of a defendant and
new type of crime and an act that is no their knowledge of the facts that make the conduct
longer a crime. criminal. In other words, the defendant understood
3 Identify the similarities and differences what was happening when the act was committed.
between criminal and civil law. Another view is to regard mens rea as the conscious
and willing mind that was present in performing a
crime. Often, if the police or Crown cannot prove
that the defendant acted intentionally, fraudulently,
maliciously, negligently, recklessly or willfully, the
1.2 E
lements of crime
charge will not be proved. For example, when a
Before a criminal act can be brought to trial, the
person intentionally shoots someone, that person
police and prosecutors need to prove that the
has probably intended to commit a criminal act and
elements of the particular offence are present. There
cause harm. Whether that person intended to kill or
are two fundamental elements applicable to most
only injure the victim is something that will need to be
offences:
established. Another situation is when a defendant
• that the accused person actually committed the
knows what will happen if they continue certain
crime (actus reus)
behaviour, but recklessly carries on. For example,
• that the accused person sufficiently intended to
the shooter may have been reckless as to whether
commit the crime (mens rea).
the victim might die from the injuries inflicted. In all
actus reus mens rea cases, except for strict liability cases (see below), the
a Latin term meaning a Latin term meaning prosecution must prove that the accused was aware
‘guilty act’ that refers to ‘guilty mind’, meaning that
the physical act of carrying the accused intended (to (at least to some degree) that their actions would
out a crime some degree) to commit result in the likelihood of a crime being committed.
the crime, knowing their
The degree of intention required to prove a
actions were wrong
crime can differ and will often be specified in the
Actus reus legislation where the crime is defined. The three
main levels of mens rea are:
Actus reus is a Latin term meaning ‘guilty act’ and
• intention – a clear, malicious or wilful intention
refers to the physical act of carrying out the crime.
to commit the crime. This is the highest and
The prosecution must prove that the accused did in
usually most difficult level of mens rea for the
fact carry out the relevant act required for the crime.
prosecution to prove.
Physical evidence and witness testimony can help
• recklessness – an intermediate level of intent.
the prosecution prove that it was the accused that
This means that the accused was aware
carried out the act. This is often the easiest element
that their action could lead to a crime being
for the prosecution to prove.
committed, but chose to take that risk anyway.
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1
CHAPTER 1 THE NATURE OF CRIME
• criminal negligence – where the accused
fails to foresee the risk where they should have
and so allows the avoidable danger to occur,
usually resulting in harm to or the death of
another person that the accused had a duty to
protect. This is the lowest level of intention for
mens rea, but it is still a much higher standard
than the civil law requires for negligence to
be considered criminal. An example of a case
involving criminal negligence is R v Thomas
Sam, referred to in the ‘In Court’ box below.
criminal negligence
where the accused fails to foresee the risk when they
should have and so allows the avoidable danger to occur
Figure 1.3 Theft is often an example of mens rea.
1.3 S
trict liability offences
Perhaps the accused wanted to show off or was Not all offences require the prosecution to prove
unable to make a sensible decision. In the case mens rea. For some offences, only the element of
of recklessness the prosecution will attempt to actus reus will need to be shown. These offences
prove that the risk was obvious to a reasonable are known as strict liability offences.
person and although the accused knew the risk A strict liability offence is one where the
they were taking, they didn’t care about the prosecution only needs to prove that the accused
consequences. carried out the act, and is not required to show that
the accused intended to commit the crime. Because
recklessness strict liability offences dramatically lower the level of
when the accused was aware that their action could lead
to a crime being committed, but chose to take that course proof required to achieve a criminal conviction, and
of action anyway so lessen an accused’s rights in the criminal process,
they are generally restricted to minor offences,
In Court
R v Thomas Sam; R v Manju Sam (No. 18) [2009] NSWSC 1003
In this case, a father and mother were charged with manslaughter by criminal negligence. The case
revolved around the death of the couple’s nine-month-old daughter, who suffered from eczema. The
parents had repeatedly rejected conventional medical treatment, and instead relied on ineffective
homeopathic treatments, despite the child constantly crying in pain, with broken skin oozing fluid.
The court found that the condition was medically treatable, yet because treatment was denied the
child had unnecessarily suffered and died from it. The court found that both parents were well educated
and should have known to seek appropriate medical treatment for their daughter, which they failed
to do. The court also found that the father had a higher duty of care, as he was a trained homeopath
with a higher degree of medical knowledge. The judge in the case, Justice Peter Johnson, concluded
that it was the ‘most serious case of manslaughter by criminal negligence’ he had ever dealt with.
The parents were both found guilty of manslaughter and sentenced to imprisonment. On appeal,
both sentences were increased, with the father receiving eight years’ imprisonment and the mother
receiving five years and four months.
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CAMBRIDGE LEGAL STUDIES HSC
in coping with the daily volume of traffic violations –
or to put a greater onus on society to comply with a
particular law. In some cases, there can be a defence
to strict liability: if the accused can prove the act was
an ‘honest and reasonable mistake’.
strict liability offence
an offence where the mens rea does not need to be
proved; only the actus reus (the guilty act) needs to be
proved
1.4 C
ausation
A further consideration that is relevant when
establishing the elements of a crime is causation –
proving that there is sufficient causal link between
Figure 1.4 Some acts are considered crimes, even if
the actions of the accused and the result. This will
they weren’t intentional. Speeding is one example.
often be relevant in proving the actus reus and
requires the prosecution to prove a substantial link
such as traffic offences or breaches of regulations. between the act and the crime.
For example, a speeding offence is a strict liability
causation
offence and as such the police do not need to show the link between the behaviour of the accused and the
that a person intended to break the speed limit (that result (that is, that the behaviour of the accused actually
is, had mens rea); they only have to show that the caused the criminal act alleged)
person did so (committed the actus reus). That is,
a person only has to be caught speeding to incur
a fine.
In Court
Another example of strict liability offences is
Wallace v Kam [2013] HCA 19
selling alcohol or cigarettes to people under the
Dr Kam was a neurosurgeon charged with
age of 18 – it doesn’t matter whether or not the seller
medical negligence and the question of
knew the buyers were underage; the only thing that
causation was raised. The plaintiff, Mr
matters is that they were underage. Strict liability
Wallace, had been injured during surgery.
is applied to offences because of its administrative
He alleged that Dr Kam had not warned
advantages – for example, to assist the legal system
him about the two risks of the surgery, and
that if he had known about these risks, he
would not have agreed to the surgery and so
Review 1.2 would not have been injured. Thus, negligent
failure to disclose had caused his injury. In
1 Explain the difference between actus
a unanimous decision the High Court stated
reus and mens rea.
that there needed to be higher scrutiny of the
2 Using a specific crime as an example
application of causation and while the matter
(for example, drink-driving, murder or
might establish factual causation it does not
robbery), describe what you think the
suggest that the doctor should be held liable
actus reus and mens rea of the crime
(scope of liability).
might be.
3 Outline two main differences between
strict liability offences and other
offences. Give examples of some strict 1.5 C
ategories of crime
liability offences. There are many different crimes and they can be
categorised in numerous ways. These categories
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1
CHAPTER 1 THE NATURE OF CRIME
Legal Links Research 1.1
A range of recorded criminal incidents The complete version of the Crimes Act
in New South Wales can be accessed at 1900 (NSW) is available at http://cambridge.
the NSW Bureau of Crime Statistics and edu.au/redirect/?id=6229. Find the Act on
Research. Refer to http://cambridge.edu.au/ the website and look at the categories of
redirect/?id=6228. offences listed under the Act. How many of
the categories and offences listed in Table
1.1 can you find in the Act?
will often affect the way an offence is investigated,
prosecuted or punished, and include:
• type of offence, such as offences against the Offences against the person
person or drug offences Offences against the person involve some form of
• jurisdiction, including whether it is a New harm or injury to an individual. Because there are so
South Wales or a Commonwealth crime many ways that someone can cause injury to another
• seriousness of the offence, or whether it is a person, these types of crime are divided into three
summary or indictable offence distinct areas, each including numerous offences:
• parties to a crime (for example, whether the homicide, assault and sexual offences.
accused is the principal offender of the crime
or assisted in some way). Homicide
In New South Wales, the Crimes Act 1900 (NSW) In the criminal justice system, homicide is defined as
is currently divided into roughly 16 parts relating to the unlawful killing of another person. This includes
the main types of offences. These parts are further both deliberate and accidental acts of killing, with
divided into hundreds of divisions, sections and varying degrees of mens rea applicable. In a homicide
subsections. Offences are also included in numerous case, causation must be established between the
other New South Wales Acts and Regulations. actions of the accused and the death of the victim.
Commonwealth offences have a similar regime. There are four main categories of homicide in New
South Wales law: murder, manslaughter, infanticide
trafficking
dealing or trading in something illegal, particularly drugs
and dangerous driving causing death.
homicide
the unlawful killing of a human being
Table 1.1 Examples of offences
Type of offences Examples
Offences against the person Homicide, assault, sexual assault
Offences against the sovereign Treason, sedition
Economic offences Property offences, white-collar crime, computer
offences
Drug offences Trafficking, possession, use
Driving offences Speeding, drink-driving, negligent driving
Public order offences Offensive conduct, obstructing traffic, affray,
bomb hoaxes
Preliminary offences Attempts, conspiracy
Regulatory offences Breach of water restrictions, fire restrictions or
public transport rules
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CAMBRIDGE LEGAL STUDIES HSC
Figure 1.5 Homicide is the unlawful killing of another Figure 1.6 Popular depictions of the murder genre,
person. such as CSI: Crime Scene Investigation, give the
impression that murder is a common crime in society
when, in fact, it is not.
Murder
Murder is the most serious homicide offence and
is punishable by life imprisonment. In order to How to Commit the Perfect Murder, CSI and Castle
prove in court that a killing was murder (that is, have also popularised the murder genre, giving
directly related to the actions of the accused), the the impression that murder is a common crime. In
prosecution must show that at least one of the reality, however, the opposite is true. The number of
following exists: recorded murder victims in New South Wales during
• the accused intended to deliberately kill the 2017 was 48, compared with 28 356 domestic violence-
victim related assaults for the same period. According to
• the accused set out to inflict serious bodily the Australian Institute of Criminology (AIC), most
harm, which resulted in death murder victims are killed by a family member or
• the act was done with reckless indifference friend, and up to 41% of all homicides are domestic
to another human life; that is, the accused violence-related.
did not care that the act might end a human
murder
being’s life
the deliberate killing of a person
• the act was done while committing or
attempting to commit another serious crime
punishable by life or 25 years’ imprisonment.
Manslaughter
The third of these elements is usually the
Manslaughter is the second type of homicide. It
hardest to prove. In Boughey v The Queen (1986) 161
differs from murder in the intent of the accused.
CLR 10, a doctor strangled his wife during a sex
Manslaughter involves a reduced level of intent and
‘game’. The court held that there was a substantial
is punishable by up to 25 years’ imprisonment. A
or good chance of harm, that Boughey had the
person may be charged with manslaughter where it
knowledge and capacity to know better, and that
cannot be proved that they intended to kill the victim
the act constituted a ‘reckless indifference to
to the degree required for murder. There are three
human life’. Boughey was convicted of the murder.
main types of manslaughter:
Murder is one of the most heinous crimes
possible and attracts some of the harshest penalties. manslaughter
As a result, murder cases often receive a great deal the killing of a person in a manner that is considered to be
less intentional than murder
of media attention. Television programs such as
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1
CHAPTER 1 THE NATURE OF CRIME
• Voluntary manslaughter occurs when a Infanticide
person kills with intent, but there are mitigating Infanticide is a special category of manslaughter
circumstances (such as the defence of that applies to the death of a baby under the age of
provocation) which reduce their culpability. 12 months at the hands of its mother. The Crimes
For the crime to be classed as voluntary Act 1900 (NSW) requires that the court take into
manslaughter, not murder, there must be account the state of mind of the mother at the time
mitigating circumstances. she committed the crime. Many women suffer from
• Involuntary manslaughter is the killing of a a condition called post-natal depression after the
person where the death occurred because the birth of a child. If the accused is found to have been
accused acted in a reckless or negligent way, suffering from this condition when she killed her
but without intention to kill the person. In DPP baby it can be seen as a mitigating circumstance.
v Newbury and Jones [1977] AC 500 the accused
deliberately dropped a slab of concrete from Dangerous driving causing death
a bridge and the concrete hit and killed a Dangerous driving occasioning death is another
train guard. This act was held to constitute type of manslaughter. It occurs when a person drives
involuntary manslaughter because there was in an unsafe and reckless way, such as under the
no intention to kill or harm anyone. influence of alcohol or a drug, or at excessive speed,
• Constructive manslaughter is the killing and in so doing causes the death of another human
of a person while the accused was carrying being. A conviction for this crime carries a maximum
out another dangerous or unlawful act. The penalty of 10 years in prison. However, if the offence
manslaughter is ‘constructed’ from the other is aggravated by certain circumstances the penalty
unlawful act. For example, where a person can be as much as 14 years’ imprisonment.
assaults another person without intention to
kill or inflict serious bodily harm, but death
Research 1.2
results, then the death may be construed as
manslaughter by the accused.
Go online and search for five recently closed
homicide cases. Draw up a table and identify
voluntary manslaughter mitigating
the killing of a person circumstances the following:
where the accused did circumstances that make • the case name and court reference
intend to kill or was an offence less severe;
• the charges brought against the
reckless about killing they can lead to a reduced
someone but there were sentence defendant
mitigating circumstances • some case details, such as the ruling and
the sentence.
provocation involuntary
the defence where the manslaughter
defendant claims that the killing of a person
their actions were a direct where the death occurred
result of another person’s because the accused Assault
actions, which caused acted in a reckless or Assault is the most common form of crime against
them to lose control of negligent way without
their own actions intention to kill the person. Assault includes the offence of causing
physical harm to another person and of threatening
constructive infanticide to cause physical harm to another person (known as
manslaughter the death of a baby under common assault).
the killing of a person the age of 12 months at the
while the accused was hands of its mother assault common assault
carrying out another a criminal offence assault where there is
dangerous or unlawful act involving the infliction of no actual physical harm
physical force or the threat to the person assaulted,
of physical force including threatening to
cause physical harm to
another person
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CAMBRIDGE LEGAL STUDIES HSC
statistics. Victims’ fear of reporting the crime is a
serious problem in cases of sexual assault.
sexual assault sexual intercourse
when someone is forced broadly defined in the
into sexual intercourse Crimes Act 1900 (NSW)
against their will and to include oral sex or
without their consent penetration of the vagina
or anus by any part of
another person’s body or
by an object manipulated
by another person
Lack of consent is central to the crime of sexual
assault and is defined in detail in the Act. It states
that a person is not consenting where they are:
• substantially intoxicated by drugs and alcohol
and therefore lack the capacity to consent
• intimidated or coerced into the act, or
• if the accused is abusing their position of trust
or authority over the victim.
Sexual assault is one of the least reported crimes,
and has a low conviction rate due to the difficulty of
proving consent.
The crime of aggravated sexual assault
Figure 1.7 Assault can be both the act of harming
will be applicable where there are aggravating
someone or threatening to cause harm.
circumstances, such as where violence is used,
the victim is under 16 years old or the victim has a
Physical assault is a direct act in which force
serious physical or intellectual disability. It must be
is applied to another person’s body unlawfully and
noted that a child under the age of 16 is not legally
without their consent and is punishable by up to five
able to give consent.
years’ imprisonment (or seven years’ imprisonment,
Indecent assault is another type of sexual
depending on the location of the assault and the
offence, where the accused commits an assault and
identity of the victim). A threat to cause physical
‘act of indecency’ on or in the presence of another
harm can also be a form of assault where it causes
person without their consent. ‘Indecent act’ is not
the victim to fear immediate and unlawful violence;
defined in the Crimes Act 1900 (NSW), but it includes
threatening phone calls, text messages or emails
assaults with a sexual element. This offence covers
might constitute such a form of assault.
many sexual acts that are not included under the
offence of sexual assault, such as touching the
Sexual offences
genitals or other parts of the body in a sexual manner
Sexual assault is a type of assault where someone
without the person’s consent.
is forced into sexual intercourse against their will
and without their consent. It was formerly known indecent assault
in common law as ‘rape’. The definition of sexual an assault and ‘act of indecency’ on or in the presence of
another person without their consent
assault includes where consent is withdrawn during
the act of sexual intercourse. Sexual intercourse
is defined broadly in the Crimes Act 1900 (NSW) to The most serious sexual offence in New South
include different types of sexual acts including oral Wales is aggravated sexual assault in company.
sex and penetration. Sexual assault can occur to Punishable by the highest criminal sanction life
both men and women. Although the vast majority imprisonment, the offence is viewed by the law as
of such assaults are against women, it is suggested equivalent in seriousness to murder. The offence
that there are more male victims than is shown by includes the elements of sexual assault, but is
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CHAPTER 1 THE NATURE OF CRIME
In Court
R v AEM (Snr); R v KEM; R v MM [2002] NSWCCA 58
The catalyst for change in the New South Wales law of aggravated sexual assault in company was the
case of R v AEM. Three young men (two brothers and their cousin, who were 19, 16 and 16 years old
respectively at the time of the crime) lured two 16-year-old girls to the offenders’ home in Villawood.
The girls were then forcibly detained and sexually assaulted over a period of several hours. The girls
were threatened with knives and verbally with death.
At the time the only applicable crime was aggravated sexual assault: the highest penalty for this
was 20 years’ imprisonment. The men were originally sentenced to five to six years’ imprisonment each.
The abhorrent nature of these crimes led to a public outcry over the existing laws of rape, which
were thought by a large segment of the public to be too lenient given the nature of the crime. Following
the case, the New South Wales Parliament moved quickly to introduce new laws and tougher penalties,
creating a new offence of ‘aggravated sexual assault in company’ in s 61JA of the Crimes Act 1900
(NSW). The new offence carries a maximum penalty of life imprisonment, equivalent to that for murder.
Notably, on appeal by the Crown in 2002, the judges decided to significantly increase the offenders’
original sentences, substituting them with 13 to 14 years’ imprisonment each.
performed with another person or people present
together with either depriving the victim of their
liberty or the infliction or threatened infliction of
bodily harm. The offence of aggravated sexual
assault in company was introduced in New South
Wales in 2001 following a series of so-called gang
rapes across Sydney’s inner west that led to a public
outcry for reform of the law.
aggravated sexual assault in company
sexual assault performed with another person or people
present together with aggravating circumstances
Legal Links
Watch the YouTube video Aggravated Sexual
Assault in Company at http://cambridge.edu.
au/redirect/?id=6230. Figure 1.8 Indecent assault is touching parts of the
body in a sexual manner without the person’s consent.
Table 1.2 Number of reported cases of assault and sexual assault in New South Wales
Offence 2015 2016 2017
Assault – domestic violence-related 29 106 29 145 28 356
Assault – non-domestic violence-related 30 853 31 755 32 015
Sexual assault 4 953 5 208 5 804
Indecent assault, act of indecency and other sexual offences 6 856 6 986 7 389
Source: New South Wales Bureau of Crime Statistics and Research, 2015–17
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CAMBRIDGE LEGAL STUDIES HSC
Offences against the sovereign sovereign into hatred or contempt, and included
Offences against the sovereign are some of the oldest inciting disaffection against the government or
crimes, and include political offences against the parliament. The laws were criticised as being open
state or heads of state, such as treason and sedition, to abuse through silencing government opposition
which attract severe penalties. The laws are justified and public comment and endangering freedom of
as protecting the structure, authority and integrity of speech.
the state and the citizens that it governs. Historically, In Australia, sedition laws had fallen into
such laws were more frequently used to prevent or disuse until 2005, when the then Commonwealth
punish attempts to overthrow or even criticise heads Government, under Prime Minister John Howard,
of state. Australia today is a stable parliamentary introduced a range of controversial anti-terrorism
democracy, where objections are aired through laws in the Anti-Terrorism Act (No. 2) 2005 (Cth),
protest, public comment, elections or law reform, which included a revived sedition law. The
and such laws have arguably fallen out of use. Australian laws, under s 80.2 of the Criminal Code
1995 (Cth), make it a crime to urge another person
treason sedition to use force or violence to a particular end, such as
an attempt or manifest promoting discontent,
intention to levy war hatred or contempt overthrowing the government or the Constitution or
against the state, assist against a government interfering in parliamentary elections. The offences
the enemy or cause harm or leader of the state
to or the death of a head through slanderous use are punishable by up to seven years’ imprisonment.
of state of language; in Australia, The sedition laws received widespread public
sedition includes the criticism as being unnecessary, against the times,
offences of urging force
or violence against the and a danger to freedom of expression, particularly
government in relation to commentary and critique by the media
and the arts.
Treason When a Labor government was elected to power
Treason was a common law crime in England long in November 2007, it immediately commissioned a
before it was first codified by King Edward III in the
Statute of Treasons in 1351. The offence was defined
as acts directed against the sovereign. At that Research 1.3
time, the sovereign was the monarch; this was later
widened to include heads of state such as the Prime The Australian Law Reform Commission’s
Minister and Governor-General. The crime of treason report Fighting Words: A Review of Sedition
was imported into Australian law from the United Laws in Australia contains a history of sedition
Kingdom and later enacted in New South Wales laws and various recommendations about
under Part 2 of the Crimes Act 1900 (NSW), and in reforming Australia’s laws. The report can
the Commonwealth under the Crimes Act 1914 (Cth) be found online at http://cambridge.edu.au/
and later under s 80.1 of the Criminal Code 1995 (Cth). redirect/?id=6231.
Under the New South Wales Crimes Act, the 1351 Act Look at the report and complete the
is expressly continued in force. Treason involves any following tasks.
attempt or manifest intention to levy war against the 1 In what circumstances have Australia’s
state, assist the enemy, or cause harm to or the death sedition laws been used in the past?
of the Governor-General, the Prime Minister or the 2 What were some of the dangers of our
Queen of Australia. Treason was formerly a crime sedition laws that were identified by the
punishable by death. Today, it is punishable by up ALRC?
to 25 years’ imprisonment (New South Wales) or life 3 What are some of the recommendations
imprisonment (Commonwealth). of the ALRC report?
4 Find out which recommendations were
Sedition implemented by the National Security
Dating back to at least 1606, a seditious act historically Legislation Amendment Act 2010 (Cth).
involved any oral or written intention to bring the
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1
CHAPTER 1 THE NATURE OF CRIME
review of the laws by the Australian Law Reform
Commission (ALRC) with a view to amending
them. Among the ALRC’s recommendations were
to remove any reference to the term ‘sedition’ from
the laws and to amend various elements of the
offences and available defences. A majority of these
recommendations were implemented by the National
Security Legislation Amendment Act 2010 (Cth).
Economic offences
‘Economic offence’ includes a wide range of crimes
that can result in a person or people losing property
or sums of money. It is the largest area of criminal
law because it encompasses some of the most
common types of crime. Economic offences fall into
three main categories:
Figure 1.9 Burglary is a common crime.
• crimes against property
• white-collar crime
intentionally take another person’s property without
• computer offences.
their consent and without the intention of returning
it. One of the most common forms of larceny is
Crimes against property
shoplifting. The offence of larceny is punishable by
In New South Wales, there are three main types
up to five years’ imprisonment, depending on the
of offence against property: larceny, robbery and
type of larceny involved.
break and enter.
Robbery is a more serious offence than larceny.
larceny robbery Robbery occurs when the use of force is present in
when one or more people when property is taken the act of stealing goods or when property is taken
intentionally take another directly from a victim,
person’s property without usually forcefully directly from a victim. If the robbery is accompanied
consent and without by the use or threatened use of a weapon, the crime
intention of returning it
is called ‘armed robbery’ and will carry an even
higher sentence.
break and enter Break and enter is another very common
commonly known as burglary, break and enter offences
usually occur when a person enters a home with intent to economic crime, more commonly known as
commit an offence ‘burglary’. The term refers to a series of offences
in the Crimes Act 1900 (NSW) that generally occur
Larceny is the most common property offence when a person or people enters a room or building,
and is more commonly known as ‘theft’ or ‘stealing’. such as a private residence, with the intention of
It is also one of the economic offences that people committing an offence. Usually the offender will
are most likely to fall victim to at some time in their be doing so with the intention to commit another
lives. Larceny occurs when one or more people property offence, such as larceny.
Table 1.3 Number of reported cases of break and enter in New South Wales
Offence 2015 2016 2017
Break and enter dwelling 31 627 29 713 27 776
Break and enter non-dwelling 11 905 11 708 10 564
Steal from dwelling 21 465 21 347 19 503
Steal from retail store 22 077 23 542 24 457
Source: New South Wales Bureau of Crime Statistics and Research, 2015–17
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CAMBRIDGE LEGAL STUDIES HSC
White-collar crime or assets from the tax authorities. Tax evasion can
White-collar crime is a general term given to various incur high penalties when discovered.
non-violent crimes associated with businesspeople
or professionals. White-collar crime is often difficult Insider trading
to detect and can be time-consuming and expensive Insider trading is an offence related to the buying
to investigate. Three of the most common white- and selling of company shares. It occurs when a
collar crimes are embezzlement, tax evasion and person (usually a stockbroker or company director)
insider trading. obtains confidential inside information about a
company that will affect that company’s share price.
white-collar crime embezzlement
a general term for when a person steals
The information will usually relate to the share price
various non-violent money from a business significantly increasing or dropping, which the
crimes associated over a period of time while offender will then take advantage of (for example,
with professionals or they are employed at the
businesspeople, such as workplace by buying or selling their own shares to reap the
embezzlement, tax evasion benefits or avoid the losses).
or insider trading
tax evasion insider trading
Research 1.4
an attempt to avoid paying when a person illegally
the full amount of taxes trades on the share market Search newspapers or go online and find
due by, among other to their own advantage
five articles about white-collar crime. Make
things, concealing or using confidential
underestimating a person information sure they are current and different cases.
or business’s income or Write a short annotation for each of the cases
assets
and attempt to identify the reasons for the
accused committing the offence, the defence
presented by the accused, and any other
Embezzlement
interesting or relevant facts of the cases.
Embezzlement is when a person misappropriates
another person’s property or money that they
have been entrusted with. Embezzlement usually
occurs when an employee steals money from their Computer offences
employer, such as by transferring sums of money to
Computer offences include various crimes related to
the employee’s own account or stealing money from
hacking and unauthorised access or modification of
the cash register or petty cash tin. It might involve
data. The Crimes Act 1900 (NSW) lists a number of
a large-scale corporate embezzlement, sometimes
computer offences, including unauthorised access
with more than one offender, or a small amount
to, modification or impairment of restricted data,
stolen from a local business. Money will often be
and more serious crimes, such as impairment of
embezzled in small amounts at a time, sometimes
electronic communication or unauthorised access
with accounts or records modified in an attempt to
or modification of restricted data with intent
hide the conduct. Embezzled money can be difficult
to commit a serious offence. The more serious
to recover, even when pursued through the courts,
computer crimes can incur a penalty of up to 10
as it may be untraceable or the offender may be
years’ imprisonment.
unable to repay the money they have stolen.
Computer crimes might occur where the offender
breaks through the security firewalls of a company’s
Tax evasion
computer and alters or steals the company’s data.
Tax evasion is a common white-collar crime and
Such crime might result in private financial data
occurs when a person or company tries to avoid
(such as that related to people’s personal bank
paying taxes to the government. Often it involves
accounts or credit cards) being made available to
people fraudulently filling out tax returns stating that
people who could use it unlawfully. An employee
their income is lower than it actually is, or organising
of the target company will sometimes commit
a business or property in a way that hides income
computer crimes. In 2015, there was a lot of global
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1
CHAPTER 1 THE NATURE OF CRIME
Two men sentenced in Australia’s largest insider trading case
The Hon Josh Frydenberg MP
17 March 2015
[Lukas James Kamay and Christopher Russell Hill] were sentenced to jail terms of seven years and
three months, and three years and three months respectively in the Victorian Supreme Court today
for their roles in Australia’s largest insider trading scheme totalling $7 million. The two men were
charged in 2014 with insider trading, money laundering and abuse of public office offences.
This large and complex investigation by the Australian Federal Police (AFP) and Australian
Securities and Investments Commission (ASIC) began after suspicious trading was identified in the
foreign derivatives market.
The AFP and ASIC, working together through the AFP-led Fraud and Anti-Corruption Centre,
discovered an employee of the National Australia Bank was receiving sensitive information from
an employee of the Australian Bureau of Statistics (ABS). They were then using this information to
enter into foreign exchange derivative products and profit from favourable movements in market
prices.
The nine-month illegal trading activity resulted in profits of approximately $7 million dollars, which
was restrained by the AFP-led Criminal Assets Confiscation Taskforce. This money has now been
officially forfeited to the Commonwealth and is to be placed into the Confiscated Assets Account,
from where it will be reinvested into the community.
Today’s sentence is testament to the close working relationship between the AFP and ASIC, and the
dedication and expertise of the specialised teams involved.
The arrest and conviction of an ABS officer for an unauthorised disclosure of statistics is
unprecedented in the ABS’s 110 year history. Today’s sentence demonstrates that such actions which
breach the trust placed in ABS officers will not go undetected or unpunished.
It also sends a clear message about the importance and emphasis that our enforcement agencies
place on maintaining market integrity. Insider trading is a serious offence and a form of dishonesty –
stealing information owned by others and exploiting it for a personal gain. It is also at complete odds
with the expectation of Australian investors about a level playing field, where those with access to
privileged information do not have an unfair advantage over other investors.
In 2014, the Government directed an extra $14 million in funding, which was confiscated from
criminals, to increase the detection and disruption capabilities of law enforcement. This boost was
part of the Coalition Government’s commitment to taking the profit out of crime, and to disrupt and
deter serious and organised crime in Australia by removing the proceeds and instruments of crime.
publicity when hackers broke into the systems the hackers published the customer data in August
of Ashley Madison, an online dating service for 2015.
people already married who want to have an affair.
The hackers said that if the website was not closed Fraud
down, they would make all of the private customer Fraud is another type of economic offence that
data available online. Ashley Madison refused, and can include white-collar crime, property offences
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CAMBRIDGE LEGAL STUDIES HSC
and computer crime. Fraud refers to deceitful or estimated that identity crime cost Australia
dishonest conduct carried out for personal gain. approximately $2 billion.
It is often an element of other offences, such as
fraudulent misappropriation, fraudulent personation Drug offences
or obtaining credit by fraud. Drug offences relate to acts involving prohibited or
restricted drugs. There are many crimes that may
fraud
be associated with drug abuse or addiction, such
deceitful or dishonest conduct carried out for personal
gain as larceny, robbery, break and enter, or prostitution.
Drug offences focus on the movement of the drugs
Fraudulent crimes are becoming increasingly themselves, including, for example, the growing,
relevant with advances in technology, especially selling and use of the drug.
relating to internet use and electronic facilities such People have access to many different types of
as automatic teller machines (ATMs). Common types drugs, both legal and illegal. Legal or unrestricted
of fraud include identity theft, internet phishing drugs include paracetamol and caffeine. Illegal
(fraudulently posing as a legitimate website), or drugs are drugs that have been prohibited by law
requesting funds or account details by email under because law-makers have deemed them unsafe
fraudulent pretences. Nigerian email scams or ATM for general use; they include cannabis and heroin.
skimming devices are two of the most well-known Restricted drugs or controlled substances include
scams. drugs that are available via prescription only, such as
Identity crime might involve a person using cold and flu tablets or anti-depressant medications,
another person’s personal details to apply for credit and drugs that are restricted to particular scientific
cards or loans, or open bank accounts to deposit or medical uses.
fraudulently gained funds. Identity crime is one In New South Wales, the Drug Misuse and
of the fastest growing areas of crime in Australia. Trafficking Act 1985 (NSW) outlines numerous
In 2015–16, approximately 9% of respondents to offences related to prohibited or restricted drugs,
surveys by the Australian Institute of Criminology with some additional offences included in the
had suffered misuse of their personal information in Summary Offences Act 1988 (NSW). The main
the preceding 12 months, with 5% having financial federal legislation relating to drugs is the Customs
losses. The Attorney-General’s Department Act 1901 (Cth), which will most often apply where
there is an international element to the offence,
such as cross-border drug trafficking. The most
Legal Links
common drug offences relate to prohibited drugs
The Australian Government has established and focus on cultivation, production, supply and
a website with information about current trade (trafficking), possession or use of the drug.
fraudulent scams. It can be viewed at http:// Some of the main offences are:
cambridge.edu.au/redirect/?id=6232. • possession of a prohibited drug – the drug must
be in the accused’s custody or control, and
Figure 1.10 Estimated Australian direct and indirect cost of identity crime in 2013–14
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1
CHAPTER 1 THE NATURE OF CRIME
in Bali and sentenced to death on 14 February 2006.
Despite calls for clemency from then Prime Minister
Tony Abbott, Foreign Minister Julie Bishop and tens
of thousands of Australians, on 29 April 2015 Chan
and Sukumaran were shot by a firing squad on the
island of Nusakambangan.
Driving offences
Driving or traffic offences are some of the most
commonly committed offences in New South Wales.
Driving offences are included in both the Road Transport
Act 2013 (NSW) and the Crimes Act 1900 (NSW).
The police enforce and process many driving
offences through the imposition of on-the-spot
fines. Such fines will generally relate to strict liability
traffic offences such as speeding. These offences
are easier to process as they only require the police
Figure 1.11 Andrew Chan and Myuran Sukumaran
to show that the offender committed the act; they
the accused must know about it; this offence do not need to consider the individual’s intention or
includes shared ownership of the drug or state of mind. Traffic offences are regulated by New
simply minding the drug for another person South Wales Roads and Maritime Services (RMS),
• use of a prohibited drug – the intentional which controls the demerit system through which
consumption of the drug by any means (this offenders lose points from their driver’s licences if
will not apply if the use occurs in a medically they are caught committing certain traffic offences.
supervised injecting centre) The most common traffic offences are:
• cultivation – applies to the growth or cultivation • exceeding the speed limit
of a prohibited plant, such as cannabis • driving without a licence or while disqualified
• supply of a prohibited drug – this is a broad • ignoring road signs
offence including offering or agreeing to supply, • driving above the legal blood alcohol limit of
whether or not the actual drug or money really 0.05.
changed hands; it can also include having drugs Serious driving offences are punishable by
in your possession for the purpose of supply, and significantly higher penalties. Such offences will be
single or multiple instances of supply. dealt with through the courts and may result in the
Drug offences often carry severe penalties. imposition of large fines, suspended or cancelled
Users may often face penalties such as attending licences, or imprisonment. Serious offences include
a drug rehabilitation program or complying with a furious or reckless driving, negligent driving
good behaviour bond; some cases may be heard in causing death or serious bodily harm, and failing
dedicated youth or adult drug courts. Suppliers, or to stop and give assistance at an accident involving
those who make drugs, are dealt with much more death or injury. They also include driving under the
severely, as their actions are deemed to have a influence of proscribed drugs or with an excessive
greater impact on the community as a whole. blood-alcohol level.
Drug traffickers face lengthy jail sentences in
Australia, particularly for international trafficking. In Public order offences
some countries (including Indonesia, Singapore and Public order offences relate to acts that are deemed
Malaysia), traffickers may face the death penalty. to disturb the public order in some way, such as a
Australian citizens Andrew Chan and Myuran disturbance in or in sight of a public area. There
Sukumaran were drug ‘mules’ (couriers) arrested are a number of public order offences listed in the
in Indonesia with other members of the ‘Bali Nine’ Summary Offences Act 1988 (NSW) and under Part 3A
drug-trafficking operation. They were put on trial of the Crimes Act 1900 (NSW). Public order offences
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CAMBRIDGE LEGAL STUDIES HSC
Figure 1.12 Driving under the influence of proscribed Figure 1.13 Knives were banned in public in an
drugs or with an excessive blood-alcohol level is attempt to reduce attacks.
considered a serious driving offence and incurs high
penalties.
serious public order offences include explosives and
firearms offences, bomb hoaxes or participation in
are often acts that society deems inappropriate or criminal organisations.
offensive when conducted in public, although they
affray riot
may be perfectly legal or acceptable within the
using or threatening to use similar to affray, but with
confines of one’s own home. violence on another that 12 or more people using
Some of the most common public order offences would cause a reasonable or threatening to use
person present at the unlawful violence for a
are: scene to fear for their common purpose
• obscene, indecent or threatening language or safety
behaviour in public
• possessing a knife in a public place without The use of police discretion in public order
reasonable excuse offences often results in higher incidences of
• obstructing traffic or ignoring a reasonable discrimination, with Indigenous and young people
police direction to ‘move on’ more likely to be targeted.
• damaging public fountains or protected places.
These offences will usually incur a fine or other Preliminary crimes
lesser penalty. Preliminary crimes refer to offences that precede the
However, some public order offences are more commission of a crime or where the crime has not
serious crimes that will usually be heard in court been completed for some reason; for example, it may
and can result in significantly higher penalties. have been interrupted or unsuccessful. Preliminary
More serious public order offences are listed in the crimes fall into two main categories: attempts and
Crimes Act 1900 (NSW). For example, the offence of conspiracy.
affray involves using or threatening to use unlawful
attempt conspiracy
violence on another that would cause a person of an offence where a when two or more people
reasonable firmness to fear for their safety. It is principal crime was plot to commit a crime
attempted but failed together
a charge often laid as a result of a public fight or or was prevented for
brawl where people nearby could have feared for some reason despite the
their safety, and is punishable by up to 10 years’ intention to complete it
imprisonment. Riot is a similar public order offence
but involves 12 or more people using or threatening to
use unlawful violence for a common purpose. Other
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1
CHAPTER 1 THE NATURE OF CRIME
Attempts more frequent change than parliamentary legislative
An attempt to commit a crime is considered an processes allow.
offence and will usually be punishable by the same Regulatory offences include:
penalty as if the crime had taken place. Section 344A • watering the garden despite water restrictions
of the Crimes Act 1900 (NSW) states that ‘any person being in place
who attempts to commit an offence for which a • breaching workplace health and safety
penalty is provided … shall be liable to that penalty’. regulations
However, certain attempts, such as attempted • travelling on public transport without a valid
murder, are dealt with specifically in the Act and ticket
may carry a lower penalty. • lighting a fire or barbecue on a day of total fire
Because the penalty for an attempt is so high, the ban.
prosecution will need to show that the offence was Regulatory offences are usually strict liability
all but completed, or failed for some reason despite offences, so they do not require any intention
an intention to complete it. The accused may have to be proved. Government officers or local law
a lawful reason for the conduct in question or have enforcement officers will usually enforce regulatory
had no real intention of completing the apparent offences. In the case of a corporation or a business,
crime. For example, in R v Whybrow (1951) 35 CAR a breach of a regulatory offence will usually incur a
141 a husband connected electricity to the soap fine or loss of a particular licence; in extreme cases
dish in the family bath in order to electrocute his it may result in more serious criminal charges being
wife. His plan did not work and when his wife came laid. An example is the negligent or illegal disposal
into contact with the soap dish she received only of hazardous materials or a breach in licensing laws
a shock. The court found him guilty of attempted at a pub or club. The fines imposed are usually in
murder because his intention for the act to result in the thousands or hundreds of thousands of dollars.
death was clear, despite the fact that it had failed.
Conspiracy
Conspiracy occurs when two or more people jointly Review 1.3
conspire to commit a crime. The conspiracy is
complete where an agreement (the act) is reached 1 Using offences as examples, describe
between the parties, with the intention also shown some of the differences between
by each person’s explicit agreement to commit offences against the person and
the offence. It may be difficult for a prosecutor to economic offences. What types of crime
prove conspiracy without the aid of a confession or do they include? What are the main
record, such as a signed document or phone tap, effects of the crimes? Why do you think
because the crime allegedly agreed to did not take these acts are deemed criminal?
place. 2 A number of driving offences and
regulatory offences are strict liability
Regulatory offences offences. Using examples, describe
Regulatory offences are usually set out in delegated why you think these crimes are strict
legislation, such as regulations or local laws liability. What are the advantages and
that address a range of day-to-day situations and disadvantages for society of such
standards. They differ from more serious offences offences being strict liability?
set out in statute or common law, which can only be 3 Attempts and conspiracies often carry
modified by parliament (or in some cases the courts), penalties as high as if the crime was
in that they are considered more minor offences with actually committed. Discuss why this
lesser penalties. They are usually determined by might be and describe some of the
the government department or agency responsible possible difficulties in prosecuting an
for that area of law and policy and require faster or attempt or conspiracy.
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CAMBRIDGE LEGAL STUDIES HSC
1.6 S
ummary and indictable
offences
All criminal offences are separated into two
important categories, according to their severity:
summary offences and indictable offences .
Whether the offence is summary or indictable will
be crucial to the way the case is prosecuted and
heard in court.
summary offence indictable offence
a less severe offence that a more severe offence that
is heard and sentenced is heard and sentenced by
by a magistrate in a Local a judge in a District Court
Court or tried before a judge and
jury
Figure 1.14 The Supreme Court of Western Australia
Summary offences are considered less serious
offences and will usually incur lesser penalties
than indictable offences, although they may still Review 1.4
have serious consequences. They will be heard and
1 Describe the key characteristics of a
sentenced in a Local Court before a magistrate and
summary offence and an indictable
not tried in front of a jury. Penalties may range from
offence.
a bond or fine to a jail sentence of up to two years, or
2 Identify some of the advantages and
five if a person is convicted of more than one offence.
disadvantages for an offender of having
Many summary offences are listed in the Summary
their case heard as a summary instead of
Offences Act 1988 (NSW); they include regulatory
an indictable offence.
offences.
Indictable offences are more serious offences,
such as assault, and are generally heard in the
District Court. An initial committal hearing will be
1.7 P
arties to a crime
held in the Local Court, where a magistrate will
Any person who has been involved in any way in
determine whether the prosecution’s evidence is
committing a crime may become a ‘party’ to the
sufficient to go to trial. Indictable offences will then
crime. The level of punishment that a court metes
be heard and sentenced by a judge or, where a ‘not
out to a party is usually determined by that person’s
guilty’ plea is entered, before a judge and jury.
level of involvement in the crime. There are four
Many indictable offences will also be ‘triable
main categories:
summarily’. This means that the accused will be able
• Principal in the first degree – this is the principal
to choose to have the case heard by a magistrate in
offender, or the person who actually commits
the Local Court or a judge and jury in the District
the criminal act. For example, in an armed
Court. Cases heard in the Local Court can have
robbery this would be the person who actually
significant administrative advantages, such as an
pointed the weapon and took the money. The
earlier hearing date, a faster hearing, less formality
principal offender will be directly responsible
and cost, and the possibility of a lesser sentence due
for the crime being carried out and so is likely
to Local Court restrictions on maximum sentences.
to receive the highest sentence.
However, where a ‘not guilty’ plea is entered, the
• Principal in the second degree – this is a person
District Court offers the advantage of a jury trial,
who was present at the crime and assisted or
which might be more inclined to acquit, although
encouraged the principal offender to perform
this would not be guaranteed.
the offence. For example, in the scenario above,
The main differences between summary and
this may be the person who kept a lookout by
indictable offences are outlined in Table 1.4.
the door. The presence need not be immediate
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CHAPTER 1 THE NATURE OF CRIME
Table 1.4 A comparison of summary and indictable offences
Summary offence Indictable offence
Less serious offence tried by a magistrate in the More serious offence (such as murder or rape),
Local Court tried by a judge and jury
Judgement and punishment determined by a Judgement determined by a jury; punishment
magistrate determined by the judge
Charge usually laid by a police officer or a Charge brought by a public prosecutor working for
government officer the state
Punishment usually less severe, such as a fine, Punishment usually imprisonment or a hefty fine
good behaviour bond or community service
physical presence; assisting the principal may
be sufficient, such as by providing instructions Review 1.5
over the phone. The principal in the second
1 Describe the four possible parties to a
degree may be given a lesser sentence,
crime.
depending on the circumstances.
2 Use a real or fictional example of a crime
• Accessory before the fact – this is someone who
to illustrate the different parties to an
has helped the principal to plan or carry out the
offence.
crime. An accessory before the fact is a person
who has helped in planning or preparation
before the actual act is carried out.
• Accessory after the fact – this is someone who
has assisted the principal after the actual act is 1.8 F
actors affecting criminal
committed, such as by driving a getaway car or behaviour
disposing of evidence.
People commit crimes for all types of reasons. One
person may commit the same crime as another
person but for an entirely different reason. People
have studied crime and the reasons or patterns
behind it for centuries. Numerous theories have
been developed to attempt to explain criminal
behaviour, some less convincing than others. The
scientific study of crime and criminal behaviour is
known as criminology.
criminology
the scientific study of crime and criminal behaviour
Some of the main reasons behind a person’s
committing an offence might include psychological
or pathological factors, social factors, economic
factors and political factors. Genetics, according
to one of the more extreme theories of criminal
behaviour, can also have a role in crimes. On the
other hand, some crimes may be committed purely
out of self-interest. This may involve diagnosed
Figure 1.15 Several people can be involved in the one or undiagnosed pathological elements. In some
crime. instances, crimes may be committed simply because
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CAMBRIDGE LEGAL STUDIES HSC
Figure 1.16 Peers can sometimes influence or encourage others to participate in or tolerate a criminal act.
the particular area of law may be out of date and in
need of legal reform. Research 1.5
Psychological factors The AIC is a research and knowledge centre
on crime in Australia that publishes various
Psychological or pathological factors will often
crime-related statistics. Access the latest
be relevant to the commission of an offence, with
edition of Australian Crime: Facts and Figures at
many forms of mental illness affecting a person’s
http://cambridge.edu.au/redirect/?id=6233.
behaviour. These factors will often be important
View the ‘Selected Offender Profiles’ for the
during the criminal process, as early as the time of
most recent year available and answer the
arrest or charge, or relevant to the accused’s state
following questions.
of mind and raised by either prosecution or defence
1 What are the main age and sex profiles
during a criminal trial. Psychological factors
of offenders in Australia?
contributing to the offence will also be relevant
2 What are the main areas of income,
during sentencing, and particular sentencing
non-criminal and criminal, recorded by
programs, such as drug rehabilitation programs,
offenders?
will often focus on the accused’s psychological
3 What percentage of offenders have been
rehabilitation.
arrested in the past 12 months?
Social factors 4 What are the main types of crimes
committed?
Social factors influencing a person’s attitude
towards crime may include their family situation
or personal relationships. The social groups that
people associate with will often influence a person’s
attitudes and views of acceptable behaviour. This
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1
CHAPTER 1 THE NATURE OF CRIME
may be particularly relevant, for example, in the area criminal behaviour for centuries. Offences against
of drug offences or public order offences. In other the sovereign or the state are likely to have political
areas of crime the environment that a person has factors influencing their commission. Some public
been raised in could influence their behaviour as order offences, such as riots, may also have political
an adult. For example, a person brought up in an aspects, especially in situations where public
abusive home may have experienced certain traumas political protests become intense. Examples include
(such as assault or sexual assault, or instances of the annual protests at the G8 Summit, or protests
drug abuse) that may be replayed in their adult life leading up to the 2014 G20 Brisbane Summit. Of
unless the person has effective treatment. course, protesting itself is not an illegal activity; it
is only when it is coupled with public disorder or
Economic factors dangerous behaviour that it becomes a criminal
Economic factors present one of the most substantial matter. Terrorism-related offences are some of the
reasons for the committing of crimes in New South most extreme political offences, where the use of
Wales. People from disadvantaged backgrounds violence or intimidation will usually have explicit
are more likely to commit crimes and front our political aims.
courts than any other group. For example, statistics
released by the AIC show that one-third of male and Genetic theories
one-half of female offenders receive a welfare or Genetic theories surrounding criminal behaviour
government payment as their main source of income. have long been a topic of interest for scientists
Poor education and lack of skills are often closely and criminologists. For example, in the early 19th
related to economic factors, with such criminals century the science of ‘phrenology’ was born.
often habitually unemployed and unskilled. Even Under this approach, criminals had their heads
if someone is gainfully employed, menial or poorly measured to determine whether there were any
paid jobs may increase their likelihood of committing physical characteristics that could allow scientists
an offence. In some instances, offenders may view to pick people as potential criminals. Fortunately,
criminal acts resulting in a financial benefit, such as recent studies have been more advanced. They have
larceny or robbery, as necessary. investigated and compared the DNA of prisoners to
see if there is any one common genetic marker that
Political factors can predict criminal behaviour.
Although not the most influential factors in criminal None of these genetic studies has been
offences, political factors have played a role in conclusive in showing that individuals with certain
genes are more likely than those without them to
commit crimes. This suggests that the external
factors listed above play the greatest role in criminal
activity.
Self-interest
Self-interest will usually play some role in the
committing of a crime, from drug offences committed
for profit or for use, to property offences for profit,
offences against the person for revenge, and white-
collar crimes such as embezzlement or insider
trading. White-collar crimes are good examples of
criminal activity being driven by greed and self-
interest rather than by underlying socioeconomic
or political factors.
Figure 1.17 A police car on fire during a protest at the
G20 Summit in Toronto in 2010. A protest can become
a criminal matter when coupled with public disorder
or dangerous behaviour.
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CAMBRIDGE LEGAL STUDIES HSC
1.9 C
rime prevention: • planning and architectural design, which
situational and social considers the influence of physical
environments upon crime
Understanding the factors and motivations behind
• focused (situational) approaches, which rest on
crime is also important in crime prevention. But one
rational choice theory, which views offenders as
thing is certain – crime has existed as long as laws
actors who weigh up potential gains, risks and
have been in place, and it will continue to do so.
costs.
Society is always looking for ways to prevent
Planning and architectural design, for example,
crime. For example, uniformed police officers
may revolve around security, such as installing bars
patrolling trains, shopping centres and the streets
or an alarm system at home to ward off would-be
may contribute to the prevention of certain crimes,
thieves, or using computer passwords or internet
as do community-based organisations such as
firewalls to deter the theft of data.
Neighbourhood Watch. However, as society
Strategies such as avoiding crime ‘hot spots’
and crime evolve and criminals become more
like poorly lit alleyways and car parks can assist
sophisticated, other methods of crime prevention
in preventing crime. More unusual tactics have
need to be employed. Two main areas of crime
included shopping centres playing classical music
prevention are situational crime prevention and
to deter groups of young people from congregating
social crime prevention.
and causing trouble. Closed-circuit television
(CCTV) cameras are another important method of
Situational crime prevention
crime prevention and have been installed in many
Situational crime prevention aims to make it more
retail stores and in known trouble spots throughout
difficult for criminals to carry out a crime, and
major cities. Although they will not always prevent
therefore stops the crime before it is committed. It
crimes from being committed, people may be
usually involves one of two approaches:
deterred from committing a crime when they know
Figure 1.18 A situational crime prevention measure
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CHAPTER 1 THE NATURE OF CRIME
Figure 1.19 Many councils put on concerts in order to engage and entertain youth.
they are at risk of being impeded or caught. They Social crime prevention
can also provide valuable evidence in the event that Social crime prevention attempts to address the
an offence is committed. underlying social factors that may lead to criminal
Decreasing the rewards of crime is another behaviour. These factors include:
form of situational crime prevention. An example of • poor home environment and parenting
this approach is the use of colour tags attached to • social and economic disadvantage
clothing in shops. The tag sets off a detector at the • poor school attendance
door of the shop if someone tries to walk out with • early contact with the police and other authorities.
the item without purchasing it. If the tag is removed The government spends millions of dollars in
by force, it releases blue dye all over the stolen different areas to try to combat these social problems.
item, rendering it useless. Other methods include For example, funding is put into educational
magnetic strips embedded in items that will set off programs in schools to raise the education levels of
a detector at the shop door. students deemed to be ‘at risk’. Schools, TAFEs and
Other crime prevention initiatives by local private organisations have also formed partnerships
councils have aimed at removing opportunities for to provide better opportunities for students who
crime (for example, designating no-alcohol zones find the school setting inappropriate. Parenting
in an attempt to curb alcohol-related incidents, workshops are run for mothers and fathers who
improving lighting in areas such as car parks and come from disadvantaged backgrounds and lack
walkways, and installing blue fluorescent lights in the skills to empower themselves and their children
public toilets to prevent drug injecting in public to make better life choices.
areas). Youth programs are also run to teach dispute
resolution skills and social skills that will encourage
potential offenders to make better choices about
their actions and their futures. If such early crime
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CAMBRIDGE LEGAL STUDIES HSC
prevention programs can change the course a ever being in a situation where they feel encouraged
potential offender is on, it might prevent them from to commit an offence.
Research 1.6
In September 2015, the federal government announced a $100 million package to fight domestic
violence. This included both situational preventative measures (such as GPS tracking of abusers)
and social preventative measures (such as increased training to enable hospital staff to recognise
the signs of domestic violence).
Use the internet to research this or another crime prevention program, and assess which elements
are situational prevention and which are social prevention.
Review 1.6
1 Describe three factors that might influence a person to commit an offence.
2 Define ‘situational crime prevention’ and provide examples of how this is achieved.
3 Define ‘social crime prevention’ and give some examples of how this is achieved.
Figure 1.20 Minister for Women Michaelia Cash and Prime Minister Malcolm Turnbull look on as 2015 Australian
of the Year Rosie Batty gives a speech during the announcement of the federal government’s domestic violence
prevention package.
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1
CHAPTER 1 THE NATURE OF CRIME
Chapter summary
• A crime is an act or omission committed • Economic offences range from theft to
against the community at large and that is computer hacking and insider trading.
punishable by the state. • Crimes can be punishable even if they do not
• The criminal law is constantly changing. succeed (for example, attempt and conspiracy).
• Criminal offences include an actus reus (guilty • Indictable offences are more serious offences
act) and mens rea (guilty mind), except for strict than summary offences.
liability offences. • There can be more than one party to a crime
• Offences against the person include murder who may be punishable.
and manslaughter, assault and sexual assault. • Offenders commit crimes for different reasons,
• Offences against the state are old laws, influenced by many factors.
but have recently returned to parliament’s • Crime prevention ranges from situational
attention. approaches to broader social approaches.
Questions
Multiple-choice questions 4 Writing a book calling for the violent overthrow
1 Selling alcohol to a minor is best described as of the government might be prosecuted as what
which of the following? type of offence?
A A public order offence A A crime against humanity
B A strict liability offence B A crime against a person
C An offence against the person C A crime against property
D An offence against the sovereign D A crime against the sovereign
2 Involuntary manslaughter is best described as 5 A person who helps a criminal hide out at their
which of the following? house might be charged as:
A A person causing the death of another A an accessory before the fact
human being because they acted in a B an accessory after the fact
criminally negligent way C principal in the first degree
B A person taking their own life D principal in the second degree
C A murder reduced to manslaughter due to
mitigating circumstances Chapter summary questions
D A person causing the death of another and 1 Define what a crime is and describe the
they intended to do so elements of criminal law.
2 Using examples, explain the difference
3 What is larceny? between murder and manslaughter.
A A white-collar crime that is on the increase 3 Explain the difference between summary
B Using force when stealing goods offences and indictable offences and list some
C The act of breaking into a private residence examples of each.
to steal something 4 Describe what regulatory offences are and how
D The intentional taking of another person’s they differ from other crimes.
property without their consent 5 Explain some of the factors contributing to
crime and provide examples of some crime
prevention techniques that might be used to
combat them.
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Chapter 2
The criminal investigation
process
Chapter objectives
In this chapter, students will:
• identify the rights of suspects during the interrogation process
• describe the purpose, use and types of police powers
• discuss the role of technology in investigating crime
• explain the process of a criminal investigation
• describe the different types of evidence collected during an investigation
• communicate the relevant legislation in the investigation process.
Key terms/vocabulary
arrest interrogate
bail interrogation
caution investigate
charge reasonable force
court attendance notice remand
DNA evidence search and seizure
evidence subpoena
inadmissible evidence surety
in situ warrant
Relevant law
IMPORTANT LEGISLATION
Crimes Act 1900 (NSW) Terrorism (Police Powers) Act 2002 (NSW)
Evidence Act 1995 (NSW) Bail Act 2013 (NSW)
Law Enforcement (Powers and Responsibilities) Act
2002 (NSW)
SIGNIFICANT CASES
Darby v Director of Public Prosecutions [2004]
NSWCA 431
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Legal oddity
It is not only the police who are allowed to arrest people.
In New South Wales, you are allowed to arrest another person without a warrant if that person is in the
act of committing a crime, has just committed a crime, or has previously committed a crime but has not yet
been tried. If these conditions are met, you can make a ‘citizen’s arrest’ if you use only reasonable force as is
required to arrest and detain the person, and that you inform the person that you are arresting them and why.
A citizen’s arrest happened on live television in August 2012. Northern Territory politician John Elferink
was giving a press conference when a man walked up behind him and kicked him. Elferink, a former
policeman, grabbed the attacker and detained him, saying ‘I’m apprehending you and I’m waiting for the
police to arrive.’ The man was later charged and fined $2200; it turned out he had been drunk at the time and
had accepted a bet of $200 to walk up and kick Elferink.
Coincidentally, the topic of the press conference during which the assault occurred was changes to
assault laws in the Northern Territory.
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CAMBRIDGE LEGAL STUDIES HSC
2.1 P
olice powers
The law defines what a crime is and whether a
particular act constitutes an offence. But laws alone
would be ineffective without any means to enforce
them. The responsibility for enforcing criminal laws
and ensuring that they are adhered to lies with the
police.
Police form part of the executive arm of
government and so are separate from the legislature,
which makes the laws, and the courts, which make
enforceable legal decisions and judgements. Police
are responsible for the prevention and detection
of crime and for the maintenance of public order.
Importantly, it is the police that are responsible for
ensuring the criminal laws are observed.
The role of the police in the criminal investigation
process is to investigate crimes, make arrests
if necessary, interrogate suspects and gather
evidence against the accused. Police will then
present the evidence for judgement to a court on
behalf of the state, either directly or through a
prosecutor. The challenge for all communities is
to balance the extent of powers required by police
against the rights of ordinary citizens.
investigate arrest Figure 2.1 Crimes in New South Wales will be
for the police, carrying to seize a person by legal
investigated by either the NSW Police Force or the
out research to discover authority and take them
evidence and examine into custody Australian Federal Police (AFP).
the facts surrounding an
alleged criminal incident
be found in other legislation. Police may occasionally
interrogate evidence be given greater powers in specific areas in order to
to formally question a information used to combat particular threats or perceived threats to the
suspect in relation to an support facts in a legal community. Some of the main police powers include
alleged crime investigation or admissible
as testimony in court the power to:
• detain and question suspects
In New South Wales, crimes will be investigated • search property and seize evidence (commonly
by the NSW Police Force (state) or the Australian known as search and seizure)
Federal Police (AFP) (Commonwealth), depending • use reasonable force if necessary to carry out
on whether the offence is a state or a Commonwealth their duties
offence. In some circumstances, offences may be • use particular technologies to assist an
enforced by other government officials or local law investigation, such as phone taps, surveillance
enforcement officers, particularly in the case of or DNA samples
regulatory offences. • arrest and interrogate suspects
The NSW Police Force is given special legal • recommend whether or not bail should be
powers under the law to enable it to carry out its granted.
duties effectively. The majority of these powers
are contained in the Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW), but they can also
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CHAPTER 2 THE CRIMINAL INVESTIGATION PROCESS
2
search and seizure reasonable force
the power to search such force as is reasonably Research 2.1
a person and/or their necessary for the officer
possessions and seize to perform the function;
and detain items that are the officer must honestly The NSW Police Force’s Code of Practice
discovered believe that it was justified for CRIME (Custody, Rights, Investigation,
and not excessive
Management and Evidence) can be found at
http://cambridge.edu.au/redirect/?id=6234.
The special powers can be controversial because
Look at the website and complete the
they will often directly conflict with the ordinary
following tasks.
rights of citizens. For example, if one citizen were
1 Describe the aims of the Code of Practice
to use force to detain another in public, they may
for CRIME (Custody, Rights, Investigation,
be criminally liable for offences such as assault,
Management and Evidence).
false imprisonment and affray. However, society
2 Outline the processes the code covers.
and law-makers deem such police powers lawful
3 Identify the values of the NSW Police
and necessary to ensure that criminal laws can be
Force that the code is based on.
effectively enforced and public order maintained.
4 Find a case where NSW Police Force’s
Police will sometimes need to seek a warrant from
Code of Practice for CRIME (Custody,
a court to be able to use a particular power, such as
Rights, Investigation, Management and
making an arrest or using a phone tap. This is one
Evidence) has been investigated.
type of check that is put in place in order to ensure
that special powers are used appropriately and not
abused.
These programs can assist police work and help
warrant promote a sense of community participation in
a legal document issued by a magistrate or judge
authorising an officer to perform a particular act, such as
solving crimes. For example, Crime Stoppers is a
make an arrest, conduct a search, seize property or use a national community-based program that encourages
phone tap people to report information on unsolved crimes
or unknown offences, or suspicious or unusual
The NSW Police Force also follows a specific activity. It is particularly valuable where people
code of behaviour called the Code of Practice for may want to remain anonymous or not become
CRIME (Custody, Rights, Investigation, Management directly involved in a police investigation. From 2014
and Evidence), which sets out the rights of suspects to 2017, Crime Stoppers New South Wales alone
and the manner in which investigations should reported receiving 91 065 calls. This led to the arrest
be carried out. Police are expected to treat all of 1990 offenders, resulting in 7847 charges being
members of the community in a fair and ethical laid. Crimes will usually be reported by a person
manner regardless of age, sex, religious or ethnic who has knowledge of the crime or someone who
background, or the severity of the crime they are has witnessed the crime. People may be hesitant
suspected of having committed. Where a suspect about reporting a crime for a number of reasons,
believes their rights have been abused, there are such as:
complaints procedures available. The NSW Police • reluctance to become involved or to appear as a
Force is also overseen by the NSW Ombudsman and witness
the Police Integrity Commission. • fear of the consequences if the crime is
reported
• inability to report the crime
2.2 R
eporting crime • the dispute has already been settled with the
Citizens have an important role to play in the offender, such as a brawl or theft by a person
criminal justice system: reporting crime. Community known to the victim
programs have been established to encourage the • the perceived time or administrative burden of
public to report information about criminal activity. reporting a crime.
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CAMBRIDGE LEGAL STUDIES HSC
2.3 I nvestigating crime
Once police receive information about a crime,
they will make a decision about whether to pursue
an investigation or take no further action. These
decisions could be based on the severity of the
offence, the likelihood of success and the available
resources or priorities. Not all reported crimes are
fully investigated and prosecuted, as resources
are often directed to more serious or high-priority
crimes. The investigation process can be long, as
it often includes establishing that a crime has been
committed, finding the offender and gathering
enough evidence to be able to prove a case against
the offender in court.
Gathering evidence
When a crime has been committed, it is the role of the
Figure 2.2 Community programs have been police to gather evidence to further the investigation
established to encourage the public to report
and to support a charge in court at a later date.
information about criminal activity.
This may involve taking witness statements at the
Some crimes are more widely reported than scene of the crime and crime scene detectives
others – property offences such as car theft, for looking at any evidence left behind. This part of the
example. Such crimes may be reported in an attempt investigation will usually need to happen quickly,
to recover the property or because the victims cannot before witnesses forget what they saw or heard and
claim on their insurance unless a police report is before evidence is compromised or interfered with.
filed. Other crimes, such as domestic violence or
charge
sexual assault, more frequently go unreported. It formal accusation of a person of committing a criminal
is estimated that up to 85% of sexual assaults in offence
Australia are not reported. This is often due to the
shame and embarrassment victims feel and their Crime scenes and evidence will be preserved
unwillingness to go through the ordeal of reliving where possible until specialists and detectives
the experience while being questioned in front of a arrive. Evidence is then documented in situ
judge and jury with the offender present. This is so using video and photography, and is meticulously
even though legislation that allows victims in sexual recorded and handled to maintain its integrity as
assault matters to give evidence by CCTV, rather evidence. Evidence that has been contaminated or
than being in the room face to face with the accused, compromised is inadmissible evidence. Organic
has recently been passed. samples such as hair and blood are particularly
vulnerable to being contaminated.
Review 2.1
in situ inadmissible evidence
1 Describe the role of police in society. a Latin term meaning evidence that cannot be
‘in the place’; used to considered by a judge or
2 Outline some of the special powers police describe the place in which jury in court (for example,
are given to perform their duties. a piece of evidence is confessions that were
found or situated obtained by force)
3 Describe what a person can do if they
believe the police have not treated them
It is important that the evidence gathered is
properly.
sufficiently relevant to the case, and is the best
4 Explain how a crime is reported.
possible evidence available to secure a conviction
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CHAPTER 2 THE CRIMINAL INVESTIGATION PROCESS
2
in court. All evidence must be obtained in a proper
and lawful manner, as required by the Evidence
Act 1995 (NSW). If it is not, it may be considered
inadmissible at trial, and that may reduce the chance
of conviction.
The law imposes certain limits on the way police
can gather evidence, and the types of evidence that
can be used, to help ensure that the collection of
evidence is legitimate and does not interfere with the
rights of ordinary citizens. In certain circumstances
strict procedures will need to be followed by
police and in some situations a court warrant may
be required before police can search for or seize
evidence. Some of these limits and procedures are
discussed below.
The types of evidence that may be gathered by
police are varied, and include the oral testimony of
the accused, police and witnesses, as well as physical
evidence such as objects or weapons. Witness
accounts will usually be recorded as statements Figure 2.3 The types of evidence that may be
for future reference. Documents, fingerprints, gathered by police are varied.
DNA samples, tape recordings, video surveillance
and electronic information stored on hard drives technology in law enforcement. Any new technology
can also be tendered as evidence in a case. The needs to be extremely reliable, because if there is any
evidence may be handled by several people during doubt about its reliability it risks being inadmissible
the investigation, including the police who gather in court or, worse, resulting in a wrongful conviction.
it initially and experts who may examine it. Great For example, scientific and technological
care is taken to ensure that the items of evidence advances have now made the processing and
are handled with extreme care and not interfered cross-checking of criminal databases easier and
with in any way. more effective for day-to-day policing. State-of-
Gathering appropriate evidence is a complex the-art fingerprint and DNA databases make it
task. Police officers may be specially trained, or easy for police to share information across states
independent experts may be contracted to assist in and internationally. Police surveillance teams are
gathering or examining evidence. For example, the able to record video and audio footage using digital
police force has specialised fingerprint and ballistics methods, which allow that material to be easily
experts, as well as special teams of crime scene stored and copied. Cybercrime units are often able
investigators who are trained to search for evidence to locate criminals through their internet activity
at the place where a crime took place. In New South and track down people committing crimes such as
Wales, the police investigate the scene first, before computer hacking, internet scams and international
the experts are called in to collect evidence. This pornography rings.
system provides more room for error due to crime DNA evidence is an important advance in
scene contamination. The evidence gathered is technology that has been particularly helpful in
often sent on to specialists to be analysed; they may gaining some difficult convictions in both current
then give evidence in court. and ‘cold’ (unresolved) cases. DNA evidence has
been used in Australia for the past 20 years and has
Use of technology often been relied on in court as a dependable form
Technology is frequently used by the police in order of evidence. It has been a decisive factor in many
to gather evidence and prove charges. However, it cases. Jurors find forensic evidence compelling and
can often be difficult for the law to keep up with new persuasive even if they do not entirely understand
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CAMBRIDGE LEGAL STUDIES HSC
NSW Police take DNA from hundreds of ex-offenders to build crime-solving database
Angela Lavoipierre
ABC website, 24 August 2015
New South Wales police are collecting DNA samples from thousands of criminals with spent
convictions to help solve cold cases and future crimes.
Police are planning to take a further 2000 samples over the next 12 months, adding to 1000 already
collected, to build a comprehensive DNA database.
Civil liberties advocates have criticised the program for casting too wide a net and taking samples
from people who were, in many cases, rehabilitated.
David Porter from the Redfern Legal Centre, a state-wide service, said there had been a dramatic
increase in the use of the practice throughout the year and public resources were being wasted.
‘These are people who aren’t under suspicion of any crime,’ he said.
‘The police are taking the time to seek their DNA, we are taking our time to advise them in relation
to it, the police are taking further time to lodge an application with the local court, the local court is
taking time to hear that application.
‘I’m not sure what evil it is addressing.’
Officers have had the power to request DNA samples from past offenders for seven years, but the
practice has been relatively rare until recently, when it was made a priority.
Under the program police can visit the homes of past offenders to request a DNA sample if they
meet specific criteria.
The offenders must have served prison time for a crime that has a maximum sentence of more than
five years and have been charged with a further offence, although not necessarily convicted.
Former offenders receive a letter stating that if they decline to provide a sample a court order will be
obtained to compel them to.
NSW Police Assistant Commissioner Peter Cotter said the database would help police solve old and
new crimes.
‘Across the whole spectrum of crime types from minor property type crimes where no-one has
been hurt all the way through to the real serious types of crimes such as serious assaults, sexual
assaults,’ Assistant Commissioner Cotter said.
He said the program focused on past offenders who had a ‘fair chance’ of becoming repeat
offenders.
But solicitor David Porter said the program was catching people who, in some cases, had only spent
days in prison.
‘Generally speaking, I think most members of the public would agree that we don’t need to be
performing DNA tests on serial shoplifters,’ he said.
NSW Greens MP David Shoebridge said the program was an attack on civil liberties.
‘At a minimum, we should be having the Ombudsman overseeing this process,’ Mr Shoebridge
said.
‘This has been a very secretive operation by the New South Wales Police that we’ve only really
obtained evidence from anecdotally and that is not good enough when you’re talking such a
substantial use of police resources and such a significant attack on civil liberties.’
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CHAPTER 2 THE CRIMINAL INVESTIGATION PROCESS
2
the evidence being presented. However, the personal space. Search and seizure can also be
presence of DNA at a crime scene only establishes confronting or embarrassing, especially when
that an offender could have been responsible for a conducted in a public place.
crime; it is still up to the police to provide a brief of Police in New South Wales have broad powers
evidence in order to convict the accused beyond a to stop and search any person where they ‘believe
reasonable doubt. on reasonable grounds’ that the person is carrying
anything stolen or used in commission of an
DNA evidence indictable offence or another specified offence, a
genetic material (such as hair, blood and saliva) that can
be used to link a suspect with a crime scene or criminal prohibited plant or drug, or a dangerous article in
offence, or to clear a suspect a public place. Police can then seize and detain
any of these objects, if discovered. Challenges to
In New South Wales, police are allowed to take police searches will often revolve around whether
forensic samples such as blood or mouth swabs to the officer had ‘reasonable grounds’ to believe that
test against evidence found during an investigation. they could conduct the search.
A person must consent to the sample being taken – Police may search anything in a person’s
if they refuse, the police can apply to a magistrate ‘possession or control’, including, for example,
for an order to take the sample by using reasonable a person’s body, bag, clothes and possessions.
force. However, there have been concerns over the Generally, police will ask for a suspect’s cooperation
reliability of DNA testing. DNA testing is a lengthy and ask the suspect to turn their pockets out and
process. An Auditor-General of New South Wales’s remove bulky clothing. Police may also ‘pat down’ a
report in 2012 highlighted the issue of backlogs in suspect’s body to feel for any concealed items. Police
DNA testing. In some criminal cases, the wait is up to can also require a person to open their mouth or
12 months. The backlog in New South Wales ranged shake out their hair if they have reasonable grounds
from 3500 cases to over 10 200. The turnaround for to believe that the suspected object is concealed
more serious offences such as murder, manslaughter, there.
rape and sexual assault is much quicker: one to three Powers of search and seizure and the rules
months. The danger of relying too heavily on DNA around them will differ where they involve, for
technology was highlighted in 2009, when a number example, a search of premises, a search on school
of wrongful convictions were discovered in both grounds or a search of a person already under arrest
New South Wales and Victoria – they had been or in custody, or where a strip search is required. The
caused by errors in the DNA testing process. DNA Law Enforcement (Powers and Responsibilities) Act
samples can also be seen as an effective crime 2002 (NSW) also contains a number of procedures for
prevention strategy as seen in the media article police to follow when conducting a personal search
on page 36 where NSW Police took DNA samples or strip search. These relate to the preservation
from ex-offenders in the hope to solve both cold and of a person’s privacy and dignity during a search,
future cases. informing them of the reason why the search is
necessary and asking for their cooperation.
Search and seizure Limits and process requirements help safeguard
Two of the special powers given to police to assist the rights of ordinary citizens when police are
in investigating crime are search and seizure. gathering evidence, but in New South Wales police
Under Part 4 of the Law Enforcement (Powers and powers of search and seizure are still broad. In
Responsibilities) Act 2002 (NSW), police are given most circumstances reasonable suspicion will not
powers to ‘search people and seize and detain be a difficult standard for police to meet. In some
things’ in certain circumstances. One of the most situations, however, the law will require police
important of these is the power to search and seize to obtain a court warrant before exercising their
without a court warrant. powers. This is outlined below.
Powers of search and seizure are often the
most controversial of police powers because they
represent an intrusion into people’s privacy or
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CAMBRIDGE LEGAL STUDIES HSC
In Court
Darby v Director of Public Prosecutions [2004] NSWCA 431
The case of Darby illustrates some of the difficulties in the legal definitions of a search and reasonable
grounds. In the case, the police were using a sniffer dog, named Rocky, outside a nightclub to detect
drugs. The dog would sniff the air to indicate to the police that drugs were present. In Darby’s case,
the dog sniffed the air, then sniffed ‘bunting and ferretting’ towards Darby, sniffed his genital area
and trousers, and then touched his nose directly on Darby’s pocket and stayed there until police came
over and searched Darby. The police discovered amounts of cannabis and methyl amphetamine on
Darby, who was charged and tried in the Local Court.
The magistrate in the Local Court ruled that the actions of the dog in sniffing so closely and making
contact with Darby constituted an unlawful search. Only police officers are entitled to search and only
when they make a judgement that there are reasonable grounds – the dog was not entitled to make or
capable of making such a judgement. Consequently, the evidence of finding the substances was not
admissible because it was gained following an illegal search.
The case was appealed to the Supreme Court, which ruled that the magistrate had erred in law
and that the dog’s search was not a search and that the police officers’ own search was legal because
it was formed on reasonable grounds – on the basis of the information conveyed by Rocky’s sniffing.
Darby then appealed the judgement to the Court of Appeal, in an attempt to reinstate the
magistrate’s original judgement. Two out of three justices found that Rocky’s actions did not, in fact,
constitute a search.
Use of warrants an investigation or an officer is unable to see a
A warrant is a legal document issued by a magistrate magistrate or judge in person, such as in the middle
or judge and authorises a police officer to perform a of the night.
particular act (for example, make an arrest, conduct New South Wales police are usually required
a search, seize property or use a phone tap). In New to have a valid warrant before they can enter and
South Wales, certain searches or seizures cannot be search any premises, residential or business,
performed without a valid warrant. For example, in without the consent of the occupier or owner.
New South Wales police can use sniffer dogs without The warrant will state the reason for the premises
a warrant to search for illegal drugs at pubs or clubs,
on public transport or at certain public events, but
would require a warrant before using dogs for
general searches in any other public places. This
judicial oversight helps ensure that those special
police powers are used only when appropriate, and
provides an additional layer of protection for ordinary
citizens against misuse of that power. Part 5 of the
Law Enforcement (Powers and Responsibilities) Act
2002 (NSW) sets out the circumstances in which a
search warrant can be used.
When applying for a search warrant, the police
must give substantial reasons or evidence to the
magistrate or judge to justify the granting of the
warrant. Emergency warrants can be obtained Figure 2.4 Police require a warrant to enter and
over the phone when time is of the essence in search a premises without the owner’s consent.
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CHAPTER 2 THE CRIMINAL INVESTIGATION PROCESS
2
An example of a search warrant
(Clause 6(1)(a))
(Law Enforcement (Powers and responsibilities) Act 2002)
This search warrant expires at [Time] on [Date] and must not be used after that time. On [Date],
an eligible issuing officer empowered to grant search warrants under Division 2 of Part 5 of the Law
Enforcement (Powers and Responsibilities) Act 2002 granted this search warrant authorising [Name and
rank] of [Place of work] (the applicant), a police officer, and all other police officers, as follows:
1 To enter the premises known as [Address] being a [Description of premises (e.g. dwelling house)].
2* To search those premises for any of the following things: [List and describe the things to be
searched for with particularity. If space is insufficient, continue overleaf or attach a separate sheet.]
The applicant has reasonable grounds for believing that those things are connected with the following
searchable offences: [Specify relevant offences.]
3* To search those premises in connection with the following child prostitution offence(s): [Specify
the offences under the Crimes Act 1900 (NSW) in relation to which the search is to be made.]
This search warrant may be executed:
(a)* only by day (i.e. between 6am and 9pm)
(b)* by day (i.e. between 6am and 9pm) or night (i.e. between 9pm and 6am).
[* Delete if inapplicable.]
In executing this search warrant a police officer may exercise the powers provided by the Law
Enforcement (Powers and Responsibilities) Act 2002. These include the following powers:
(a) to enter the named premises,
(b) to search for the things (if any) mentioned in this warrant,
(c) to use any persons necessary to assist in the execution of the warrant,
(d) to use such force as is reasonably necessary to enter the premises,
(e) to break open any receptacle in or on the premises for the purposes of the search of the premises if
it is reasonably necessary to do so,
(f ) to search any persons found in or on the premises who are reasonably suspected of having a thing
mentioned in this warrant,
(g) to arrest any persons found in or on the premises whom a police officer suspects on reasonable
grounds of having committed an offence,
(h) to seize, detain, remove from the premises or guard anything mentioned in this warrant and any
other thing found by a police officer in the course of executing this warrant that the police officer
believes on reasonable grounds is connected with any offence,
(i) if the warrant is issued in relation to a child prostitution offence – to make in the premises inquiries
relating to any such offence,
(j) to disable any alarm, camera or surveillance device at the premises,
(k) to pacify any guard dog at the premises,
(l) to render safe any dangerous article found in or on the premises,
(m) to operate electronic and other equipment brought to the premises or at the premises to examine a
thing found at the premises,
(n) to move a thing found at the premises to another place for examination in order to determine
whether it is or contains a thing that may be seized,
(o) to operate equipment at the premises to access data (including data held at premises other than the
subject premises),
(p) to do anything that it is reasonably necessary to do for the purpose of preventing the loss or
destruction of, or damage to, any thing connected with an offence that the police believe on reasonable
grounds to be at those premises, including by blocking any drains at or used in connection with the
premises.
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CAMBRIDGE LEGAL STUDIES HSC
Signed [Insert signature.]
Date
[The eligible issuing officer should sign and date the warrant and initial any corrections. In the case
of a telephone search warrant, in circumstances where the warrant is issued but not furnished to the
applicant (for example, because facsimile facilities are not available), the applicant is to complete this
Form of warrant in the terms dictated by the eligible issuing officer and write on it the date and time
when the warrant was signed.]
being searched and identify what articles are being 2.4 A
rrest, detention and
searched for. When any premises are to be searched, charge
the police must identify to the occupier the reason
for the search and give a copy of the warrant to the
Arrest
occupier. Usually the occupier is present (or they
The police are not allowed to detain a person unless
can nominate a person to be present). Police may
they have good reason to do so. The conditions
videotape the search in order to use it later in court
under which the police may lawfully arrest a person
and to guard against claims of improper procedures
are contained in the Law Enforcement (Powers and
or the planting of evidence.
Responsibilities) Act 2002 (NSW) and include:
Police will usually remove any items relevant to
• catching a suspect committing an offence
the investigation and keep them until after the case
• believing on reasonable grounds that a suspect
is prosecuted. Some items may be returned to the
has committed or is about to commit an offence
rightful owners, and others, such as weapons and
• where that person has committed a serious
drugs, will be destroyed after they have been used
indictable offence for which they have not been
as evidence in a trial.
tried
Police may require a person to attend a police
• possessing a warrant for that person’s arrest.
station if they have been placed under arrest. The
During the course of an investigation the
arrest and charging of an offender is one of the most
police may decide they wish to arrest someone
important steps in the criminal process. If the proper
for the crime they are investigating. Normally, the
procedures are not followed, the validity of the entire
courts will issue the police with a warrant stating
case may be jeopardised.
that the person is being arrested for a particular
offence. The document authorises police or law
enforcement officials to apprehend an offender and
bring that person before the courts. Arrest warrants
Review 2.2 require police to justify their suspicions based on
reasonable evidence – they act as court declarations
1 Create a list of 20 types of evidence that that the suspect has a case to answer in relation to
could be collected in a criminal case. the alleged crime and authorise police to use their
You may like to categorise them. special powers to bring that person before the
2 Describe some of the types of technology courts. Warrants provide a judicial safeguard for
available to police when investigating ordinary citizens against misuse of police powers of
crime. arrest. However, arrest should be used only as a last
3 Discuss the circumstances in which resort, and there is some criticism that arrests can be
a police officer may search a person. applied too early in the investigative process, merely
Do you think the search powers are as a means of furthering an investigation.
necessary or too broad? Explain. In order for the procedure to be legal, the police
4 Describe the use of a search warrant and must state to the person that they are under arrest
how one is obtained. and why they are under arrest. By law, police are
able to use whatever reasonable force is necessary
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CHAPTER 2 THE CRIMINAL INVESTIGATION PROCESS
2
• waiting for a legal practitioner, family member,
guardian of a dependent person or an
interpreter to arrive at the police station
• time required by the suspect to talk to a friend,
relative or lawyer and the time it takes that
person to arrive at the police station
• medical treatment for the person in custody
• refreshment periods such as eating, showering
or toileting
• recovering from the effect of drugs or alcohol
• taking part in an identity parade
• charging procedures.
Usually, as soon as the police have a suspect in
custody, the suspect is questioned. This is known as
Figure 2.5 The arrest of an offender is one of the most interrogation. The police must issue a caution to
important steps in the criminal process. the suspect as soon as practicable after the person
has been detained, to inform them of the maximum
to arrest a person. This may even include shooting period of detention and that they do ‘not have to say
the suspect if, for example, the suspect threatens or do anything but that anything the person does say
the police with a weapon. However, the police are or do may be used in evidence’. The caution must be
required to inform the suspect that they have their given to the suspect orally and in writing.
weapon out and are willing to use it. If a police
interrogation caution
officer does use excessive force, that officer can the act or process of a statement issued by
face charges. questioning a suspect, police to a suspect when
carried out by the they are detained to inform
Once a suspect has been arrested they may only investigating officers the suspect of their rights
be held for a specified period of detention before
they must be either charged with committing an The suspect has the right to silence, which
offence or released. This is discussed further below. means they do not have to answer any of the police’s
questions, whether in the company of their legal
Detention and interrogation representative or on their own. This can make the
The Law Enforcement (Powers and Responsibilities) investigation difficult for the police if they want the
Act 2002 (NSW) sets out the lawful conditions under suspect to fill in gaps in the information in their
which a suspect can be detained for questioning evidence. However, many suspects voluntarily
and for the purpose of further investigation. answer questions.
Police can only detain a suspect for four hours, Any suspect under 18 years of age has the right
by which time that person must be either charged to have a responsible adult present with them at the
or unconditionally released. They may apply to a interrogation. Usually this adult will be the suspect’s
magistrate for a warrant to extend the investigation parent or guardian. If the suspect lies to the police
period up to a further eight hours. During this time, about their age and says they are over 18 and the
the offender would be held in either a police cell or interrogation begins, the evidence they provide is
an interview room. admissible in court.
There are, however, many rest periods within the The interview is recorded on videotape and on
four hours, which might not be included in the total two audiotapes: one for the police records and one
time. Examples of periods of time that might not be for the defendant. These recordings are made to
included are: ensure that all policies and guidelines are adhered
• transport from the point of arrest to a police to by the police and as a record to be used in court.
station
• waiting for the relevant law enforcement
officers to arrive to conduct the interview
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CAMBRIDGE LEGAL STUDIES HSC
suspect will otherwise engage in a terrorist act. This
is also known as preventative detention.
2.5 C
ourt attendance notice,
bail or remand
Once a person is charged, they will be issued with
a summons to appear in court or, if it is a serious
matter, they will be further detained and a bail
hearing will be set.
Court attendance notice (CAN)
A court attendance notice (CAN) is a legal
document that states when and where a person must
appear in court and the charge to which they must
answer.
Figure 2.6 If a person is not charged, they must be
released.
court attendance notice
a legal document that states when and where a person
must appear in court and the charge to which they must
Release or charge answer
At the end of the maximum detention period, the
police must either charge the suspect with a specific A CAN is a legal document that is delivered
offence or release them unconditionally. If charged, personally to the accused by a court-appointed
the police must either release the accused or bring person.
them before a magistrate or authorised officer as Witnesses may receive a subpoena , which
soon as practicable after the end of the maximum requires them to appear in court on a specified date
detention period. Those kept in custody will be to give evidence. Failure to attend the appointed
brought before the court for a bail hearing (see court session could result in the subpoenaed person
below). The exception to this rule is the Terrorism being arrested and charged.
(Police Powers) Act 2002 (NSW), which allows police
subpoena
to make an application to the Supreme Court to a legal document issued by a court, requiring a person
detain a person in custody for a maximum period of to attend and give evidence and/or to produce specified
documents to the court
14 days without charge if they reasonably believe the
Bail
Review 2.3
In more serious matters, the accused, once charged,
1 Describe the circumstances under which may be further detained at the police station and
police can make an arrest. be fingerprinted and photographed. The police are
2 How long can a person be detained required to bring them before a court or authorised
without charge? What do you think officer as soon as practicable for a bail hearing. At
are some of the advantages and a bail hearing, the court or the authorised officer will
disadvantages of a longer or shorter determine whether the accused should be released
detention period? on bail or remain in custody until their trial.
3 What must a police officer do before
bail
commencing an interview? the temporary release of an accused person awaiting
4 Explain the process of what occurs when trial, sometimes on particular conditions such as
lodgement of a sum of money as a guarantee
a person is charged.
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CHAPTER 2 THE CRIMINAL INVESTIGATION PROCESS
2
Bail is the temporary release of an accused show up at a police station on a regular basis to
person awaiting trial. Bail arrangements can take prove that they have not moved out of the area they
many forms. Sometimes there are conditions, such have been restricted to. The accused may also have
as the lodgement of a specified sum of money as to surrender their passport if they have one.
a guarantee that they will appear at court when It is difficult to obtain bail for certain offences,
required. People can also be released on their own particularly violent offences or where there is some
recognisance, which is where they promise to turn risk to the community or risk that the accused
up, knowing that failure to do so will result in them may commit another offence. Where there is any
being fined and arrested. Bail may also be in the indication that the accused might attempt to flee
form of surety, which is where someone else agrees to another state or country, bail is unlikely to be
to put up the money on behalf of the accused as an granted.
assurance that the accused will turn up at court. Restrictions on granting bail for drug trafficking
If the accused fails to show up, the bail money is and serious domestic violence had been added to the
forfeited. Bail Act 1978 (NSW), which was in place until 20 May
2014. This was known as the ‘presumption against
surety bail’, and it meant that it was up to the accused to
in bail, where another person agrees to provide a financial
guarantee that the accused will return to the court for prove to the court why bail should not be refused if
trial in exchange for the accused’s release until that date one of these offences had been committed. Such
presumptions were controversial, as the effect of
Other components of the bail system are the denying bail can be severe, and may result in an
use of wrist- and ankle-monitoring devices and extensive period of custody before a final trial verdict
diversionary services, such as rehabilitation is reached, with the risk that the accused may in fact
programs. In addition, the accused may need to be innocent and eventually found not guilty.
Figure 2.7 Bail often involves paying a sum of money in order to be released until the accused’s trial.
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CAMBRIDGE LEGAL STUDIES HSC
In 2013, the new Bail Act 2013 (NSW) was
introduced, and commenced on 20 May 2014. Research 2.2
The New South Wales Government introduced
the amendments to the Bail Act after community Bail hearings in high-profile cases are often
concerns were raised and Attorney-General John widely publicised in the media. Search the
Hatzistergos gave recommendations in an internal internet for three recent news articles relating
review. The changes were as follows: to separate bail hearings in New South Wales
• Bail will be refused if the accused person is and answer the following questions.
deemed an ‘unacceptable risk’. 1 Was bail granted in the case?
• Determining bail will include new risk factors, 2 Were any conditions set on granting bail?
such as the views of victims, and whether the 3 Was there an amount of money required
accused has criminal associations or a history for bail and, if so, how much?
of non-compliance with court orders. 4 Do you think the decision on bail was fair
• A previous bail decision cannot be reviewed in the circumstances?
purely on the basis of the new Bail Act – this is
not, by itself, a ‘change of circumstances’.
The need for law reform in the area of bail was
Remand
further raised in the two recent criminal cases of the
If bail is denied and the magistrate or authorised
murder of Jill Meagher in Melbourne and the Sydney
officer determines that the accused should remain
Lindt Café siege.
in custody until trial, the accused will be held on
Recent independent and parliamentary papers
remand in police custody or at a remand centre.
have heavily criticised the presumption against
Remand is usually sought for people who have
bail legislation. The Bureau of Crime Statistics and
committed particularly violent crimes, dangerous
Research (BOCSAR) has identified that in 2018 the
criminals, repeat offenders or those thought to be
prison population rose by 4% to 13 798 prisoners.
a flight risk.
The increase is attributed to the growth of the
number of prisoners on remand (kept in custody). A remand
growing number of children and young adults have a period spent in custody awaiting trial
also been affected by the changes to bail laws, with
an increasing number being remanded rather than The security level of the facility where they are
being released on bail. The BOCSAR report found to be detained is also determined by the above
that the average daily number of young people in factors. The accused will remain in detention until
custody was 434 in 2009 whereas it has decreased the trial date, then throughout the trial and until they
to 284 for the 2017/18 financial year. This still means are sentenced. If the accused is found guilty and
that an alarming number of our youth are spending convicted, the time the offender has spent in remand
time in an unsavoury social environment, which is usually taken off the total time of their sentence
could be to the detriment of their adult futures. and referred to as time already served.
Review 2.4
1 Explain what a court attendance notice is and describe what happens if someone ignores one.
2 Describe the purpose of bail.
3 Explain what happens to bail money if the accused fails to show up in court.
4 Explain how remand is different from imprisonment.
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CHAPTER 2 THE CRIMINAL INVESTIGATION PROCESS
2
Chapter summary
• The community is responsible for reporting • Police can arrest a person with a warrant or for
crimes. specified reasons.
• Police are responsible for investigating crimes, • A person can only be detained for four hours
making arrests and gathering evidence against without charge; that can be extended, but only
suspected offenders. with court approval.
• Police are given special legal powers to carry • Police must caution a detained suspect before
out their duties. conducting an interview.
• Evidence may include many types of • Everyone has the right to legal representation
information. during a police interview.
• Processes must be followed by police in • Interviews are videotaped and audiotaped.
collecting evidence and investigating crimes. • A person charged with an offence is either let
• All suspects are to be treated fairly. go on bail or held on remand until the trial.
• Police have powers to search and seize on
reasonable grounds.
Questions
Multiple-choice questions 4 Which of the following is a factor in why
1 A court attendance notice is best described as: someone might not be held on remand?
A a legal document which compels you to A They are a flight risk.
attend court to answer charges B They committed a violent crime such as
B a legal document permitting the search of murder.
your business C They committed a non-violent crime such as
C a legal document between two parties larceny.
issued after a divorce is finalised D They are a repeat offender who may go and
D a legal document signed by you agreeing to commit another offence straight away.
adhere to bail conditions
5 How long may police hold a suspect without
2 Which of the following is not likely to be charge for if they do not have an extension from
considered evidence? a judge/magistrate?
A Drugs A Four hours
B A gun B Eight hours
C Witness testimony C Twelve hours
D None of the above D Indefinitely
3 Which of the following must police usually have Chapter summary questions
a search warrant for? 1 Outline some of the powers police have to
A Your home conduct an investigation.
B Your car 2 Describe when police are allowed to search a
C Your bag person, a person’s bag and a person’s home.
D You 3 Explain how police go about obtaining a warrant.
4 Describe the different forms bail can take.
5 Outline the changes in the current Bail Act and
what effect it will have for future criminals.
6 Discuss the reasons why a person may be held
on remand rather than given bail.
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Chapter 3
The criminal trial process
Chapter objectives
In this chapter, students will:
• identify the different levels of courts in the New South Wales judicial system
• describe the different types of legal representatives
• discuss the importance of legal aid
• explain the different types of pleas available to a defendant
• describe the use of evidence in a criminal trial
• communicate the purpose and role of a jury in the adversarial system.
Key terms/vocabulary
acquittal inquisitorial system
adversary system involuntary behaviour or automatism
appeal legal aid
appellate jurisdiction magistrate
beyond reasonable doubt mental illness or insanity
burden of proof mistake
challenge for cause original jurisdiction
charge negotiation peremptory challenge
committal proceedings plea
consent police prosecutor
coroner provocation
coronial inquest public defender
court hierarchy public prosecutor
diminished responsibility self-defence or necessity
duress standard of proof
Relevant law
IMPORTANT LEGISLATION
Judiciary Act 1903 (Cth) Children’s Court Act 1987 (NSW)
Supreme Court Act 1970 (NSW) Evidence Act 1995 (NSW)
District Court Act 1973 (NSW) Jury Amendment (Verdicts) Act 2006 (NSW)
Jury Act 1977 (NSW) Local Court Act 2007 (NSW)
Legal Aid Commission Act 1979 (NSW) Coroners Act 2009 (NSW)
SIGNIFICANT CASES
R v Williamson [1972] 2 NSWLR 281 Dietrich v The Queen (1992) 177 CLR 292
R v Camplin [1978] AC 705 EPA v Gardner (1997) NSWLEC 169
R v Zecevic (1987) 162 CLR 645 Wood v R [2012] NSWCCA 21
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Legal oddity
An attempted robbery at a Townsville petrol station failed to eventuate due to a few errors in judgement by
the would-be robber.
The criminal released a strong metal chain attached to the back of a stolen truck. The chain was dragged
into the petrol station and attached around an ATM. The purpose was to then drag it out but the chain broke
once pressure was applied.
Initially the criminal did not notice that the chain had broken and drove off with it dangling behind the
truck.
Eventually he did notice that he had failed in his quest and decided to go back and try again. However,
this time he parked too far away and the chain wasn’t long enough. He finally gave up and drove away.
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CAMBRIDGE LEGAL STUDIES HSC
3.1 C
ourt jurisdiction: criminal In Australia, there are different streams of courts
courts depending on the state or territory the offence relates
to; for example, an offence under New South Wales
Once a formal charge has been laid against a person,
law will be heard in the New South Wales court
a hearing or trial of the accused will need to take
hierarchy.
place in an appropriate court. There are many courts
If the offence relates to an offence under
that have jurisdiction to hear criminal offences. The
Commonwealth law, the offence will usually be
right court for the matter to be heard will depend on
prosecuted by the Commonwealth Director of Public
a number of issues, including:
Prosecutions in the courts of the state where the
• the seriousness of the matter, in particular
offence occurred. The Judiciary Act 1903 (Cth) gives
whether it involves a summary offence or an
state and territory courts the power to hear federal
indictable offence
criminal cases, and federal summary or indictable
• whether the matter is being heard for the first
offences will be treated in a manner similar to the
time or involves an appeal
way they are treated under state laws. Some federal
• the nature of the offence – some courts or
offences may also be heard in federal courts – the
divisions within courts have authority to hear
Federal Court of Australia has summary jurisdiction
particular types of offences
in some criminal matters.
• the age of the accused, particularly where the
Figure 3.1 summarises the court hierarchy for
accused is a child or young person under 18
New South Wales, the Australian Capital Territory
years old
and federal courts.
• the type of hearing (for example, whether it is a
The authority for a court to hear a matter for the
bail hearing, committal hearing or trial)
first time is known as the court’s original jurisdiction.
• whether the alleged crime is an offence under
A court’s original jurisdiction will usually be
state law or federal law.
defined in the relevant court Act; for example, the
The case will then be heard at the appropriate
Local Court Act 2007 (NSW). The authority to review
place in the court hierarchy. The court hierarchy
matters on appeal from another court is known as
refers to the system of courts, from the lower courts,
the court’s appellate jurisdiction.
which deal with less serious offences such as
summary offences, to intermediate and superior
original jurisdiction appellate jurisdiction
courts, which deal with more serious indictable the authority for a court to the authority for a court to
offences as well as appeals from lower courts. hear a matter for the first review matters on appeal
time from another court
appeal court hierarchy
an application to have the system of courts within In the Australian court hierarchy, a higher court
a higher court review a a jurisdiction, from lower
can usually review a decision of a lower court, but
decision of a lower court courts to intermediate and
higher courts a lower court cannot review a decision of a higher
High Court of Australia
Federal superior courts State and territory superior courts
Federal specialist courts State intermediate courts
Non-family Family law
law matters matters
Federal lower courts State lower courts
Figure 3.1 State/territory and federal court hierarchy
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CHAPTER 3 THE CRIMINAL TRIAL PROCESS
court. The arrows in Figure 3.1 show the specific • intermediate courts – the District Court of New
courts that can hear appeals from each of the lower South Wales 3
courts. • superior courts – the Supreme Court of New
Each court is responsible for various duties South Wales and the High Court of Australia.
within the legal system. Over the next few pages Each court has its own jurisdiction, or area over
the role of the various courts in criminal matters is which it has authority to hear matters. Minor matters
considered in more detail. such as summary offences are dealt with lower in
the court hierarchy; the higher courts are reserved
for more serious matters, indictable offences, and
Review 3.1
appeals from the lower courts. The Australian
1 Outline some of the considerations that Capital Territory does not have an intermediate
will determine which court a case will be court but it is otherwise similar.
heard in.
2 Define the term ‘court hierarchy’. Lower courts
3 Define the terms ‘original jurisdiction’ Local Court of New South Wales
and ‘appellate jurisdiction’. Outline the The Local Court is the first point of call for most
difference between the terms. criminal matters in New South Wales and as such
has original jurisdiction. It also has jurisdiction to
hear civil law matters up to the value of $100 000.
The Local Court Act 2007 (NSW) sets out the
State and territory courts jurisdiction and operation of the Local Court of New
The criminal court system in New South Wales South Wales.
operates under the following hierarchy: The Local Court sits at many different locations
• lower courts – including the Local Court of across New South Wales and deals with the
New South Wales, the Coroner’s Court and the majority of criminal prosecutions in New South
Children’s Court Wales. It was previously known as the Court of Petty
Figure 3.2 Cooma Court House, New South Wales
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CAMBRIDGE LEGAL STUDIES HSC
Sessions because it dealt with what used to be Coroner’s Court
known as ‘petty’ or minor crimes. The Local Court The Coroner’s Court is a local court that deals with
has jurisdiction to deal with summary offences and the manner and cause of a person’s death, and
conducts committal proceedings to determine with fires and explosions where property has been
whether or not indictable offences are to be heard damaged or a person has been injured. The powers
in the higher district and supreme courts. It can also of the State Coroner’s Court of New South Wales are
hear indictable offences that are triable summarily if outlined in the Coroners Act 2009 (NSW).
the accused consents. The role of a coroner is to ascertain the deceased
There is no jury in the Local Court. Local Court person’s identity, and the place, date, manner and
matters are tried solely in front of a magistrate. medical cause of death. Information from medical
In New South Wales, a magistrate is a qualified practitioners and police personnel as well as
Australian lawyer or judicial officer who has been evidence from the scene is usually evidence that is
appointed as a magistrate by the Governor of New relied upon. The Coroner’s Court may investigate
South Wales. The magistrate is referred to as ‘Your disappearances, deaths where a medical certificate
Honour’ by parties in court and by court staff. has not been issued, or deaths that occur in unusual
or suspicious circumstances, such as deaths
committal proceedings magistrate occurring:
proceedings in which a a judicial officer in the • in a violent or unnatural way
magistrate determines if Local Court; in New South • suddenly and with unknown cause
there is enough evidence Wales they are appointed
for a case to proceed to by the Governor • after an accident (up to one year and one day)
trial in a higher court that may have contributed to the death
• in police custody or in a prison or detention
In criminal matters, the Local Court is where centre
bail hearings are usually held and where committal • while receiving care or medical treatment,
proceedings for serious offences are held. In a or within 24 hours of administration of an
committal proceeding, a magistrate will hear the anaesthetic.
prosecution’s evidence and determine whether it is
sufficient to support conviction by a jury. If satisfied coroner
a judicial officer appointed to investigate deaths in
that there is a case to answer, prima facie (a Latin unusual circumstances
term meaning ‘establishing the facts’) has been
established and the accused will be ordered to
stand trial in a higher court; if not, the accused is A coronial inquest into a death is a court
discharged. hearing where a coroner looks at information to help
The Local Court offers several advantages over determine the manner and cause of a death. The
the higher courts. Criminal matters dealt with in the coroner can call witnesses to give evidence at the
Local Court will usually be heard and determined inquest. A coroner may also conduct a post-mortem
much faster than in superior courts, as fewer examination of a body (an autopsy) to help determine
formalities are required. The cost of a hearing will the time and/or cause of death. This may involve
also be significantly lower for the accused and for uncovering physical evidence, such as bullets, and
the state. However, the Local Court does not have taking samples to test for DNA or to produce drug
jurisdiction to conduct jury trials or to hear appeals. and toxicology reports, for example. The findings of
The Local Court also has limits on the sentences that the coroner will often be used as evidence in a later
it can pass. For these reasons, more serious matters criminal or civil trial. A coroner cannot find someone
will be tried in higher courts to ensure that justice guilty of a crime. However, if a coroner comes to
for all parties is achieved. believe, during the coronial inquiry, that a known
In the Australian Capital Territory, the equivalent person has perpetrated an offence, they can refer
of the Local Court is the Magistrates Court, which the matter to the Director of Public Prosecutions
has similar jurisdiction and characteristics. (DPP). It is then up to the DPP to decide if any
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CHAPTER 3 THE CRIMINAL TRIAL PROCESS
Research 3.1 Review 3.2 3
Coronial inquests sometimes attract a lot of 1 Outline the types of cases that can
media attention – particularly in high-profile be heard by the Local Court. Find an
accidents, deaths or disappearances. Search example of a Local Court case.
the internet for a recent coronial inquest that 2 Identify the circumstances under which
received publicity and answer the following the Coroner’s Court may inquire into a
questions. person’s death.
1 Outline what death or incident the 3 Describe some of the characteristics of
inquest related to. the Children’s Court and outline its role.
2 What were the findings by the coroner?
3 Identify any consequences of the inquest
(for example, any criminal prosecutions
or changes in the law). Intermediate courts
District Court of New South Wales
The District Court of New South Wales is the
criminal proceedings will be brought against that intermediate court in the state’s court hierarchy. It is
person. established under the District Court Act 1973 (NSW).
The District Court is a trial court where matters
coronial inquest can be heard before a judge and a jury. This is in
a court hearing conducted by a coroner to help determine
the manner and cause of death contrast to the Local Court where matters are heard
by a magistrate alone. The District Court also has
an appellate jurisdiction, which means it can hear
Children’s Court appeals of decisions made by lower courts such
The Children’s Court of New South Wales was as the Local Court and the Children’s Court. The
established in 1987 under the Children’s Court Act District Court sits at most large population centres
1987 (NSW). The Children’s Court deals with cases in New South Wales and has jurisdiction to hear
connected with the care and protection of children serious criminal matters, as well as civil matters up
and young people, and also with criminal matters to $750 000 (or higher in some cases).
concerning children and young people who are In its criminal jurisdiction, the District Court
under the age of 18 years, or who were under 18 at may hear all indictable offences except murder and
the time of an alleged offence. treason, which can only be heard by the Supreme
One of the most important characteristics of the Court of New South Wales. District Court trials will
Children’s Court is that it is a closed court. This often involve a jury of 12 people who are chosen by
means that when there is a Children’s Court session the court. The jury will decide whether the accused is
the general public is prohibited from viewing the guilty or innocent, based on the evidence presented
proceedings. This is in order to protect the identity in the trial. The judge will control proceedings and
of children and young people. The Children’s Court decide on questions of law. If the accused is found
is presided over by a magistrate, and has no jury. guilty by the jury, the judge will also determine the
Children’s Court magistrates have specialised accused’s sentence.
training in dealing with youth matters, and The types of matters dealt with by the District
proceedings, formalities and available sentences Court include:
are different from those applicable in other courts. • offences against the person such as
The Children’s Court and issues relating to young manslaughter (but not murder), sexual or
offenders are considered in more detail in Chapter 5. indecent assault, assault occasioning actual
bodily harm and assault of police officers
• property offences such as larceny, robbery,
embezzlement, break and enter, and steal
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CAMBRIDGE LEGAL STUDIES HSC
Figure 3.3 A range of offences is heard in the District
Court, including drug offences.
• drug offences such as supply, manufacture or
production of a prohibited drug
• driving offences such as dangerous or negligent
driving causing death or serious bodily harm.
The District Court involves significantly more Figure 3.4 The Supreme Court of New South Wales
formality than the Local Court, and thus matters will
usually take longer to be heard and result in greater courts. Criminal appeals from the Supreme Court
cost to both the accused and the prosecution. are heard in the Court of Criminal Appeal.
Superior courts Court of Criminal Appeal
Supreme Court of New South Wales The Court of Criminal Appeal is the appellate
The Supreme Court of New South Wales hears the branch of criminal jurisdiction of the Supreme Court
most serious criminal cases, as well as civil matters of New South Wales in relation to criminal cases. It
beyond the jurisdiction of the Local and District is the state’s highest court for criminal matters. The
Courts. The Supreme Court is constituted under Court of Criminal Appeal can hear appeals from a
the Supreme Court Act 1970 (NSW) and sits nearly person convicted or sentenced by a District Court
exclusively in Sydney. However, matters are also or Supreme Court judge. Criminal appeals can also
heard in regional centres if the need arises. be brought from the Land and Environment Court.
Matters that are heard by the Supreme Court in Appeals in the Court of Criminal Appeal are
its original criminal jurisdiction include: usually heard by three Supreme Court judges, with
• murder, manslaughter and attempted murder the majority view prevailing. Where significant legal
• major conspiracy and drug-related charges issues are being considered this may be increased
• Commonwealth prosecutions for serious to five judges. Grounds for appeal to the Court of
breaches of the Corporations Law. Criminal Appeal might include a question of law,
Criminal matters in the Supreme Court are heard a question of fact, or a challenge to the severity or
by a judge and a jury of 12 people selected by the adequacy of a sentence.
court. Matters in the Supreme Court have the highest The Court of Criminal Appeal is the highest court
level of formality, with cost, time and consequences of appeal in criminal matters in New South Wales.
being much greater. The High Court of Australia has jurisdiction to hear
The Supreme Court also has appellate jurisdiction appeals from state and territory supreme courts, but
to hear criminal appeals from lower New South Wales only where it grants special leave to appeal.
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CHAPTER 3 THE CRIMINAL TRIAL PROCESS
Land and Environment Court
The Land and Environment Court is the court that
Legal Links 3
looks after interpreting and enforcing environmental
The Justice website is maintained by the New
law in New South Wales. The Land and Environment
South Wales Attorney-General’s Office and
Court has the same status as the Supreme Court.
contains information and links on aspects
Although it mainly deals with civil and administrative
of New South Wales law. It contains links to
disputes related to environmental planning (for
the official websites of all New South Wales
example, zoning of parklands), it also has criminal
courts listed in this chapter (see http://
jurisdiction to hear some environmental offences,
cambridge.edu.au/redirect/?id=6235).
such as illegal polluting or dumping (for example, the
The Australian Capital Territory
case of EPA v Gardner (1997) NSWLEC 169, in which
government provides information on that
the operator of a caravan park pumped over 120 000
territory’s courts and tribunals (see http://
litres of raw sewage into the Karuah River). The
cambridge.edu.au/redirect/?id=6236).
court’s jurisdiction is summary only, which means it
The Commonwealth Attorney-General’s
can only hear cases without a jury. Prosecutions are
website has information about the federal
usually brought by the NSW Environment Protection
legal system and courts (see http://cambridge.
Authority (EPA).
edu.au/redirect/?id=6237).
Federal courts
As mentioned earlier, Commonwealth offences will
usually be heard in state or territory courts, which South Wales criminal matters, this will relate to
can exercise federal criminal jurisdiction under the appeals from the Court of Criminal Appeal of the
Judiciary Act 1903 (Cth). A limited number of criminal Supreme Court of New South Wales. However, this
proceedings can be heard in the Federal Court of is not an automatic right. Someone who wishes
Australia. to appeal to the High Court from a state Supreme
Commonwealth offences will be prosecuted by Court must seek leave to persuade the High Court
the Commonwealth Director of Public Prosecutions. in a preliminary hearing that there is a good reason
The most common prosecutions for Commonwealth for the appeal to be heard.
offences are drug importation, money laundering, The High Court also deals with cases concerning
offences under corporate law, and tax or social the interpretation of the Australian Constitution and
security fraud. Commonwealth criminal offences are
classified as either summary or indictable and will
be heard and sentenced in the corresponding state
or territory court for those offences. The procedure
of the relevant state or territory will apply.
High Court of Australia
The High Court of Australia is at the peak of the
Australian court hierarchy. It is mandated by s 71 of
the Australian Constitution and is constituted under
the Judiciary Act 1903 (Cth).
The High Court has original jurisdiction (laws
and cases originally filed in the High Court) in
limited Commonwealth matters. This is because
most new legislation and changes in this area come
directly from the Commonwealth Parliament. The
High Court has appellate jurisdiction to hear appeals
from all state and territory supreme courts. In New Figure 3.5 The High Court of Australia is located in
Canberra.
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CAMBRIDGE LEGAL STUDIES HSC
the constitutional validity of laws, which may include (‘adversaries’), each presenting its own position,
criminal laws. with an impartial judge or jury hearing each side
The High Court will only hear matters on appeal and determining the truth in the case. The adversary
when it grants special leave to the appellant to do system applies to both civil and criminal matters, but
so. Special leave is granted for questions of law of it is in relation to criminal law that the adversarial
public importance, conflict between courts or in the system is often most controversial. In criminal law
interests of the administration of justice. the adversary system pits the prosecution against
the accused, who will usually be represented by a
lawyer. The judge, or jury in indictable offences,
Review 3.3
acts as an impartial observer who determines the
1 Describe the types of cases that can accused’s guilt or innocence based on the evidence
be heard in the District Court. Outline and arguments presented.
a recent District Court matter heard in Australia, like many other countries, inherited the
your region. adversarial system of law with the English common
2 Explain the types of cases that can be law system. An alternative to the adversarial system
heard by the Supreme Court and the is the inquisitorial system. This is a system of law
Court of Criminal appeal. Find an example in which a judge or group of judges plays a role in
of each. investigating the case or calling for evidence or
3 Explain the role of the High Court of testimony that has not been requested by either
Australia in the court hierarchy. Create side. Versions of the inquisitorial system are used
a case study of a recent High Court in many other countries, as well as in some areas
precedent. of Australian law (in coronial inquests and royal
commissions, for example).
adversary system inquisitorial system
3.2 T
he adversary system a system of law where two a system of law where two
opposing sides present sides present their cases
The criminal justice system in Australia is based on their cases to an impartial to a judge who directs
an adversarial system of law. The adversary system judge or jury the cases and can call for
relies on a two-sided structure of opposing sides particular evidence
Supporters of the adversarial system often claim
that it is a fairer system because it allows each party
an equal opportunity to present its case and is less
prone to abuse or bias by the official determining
the case. Cases are carefully prepared before trial
and lawyers have an equal opportunity to present the
truth. The jury is an impartial observer, uninfluenced
by outside factors. Critics of the system argue
that in many cases the competing sides are not
equal before the law, with potential imbalances
in resources, skills or knowledge. Even where
additional evidence or testimony would assist the
case, the judge or jury is not in a position to request
this. The jury system has also been criticised due
to the complex nature of cases. Some suggest that
the cases might be misunderstood due to a lack of
Figure 3.6 The Royal Courts of Justice in London. general understanding of the evidence presented
Australia inherited the adversarial system of law with and because the reasons for the jury’s decision are
the English common law system. not disclosed to either side.
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CHAPTER 3 THE CRIMINAL TRIAL PROCESS
3.3 L
egal personnel in a Judges
criminal trial Judges are the judicial officers who preside over the 3
Criminal trials often involve a large number of intermediate and superior courts – the District Court
participants, both behind the scenes and in the and the Supreme Court. Judges oversee proceedings,
courtroom itself. They are involved in various aspects maintain order in the courtroom and ensure that
of the case from the beginning of the investigation the procedures of the court are followed. Judges
through to the end of the trial. The non-legal will make decisions about points of law and give
participants in a criminal trial include the accused, instructions to the jury to make sure they understand
any witnesses called to testify and the police the proceedings and the evidence presented to them.
responsible for investigating the case. Most criminal Once the jury has reached a verdict, the judge will
trials will also involve a number of legal personnel hand down sentences and rulings. In some cases the
some of the most important are outlined below. judge will sit without a jury – in such cases the judge
will determine the verdict, either guilt or innocence.
Judges and magistrates
Judges and magistrates are judicial officers who Magistrates
preside over court cases and make determinations in Magistrates are the judicial officers who preside over
court based on the evidence presented. Judges and hearings in the Local Court. Specialised magistrates
magistrates are legally qualified professionals who also hear cases in the Children’s Court. In criminal
have considerable experience in the law. They act law, magistrates will hear summary proceedings in
as the umpires of court cases, making sure that the the Local Court, as well as indictable offences triable
rules are followed and that a fair trial is carried out summarily where the accused has consented to
(procedural fairness). Whether a case is heard by a the case being heard by a magistrate. Magistrates
judge or a magistrate will depend on the jurisdiction oversee proceedings and make a determination
under which the crime which the suspect commits. on the basis of the evidence presented. Once a
1
8
5
6
4
2
7
10
Figure 3.7 Court cases involve a number of key participants, including 1 judge or magistrate; 2 prosecutor
(for example, police prosecutor or Director of Public Prosecutions); 3 accused’s barrister or solicitor; 4 judge’s
associate; 5 court reporter; 6 accused; 7 media; 8 witness; 9 jury; and 10 public gallery.
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CAMBRIDGE LEGAL STUDIES HSC
magistrate has found an accused person guilty, in the criminal justice system. It is their job to
they will also pass sentence. Magistrates will also prosecute the case using the evidence gathered
conduct committal proceedings for indictable by the police. In court their role is to ask questions
offences to be tried, and will usually hear bail of the witness on the stand and draw out the truth
proceedings. from the evidence and testimony given by the
witnesses.
Prosecutors The DPP does not investigate crime – that is
In criminal trials, the state or ‘Crown’ is represented the responsibility of the NSW Police Force – but it
by a prosecutor who brings the action against the prosecutes cases once sufficient evidence has been
accused. It is the prosecutor’s role to prosecute the gathered. The DPP operates independently of the
offender in a court of law and obtain an appropriate government in deciding which matters to prosecute.
form of sanction or punishment for the offence. It reviews cases proposed by the police to determine
There are two types of prosecutors in criminal trials: if there is enough evidence to succeed. The DPP will
police prosecutors and public prosecutors. prosecute a case where it is in the public interest
to do so. The independence of the DPP from
police prosecutor public prosecutor
a NSW Police Force officer a legal practitioner government is vital to ensure that cases selected
trained in prosecution, employed by the Director for prosecution are chosen on their merits and not
usually used to prosecute of Public Prosecutions,
because of political interference or public pressure.
summary offences usually used to prosecute
indictable offences The decision to prosecute will depend on many
factors, including:
• whether the evidence is sufficient to establish
Police prosecutors the elements of the offence
Each criminal investigation begins with the police • whether the evidence is sufficient to gain a
and they are an essential part of any criminal conviction by a reasonable jury
case. The police must undertake an intensive and • certain discretionary factors that relate to the
exhaustive investigation of the matter and gather public interest. These include the seriousness
all the evidence and information that will be used at of the offence, the special circumstances of
trial to form the case against the accused. The police the offence, accused or victim, the need to
will often also be required to give testimony at the maintain public confidence, the likely length
trial to aid the prosecution’s case. and expense of the trial, and the likely outcome
For summary offences in the Local Court and and consequences of a conviction.
Children’s Court, cases will usually be prosecuted by
police prosecutors. Police prosecutors are members Barristers and solicitors
of the NSW Police Force with specialised legal A person charged with an offence will usually contact
training to conduct prosecutions. Police prosecutors a solicitor, who will be able to give the accused advice
handle most summary cases in New South Wales. on a range of matters, including the charge, the
More serious offences are dealt with by the public alleged offence and the procedures surrounding a
prosecutors (see below). trial, and will assist in interactions with the police
investigating the case. The solicitor may also advise
Director of Public Prosecutions on any available defences, the likelihood of conviction
For indictable offences and some summary offences, and possible sentences. Many solicitors specialise in
cases will be prosecuted by the NSW Office of the criminal law or particular areas of criminal law.
Director of Public Prosecutions (DPP). The DPP A solicitor may also represent the accused in
will also conduct some committal proceedings for court, or engage (employ) a barrister to represent
indictable offences. The DPP is an independent the accused. It is common to see solicitors appearing
authority that prosecutes all serious offences on in the Local Court, but it is more common to see
behalf of the New South Wales Government. barristers in the higher courts. This is due to the
Prosecutors employed by the DPP are barristers fact that barristers are specialists in their field and
or solicitors and have numerous years of experience deal specifically with criminal law, for example,
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CHAPTER 3 THE CRIMINAL TRIAL PROCESS
every day. Barristers have two main roles in court to enter a plea of either guilty or not guilty. At a plea
proceedings: to provide legal advice for the accused hearing the accused will state their plea in front of 3
on the likely outcome of the case and to present that a judge. If they enter a ‘no plea’, it is written on the
case in court. record as a ‘not guilty’ plea.
Public defenders are paid public barristers who
are independent of the government and perform the plea
a formal statement of guilt or innocence by the accused
same duties as other barristers. They will appear
or advise in relation to criminal trials, sentencing
The plea entered by the accused will have a
matters and appeals in the District Court or Supreme
significant impact on how the charges are dealt
Court, and may be briefed (instructed) by a private
with. A guilty plea will be dealt with quickly, going
solicitor, through the Legal Aid Commission or
straight to a sentencing hearing at a higher court,
through a community-based legal group.
and does not require witnesses to give testimony.
If the accused pleads not guilty, the case will be
Public defenders
defended in court. The dates of the trial will be set.
Where an accused cannot afford to pay for a barrister
This may be a long time away, and the accused will
or solicitor, they may be granted access to a public
be granted bail or remanded in custody until that
defender . Public defenders are barristers who
date. If an accused pleads not guilty and is found
appear in serious criminal matters for an accused
guilty, they may find the sentence that they are given
who has been granted legal aid.
is affected.
public defender legal aid An often controversial tactic used in criminal
a public barrister who can a subsidised legal service proceedings is charge negotiation. This is where
appear for an accused in provided by the state for
a serious criminal matter those on low incomes the accused agrees with the prosecution to plead
where legal aid has been guilty to a particular charge or charges. It usually
granted
involves pleading guilty to a lesser charge in
exchange for other higher charges being withdrawn,
If an accused has been charged with a serious
or pleading guilty in exchange for a lesser sentence.
indictable offence and is eligible to receive legal aid,
Charge negotiation is sometimes known as ‘case
they may be granted a public defender to represent
conferencing’ and can be conducted at many stages
them in court.
of the criminal process. It will usually result in a faster
and less expensive case for the prosecution, the
3.4 P
leas and charge
negotiation
After an accused is charged with an offence and the
trial process proceeds, the law requires the accused
Review 3.4
1 Explain the difference between the
adversary and inquisitorial systems of
law.
2 Explain why the inquisitorial system of
law could be seen as biased.
3 Describe the types of cases heard by a
magistrate and by a judge.
4 Explain the role of the prosecution in a
criminal trial.
Figure 3.8 The accused is expected to enter a plea.
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CAMBRIDGE LEGAL STUDIES HSC
accused and the court. Charge negotiation cannot Court recognised this in a 1992 decision, Dietrich v
guarantee a particular sentence – this can only be The Queen (1992) 177 CLR 292, which for the first time
determined by the judge, based on the nature of the established a limited right to legal representation
offence and sentencing guidelines – but the charge in Australia. Access to justice is crucial to ensure
negotiation may be taken into account. that the legal system functions fairly and equally for
everyone who comes before it. This is particularly so
charge negotiation in criminal matters, where the price of inadequate
an agreement between the DPP and the accused that
involves the acceptance of a guilty plea, usually in representation for an accused can be high.
exchange for something else Many defendants are able to afford adequate legal
representation and will pay for a barrister or solicitor
Some of the arguments for and against charge to advise them and present their case in court. The
negotiation include: quality of legal services varies, though, and not
• It decreases costs and time delays, which is all lawyers have much experience representing
beneficial to all parties. people before a court. Some defendants may be
• It increases the rate of criminal convictions. able to ensure that they receive the best possible
• Conviction on a lesser charge is better than no defence to the charges against them (for example,
conviction at all. by hiring the most expensive specialised and
• Crimes may go unpunished or the admitted experienced barristers). In most cases this advice
crime may be insufficiently punished. and representation will cost a significant amount
• An accused may plead guilty to a crime of of money.
which they are innocent. In rare circumstances an accused may even
• It may lead to bullying or manipulation of the elect to represent themselves in court, but due
accused to forfeit their right to a trial. to the complexities of court processes and the
• Prosecutors may threaten more serious charges consequences of inadequate representation in
to intimidate the accused into pleading guilty to criminal matters, this is not advised unless the
the lesser charge. offence relates to a very minor matter. Often a
magistrate or judge will advise the accused to adjourn
the matter until they obtain legal representation. The
Research 3.2
courts prefer people to be represented by solicitors
Create a PMI (Plus Minus Interesting) about or barristers, so that they will receive a fair trial.
charge negotiation. Consider all parties Not everyone has the money to pay for, or the
involved in the process and those on whom skill to find, proper legal representation. This can
charge negotiation has an impact, including result in injustices in the courtroom and denial of a
the family of the victim(s) of the crime, the fair trial. In 1979, the New South Wales Government
victim and the accused, and the criminal created the Legal Aid Commission, under the Legal
justice system itself. Aid Commission Act 1979 (NSW). The commission
provides legal assistance and representation
to people who are socially and economically
disadvantaged to ensure that they have equitable
access to the law. It aims to safeguard people’s
3.5 L
egal representation and rights in the legal system and to improve their
Legal Aid NSW access to justice.
In the Australian legal system, a defendant has the Legal Aid NSW is usually accessed by
right to a fair trial, and Australian courts have ruled marginalised and disadvantaged groups in
that a trial will rarely be fair for an accused if they society such as disabled people, women, people of
do not have adequate legal representation. If a case Aboriginal and Torres Strait Islander background
goes to trial, it is unlikely that the defendant will have and people who are financially disadvantaged
a fair trial if they represent themselves or arrange through unemployment, and/or are low-income
for an unqualified person to defend them. The High earners.
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CHAPTER 3 THE CRIMINAL TRIAL PROCESS
The Legal Aid Commission provides free brief 3.6 B
urden and standard of
legal advice sessions to anyone. However, to proof 3
access subsidised legal representation in court,
Central to the criminal justice system is the principle
the defendant must be means-tested. A means
that a person is innocent until proven guilty in a
test assesses the defendant’s income and assets to
court of law. In practice, this means that it is the
determine whether or not they have the means to
responsibility of the prosecution to prove in court
pay for legal representation. Along with the means
that the accused committed the offence they have
test there is also a merits test, although for criminal
been charged with. This is known as the burden of
matters the commission does not usually assess the
proof: the burden (or onus) is on the prosecution to
merits or likelihood of the case succeeding, except
prove the case.
for matters on appeal.
The prosecution must also meet the standard
Also, not all matters can be covered by Legal
of proof for criminal matters: they must prove the
Aid NSW, so the cases it takes on must fall within
case beyond reasonable doubt. This means that,
specific areas of law in order to be eligible.
to succeed, the prosecution must show that there
For those matters that Legal Aid NSW takes
is no reasonable doubt that the accused in fact
on, it will either provide a legal representative or
committed the offence. The burden and standard
contribute towards the cost of a private lawyer.
of proof are essential to criminal proceedings and
Unfortunately, even a grant of legal aid is not free,
essential in achieving justice in criminal law. Due
and in most cases the user must make a contribution.
to the severe consequences if an innocent person
Initial contributions are calculated using the means
is found guilty, the standard for criminal law is
test.
much higher than the standard for civil law. These
Legal Aid NSW is largely funded by the
matters only require a standard of the balance of
Commonwealth and New South Wales governments
probabilities: that one explanation is more likely than
and the NSW Law Society, but funding is limited and
another.
is often considered inadequate to meet the demand.
There are many instances where people who are in burden of proof standard of proof
in criminal matters, the the level of proof required
need of assistance are unable to receive it. responsibility of the for a party to succeed in
prosecution to prove the court
case against the accused
Research 3.3
Visit the Legal Aid NSW website at http://
cambridge.edu.au/redirect/?id=6238.
Read the information there and answer the
following questions.
1 How many clients were represented by
Legal Aid NSW in the last financial year?
2 What percentage of Legal Aid NSW
expenditure was spent on criminal law?
How does this compare with other areas
of law?
3 How many calls were made to the Legal
Aid Youth Hotline?
4 Research using the internet to determine
if there are to be any future funding cuts Figure 3.9 Legal Aid NSW provides legal assistance
to Legal Aid NSW. and representation to people who are socially and/or
economically disadvantaged.
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CAMBRIDGE LEGAL STUDIES HSC
inadmissible if it is deemed irrelevant, and generally
if it is not direct evidence (directly heard or seen and
testifies to that) but is indirect evidence, or hearsay
(you are told about an event but do not personally see
or witness it), or simply relates to a person’s opinion
(unless it is the opinion of an expert or professional
who has been asked to be a witness because of their
expertise).
Evidence used in court can take the form of
real evidence, documentary evidence and witness
testimony. Real evidence is physical evidence, which
can be presented to the jurors in a trial. This may
take the form of tape recordings, charts to help
explain evidence, photographs, fingerprints, DNA
test results, and exhibits such as weapons and
Figure 3.10 Real evidence is physical evidence that clothing.
may take the form of photographs, fingerprints, DNA Documentary evidence may involve original
tests and exhibits such as weapons and clothing. documents gathered during the investigation. One
of the most important types of evidence is that of a
witness. Witnesses can be called to give evidence in
beyond reasonable doubt
the standard of proof required in a criminal case for a court by either the prosecution or the defence and
person to be found guilty may be examined by either in court. A witness might
be someone who saw some aspect of the crime take
Generally, the Director of Public Prosecutions place, or someone who simply has some relevant
will not bring a case before the courts unless it feels knowledge about an aspect of the case that supports
that a jury will be convinced by the evidence and the prosecution’s or defendant’s argument. Anyone
convict the accused. Criminal trials cost time, money who witnessed a crime or was interviewed by police
and other resources, so it is important that the case may be subpoenaed to appear later in court. A
is winnable. The evidence and arguments must be subpoena is a formal court document ordering a
sufficient to convince all 12 jurors of the case beyond person to attend at court at a certain time and place,
any reasonable doubt. If any juror is not convinced, and cannot be ignored – if it is, it may result in a
the standard of proof has not been met and the case charge of contempt of court.
may not succeed. A witness giving evidence will be asked to take
an oath to tell the truth and will be asked a series
of questions, usually by both the prosecution and
3.7 U
se of evidence, including the defence. There are rules around the order and
witnesses type of questions that a witness can be asked. The
During a criminal investigation the police will gather information the prosecution and the defence seek is
a wide range of evidence that will be used in court about the witness’s factual first-hand knowledge or
to prosecute the accused. The use of evidence in a eyewitness testimony, and will often be supported
court case is bound by the Evidence Act 1995 (NSW). by an earlier statement made by the witness and
For evidence to be admissible in court it needs to recorded. Witnesses must answer questions
be relevant to the case and legally obtained by the truthfully; if not, they may be guilty of perjury, which
investigating police. Evidence that the police have is telling an untruth to a court.
obtained illegally is generally inadmissible unless Another type of witness evidence is that of an
the judge makes a special exception. Any evidence expert witness. This is a person who has studied some
that is obtained later and that relies on that illegal element of the evidence as an independent expert
act may also be inadmissible: it is described as the during the investigation (for example, someone
‘fruit of the poisoned tree’. Evidence will also be who examined DNA, blood spatter or handwriting,
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CHAPTER 3 THE CRIMINAL TRIAL PROCESS
or someone who assessed the defendant, such as 3.8 D
efences to criminal
a psychiatrist). Their job is to give testimony based charges 3
on their expert or specialised knowledge and give
A defendant may have a legal defence available
an opinion or interpretation of the evidence. The
to them. Most defences involve some denial,
evidence of an expert witness can often be valuable.
justification or excuse for the accused’s act. The
However, it is not always the case. A recent
majority revolve around the mens rea of the offence:
court case which highlights the fallibility of expert
in effect, that the accused could not have had the
witnesses is Wood v R [2012] NSWCCA 21. Gordon
level of intention required for the offence. Legal
Wood had been convicted of the 1995 murder of his
defences help achieve justice by allowing the court
then girlfriend Caroline Byrne. At the trial an expert
to consider circumstances that might justify the
witness provided testimony that Wood could have
accused’s act or reduce their culpability. They limit
caused the death of his girlfriend by throwing her
the risk of an unjust conviction by permitting reduced
body off The Gap at Sydney’s Watsons Bay. This
liability in certain situations, such as for an accused
conviction was overturned on appeal in February
person who has a serious mental illness or whose
2012, after the New South Wales Court of Criminal
behaviour was involuntary. Defences can sometimes
Appeal agreed that his testimony was flawed and
be controversial, especially in cases where a victim
that there was reasonable doubt about his scientific
is involved. Whether a defence ultimately succeeds
proof relating to Ms Byrne’s death.
will usually be a question of fact to be determined
by the judge or jury, based on the evidence that the
Review 3.5 accused presents.
Defences may be complete defences, which
1 Evaluate the importance of the burden of result in the complete acquittal of the accused, or
proof in criminal law. partial defences, which may result in the charge or
2 Describe some of the types of evidence sentence being reduced.
that may be presented in court.
3 Outline under what circumstances Complete defences
evidence will be classified as Complete or absolute defences are used to justify
inadmissible. the defendant’s actions and, if successfully
proven, will result either in charges being dropped
Legal Info
The M’Naghten test
The M’Naghten test (also known as the M’Naghten rule) is an English rule established in 1843. It is used
to determine whether a person is able to claim the defence of insanity. In the case, James M’Naghten
(the accused) attempted to shoot Sir Robert Peel (the then Prime Minister of Britain). M’Naghten
missed and instead shot Edward Drummond (the Prime Minister’s Private Secretary). In the case,
M’Naghten claimed that at the time he was suffering insane delusions of being persecuted by the
government, and he was acquitted on the basis that, as he was insane, he did not know the nature of his
act nor that it was wrong. The House of Lords developed the insanity rule in response to the case. The
insanity plea only applies to situations where the accused was not aware of the nature or consequences
of their actions when they committed the crime and cannot be held responsible for those actions. They
must be able to prove that they were mentally ill at the time of the act. The M’Naghten rule has been
under scrutiny in recent years by both independent groups and government bodies such as the NSW
Law Reform Commission. Current concerns are that the idea of what constituted mental illness when
the precedent was established, in 1843, is now outdated, and is not supported by current medical
theory and knowledge.
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CAMBRIDGE LEGAL STUDIES HSC
or, if the defence is presented during a trial, an Involuntary behaviour or automatism is another
acquittal. defence relating to the mens rea of the accused. In
Mental illness or insanity is a defence that is this case, the argument is that the accused’s actions
only available where the accused can prove that were not voluntary or could not be controlled (for
they were in fact mentally incapacitated when they example, due to some involuntary action, such as
committed the offence. This defence relates to the an epileptic fit). If the act was involuntary, the mens
mens rea of the accused, and requires the accused rea element of the offence cannot be established.
to claim that they were not criminally responsible for Mistake is not generally a defence under the
their actions because they could not have formed law and is difficult to prove. However, if it can be
the necessary intent. The defence of insanity is very shown that the accused’s action was an honest
difficult to prove but enables the accused to claim and reasonable mistake and that the act was not
that they were not aware of, or able to comprehend, intended, the relevant mens rea may not be present
the nature or consequences of their act at the time and the offence may not be able to be established.
the crime was carried out. Where the defence of Self-defence or necessity is a self-explanatory
mental illness succeeds, the accused may be found defence. This defence may be used in certain
not guilty on the grounds of insanity. circumstances if the accused can show they carried
out a crime in the act of defending themselves or
acquittal mental illness or
a judgement that a person insanity another person, while attempting to prevent a crime
is not guilty of the crime mental incapacitation or in the defence of property. Using this defence
with which they have been at the time of the act,
charged meaning the accused
can be risky for the defendant because what they
cannot have formed the may consider reasonable force and what the jury
mens rea at the time of the believes is reasonable force may be very different.
offence
In R v Zecevic (1987) 162 CLR 645 it was held that
the defendant must have reasonable grounds to
believe their life was threatened and they must use
Figure 3.11 Self-defence, or necessity, can be a complete defence.
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CHAPTER 3 THE CRIMINAL TRIAL PROCESS
only ‘proportional and reasonable force’ to defend defence of consent even if the patient did want
themselves. Zecevic’s case stemmed from a dispute to die. 3
over a parking space. When a defendant uses this
defence, the jury is compelled to either acquit the Partial defences to murder
defendant or find them guilty of the crime. Particular There are a number of partial defences to murder.
rules apply to self-defence in relation to some When a murder has been committed, the accused
offences, such as murder. may claim that there were mitigating circumstances
that caused them to carry out the act. While such
involuntary behaviour or mistake
automatism the defendant acted under a claim is not enough to absolve the defendant of
an act that cannot be an honest and reasonable blame, it may help reduce the sentence or even
controlled or is not mistake and thus could not
voluntary, such as an have formed the mens rea result in an acquittal.
epileptic fit Provocation is the defence in which the
defendant claims that their actions were a direct
self-defence or necessity result of the other person’s actions, which caused
the defendant acted in defence of self, another or them to lose control and commit the offence in
property; only accepted in limited circumstances and
question. Provocation is a controversial defence
only for reasonable force
because it implies that the victim has some level
of responsibility for the act – that they somehow
Under the defence of duress, the accused must
provoked the accused to an extreme reaction
be able to prove that they committed a crime against
resulting in a criminal act. Provocation as a defence
their own free will. Duress describes unlawful
has been abolished in Victoria, Western Australia
pressure that is applied by one person to induce
and Tasmania, but still exists in New South Wales.
another person to do something against their will.
For provocation to succeed, the accused must be
Although they knowingly carried out the crime,
able to prove that the victim caused the accused to
they did so because they believed that their life or
act in a way that, given the same circumstances, any
someone else’s was under threat. In R v Williamson
ordinary person would have acted. In New South
[1972] 2 NSWLR 281 the defendant disposed of a
Wales, the defence of provocation can only be used
body while under the threat of death and this threat
when attempting to have a murder charge reduced
was held to constitute duress.
to manslaughter. In R v Camplin [1978] AC 705, a
Consent is the defence most often used as an
15-year-old boy successfully argued provocation
absolute defence in sexual assault cases. If it can be
after he hit his uncle with a frying pan and killed
shown that the alleged victim consented to the act,
him. The uncle had just sexually assaulted the boy
the accused may be acquitted. Consent is often hard
and was mocking him about the incident. The court
to prove in sexual assault matters. In many trials it is
held that an ‘ordinary person’ in the position of the
not the act itself that is in question, especially when
accused would have formed the intent to kill or
physical evidence is present; the problem for the
inflict grievous bodily harm on the person who had
prosecution is proving lack of consent. This is often
assaulted them.
hard, depending on the circumstances surrounding
Substantial impairment of responsibility is
the event in question.
another partial defence to murder, and can reduce
duress consent a charge of murder to manslaughter. This defence is
coercion or pressure used it is a complete defence for
by one party to influence some crimes if the accused also referred to as diminished responsibility. The
another party can show the victim freely defendant must be able to prove that they suffer
consented to the act in
from a mental abnormality that caused them to act
question
in a certain manner and carry out a crime. Such
abnormalities include a low IQ or mental retardation.
However, consent is not a valid defence for
This defence is more widely used than the insanity
certain criminal offences, such as murder. For
plea because it is easier to prove, and the person may
example, a doctor or family member who helped
be completely normal in every other aspect of their
euthanise a terminally ill person cannot use the
mental capacity and health. Substantial impairment
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I’m glad it’s over: robber’s killer freed
Natasha Wallace
Sydney Morning Herald, 5 August 2006
The accused thanked the jury, the gallery applauded and even the prosecutor was not disappointed
when Karen Brown was found not guilty of murder.
The facts of the case were simple: moments after the security guard Karen Brown shot dead a
robber who had beaten her with knuckledusters, she staggered dazed and confused into a hotel, her
head ‘bubbling’ with blood and the gun dangling from her hand. ‘I have been robbed,’ she said. ‘Call
the police. I think I killed him.’
But the issues in the case were complex. While Ms Brown admits she pulled the trigger, she insists
she does not remember shooting William Aquilina, 25, as he tried to rob her of about $40 000 outside
the Moorebank Hotel on July 26, 2004.
Two witnesses told the NSW Supreme Court during Ms Brown’s trial that she had given up the fight
and walked away before turning towards him and shooting him through a car window as he sat in the
front seat.
Yesterday the jury found her not guilty of both murder and manslaughter after about four hours of
deliberation.
This capped off a two-week trial in which the central issue was whether Ms Brown intentionally shot
at Aquilina as he fled the scene.
When the jury handed down its verdict, Ms Brown dropped her head in her hands and cried. The
public gallery applauded. Ms Brown turned to the jury, nodded her head and mouthed the words
‘thank you’. …
To secure a guilty verdict, the prosecution had
to prove that Ms Brown, 42, shot Aquilina out of
revenge or anger, and that the act was not done
under provocation and she was not acting in
self-defence at the time she fired the gun. He
died of a bullet wound to the head.
But her defence argued that at the time she
fired the gun she experienced a brief period of
automatism – that she was acting involuntarily
and was not in control of her actions.
A defence psychiatrist, Olav Nielssen, said
that despite entering the hotel shortly after
the shooting and alerting patrons and staff to
what had happened, Ms Brown had suffered
from ‘post-traumatic automatism’ at the crucial
moment. He said this was either because of the Figure 3.12 Karen Brown outside Liverpool Court
direct effect of the brain injury she sustained during a break in proceedings, 26 August 2005
in the assault or the emotional trauma arising
from believing her life was in danger.
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CHAPTER 3 THE CRIMINAL TRIAL PROCESS
During deliberations yesterday, the jury asked the judge to clarify the Crown and the defence’s
positions on what constituted a voluntary act.
Through the trial, Ms Brown had appeared to be traumatised still. Her head sometimes shook, her
eyes constantly darted about the courtroom and she often wept as witnesses recounted events.
She took deep breaths and tried to steady herself as the jury listened to how she fought Aquilina for
the bag of cash before turning and shooting him dead.
She did not give evidence. She says she does not remember anything from the time Aquilina bashed
her and dragged her along the ground by the backpack until she was in hospital later.
Dr Nielssen diagnosed her with concussion, which he said lasted up to two months afterwards. Dr
Elizabeth Swinburn, who had treated Ms Brown at Liverpool Hospital that night, thought Ms Brown
was ‘lucid’ and alert and said she had denied any loss of consciousness.
She was discharged from hospital but an X-ray and CT scan two days later showed she had a
fractured nose, eye socket and wrist.
cannot be used as an excuse when the accused was 3.9 T
he role of juries, including
drunk or under the influence of mind-altering drugs. verdicts
provocation diminished Juries are a central part of the adversary system
the defence where the responsibility of criminal law. They reflect the historic right of
defendant claims that also known as
their actions were a direct substantial impairment of an accused person to be judged, impartially, by a
result of another person’s responsibility, this defence group of their peers, based on evidence presented
actions, which caused is used when the accused
them to lose control of is suffering from a mental
at a trial. In New South Wales, juries are used to hear
their own actions impairment most indictable offences where a plea of ‘not guilty’
is entered, and may be used in either the District
Court or the Supreme Court. The Local Court does
Review 3.6 not have jurisdiction to conduct trials with a jury.
Many of the rules about juries are found in the Jury
Read the media article on page 64 and Act 1977 (NSW).
complete the following tasks. A jury is a panel of citizens, selected at random
1 Create a case study which outlines the from a list compiled from the electoral roll, whose
facts, charges and judgement of the job it is to determine the guilt or innocence of the
case. accused based on the evidence presented to them
2 Outline the facts of the case and at trial. Their decision is called a verdict. It is a task
describe the defences that were relied on. that brings with it enormous responsibility. In most
3 Describe what evidence was relied on to cases, a criminal trial involves a jury of 12 people.
find Ms Brown not guilty.
Challenging jurors
In a criminal trial, both the prosecution and the
defence have the right to challenge either the
selection of the entire panel of jurors, or individual
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CAMBRIDGE LEGAL STUDIES HSC
jurors. Both sides can also exercise a certain number Jury role
of peremptory challenges of prospective jurors. Before a court case begins, jurors are sworn in.
This is when they disqualify individual jurors without During the trial, the role of a juror is to listen to the
having to give a reason. However, challenging the evidence presented to the court, apply the law as
selection of a juror can be difficult: neither side directed by the judge and come to a verdict as to the
knows anything about them in advance apart from accused’s guilt or innocence.
their names, and peremptory challenges are usually Jurors are permitted to make notes in order to
based on nothing more than name or appearance (for refresh their memory of what has happened in court.
example, age, gender, race, clothing or physique). They are not permitted to talk to anyone except
Challenges for cause are challenges based on for their fellow jurors, when they are all together,
the person not being qualified to serve on a jury – about the case. They may also ask for clarification
through being ineligible or disqualified, or because on matters from the judge. Throughout the case,
of being suspected of bias. For instance, one of the they have to be alert and focused on what is
jurors may be acquainted with the defendant or have being presented to them in the courtroom. Their
been a victim of a similar crime and therefore may role is to be unbiased and impartial, and to make
be thought to be biased. a judgement based solely on the evidence they are
peremptory challenge challenge for cause presented with. Each jury elects a foreperson to
when the legal team when the legal team speak on their behalf.
rejects a juror without rejects a juror because
needing to provide a they believe that for some
The jury must remain fair and open-minded when
specific reason reason the juror will be reaching their decision. The jury should not be
prejudiced influenced by the media or their own personal beliefs
while deliberating a verdict. When deciding on the
verdict, the jury does not have any set time limits.
Eligibility for jury duty Jurors are encouraged to take their time and discuss
Australian citizens aged 18 years or over become the court proceedings as much as they need to.
eligible to sit on a jury once they are on the electoral
roll (enrolled to vote). It is very difficult to gain an Verdict
exemption from jury duty and some people view A jury has to reach a verdict of guilty or not guilty and
jury duty as an inconvenience and a burden, present that verdict to the court. The accused will
especially when they are selected to sit on a long then be acquitted if found not guilty. If the accused
trial. Jurors are paid for their attendance on the jury is found guilty, the judge will then pass sentence.
and employers are required to give leave to their Sometimes it is easy for the jury to arrive at a
employees for jury duty. It is an important part of decision, but in other matters they can deliberate for
our justice system for an accused person to be tried days and still not reach a verdict. A jury that is unable
by a group of their peers. Some people can ask to to reach a verdict is called a ‘hung jury’. In these
be exempted – those who are aged over 65 years, situations the case is dismissed and a retrial will be
are pregnant or care for children full-time. There ordered. This means that the whole case will begin
are also some groups of people who are ineligible all over again. A hung jury puts significant strain
to sit on a jury. They include people who do not on all parties to a case and places a subsequent
speak English; emergency services workers (police, burden on the time and cost for the accused and the
fire and ambulance), disabled people, convicted prosecution. If the accused is in remand during the
criminals and members of the legal profession. If you trial, it may result in an extended period of custody
fail to attend jury duty when requested you can face for an offence they may ultimately be acquitted of.
a $1100 fine from the Justice Office of the Sheriff. If Also, a prolonged or repeated trial can cause great
a jury is empanelled and you are not selected you anguish to victims and witnesses.
may be requested to attend another selection over
the course of the next one to three months.
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CHAPTER 3 THE CRIMINAL TRIAL PROCESS
Figure 3.13 Australian citizens become eligible to sit on a jury once they are on the electoral roll.
Legal Info
Jurors’ understanding in criminal trials
A lot of research has been conducted internationally to determine whether jurors in a trial understand
the instructions given to them by judges. Much of that research has found that jurors do not understand
instructions given to them by judges, and have particular difficulty with concepts such as ‘reasonable
doubt’, ‘intent’ and ‘the presumption of innocence’.
In 2008, the NSW Bureau of Crime Statistics and Research conducted a study entitled Juror
Understanding of Judicial Instructions in Criminal Trials. The study surveyed over 1200 jurors on their
understanding of the criminal trial process. In particular, the study focused on jurors’ understanding of
the phrase ‘beyond reasonable doubt’; 55.4% of the jurors believed that it meant ‘sure that the person
is guilty’, 22.9% believed it meant ‘almost sure’, 11.6% ‘very likely’ and 10.1% ‘pretty likely’.
Almost all the jurors believed they could understand all or most of the judge’s instructions to them
on the law (94.9%). Almost half (47.2%) stated that they ‘understood completely’. However, some groups
were less likely than others to feel that they understood judicial instructions. If a juror’s first language
was not English, they were almost twice as likely to say they understood only ‘a little’ or nothing of the
judge’s instructions on the law.
Younger jurors, those who aged 18–35 years, were 1.3 times more likely than the rest to say the judge’s
summing-up of the case to the jury did not help the jury at all or only a little bit in reaching a verdict.
The Director of the Bureau, Dr Don Weatherburn, said that in general the results suggest that the
jury system is effective: ‘It is occasionally suggested that jurors do not understand what is going on in
criminal trials. This study indicates that the overwhelming majority of jurors have little or no problem
understanding judicial instructions on the law or the judge’s summing-up of evidence at the end of
the trial.’
In 2008, the rate of offenders found guilty at jury trials in New South Wales was 84.7%. In 2017, this
further increased to over 85% of offenders.
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Figure 3.14 In this old image you can see that all of the jurors are men. These days this would be a rare
occurrence as jurors are selected at random.
In 2006, the NSW Parliament amended the in 1967, with many Australian states following
Jury Act 1977 (NSW) with the Jury Amendment its lead. Arguments for the change to majority
(Verdicts) Act 2006 (NSW) to allow majority verdicts verdicts include that a majority verdict removes
of 11:1 or 10:2 in cases where reasonable time for the power of rogue or unreasonable jurors who are
deliberation has passed and the court is satisfied unrepresentative of the community, and it avoids
that a unanimous verdict will not be reached. The the time delays, cost, and stress on the victim of a
Act does not apply to Commonwealth offences, as retrial. Arguments against majority verdicts include
unanimous verdicts for those offences are protected that a majority verdict removes the possibility of a
under s 80 of the Australian Constitution. ‘reasonable doubt’ decision if only one juror is
The system of unanimous verdicts in criminal disagreeing, that disagreements are rare, and that
trials was inherited from British Law. Unanimous the possibility of a majority verdict may change jury
verdicts mean every single one of the jurors must deliberations from the beginning of the case.
agree. This was changed in the United Kingdom
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CHAPTER 3 THE CRIMINAL TRIAL PROCESS
Chapter summary
• Different offences will be heard in different • The High Court is the highest court in Australia.
3
courts in the court hierarchy. • The DPP prosecutes cases on behalf of the
• The Local Court deals with summary offences New South Wales Government.
and less serious offences. • Public defenders represent the accused.
• The Coroner’s Court decides whether a • Legal aid can be available to people who are
person’s death is suspicious and a case can be unable to pay for legal representation.
built to prosecute a suspect. • Evidence can take several forms: real,
• The Children’s Court deals with crimes documentary and witness testimony.
committed by people under the age of 18 years. • An accused may raise a partial or a complete
• The District Court hears serious criminal defence to a criminal charge.
matters and appeals from lower courts. • Juries must in most circumstances reach a
• The Supreme Court hears the most serious unanimous verdict; this may be reduced to 11:1
cases, such as murder and gang rape. or 10:2 in certain circumstances.
Questions
Multiple-choice questions 4 When a defendant pleads guilty to a lesser
1 The Coroner’s Court is which of the following? charge in exchange for another charge being
A A court that deals with the cause and withdrawn it is referred to as:
manner of a person’s death A charge negotiation
B A court where most criminal cases are heard B diminished responsibility
C A court where the general public are C double jeopardy
prohibited from viewing proceedings D committal hearing
D The highest court in Australia
5 The standard of proof in a criminal case is best
2 Which of the following best describes the described as:
defence of duress? A beyond reasonable doubt
A The accused claims that the victim B balance of all probabilities
consented to the crime carried out against C diminished responsibility
them. D innocent until proven guilty
B The accused tries to prove that they
committed a crime against their own free Chapter summary questions
will. 1 Describe the court hierarchy and jurisdiction
C The crime was done in the act of self- of the lower courts, intermediate courts and
defence. superior courts.
D The victim’s actions caused the accused to 2 Outline the similarities and differences in the
lose control. roles of a magistrate and a judge.
3 Compare the roles of public prosecutors and
3 A public prosecutor is a: public defenders.
A judge 4 Discuss the limitations in procedural fairness if
B magistrate an accused chose to self-represent in court.
C lawyer 5 Evaluate the role of a jury in the criminal justice
D police officer system.
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Chapter 4
Sentencing and punishment
Chapter objectives
In this chapter, students will:
• identify the purpose of sentencing
• describe the many different types of sentences available
• discuss the role of the victim in the sentencing process
• explain the subjective and objective elements in applying a sentence
• describe the alternatives to traditional forms of sentencing
• communicate the effectiveness of a sentence as a means of deterrence.
Key terms/vocabulary
aggravating factor mandatory sentencing
appeal against conviction maximum penalty
appellant mitigating factor
caution non-parole period
circle sentencing parole
community service order penalty unit
continued detention preventative detention
correctional centre probation
criminal infringement notice proceeds of crime
deterrent recidivism
diversionary program rehabilitation
fine remorse
forfeit restorative justice
general deterrence retribution
gratuitous violence sentence appeal
guideline judgement sentencing hearing
home detention specific deterrence
incapacitation suspended sentence
Intensive Correction Order (ICO) victim impact statement
judicial discretion
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Relevant law
IMPORTANT LEGISLATION
Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW)
Crimes Act 1914 (Cth) Terrorism (Police Powers) Act 2002 (NSW)
Migration Act 1958 (Cth) Crimes (High Risk Offenders) Act 2006 (NSW)
Criminal Assets Recovery Act 1990 (NSW) Crimes (Sentencing Legislation) Amendment
Young Offenders Act 1997 (NSW) (Intensive Correction Orders) Act 2010 (NSW)
Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Amendment
(NSW) (Sentencing Options) Act 2017 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) Victims Rights and Support Act 2013 (NSW)
Child Protection (Offenders Registration) Act 2000 Terrorism (High Risk Offenders) Act 2017 (NSW)
(NSW)
SIGNIFICANT CASES
Kable v DPP (1996) 189 CLR 51 McCartney v R [2009] NSWCCA 244
R v AEM (Snr); R v KEM; R v MM [2002] NSWCCA 58 R v Tuala [2015] NSWCCA 8
R v Thomas [2007] NSWCCA 269
Legal oddity
A woman in Ohio had been getting her daughters to help her shoplift. After being caught on video surveillance
stealing items from a Wal Mart store, the woman was found guilty of petty theft and child endangerment.
Due to the involvement of her children, the case was taken very seriously. In addition to a $600 fine, 10 days’
imprisonment plus two years’ community control, she was also required to write a letter to her children
explaining why their actions were wrong.
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CAMBRIDGE LEGAL STUDIES HSC
4.1 S
entencing and punishment As such, the sentencing of an offender is one of the
most crucial steps in the criminal process. It involves
Once a crime has been committed, the police
a judgement about the severity of the offence, the
investigate it and lay a charge or charges, and then
mens rea of the accused and the need for the crime
the relevant authority prosecutes the case. If the
to be punished. In high-profile cases, sentencing
person accused of the crime pleads not guilty, the
can attract significant publicity or become heavily
case will be tried in court by a magistrate or a judge
politicised. For example, the 2014 murder trial of
or a judge and jury. If the accused is found not guilty,
Gerard Baden-Clay saw news broadcasting teams
they will be acquitted and set free.
reporting from the court as well as a full public
Where an accused pleads guilty, or if the jury
gallery every day of the trial. However, regardless of
reaches a guilty verdict at the trial, the accused will
the publicity, all sentences require careful balancing
be sentenced. It is the responsibility of a judicial
of the interests of all parties concerned. This
officer – the magistrate or judge – to set the most
includes the victims, the community, the state and
appropriate sentence. The jury is not involved in
the accused. This can be the most difficult role the
sentencing an offender.
judge has to perform. It is usually the discontent of
Sentencing occurs in a sentencing hearing.
the victim or the family of the victim that is conveyed
This may take place at the same time a verdict is
through the media.
reached or a guilty plea is given, but it often will
happen on a different day from the trial or summary
hearing. The sentencing hearing is where the
4.2 S
tatutory and judicial
magistrate or judge hears and considers arguments
guidelines
and evidence about the relevant law and what the
When imposing a sentence, magistrates and
most appropriate sentence ought to be in the matter
judges do not simply pluck a punishment from the
at hand. The magistrate or judge will then determine
air. Sentencing is an established area of criminal
and announce the sentence.
law: there are numerous laws, rules, guidelines and
sentencing hearing cases on how sentences are to be determined.
a hearing following a finding of guilt in which a The Crimes (Sentencing Procedure) Act 1999
magistrate or judge will determine the sentence to be
given to the accused (NSW) is the primary source of sentencing law in
New South Wales. It sets out the purposes for which
The sentence is the sanction imposed by the a sentence may be imposed, the types of penalties
state in relation to the offender’s criminal conduct. that can be imposed and when they can be used,
as well as a number of factors and guidelines for
sentencing generally. In addition to that Act, limits
and guidelines on sentencing are found in many
other statutes.
The maximum penalty that an offender
can receive for an offence is usually decided by
parliament and listed in legislation. This can be
found in the same section as the offence it relates
to. No judicial officer can pass a sentence higher
than the maximum penalty. Maximum penalties
differ according to the seriousness of the offence.
For example, s 19A of the Crimes Act 1900 (NSW)
describes the maximum penalty for murder as life
imprisonment, and s 61I sets the maximum penalty
for sexual assault at 14 years’ imprisonment. A variety
of lesser penalties is available for a judicial officer to
use at their discretion, so maximum penalties are
Figure 4.1 Hearings take place in a court room. only imposed in the most extreme cases.
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CHAPTER 4 SENTENCING AND PUNISHMENT
The Crimes (Sentencing Procedure) Act states recent years, New South Wales and other states
clearly that a court may not impose a prison have introduced mandatory sentencing laws for a
sentence unless it is satisfied that no other penalty is range of offences. Specifically, New South Wales
appropriate. Ultimately, it is up to the magistrate or Premier Barry O’Farrell in 2014 introduced the eight-
judge to determine the most appropriate sentence – year minimum sentence for convicted one-punch 4
this is known as judicial discretion. Judicial officers offenders. The New South Wales Government has
determine the best sentence on a case-by-case also made further calls for mandatory sentence laws
basis. They take into account numerous aspects of for child sex offenders.
the offence, especially any aggravating or mitigating
mandatory sentencing deterrent
circumstances. removal of judicial something that
discretion by legislation, discourages or is intended
maximum penalty judicial discretion by setting a minimum or to discourage someone
set by parliament, this is the power of a judge or mandatory sentence for a from doing something
the maximum sentence magistrate to make a particular offence or type
available to a court to decision within a range of of offender
impose for an offence; the possibilities based on the
maximum penalty is rarely particular circumstances
handed down of a case Recently the New South Wales Government
has come under much criticism for attempting to
Judicial officers can be guided by precedents in introduce mandatory sentences for anyone who
cases with similar facts. Case law will often be cited murders a police officer who is on the job. Legal
by the prosecution or defendant in a sentencing groups argue that this is unnecessary, as this crime
hearing – other judgements will often be persuasive, already carries a maximum non-parole period of 25
and sentencing principles that have been handed years, and it also implies a flaw in the rule of law.
down by a higher court may need to be followed. The Opponents claim that such laws are unduly harsh
Crimes (Sentencing Procedure) Act also allows for as they remove the ability of a magistrate or judge
the New South Wales Attorney-General to apply to to consider the individual circumstances of the
the court for guideline judgements on sentencing accused and the offence they have committed. It
for particular offences – such judgements will be has also been highlighted that particular ethnic,
issued by a judge after hearing arguments from both socioeconomic and minority groups may suffer more
the Director of Public Prosecutions and the Senior than others through mandatory sentencing laws and
Public Defender. They will be used in determining there is little evidence that they work as a deterrent.
future sentences.
guideline judgement
a judgement issued by the court, on the application
of the Attorney-General, that will set out sentencing
guidelines for a particular offence
In some controversial instances, parliaments
have replaced judicial discretion for certain offences
with what is known as mandatory sentencing.
Mandatory sentencing is an automatic sentence set
by parliament that must be imposed by the judicial
officer for particular offences or repeat offences.
Mandatory sentencing laws were introduced in
the Northern Territory and Western Australia in
the 1990s. They aimed to be a harsh deterrent for
repeat offenders and to remove serial offenders from
the streets. The ‘three strikes and you’re out’ policy
Figure 4.2 In 2014, New South Wales introduced an
involved offenders being mandatorily imprisoned eight-year minimum sentence for convicted one-
if convicted three times for certain offences. In punch offenders.
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CAMBRIDGE LEGAL STUDIES HSC
The Northern Territory has now abolished its (b) to prevent crime by deterring the
mandatory sentencing laws, after they were offender and other persons from committing
found to cause a huge and unmanageable rise in similar offences,
imprisonments, with little deterrent effect and with (c) to protect the community from the
Indigenous offenders over-represented. offender,
(d) to promote the rehabilitation of the
Review 4.1 offender,
(e) to make the offender accountable for his or
1 Outline the purposes of sentencing and her actions,
the role a magistrate or judge has in this (f) to denounce the conduct of the offender,
process. (g) to recognise the harm done to the victim
2 Explain the term ‘judicial guidelines’ and of the crime and the community.
their purpose in sentencing.
3 Compare and contrast the positive
and negative aspects of mandatory All these purposes are important when
sentencing. Find a case involving considering a sentence. Some will be more important
mandatory sentencing in New South than others depending on the circumstances of the
Wales. offence. These purposes are considered in more
detail below.
Deterrence
A deterrent is something that discourages or
4.3 T
he purposes of is intended to discourage someone from doing
punishment something. In the context of sentencing, deterrence
Sentencing is traditionally the means through which relates to passing a higher sentence in the hope
the state and the community punish an offender that fear of punishment might help prevent future
for the crime they have committed. However, the offences. There are two types of deterrence:
notion of ‘punishment’ is misleading and needs • specific deterrence – punishment against an
to be separated from sentencing – punishment individual offender aiming to deter them from
is just one of many purposes behind imposing a committing crime in the future by showing that
sentence on an offender. A judicial officer will have ‘crime does not pay’
to consider the purpose behind the sentence that is • general deterrence – punishment attempting
being considered and ask him- or herself why this to make an example of an offender in order to
particular sentence is required in the circumstances. send a message to the rest of the community
The Crimes (Sentencing Procedure) Act 1999 that the law is serious about punishing people
(NSW) lays down the allowable purposes of for this offence.
sentencing.
specific deterrence general deterrence
punishment against punishment attempting
an individual offender to make an example of an
aiming to deter them from offender in order to send a
Crimes (Sentencing Procedure) Act 1999
committing crime in the message to the rest of the
(NSW) future community
Section 3A
The purposes for which a court may impose a Section 3A(b) of the Crimes (Sentencing
sentence on an offender are as follows: Procedure) Act 1999 (NSW) mentions both types
(a) to ensure that the offender is adequately of deterrence – ‘deterring the offender and other
punished for the offence, persons’ – as possible purposes of sentencing. While
deterrence is a relatively simple concept that people
can easily relate to, there is very little evidence to
suggest that individual criminal sentences are an
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CHAPTER 4 SENTENCING AND PUNISHMENT
a sentencing objective, and that sentences should
be set in relation to the seriousness of the offence
committed. As a consequence, deterrence was not
included as a purpose in the federal Crimes Act 1914
(Cth), but it remains in New South Wales law. The 4
former Director of Public Prosecutions, Nicholas
Cowdery AM QC, objected strongly to the concept of
deterrence in both Australian and New South Wales
sentencing procedures. He believes that it is only
through education and social programs that we can
really deter people from committing crimes. You’ll
probably find that your teacher feels the same way.
As a general rule, well-educated, healthy people
with a comfortable standard of living are not the
ones filling up our jails. Mr Cowdery has suggested
that programs such as circle sentencing, MERIT
and drug courts are far more appropriate ways of
deterring people from reoffending.
Figure 4.3 Studies have shown that a sentence
of imprisonment does not reduce the chance of
reoffending.
Retribution
Retribution is an important factor in sentencing. It
refers to punishment considered to be morally right
effective deterrent. Studies are either inconclusive or deserved because of the nature of the crime. It has
or suggest that they are not effective. a range of purposes, but assumes that some good
In New Zealand from 1924 to 1962, the general comes from inflicting hardship on the offender for
deterrence of the death penalty for murder was their crime. Retribution is related to the concept
in a state of flux. During this time it was in force, of revenge or ‘getting even’, but differs in that it is
abolished, reinstated and abolished again, with much society seeking retribution on behalf of victims in
publicity and discussion. Yet during this entire period an impartial manner through the courts. It aims to
there was no significant change in the murder rate. ensure that the punishment is proportionate to the
Similarly with specific deterrence, there is crime but not violent or physically harmful to the
little evidence that the higher penalty will reduce offender.
the chance of reoffending. Studies have shown
that a sentence of imprisonment does not reduce retribution
punishment considered to be morally right or deserved
the chance of reoffending. It has also been shown because of the nature of the crime
that there is not a lower reconviction rate among
those who were given the lesser sentence of a fine Retribution is the main justification for inflicting
compared with those who were sentenced to a term punishment on an offender and is related to a
of imprisonment. number of points under the s 3A purposes listed
This is a significant issue for achieving justice in above, including:
criminal law – punishing one person more severely • ensuring that the offender is adequately
than others may be an injustice if it fails to achieve punished for the offence, and according to the
its only purpose. If there is no verifiable deterrence severity of the offence
benefit in passing the higher sentence, that • making the offender accountable for their
sentence would be simply excessive. Of course, if actions and denouncing their conduct
other purposes (such as incapacitation) are relevant, • recognising the harm to the victim and the
then imprisonment may be appropriate. community.
In 1988, the Australian Law Reform Commission Centuries ago, punishment served as a form of
recommended that deterrence not be included as revenge and was often carried out by the victim of
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CAMBRIDGE LEGAL STUDIES HSC
a crime or by the wider community, with terrible
consequences (for example, public hangings and
assaults). Victims today are no longer permitted
by law to take personal revenge – instead, they are
required to seek retribution through the legal system.
When someone is being sentenced for their
crime, a judge will take into account the effect the
crime had on the victim and their family and make
an assessment of whether the punishment fits the
crime. If the offence was particularly appalling or
had particularly serious consequences, this will
be taken into account. An example of this was
discussed in Chapter 1 in the case of R v AEM (Snr);
R v KEM; R v MM [2002] NSWCCA 58, where three Figure 4.4 Sentencing may include imposed
teenagers were sentenced to particularly long terms attendance at counselling sessions to facilitate
of imprisonment due to the horrific nature of their rehabilitation.
offence (aggravated sexual assault in company) and
the long-lasting effect it would have on the victims.
Participation in such programs may be specifically
Retribution is among the many factors considered
imposed or incorporated into other sentencing
in sentencing determinations.
options.
Rehabilitation will rarely be the prime
Rehabilitation consideration for very serious offences, where other
Rehabilitation is one of the most important factors will usually outweigh the consideration of
purposes of punishment and will be considered in reform. However, there is some evidence that
most cases. Like deterrence, rehabilitation aims to rehabilitation programs have some success with
discourage future offences by the offender, but does offenders, particularly for less serious offences or
so by attempting to alter the views of the offender. offences involving drug or alcohol abuse. It can
It encourages offenders to eliminate the factors that be said that rehabilitation and reform through
contributed to the conduct, fostering renunciation of criminal sentencing will work at some level for some
the crime by the offender. This purpose is focused offenders. There is no firm evidence that it cannot
personally on the accused. The main aim is to also work for the majority.
prevent recidivism by helping criminals choose
not to return to the same patterns of behaviour or Incapacitation
lifestyle that led them to offend in the first place.
Incapacitation relates primarily to the third
rehabilitation recidivism purpose under the Crimes (Sentencing Procedure)
an objective of sentencing habitual or repeated acts Act 1999 (NSW): ‘to protect the community from the
designed to reform the of criminal behaviour
offender so that they do after having undergone offender’. It involves making the offender incapable
not commit offences in the treatment or punishment to of committing further offences. Different penalties
future deter such behaviour
can achieve incapacitation – for example, home
detention, community work or licence cancellation –
Several of the purposes listed in s 3A – making but the harshest form, imprisonment, is also the
the offender accountable, denouncing their conduct most effective. While these cannot prevent further
and promoting rehabilitation – are relevant to this offences, their purpose is to restrict freedom as
concept. Rehabilitation may include a number of much as necessary to reduce the likelihood of the
sentencing options and programs, such as drug offender committing another similar offence.
counselling, drug rehabilitation programs, alcohol
programs and anger management courses. Others incapacitation
may aim to give the offender the skills needed to making an offender incapable of committing further
offences by restricting their freedom
function in society through educational courses.
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CHAPTER 4 SENTENCING AND PUNISHMENT
One of the dangers of incapacitation is the the circumstances and state of mind of the
difficulty in determining which offenders are likely offender)
to reoffend and which are not. Incapacitation is a • whether or not the accused pleaded guilty
severe penalty, so the likelihood of the individual • whether or not the offender assisted law
person reoffending should be considered in each enforcement authorities 4
case to ensure that the sentence is not excessive. • a victim impact statement from victim(s) of
There will, of course, be certain offenders for whom the offence (discussed later in this section).
incapacitation is more clearly justified in the interests
aggravating factor mitigating factor
of protecting the community – we would probably all a circumstance that makes a circumstance that makes
agree that serial killers require imprisonment, for the offence more serious; the offence less severe;
it can lead to an increased it can lead to a reduced
instance, and that serial drink-drivers should have sentence sentence
their licences cancelled.
victim impact statement
Review 4.2 a statement written by the victim or victim’s family about
the impact the crime has had on them, heard at the time
of sentencing
1 Outline the main purposes of sentencing
in New South Wales.
Section 21A of the Crimes (Sentencing Procedure)
2 Explain the role of retribution in the legal
Act lists the aggravating and mitigating factors that
system.
are to be taken into account. These are extremely
3 Discuss the purpose of rehabilitation and
important in determining a sentence.
its role in the criminal justice system.
Aggravating and mitigating factors need to
4 Describe any circumstances in which the
be carefully balanced against each other and will
need for incapacitation might justify a
usually involve arguments from both the prosecution
higher sentence.
and defence. Not all aggravating and mitigating
factors automatically mean an increased or reduced
sentence. Their importance will depend on the
circumstances of each case. For younger offenders,
4.4 F
actors affecting a for example, personal circumstances might be
sentencing decision important in terms of the possibility of rehabilitation,
In addition to statute (legislation), case law and but if the offence is particularly severe or extreme,
the purpose considerations discussed above, that might outweigh those considerations.
a magistrate or judge must take into account
individual factors – the facts of the offence, the Aggravating factors
circumstances and seriousness of the offence, and Aggravating factors are factors that somehow
certain subjective factors about the offender. Part 3 make the offence more serious or severe. They
of the Crimes (Sentencing Procedure) Act 1999 (NSW) are likely to result in an increased sentence being
sets out numerous factors for judicial officers to imposed. Aggravating factors can relate to the way
consider. These include: the offence was committed, the characteristics of
• aggravating factors, which are circumstances the victim(s) or the characteristics of the offender.
that make the offence more serious and can They usually make the crime less excusable or
lead to an increased sentence more appalling in some way. For example, violence,
• mitigating factors, which are circumstances particularly gratuitous violence, is likely to increase
that make the offence less severe and can lead the sentence.
to a reduced sentence Some aggravating factors include:
• any other objective or subjective factor that • offence – if the offence involved any violence,
affects the relative seriousness of the offence cruelty or weapons, or any threat of them; if it
(objective factors refer to the circumstances caused any injury, harm or damage; if it was
of the crime, and subjective factors refer to motivated by any hatred or prejudice; or if it
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CAMBRIDGE LEGAL STUDIES HSC
• the offender is of good character (such
as character references from teachers or
employers) and/or does not have any prior
convictions
• the offender is youthful or inexperienced and
was easily led
• the offender pleaded guilty or assisted police
• the offender has shown honest remorse (such
as by compensating or apologising to the
victim) or has good prospects of rehabilitation
and is considered unlikely to reoffend
• the offender was somehow provoked or was
acting under duress.
remorse
deep regret or sorrow for one’s wrongdoing
Research 4.1
Figure 4.5 If the victim was vulnerable, this is likely to
affect the sentencing decision. Visit the New South Wales legislation website
at http://cambridge.edu.au/redirect/?id=6239.
Browse the current Acts in force and find
was committed in company or involved some
the Crimes (Sentencing Procedure) Act 1999
type of organised crime
(NSW). Look at s 21A of the Act and complete
• victim – if the victim was vulnerable (for
the following tasks.
example, old, young or disabled) or targeted for
1 List three aggravating factors that relate
their occupation (for example, police officer,
to the victim of the offence.
judicial officer, teacher or health worker); or if
2 Outline three aggravating factors that
there were multiple victims
relate to the circumstances of the
• offender – if the offender abused a position of
offence.
trust or authority when committing the offence
3 Explain three mitigating factors that
(for example, a doctor to a patient or a teacher
relate to the circumstances of, or reasons
to a student); or if the offender is a reoffender
behind, the offence.
and/or has any prior convictions.
4 Examine three mitigating factors that
relate to the offender’s conduct after the
gratuitous violence
excessive violence carried out without reason, cause or offence was committed.
excuse
Mitigating factors
Mitigating factors are the opposite of aggravating 4.5 T
he role of the victim in
factors, and involve circumstances that may work sentencing
in the defendant’s favour by explaining the cause Many crimes involve a victim who suffers some kind
of their conduct (for example, showing that they of harm as a result of the offender’s action. This can
honestly regret their actions or that they usually include a person who is directly harmed, such as in
have a good character and the offence was just a a case of assault, or indirectly affected, such as the
one-off occurrence). Mitigating factors are usually family of a person who has been killed.
subjective factors about the mind of the accused or Victims can be involved in the criminal trial
their behaviour, and can include evidence that: process in a number of ways, from reporting a crime
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CHAPTER 4 SENTENCING AND PUNISHMENT
In Court
McCartney v R [2009] NSWCCA 244
The offender, a 22-year-old male, had met the victim at a hotel and later at a restaurant. He then invited
the victim home for drinks. The victim had repeatedly told the offender that she would not have sex with
4
him. Both were intoxicated, and when the victim lay down to sleep, the offender sexually assaulted her.
The offender was found guilty and sentenced to two years and six months’ imprisonment. He
appealed against the sentence on the grounds that it was too severe and did not properly balance all
the sentencing factors.
In sentencing the offender, the judge referred to general deterrence as a purpose of the sentence,
stating that it is an important responsibility of the court to send a message to the community generally
that sexual assault is not acceptable. The offender appealed on the ground that too much weight was
given to the purpose of deterrence. However, the judge stated that deterrence was only a very strong
consideration and not applied over and above all other purposes.
Aggravating factors included the nature and seriousness of the offence and, particularly, the impact
on the victim. The judge considered a victim impact statement and put weight on the fact that ‘her
life and studies have been totally disrupted by this event and she has suffered considerable distress’.
Mitigating factors included the fact that the offender was relatively young, had no criminal history
and was considered unlikely to reoffend. He was in steady employment as a carpenter in a supervisory
position, and strong character references from his friends and employer were given. However, the
judge noted that even people of the best character sometimes ‘make mistakes and commit offences’.
The judge noted that he had already reduced the sentence significantly (by 16.6%) due to the offender
having pleaded guilty.
The offender also argued that intoxication had affected his judgement and contributed to the
offence. The judge considered this, but stated firmly that intoxication was not a mitigating factor and
did not excuse the behaviour. In particular, it was pointed out that the offender had managed to drive
his utility back to the house.
The offender presented evidence that he had consulted an alcohol counsellor after the offence.
The judge noted, in sentencing, that this was relevant and that the offender should be given further
help in this area to assist his rehabilitation.
The offender’s appeal was dismissed by the Court of Criminal Appeal, which stated that the
judge had not erred in consideration of the sentencing factors. The panel of three judges stated that
the sentence already fell within lowest range of available sentences for the offence, which carries a
maximum of 14 years, and determined that the sentence should not be altered.
and assisting police through to testifying at trial as a rights to information and assistance during the
witness and submitting a victim impact statement. criminal process. The charter also introduces
The victim’s role can sometimes be very difficult; in victim impact statements to the sentencing process.
cases of sexual assault, for example, confronting or These are further outlined in the Crimes (Sentencing
distressing questioning will often be required. Procedure) Act 1999 (NSW).
In New South Wales, victims of crime are A victim impact statement is a voluntary statement
recognised and guaranteed certain rights under written by the victim about the impact that the crime
the Victims Rights and Support Act 2013 (NSW). The has had on them. It is defined in s 26 of the Crimes
Act contains a Charter of Victims’ Rights, which (Sentencing Procedure) Act 1999 (NSW). It allows the
requires, among a number of things, respect for a victim an opportunity to participate in the process
victim’s dignity, victims’ compensation, protection by letting the court know how the crime has affected
from the accused, protection of identity and certain them. The statements are only permitted for serious
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CAMBRIDGE LEGAL STUDIES HSC
the victim’s personal circumstances should also be
able to be considered.
Statements by family members in cases of death
are particularly controversial. Some commentators
suggest that they are a danger, as they could lead
to a court handing down different punishments
according to whether the victim was more or less
loved by their family. Also, family statements might
remove impartiality from the judge’s process,
opponents say. However, victim impact statements
can at least allow family members to publicly express
their grief and anger. Importantly, they can be a
confronting experience for the offender and so form
a valuable part of the sentencing process.
4.6 A
ppeals
A person convicted of an offence and sentenced will
have the right to appeal their case – that is, apply to
a higher court for review of one or more decisions
Figure 4.6 A victim impact statement is a voluntary made in the lower court. The Crown also has the
statement written by the victim about the impact that right to appeal a case where, for example, it believes
the crime has had on them. the sentence is too lenient. The party appealing is
known as the appellant or applicant. There are two
types of appeals in criminal cases:
offences involving violence (actual or threatened)
• appeal against conviction
or the death of or any physical harm to a person,
• sentence appeal.
and only if the court considers it appropriate. The
statutory scheme applies in the supreme and district appellant appeal against
courts. They are presented after the offender is found in an appeal case, the conviction
party who is making the an appeal where the
guilty but before sentence is passed. The statements appeal appellant (the defendant)
can influence the sentence. Two cases where the argues that they did not
commit the offence of
use of victim impact statements at sentence have which they were found
been discussed are R v Tuala [2015] NSWCCA 8 and guilty
R v Thomas [2007] NSWCCA 269.
Victim impact statements relate to the personal sentence appeal
harm to the victim, and can include physical and an appeal against the severity or leniency of a sentence
psychological harm. The statement can also include
reports, such as medical reports, or diagrams or In appeals against conviction, the appellant
pictures (in the case of child victims). If the statement argues that they did not commit the offence of which
is given by the family, it will relate to the impact the they were found guilty. It is difficult for this type
act has had on them. of appeal to succeed and it will usually involve an
Victim impact statements can be controversial, argument that there was some error in the handling
because they can be very subjective yet have a and prosecution of their case – in the evidence
significant effect on sentencing. Supporters argue admitted or in the instructions of the judge to the
that they provide an important opportunity for victims jury, for example. If successful, the appellant may
to express themselves in the criminal process. be acquitted or a retrial may be ordered.
Also, if the offender is able to submit personal Sentence appeals, on the other hand, are appeals
circumstances in mitigation of their sentence, then by the offender against the severity of their sentence,
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CHAPTER 4 SENTENCING AND PUNISHMENT
Criminal Appeal against the leniency of a sentence
given in a very serious case of aggravated sexual
assault in company. On appeal, the court decided
to more than double the original sentences that had
been given to the offenders, from five and six years’ 4
imprisonment to 13 and 14 years’ imprisonment.
The final court of appeal in the New South
Wales criminal justice system is the High Court of
Australia. An appellant will need to seek permission
from the High Court to appeal. This leave will only
be granted in rare circumstances.
Research 4.2
One high-profile criminal appeal in New South
Wales was the case of Bilal Skaf. The original
Figure 4.7 The High Court of Australia offence was committed in 2000 and various
appeals were heard until 2008. Leave to appeal
or by the prosecutor against the leniency of the was even sought from the High Court. Search
sentence. Sentence appeals might be made alone the internet for details of the case and answer
or in conjunction with an appeal against conviction. the questions below. Sources might include
The judge’s options for these appeals are to set aside media articles and transcripts of the most
a sentence, vary a sentence or dismiss the appeal. A recent cases, which can be found at http://
sentence might be increased or reduced – this is a cambridge.edu.au/redirect/?id=6240.
risk that the appellant must consider carefully before 1 Create a case study outlining a profile
making the appeal. of Bilal Skaf and the types of crimes he
The type of appeal allowed will depend on the committed.
court the offender was tried in, and there are also 2 Describe the court where the case was
various time limits and process requirements for originally heard and the sentence Bilal
when a person can appeal. Any person convicted or received.
sentenced in a Local Court will have a right of appeal 3 Outline the process of the appeals in
to the District Court under the Crimes (Appeal and this matter. When were the sentences
Review) Act 2001 (NSW). A person may also appeal appealed and to where?
directly to the Supreme Court if it is on a question of 4 In detail outline one of the appeals and
law, but otherwise only by seeking permission from the reasoning behind the appeal. What
the Supreme Court. The District Court will usually was the outcome of the appeal?
conduct a rehearing of all the evidence, usually by
reading the documents from the initial hearing.
A person sentenced in the District or Supreme Review 4.3
Court can seek permission to appeal to the Court
of Criminal Appeal. The Crown might also appeal 1 Outline and discuss the different roles a
against the leniency of a sentence. An appeal against victim can play in a criminal trial.
conviction or a sentence appeal to the Court of 2 List the pieces of New South Wales
Criminal Appeal will only succeed if the person can legislation that specifically relate to the
show that there was a legal error. This can include victims of a crime.
imposing a sentence that was too severe or too lenient. 3 Outline the steps of the appeal process
For example, in R v AEM (Snr); R v KEM; R v MM [2002] for both the accused and the victim.
NSWCCA 58, the Crown appealed to the Court of
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CAMBRIDGE LEGAL STUDIES HSC
4.7 T
ypes of penalties from the court system. Cautions were predominantly
issued for possession (96%).
There are many different penalties that a court can
apply in its sentencing of an offender. The Crimes
Criminal infringement notice
(Sentencing Procedure) Act 1999 (NSW) lists the
A criminal infringement notice is another type of
various penalties that can be imposed, from no
penalty that can be issued by police. Introduced in
conviction recorded, cautions and fines, through
New South Wales in 2007, it allows police to issue
to imprisonment and even deportation. The type of
on-the-spot fines for certain offences, including
penalty imposed will depend on how the magistrate
larceny of goods valued at less than $300, offensive
or judge ultimately weighs all the factors discussed
behaviour or language, and obstructing traffic.
above, and cannot exceed the maximum penalty
specified for the offence.
criminal infringement notice
a notice issued by the police outside of court alleging a
Caution criminal infringement and requiring payment of a fine
Before a charge is laid and a person goes to court,
police have the power to issue a person with a The aim of criminal infringement notices is to
caution. A caution is a formal warning and is used remove some of the burden on the criminal court
for certain less serious offences as a way to avoid the system by allowing police to just issue fines for
court system, in the hope that the offender has learnt these minor offences. Although they do represent
a lesson and will not reoffend. an increase in police powers, the notices are not
final and offenders can choose to have the matter
caution heard in court. The benefit to offenders is that no
a formal warning without charge issued by police for less
conviction is recorded when they accept the notice;
serious offences
however, if the matter goes to court and the offender
is found guilty, the sentence is likely to be more
For example, under the Young Offenders Act
severe than the notice.
1997 (NSW), police can issue a formal caution to
offenders between the ages of 10 and 18 years for
Conviction or no conviction
a variety of minor offences, such as damaging
recorded
property, stealing or a minor assault. A formal caution
When a person is charged with an offence and
can only be issued when the offender admits to the
declared guilty by a judge or jury, that person is
offence in the presence of an appropriate adult. It
considered convicted of that offence. In sentencing,
usually involves a formal conference where the
the judicial officer can either record the conviction
offender, police, family and support people meet and
against the offender, or pass sentence with no
discuss the crime. It includes discussion of the
conviction recorded.
offence, its implications and the reasons why it
A criminal conviction is a serious matter and can
occurred. The caution is kept on police record and
have an important impact on a person’s life. A person
the offender will be told what will happen if they
will be required to declare their criminal convictions
reoffend.
at various times in their life – when applying for
Another example in New South Wales is the
certain jobs, seeking certain entitlements or applying
Cannabis Caution Scheme, where police may issue
for travel visas, for example.
a caution for minor offences involving cannabis if
Normally, a conviction will be recorded and
a person has no prior conviction. It does not apply
an appropriate sentence imposed. For less
to people caught supplying cannabis. It involves a
serious offences, particularly where they involve
warning about the health and legal consequences
young offenders or first-time offenders, a judicial
of cannabis use as well as information about certain
officer might choose not to record a conviction.
counselling and support services. The NSW Bureau
Alternatively, the court may decide to record the
of Crime Statistics and Research suggests that
conviction, but impose no other sentence.
the New South Wales Government scheme has been
quite successful in diverting minor offences away
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CHAPTER 4 SENTENCING AND PUNISHMENT
Fines fine penalty unit
a monetary penalty a specified unit of money
Fines are the most common sentencing option used imposed for infringement used in legislation to
in Australia. A fine is a monetary penalty imposed of a law describe the fine payable;
currently $110 in New
on an offender and usually applies for less serious
offences, such as driving offences or breaches of
South Wales
4
local laws, or for particular types of offences, such Although fines are most commonly used for
as some violations of environment law or corporate minor offences, they can also be issued for more
law. For minor offences, a fine will usually be serious offences. For some serious offences, judicial
issued outside of court by the police or by local officers have the option of a fine or imprisonment or
law enforcement officers (such as council parking both, depending on the circumstances. For example,
officers). These are often referred to as ‘on the spot under the Crimes Act 1900 (NSW), a person convicted
fines’. Such fines can be challenged in court. of unlawful gambling may be sentenced to a fine of
The maximum fine for an offence will be set out up to 1000 penalty units ($110 000), imprisonment for
in legislation and will be based on penalty units. up to seven years, or both.
The value of a penalty unit is defined in s 17 of the The effectiveness of a fine will depend on the
Crimes (Sentencing Procedure) Act 1999 (NSW) – at type of offence and the personal circumstances of
the time of publishing, the value is $110. In 2015, the offender; for example, a small fine might have
under Australian federal law a penalty unit for an little deterrent effect on a wealthy person, but a
individual was $180. A recent reform to the on-the- large impact on a person who is unemployed. A
spot fines system in New South Wales is called a court may look at evidence of a person’s financial
Work and Development Order (WDO). This pilot circumstances when considering imposing a fine.
program, which is delivered by Legal Aid NSW in
collaboration with the Aboriginal Legal Service, Forfeiture of assets
State Debt Recovery and the Department of Police Where an offender has obtained money or property
and Justice, enables people to pay their fines in through their criminal activities, a court may order
ways other than with money, such as by completing that the money or property be recovered. Such assets
community service with volunteer organisations might have been obtained through theft, fraud,
or by participating in a rehabilitation or treatment money laundering, drug trafficking or tax evasion.
program. WDOs are only available to people who The court might order that the assets be recovered
have a mental illness or an intellectual disability, or in addition to any other form of punishment.
who suffer from acute economic hardship, such as This power is given to the court via a number of
the homeless. Acts known collectively as the proceeds of crime
legislation – the main Act in New South Wales is the
Criminal Assets Recovery Act 1990 (NSW). The laws
are wide-ranging, and can allow examination of an
offender’s financial affairs and allow the assets to
be restrained, seized and forfeited. The court might
also require the offender to pay an amount assessed
as the value of the proceeds (profits) of their crimes.
proceeds of crime forfeit
assets (money or property) (also known as forfeiture)
obtained by an offender loss of rights to property
through their criminal or assets as a penalty for
activities wrongdoing
These laws are especially important in relation
to organised crime, where simply sentencing the
Figure 4.8 Fines may be issued by local law offender will not be enough to deter them from
enforcement officers, such as council parking officers. reoffending, especially where the offender is still
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CAMBRIDGE LEGAL STUDIES HSC
able to enjoy the benefits of their criminal acts. These supervision of a probation officer appointed by
proceedings are civil, not criminal, and can proceed the court for a period of time. Under the terms of
even if the accused has not been found guilty of a a probation order, the offender will have to adhere
crime or has been acquitted. Forfeiture of assets strictly to the conditions of the bond, as above, but
is difficult to relate to the traditional purposes of will also be required to maintain regular contact
sentencing, but it can be claimed to involve making with the probation officer. This may require the
the offender accountable and acting as a deterrent. offender to visit a police station three times a week
Particularly, it gives the law an avenue to target the at 9 am. The court will impose this where there is a
primary incentive of most criminal organisations – higher danger of reoffending, but where an order
money. for detention is considered too severe. Breach of
probation is a serious matter: as with a bond, the
Bond offender will have to appear back in court and risk
A court may decide to issue an offender with a facing a more severe sentence.
bond, either by itself or in conjunction with another
probation
penalty. A bond is a compulsory condition imposed
a type of good behaviour bond where the offender is
on the offender for a period of time. The offender released on condition of good behaviour but placed under
undertakes to comply with the bond in exchange for some form of supervision, such as daily reporting to a
probation officer
a more lenient sentence. A good behaviour bond
involves the offender undertaking to be of good
behaviour for the bond period (up to five years). If the
Suspended sentences
offender breaches the bond, they will have to appear
A suspended sentence is a serious penalty. It is
in court again and may be sentenced to more serious
imposed in place of imprisonment on the condition
penalties, such as imprisonment. Other conditions
that the offender enters into a good behaviour bond
imposed can include:
for the same period of time. The imprisonment is
• attending family counselling
suspended providing the offender complies with the
• attending anger management courses
conditions of the bond, and the offender is released
• avoiding visiting a particular place or
to resume their normal life.
associating with certain people
• attending a drug and/or alcohol rehabilitation suspended sentence
program a sentence of imprisonment imposed but suspended on
• refraining from particular activities, such as condition of good behaviour
gambling.
A court can impose a suspended sentence where
bond it is sentencing an offender to imprisonment of up
a compulsory condition imposed on an offender for a
to two years. Breach of the bond is very serious:
period of time, which the offender undertakes to comply
with the court can revoke the bond and reinstate the
original prison sentence, together with an additional
A bond can be a significant restriction on an sentence for breaching the bond.
offender’s life and freedom. Bonds are usually used
in cases where lesser penalties are not considered Community service orders
sufficient or effective, but imprisonment is A community service order is a penalty that can be
considered too severe. Offenders are given a second imposed by the court instead of a period of detention
chance to prove that they will not reoffend during or imprisonment. It involves compulsory supervised
the bond period. work in the community for up to 500 hours. The court
will assess what work is most suitable.
Probation
community service order
In more serious matters, a court may decide to order a penalty where the offender is sentenced to serve
a bond with probation attached. Where probation specified hours of work in the community
is attached, the offender will be placed under the
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CHAPTER 4 SENTENCING AND PUNISHMENT
It will require careful consideration by a judicial
officer of the purposes of sentencing as well as of
all the relevant factors of the case. All purposes may
be relevant: deterrence, retribution, rehabilitation
and incapacitation. The magistrate or judge will 4
consider the various forms of imprisonment that
can be imposed in New South Wales. Each one
involves a different level of severity, from full-time
imprisonment served at a correctional centre
or working farm, to periodic detention or home
detention.
If the court deems imprisonment appropriate,
the judicial officer will need to announce the total
sentence as well as a non-parole period. The non-
parole period is the minimum amount of time the
offender is kept imprisoned before being eligible
for release on parole. Unless there are special
circumstances, the non-parole period will be at least
three-quarters of the total sentence.
A sentence will be imposed for each offence
the offender is convicted of. These will usually be
served at the same time. For example, if an offender
Figure 4.9 Some people may be required to complete is sentenced to three years for one offence and five
community service as a form of punishment. years for another, the total sentence of five years will
usually be ordered. If the offender is in remand, the
Community service orders are a means of sentence will also take into account the amount of
punishing and shaming the offender, while time the offender has already served (that is, if the
allowing for rehabilitation by requiring a period of offender has been in remand for six months and the
time spent making amends in the community for non-parole period is five years, the offender has four
their wrongdoing. Community service orders have years and six months left to serve before becoming
the benefit of being cost-effective and beneficial eligible for parole).
to the community as a whole while still penalising
correctional centre home detention
the offender for the offence. They also allow the commonly known as a an imprisonment sentence
offender a chance to rehabilitate outside the prison prison – an institution where the offender is
where offenders are held confined to their home
system, while still enjoying their freedom, and avoid
in custody for the period of under certain conditions of
the harsher penalty of imprisonment that would their imprisonment monitoring
otherwise be imposed.
non-parole period parole
Imprisonment a period of imprisonment release of a prisoner
Imprisonment is the most severe sentence that during which parole cannot before the expiry of
be granted an imprisonment
can be imposed in Australia and is considered
term, temporarily or
a sentence of last resort. Section 5 of the Crimes permanently, on the
(Sentencing Procedure) Act 1999 (NSW) makes promise of good behaviour
this clear, stating that ‘a court must not sentence
an offender to imprisonment unless it is satisfied, The following media article discusses some of
having considered all possible alternatives, that no the implications of imprisonment and the concern
penalty other than imprisonment is appropriate’. of adult reoffending rates.
A sentence of imprisonment deprives a person of
their liberty and removes them from the community.
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CAMBRIDGE LEGAL STUDIES HSC
Reducing adult reoffending
Lenny Roth
New South Wales Parliamentary Research Service, 17 February 2015
Repeat offenders are responsible for a large proportion of crime in NSW; and those returning to
prison make up more than half of the prison population. The costs of reoffending to society and
the criminal justice system are therefore clear. Focusing on adult reoffending, this paper seeks to
address these four key questions:
(1) Are rates of reoffending getting better in NSW?
(2) What is the evidence about what works in reducing reoffending?
(3) What is being done to reduce reoffending in NSW?
(4) What more could be done to reduce reoffending in NSW?
The answer to the first question is: Yes and No. Between 2000 and 2011 there was a downward trend
in the rate at which adult offenders were reconvicted of another offence within two years, falling
from 31.4 per cent to 25.8 per cent. On the other hand, the rate at which adults return to prison
within two years improved between 2000–01 and 2007–08 but, due to a sharp rise between 2010–11
and 2011–12, is now above the 2000–01 level; and this rate is higher than almost all other Australian
jurisdictions.
What works? The Australian evidence on reducing reoffending is fairly limited, although some
programs such as drug courts have been shown to be effective. The international evidence is more
developed but there are still many gaps. There is good evidence that certain interventions reduce
reoffending: these include interventions targeting drug use, programs addressing cognitive skills,
and psycho-social interventions addressing violent behaviour.
What is being done? The NSW Government has a target of reducing rates of reoffending by 5 per
cent by 2016 and is currently developing a strategy to reduce reoffending. There are a range of
court-based intervention programs, which aim to address the underlying causes of offending. The
programs that have been shown to be effective are: the MERIT program, the NSW Court Liaison
Service, and the Drug Court program. There are some alternative custodial sentencing options that
target reoffending. In addition, Corrective Services provides a range of programs and services to
prisoners, parolees, and people serving community-based sentences.
What more could be done? Suggestions are made in recent NSW Law Reform Commission reports
on diverting people with cognitive and mental health issues from the justice system, and on
sentencing. A Senate Committee report on Justice Reinvestment, an approach to criminal justice
pioneered in the United States, is another reform that is worth considering. Further possibilities
to tackle reoffending are outlined in recent UK Government strategies, one of which is to adopt
‘payment by results’ schemes in relation to services provided to offenders.
Home detention to be assessed for suitability before a court can grant
For certain non-violent offences where a person is such home detention. Compliance with the order is
sentenced to 18 months’ imprisonment or less, the supervised by electronic monitoring of the offender,
offender might apply to serve their sentence while and a probation and parole officer monitor the order
confined to their own home. The offender will need and conduct random visits.
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CHAPTER 4 SENTENCING AND PUNISHMENT
who are still serving periodic detention orders set
Review 4.4 before that date will continue to serve them until
completion.
Read the media release from the NSW
Parliamentary Research Service in the media
article on page 86 and complete the following
Intensive Correction Order (ICO)
an alternative to a custodial sentence where an offender 4
has restricted movement and must attend a rehabilitation
tasks. program
1 Outline the main finding of the NSW
Parliamentary Research Service report. An offender who has been sentenced to a
2 Identify the two issues that were maximum term of two years is eligible for an ICO. An
highlighted in the report. What is the ICO has strict conditions, not unlike bail conditions.
response to these issues? Offenders who breach these conditions may be liable
3 Critically evaluate the effectiveness of for a full-time custodial sentence for the remainder
the law reform initiatives and programs of their sentence. Some of those conditions are:
in light of the report’s findings. Refer • strict curfews and association restrictions
to the purposes of sentencing in your • 24/7 electronic monitoring
response. • random breath tests and urine analyses
• completion of mandatory community service
(32 hours per month)
• restrictions on travel and behaviour
Certain conditions may be added (for example, • mandatory participation in rehabilitation and
allowing the offender to go to work or get medical education programs.
treatment outside the home). Particular controls ICOs aim to reduce the likelihood of reoffending,
and restrictions might also be put in place (such which periodic detention failed to address. This is a
as not communicating with certain persons). Home far more flexible system as it enables people to keep
detention orders offer many benefits – they are more their full-time employment and attend rehabilitation
cost-effective than full-term imprisonment, they and counselling services, which are aimed at making
provide an opportunity for rehabilitation, they keep lifestyle changes for the better for them.
the offenders out of the prison system and they allow
normal family life to continue.
Home detention is likely to be more controversial
for more serious offences, especially where a victim
is involved or there is a risk of reoffending. For this
reason, home detention orders cannot be used
for violent or sexual offences, including murder,
manslaughter and sexual assault, or for firearms
offences. It is also restricted if the offender has a
history of violent offences or if they live at the same
address as the victim of their offence.
Intensive Correction Order (ICO)
A periodic detention order was a form of imprisonment
that allowed offenders to serve a period of time each
week or month in prison, rather than the full period
of a sentence. On 1 October 2010, periodic detention
was replaced by the Intensive Correction Orders
(ICO). This was brought about by an amendment
to the Crimes (Sentencing Legislation) Amendment Figure 4.10 Conditions of an ICO may include random
(Intensive Correction Orders) Act 2010 (NSW). People breath tests and urine analyses.
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CAMBRIDGE LEGAL STUDIES HSC
Diversionary programs A 2014 report by the NSW Bureau of Crime
A diversionary program is a court program Statistics and Research concluded that offenders
(also known as an intensive judicial supervision participating in intensive judicial supervision
program) set up to divert certain offenders from programs (such as the MERIT program and the
more traditional criminal processes in the hope programs run through the Drug Courts) were less
that they can be rehabilitated and encouraged likely than those not in such programs to return
not to reoffend. The programs are only available positive urine analysis tests, and had a significantly
for particular offences or types of offenders. They greater number of periods of abstinence from drugs
have been established in an attempt to target the and alcohol.
causes of offending in individuals and improve those
offenders’ future prospects. Research 4.3
diversionary program The website of the New South Wales Crime
an alternative to the traditional court system that focuses
on the rehabilitation of offenders Prevention Division outlines some of the
major diversionary programs currently in use
Diversionary programs usually involve a in New South Wales (see http://cambridge.
magistrate of the Local Court adjourning a case while edu.au/redirect/?id=6241).
the offender attends some form of rehabilitation or Visit the website and select two
special hearing. Sometimes called ‘therapeutic diversionary programs to report on.
justice’, the programs may include education, 1 Outline the types of offences and
medical or psychiatric treatment, rehabilitation offenders targeted by the diversionary
or social welfare assistance. Many diversionary program.
programs are set up to support offenders who 2 Describe the methods used by the
have committed crimes due to drug and alcohol program to assist offenders.
abuse. The Drug Court is one of the most important 3 With reference to traditional penalties
diversionary programs. Established in 1999, it was the evaluate whether the programs are
first of its kind in Australia and aimed to rehabilitate effective in achieving justice.
non-violent drug-addicted offenders. Over 150
offenders a year complete its program. It emerged
after growing disenchantment with the traditional
criminal justice system and its effectiveness in
4.8 A
lternative methods of
providing long-term solutions to cycles of crime
sentencing
and drug abuse. It has proven a great success and
attracted international renown. Recent developments in the law have introduced
The NSW Bureau of Crime Statistics and new forms of sentencing targeting particular types
Research released a report in 2008 which assessed the of offenders. Like diversionary programs, they
effectiveness of the Drug Court. It found that those attempt to combat some of the issues associated
who had completed the program were less likely to with recidivism and more traditional forms of
be reconvicted than those sentenced to traditional sentencing. They include circle sentencing and
penalties. Among the report’s most important restorative justice.
findings was that the Drug Court is more cost-effective circle sentencing restorative justice
than prison in reducing drug-related recidivism. a form of sentencing for a form of sentencing
some adult Indigenous involving a voluntary
Participants who completed the program were: offenders where conference between the
• 37% less likely to be reconvicted for any offence sentencing is conducted offender and the victim of
• 65% less likely to be reconvicted for an offence in a circle made up of local the crime
community members and a
against the person magistrate
• 57% less likely to be reconvicted for a drug
offence.
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CHAPTER 4 SENTENCING AND PUNISHMENT
Circle sentencing Restorative justice
Circle sentencing is an alternative court for Restorative justice is another alternative to
sentencing adult Indigenous Australians. It was traditional sentencing methods. It involves bringing
introduced in New South Wales on a trial basis together the offender and the victim of the offence.
at Nowra in February 2002.The Circle Courts are It provides an opportunity for the offender to take 4
designed for repeat offenders and those who have responsibility for their actions and the impact they
committed more serious crimes. Circle sentencing have had on others, while giving victims a voice and
is based on Indigenous customary law and more an opportunity to confront the offender and work out
traditional Indigenous forms of dispute resolution. a way to repair the damage done. Victims are able
It involves community members and a magistrate to ask questions about the offence in an attempt to
sitting in a circle to discuss the offender’s crime and move forward and the offender has the opportunity
then tailor the most appropriate sentence for the to apologise or make amends for their act.
offender. It has the full sentencing powers of a court. Restorative justice sessions can be confronting
Circle sentencing directly involves local and difficult for both parties involved. They are
Indigenous people in the sentencing process. This voluntary and will usually accompany a form of
makes it more meaningful to the offender, and also traditional sentencing. One of the first Australian
improves the confidence of the community in the restorative justice models was started in Wagga
criminal justice system. It also aims to improve Wagga in 1991, and it has since become a valuable
understanding between Indigenous communities part of the rehabilitation process. It is now an
and the courts and to reduce recidivism among important program run by the Restorative Justice
offenders. Unit of Corrective Services NSW and involves safe
Recent evaluation of circle sentencing has and private conferencing and mediation services
shown that the program’s objectives are being met. run by a facilitator.
However, improvements are still needed in some There are many stories of victims who have
areas, such as participation and support services. found the restorative justice program significantly
The NSW Bureau of Crime Statistics and Research helpful for recovery from a crime. The effectiveness
reported that Indigenous offenders were no less likely of programs for offenders is unclear, but Australian
to reoffend in the 15 months after circle sentencing studies based on youth conferencing initiatives
than those sentenced in a traditional court setting. have shown that a 15–20% reduction in reoffending
However, the New South Wales Government still is possible. However, it has been suggested that
expanded the program to more communities. restorative justice programs will continue to relate
mainly to minor infringements or youth justice, and
that they are unlikely to expand greatly.
Review 4.5
1 Outline the differences between circle
sentencing and traditional methods of
sentencing.
2 Analyse and evaluate the role alternative
methods of sentencing can play in the
criminal justice system.
3 Outline the advantages and
disadvantages that alternative methods
Figure 4.11 Aboriginal and Torres Strait Islander
peoples have their own Indigenous customary law
of sentencing offer the criminal justice
and other more traditional Indigenous forms of system.
dispute resolution.
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CAMBRIDGE LEGAL STUDIES HSC
4.9 P
ost-sentencing In medium security prisons such as the
considerations Tamworth Correctional Centre, inmates can move
around more freely, but within high walls or security
Once an offender is sentenced to a community-based
fences. In minimum security centres, such as the
order or a non-custodial sentence, they will need to
Silverwater Women’s Correctional Centre, there are
serve out the terms and conditions of that sentence
fewer barriers to escape and inmates are allowed
or be returned to court for a review of their sentence.
more open conditions. At the Balund-a (Tabulam)
When an offender is sentenced to a period of
facility inmates are given the chance to participate
imprisonment, they will be sent to an assessment
in a residential diversionary program.
centre where they will be given a security
classification. They will then be sent to an appropriate
Protective custody
correctional centre, more commonly known as prison,
Protective custody is provided in New South Wales
where they will serve out their sentence. In New South
correctional centres to offenders who are vulnerable
Wales, the administration of imprisonment and other
to attack from other prisoners. Correctional
sentences is governed by the Crimes (Administration
authorities have a duty of care for the safety of
of Sentences) Act 1999 (NSW). Correctional centres
offenders in their custody. This includes protecting
are managed by Corrective Services NSW, which is
offenders from the risk of physical violence from
the responsible government agency.
other offenders.
Security classification The purpose of sentencing an offender to
imprisonment is to isolate them from the community,
Correctional centres are divided into three security
whether for the purpose of incapacitation, deterrence
classifications: maximum, medium and minimum.
or otherwise. This does not include subjecting them
Some centres have sections for more than one
to high risk of physical harm or to cruel or inhumane
classification. There are 38 correctional centres
conditions. Offenders who have been placed in
located all over New South Wales. Offenders will
custody for offences that other inmates deem
be classified according to factors such as the
offensive, such as offences against children, might
seriousness of their crime, their prospects for
be under threat of harm from fellow inmates and
rehabilitation and whether or not they have displayed
may require periods of protective custody. Certain
good behaviour during previous sentences.
offenders, such as police officers or politicians, might
Maximum security centres, such as the Goulburn
also be vulnerable to attack due to their history, and
Correctional Centre for men or the Silverwater
so may be isolated in a particular wing of a prison.
Women’s Correctional Centre, hold offenders who
committed the most serious crimes and whose
Parole
escape would be highly dangerous to the public.
Parole refers to the conditional release of a prisoner
from custody after the completion of the minimum
term of the sentence (that is, the non-parole period
set by a judicial officer at sentencing).
The fundamental purpose of parole is to provide
the offender with an incentive for rehabilitation.
It is believed that the possibility of early release
will increase the likelihood of the overall reform of
offenders and encourage better prisoner discipline
within the prison setting.
When released on parole an offender is put under
the direct supervision of a parole officer. The parolee
(released offender) is required to report to their
parole officer as directed, and the officer will visit
Figure 4.12 Goulburn Correctional Centre is a the parolee’s residence and make inquiries in the
maximum security facility. community to ensure that the parolee is meeting the
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CHAPTER 4 SENTENCING AND PUNISHMENT
conditions of their early release. These conditions Preventative and continued
can include a good behaviour bond, not reoffending detention
during the parole period, gaining employment and/or Preventative detention is possibly the harshest
avoiding certain company or a specified public area. form of sentence. It is also the most controversial.
Additional conditions, such as receiving Preventative detention involves imprisonment of a 4
specified counselling or other treatment, may apply. person for some type of future harm that they may
All these programs are intended to assist commit. The person is detained in custody without
offenders in their gradual reintegration into the actually having committed or being found guilty
community after release from imprisonment. They of any offence. The purpose is incapacitation of a
also aim to ensure that offenders will not reoffend. person considered to constitute a significant threat
to community safety.
Review 4.6
preventative detention
keeping a person in custody, even though they have not
1 Use the NSW Offender statistics in the committed any offence, to prevent some future harm that
‘Legal Info’ box and the NSW Bureau of they may commit
Crime statistics summary report at http://
cambridge.edu.au/redirect/?id=6242 to There are two types of preventative detention:
critically evaluate the effectiveness of post-sentence preventative detention, which occurs
imprisonment as a form of sentence. when a person has already been sentenced and has
2 Identify the duty of the state to offenders served that sentence; and preventative detention
in custody. How can an offender under without charge, which can occur at any time. All
threat of violence be protected? types of preventative detention orders are highly
3 Describe how an offender can achieve contentious as they act to remove a person’s basic
parole. What is the importance of parole legal rights without due process.
in the criminal justice system? The most severe type of preventative detention
is legislation that is targeted at individual offenders.
Legal Info
NSW offender statistics 2018
Corrective Services NSW oversees 38 correctional centres (10 maximum, 16 medium and 12 minimum
security) and eight periodic detention centres.
The statistics for full-time imprisonment in 2018 are:
• On a daily basis, New South Wales correctional centres hold 13 494 prisoners.
• Of these, only 7.7% are female.
• The average age of inmates increased from 29.6 years in 2000 to 33.7 years in 2015, an increase of 13.9%.
There has been an increase of 139% in the number of middle-aged (40–49 years) and older offenders
(50+ years) since 2000.
• 24.5% of inmates in New South Wales are Indigenous.
• Between 2013 and 2017, the annual number of convicted offenders receiving a prison sentence
rose from 9570 to 13 042, an increase of 36%.
• The average daily cost of full-time custody per inmate is $220.68 (open custody) or $246.68
(secure custody) (http://cambridge.edu.au/redirect/8285).
• This equates to a cost of somewhere between $80 000–$90 000 per inmate per year.
For community-based orders:
• The daily cost for a community-based offender is $26.88.
• There are 18 724 people supervised under community-based orders on any day.
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CAMBRIDGE LEGAL STUDIES HSC
This type of law was held to be unconstitutional in relation to the offence, whichever is later. When a
the High Court case of Kable v DPP (1996) 189 CLR sex offender is paroled they are served with a notice
51. However, most Australian jurisdictions have to inform them that they need to register. Adult
legislation enabling general powers of preventative offenders must register for a minimum period of
detention in restricted circumstances. eight years, and juvenile offenders must register
For example, in New South Wales, the for four years. Offenders must provide a range of
controversial Part 2A of the Terrorism (Police Powers) personal information as well as travel plans, and
Act 2002 (NSW) allows police to make an application must keep this information regularly up to date. At
to detain a person in custody for a maximum period the end of 2014, there were over 10 650 offenders
of 14 days if they reasonably believe the suspect will registered nationally.
otherwise engage in a terrorist act. Victoria used Sexual offender registries are justified by
the controversial anti-terror powers in April 2015 to their supporters on the basis that they protect
detain five terror suspects. the community. However, they are sometimes
Continued detention, on the other hand, is contentious, as they target certain offenders long
where serious offenders who have served their full beyond the period of the sentence they have been
sentence continue to be detained. New South Wales required to serve, and deny the chance for the
has a post-sentencing scheme under the Crimes offender to move on in the rehabilitation process.
(High Risk Offenders) Act 2006 (NSW) that allows for Supporters respond by claiming that the severity
the ongoing detention of high risk offenders who are of the original crime, added to the ongoing risk of
serving a sentence for a serious sexual or violence reoffending, outweighs the burden that the registry
related offence. The Attorney-General can apply requirements impose on the offender.
to the Supreme Court for a continuing detention In August 2015, the New South Wales Government
order for the offender if satisfied ‘to a high degree set up a taskforce to investigate the use of anti-libido
of probability’ that the offender is most likely to drugs for child sex offenders to ‘chemically castrate’
reoffend if released. The allowable purposes of the them. The review encompasses the use of this
continued detention are: treatment within the New South Wales correctional
• to secure the protection and safety of the system, and also as a sentencing option for judges.
community The hope is that this would significantly reduce the
• to facilitate rehabilitation. likelihood of reoffending.
continued detention Deportation
ongoing detention of a person who has already served the
full sentence for their offence Deportation is the forcible removal from Australia
and requires a specific deportation order made
under s 206 of the Migration Act 1958 (Cth). A migrant
Sexual offenders registration living in Australia who is not a citizen may be
There are both state and federal databases of deported if they are tried and convicted of a criminal
offenders who have been convicted of certain sexual offence. Under ss 200 and 201 of the Act, if a non-
offences. The Australian National Child Offenders citizen commits an offence for which they receive
Register (ANCOR) and the New South Wales a custodial sentence of 12 months or more in their
Child Protection Register are web-based systems first 10 years of residence, the responsible minister
designed to assist police with the registering and (usually the Minister for Immigration) may decide
case management of those who have committed that they should be deported from Australia.
sexual offences against children. In New South Wales in 2017, 430 visas were
Established under the Child Protection (Offenders cancelled on character grounds, with hundreds
Registration) Act 2000 (NSW), a person convicted of more in other states and territories.
specified violent or sexual offences against a child Deportation is an extremely serious effect of a
must register at the local police station (1) when sentence of imprisonment. Cases of deportation
the person is sentenced for the offence, or (2) when under these sections will often become highly
the person ceases to be in government custody in publicised because the circumstances of such
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CHAPTER 4 SENTENCING AND PUNISHMENT
Case Study
Robert Jovicic: the stateless man
Robert Jovicic was born on 4 December 1966 in France to Serbian parents. When he was two years
old, his family moved to Australia, and he became an Australian permanent resident. He was later
4
eligible to become an Australian citizen, but (like nearly one million other Australian residents) he
never officially took this up.
After many years living in Australia, Mr Jovicic developed an addiction to heroin, and by 2004
he had been charged with more than 100 criminal offences (mainly burglary and theft) that he had
committed in order to support his addiction.
In June 2004, Mr Jovicic’s permanent residency was cancelled under ss 200 and 201 of the Migration
Act 1958 (Cth) by the then Federal Immigration Minister, Philip Ruddock. The cancellation was based
on the minister’s discretionary power to deport
non-Australian citizens convicted of an offence.
Mr Jovicic was consequently held in custody
before being deported to Belgrade, Serbia.
However, Mr Jovicic was ill equipped to cope
with life in Serbia. He had no knowledge of the
Serbian language and no working visa, which
prompted the Serbian Government to declare
him ‘stateless’, meaning that he had no home
country. Around 18 months after his arrival, Mr
Jovicic was discovered homeless and ill, sleeping
outside the Australian Embassy in Belgrade. At
this time, his case became widely publicised in
the Australian media.
In March 2006, after much media scrutiny and
public debate, Senator Amanda Vanstone decided
that Jovicic could come back to to Australia,
under a special purpose visa. He returned to
Australia on 9 March 2006, uncertain about his
residency status, and waited almost a year before
being given a two-year special protection visa.
In February 2008, he received a permanent
residence visa, granted by Senator Chris Evans,
the new Labor Minister for Immigration and
Citizenship. Figure 4.13 Robert Jovicic
cases are usually severe. They are controversial know nothing about and/or that has a language they
because they appear to treat a person as a problem do not speak, with no support networks in place to
that can be resolved by being moved elsewhere, but assist in their rehabilitation.
without any follow-up or support once outside the If such a person is also found to constitute a threat
jurisdiction. For example, a person may have been to Australian security, or has been convicted of
living in Australia for decades yet still fall under the a serious offence, they may also be prohibited
requirements of these sections. The person may be from ever returning to Australia as well as being
removed from family and friends to a country they deported.
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CAMBRIDGE LEGAL STUDIES HSC
Chapter summary
• Sentencing requires careful balancing of many • There are alternatives to full-time
different factors. imprisonment, including home detention and
• The main purposes of sentencing are diversionary programs.
deterrence, retribution, rehabilitation and • Alternative methods of sentencing include
incapacitation. circle sentencing and restorative justice.
• The main factors considered in sentencing are • Post-sentencing considerations are an
aggravating factors and mitigating factors. important part of sentencing.
• A victim may be involved in sentencing through • Certain prisoners may be detained beyond the
a victim impact statement. end of their sentence.
• Courts have a large variety of penalties that can • Adult sexual offenders may be required to
be imposed. register their details for a minimum of eight
• A judicial officer may only impose a sentence years.
of imprisonment where no other penalty is • Deportation is a serious risk after imprisonment
appropriate. if a person is a non-citizen.
• Imprisonment may increase the risk of an
offender reoffending.
Questions
Multiple-choice questions 3 Which of the following is not likely to be a
1 Which of the following is true of restorative mitigating factor?
justice? A The offender assisted the victim after the
A It brings together the offender and the offence.
victim so that the offender can see the B The offender had experienced similar
impact they have had on the victim. treatment in their life.
B It is the most severe form of punishment. C The offender was under the influence of
C It gives the offender the opportunity to alcohol or drugs.
confess to the crime. D The offender shows contrition or remorse.
D It aims to send a message to the rest of
society that the law is serious about crime. 4 Which of the following crimes would a
Community Order be suitable for?
2 The victim’s role in sentencing by providing a A Manslaughter
victim impact statement is: B Murder
A to tell the offender exactly what they think of C Driving while disqualified
them D Armed robbery
B to influence the judge into giving the
maximum penalty 5 Imprisonment has been shown to:
C to make sure justice is achieved A reduce recidivism
D to express the effect the crime has had upon B reduce reoffending
their life C increase reoffending
D increase rehabilitation
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CHAPTER 4 SENTENCING AND PUNISHMENT
Chapter summary questions 3 Evaluate the effectiveness of imprisonment as
1 Outline the differences between mitigating a method of sentencing in the criminal justice
and aggravating factors and explain how these system.
4
factors affect the sentencing process in a 4 Analyse one alternative to traditional means of
criminal trial. sentencing and describe its effectiveness and
2 List three types of penalties. Outline and role in the criminal process.
evaluate the penalty and how it corresponds
with the purposes of sentencing.
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Chapter 5
Young offenders
Chapter objectives
In this chapter, students will:
• discuss a range of issues surrounding the age of criminal responsibility
• explain why the criminal justice system treats young offenders differently from other offenders
• assess how effectively of the criminal justice system deals with young offenders.
Key terms/vocabulary
caution juvenile justice
conclusive presumption Juvenile Justice Centre
control order rebuttable presumption
doli incapax right to silence
grave adult behaviour youth justice conference
interview friend warning
Relevant law
IMPORTANT LEGISLATION
Children (Criminal Proceedings) Act 1987 Young Offenders Act 1997 (NSW)
(NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Children’s Court Act 1987 (NSW) Law Enforcement (Powers and Responsibilities) Act
Summary Offences Act 1988 (NSW) 2002 (NSW)
United Nations Convention on the Rights of the Child Bail Act 2013 (NSW)
(1989)
SIGNIFICANT CASES
R v GDP (1991) 53 A Crim R 112 R v Cortez, CE, ME, IKEA & LT (unreported, NSWSC,
R v Pham & Ly (1991) 55 A Crim R 128 Dowd J, 3 October 2002)
R v LMW [1999] NSWSC 1343
Legal oddity
In China, it is against the law for students to cheat in state exams, or for others to help students to cheat.
Section 284 of the Chinese Criminal Law Code specifies a range of cheating activities, including providing
equipment to enable cheating, providing questions or answers to a test and having someone else sit the
exam. Penalties can include fines or imprisonment of up to three years. The most serious cases can result
in imprisonment of up to seven years, and a fine.
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CAMBRIDGE LEGAL STUDIES HSC
5.1 Y
oung offenders and the
law
Any person can commit a criminal act, providing
they have the physical capability to do so. However,
the law treats offenders differently when they are
under 18 years of age. In most cases, the community
and the law recognise that there may be a different
level of responsibility involved in the actions of
children and young people who have not reached
full adulthood, or there may be a different level
of protection or assistance required. The area of
law and policy concerned with young people and
Figure 5.1 Offenders by age 2008–09 to 2016–17 (rate
the criminal justice system is often referred to as
per 100 000 relevant people). Source: Australian
juvenile justice.
Bureau of Statistics, 4519.0 – Recorded Crime –
Offenders, 2016–17, Table 5
juvenile justice
the area of law and policy concerned with young people
and the criminal justice system
The reasons behind any
young person becoming
involved in crime are varied
and complex. For example,
in New South Wales Juvenile
Justice, in its Young People
in Custody Health Survey,
suggests factors such as:
• poor parental supervision
• drug and alcohol abuse
• neglect and abuse
• homelessness
• negative peer associations
• poor personal and social
skills or difficulties in
school and employment.
In Australia, people under
18 years old who are involved
in crime represent only a small
proportion of the population.
According to Youth Justice
Australia:
A total of 5359 young people
aged 10 and over were under
youth justice supervision on an Figure 5.2 Offenders by selected violent offences and age, 2016–17 (per
average day in 2016–17. Among 100 000 relevant people). Source: Australian Bureau of Statistics, 4519.0 –
those aged 10–17, this equates Recorded Crime – Offenders, 2016–17, Table 4
to a rate of 20 per 10 000, or one
in every 492 young people.
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CHAPTER 5 YOUNG OFFENDERS
5
Figure 5.3 Young offenders by gender 2008–09 to Figure 5.4 Young offenders by age and gender
2016–17 (per 100 000 of that gender per year). Source: 2016–17 (per 100 000 of that age and gender). Source:
Australian Bureau of Statistics, 4519.0 – Recorded Australian Bureau of Statistics, 4519.0 – Recorded
Crime – Offenders, 2016–17, Table 19 Crime – Offenders, 2016–17, Table 21
Figure 5.5 Principal offences of young offenders 2012–13 to 2016–17. Source: Australian Bureau of Statistics,
4519.0 – Recorded Crime – Offenders, 2016–17, Table 19
There are two recognised approaches that can Under this model, there is a need to protect children
be taken by the law with regard to young offenders and young people from the causes of crime and to
and juvenile justice. These are: assist in their rehabilitation if an offence is committed.
• the welfare model and By contrast, the justice model takes a ‘tough on crime’
• the justice model. stance. A more traditional model, the justice model
The welfare model assumes that the causes of generally promotes a ‘zero tolerance’ approach
crime can relate to several factors, such as social and towards offenders of any age, and emphasises
psychological factors, or the state of the economy. punishment and deterrence over rehabilitation.
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CAMBRIDGE LEGAL STUDIES HSC
To some extent, the juvenile justice system uses 5.2 A
ge of criminal
a combination of these approaches when dealing responsibility
with offenders. This is evident in the different
The law treats children and young people differently
approaches to legislation that deals with young
from adults. There are a number of reasons for this,
offenders in New South Wales; these differences
including:
will be explored throughout this chapter. There are
• preventing children and young people from
promising aspects to the juvenile justice system that
being exploited
maximise an offender’s chance at rehabilitation,
• protecting them from the consequences of
but elements of the ‘get tough’ approach have also
making uninformed decisions
influenced current laws.
• protecting others from being disadvantaged by
Both have had significant effects on younger
dealing with a person who is a minor.
people and the law; this is especially important
The criminal justice system recognises that
in light of the high rates of young offenders when
children and young people can be less responsible
compared with adult offenders and in particular the
than adults for their offences, due to their relative
higher prevalence of particular offences committed
youth or inexperience. This is most evident in
by young offenders (see Figures 5.1 and 5.2).
the way the law approaches the age of criminal
responsibility.
Historical background
Historically, children and young people who
committed offences were treated in more or less
the same way as adult offenders. Children as young
Review 5.1
as seven or eight years old were often convicted
1 Compare the juvenile offender rate by of serious criminal offences. Children could be
age and the offence shown in Figures 5.1 imprisoned, flogged, transported to colonies such
and 5.2 with that of adults. as Australia, or even executed. In the year 1814, up to
2 Describe the trend in juvenile offender five children under the age of 14 were convicted and
rates compared with that in adults. hanged at the Old Bailey in London. The youngest
3 Explore some possible reasons for the was only eight years old.
difference in the rates. For infants and very young children, however, the
4 Comment on the variance in juvenile law sometimes recognised that they might not yet
offending by gender and age as shown be capable of crime, physically or mentally. Legal
in Figure 5.3. opinions and laws dating as far back as 694 CE, in
5 Explain the most common types of the Laws of King Ine of Wessex, suggested that
offences committed by young offenders infants might be incapable of committing wrong,
as shown in Figure 5.5. or that they might not have sufficient knowledge of
good and bad. This usually applied to infants and
children under seven years old. Mental capacity is
particularly important in establishing the intent, or
Research 5.1 mens rea, of the crime, and it was difficult to show
that a child had the necessary intent.
Visit the website of the Australian Institute
Under the common law, the term describing a
of Criminology (see http://cambridge.edu.
child as not legally responsible is the Latin term
au/redirect/?id=6243). Find the Australian
doli incapax, meaning ‘incapable of wrong’. Doli
Crime: Facts and Figures 2013 report and
incapax is a presumption that children are incapable
investigate some of the emerging trends
of having criminal intent.
behind the rate of offending for young
people.
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CHAPTER 5 YOUNG OFFENDERS
doli incapax Children (under 10 years)
a Latin term meaning ‘incapable of wrong’; the
presumption that children under a certain age cannot be In New South Wales today, the Children (Criminal
held legally responsible for their actions and so cannot Proceedings) Act 1987 (NSW) lays out the minimum
be guilty of an offence
age of criminal responsibility. Section 5 of the Act
states that ‘[i]t shall be conclusively presumed that
Under the common law, this was a rebuttable
no child who is under the age of 10 years can be
presumption , which means the presumption
guilty of an offence’.
was that the child could not have committed an
offence, unless the prosecution could prove beyond
This means that, for children under 10 years old, 5
doli incapax is a conclusive presumption. No child
reasonable doubt to the judge, or jury, that the child
under the age of 10 can be found by law to have
was capable of understanding their actions – that is,
committed an offence, and this cannot be rebutted.
that the child knew that what they were doing was
‘seriously wrong’ at the time they did it, and not just conclusive presumption
‘naughty’. a legal presumption in favour of one party that is final and
cannot be rebutted by the other party
rebuttable presumption
a legal presumption in favour of one party – it can be Previously, in some states the age of criminal
rebutted by the other party if they can show sufficient
evidence to disprove it responsibility was as low as the age of seven years.
Proving that an offender under the age of 10
By the end of the 19th century, there was a understood their act to be wrong and hence the
growing awareness that treating children in the existence of mens rea beyond reasonable doubt would
same way as adults did not take into account a be extremely problematic. Children under the age of
child’s lack of life experience, uninformed and at 10 draw on very limited life experience when making
times poor decision-making, and socioeconomic decisions about right and wrong. Punishing children
circumstances – all of which differentiate them under 10 years of age by law may also be considered
from adults. Because of this the age of criminal cruel treatment. Children are considered more likely
responsibility was reconsidered. to be rehabilitated from offending behaviour, and
By the late 20th century, most countries had the imposition of any criminal penalty at such a
adopted a minimum age of criminal responsibility, young age may prevent this occurring. For these
though it varied. In 1989, the United Nations
established a treaty on children’s rights known as
the United Nations Convention on the Rights of the
Child. It included many aims and requirements for
the treatment of children, including certain rights for
children under the criminal law. Particularly, article
40(3)(a) of the convention encouraged establishment
in all countries’ laws of ‘a minimum age below which
children shall be presumed not to have the capacity
to infringe the penal law’. The treaty is in force in
every country worldwide except Somalia and the
United States.
Although Australian jurisdictions have not
passed any single law that adopts the convention in
its entirety, the High Court has ruled that Australian
laws should, wherever possible, be understood in a
manner that is consistent with the convention.
Figure 5.6 In Australia, no child under the age of
10 years can be found by law to have committed an
offence.
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CAMBRIDGE LEGAL STUDIES HSC
reasons, children under the age of 10 are deemed • it makes the prosecution’s role in a criminal
by law never to be criminally liable. trial more difficult, as there is not always
Children under the age of 10 have in some enough evidence to rebut the presumption of
instances committed acts which would be considered doli incapax.
unlawful, even if the law does not recognise their However, Crofts goes on to defend the
mental capacity for intention. There are occasionally presumption of doli incapax. First, he states that it
calls from some sections of the community to lower is consistent with the principles of international law
the age of criminal responsibility, or even abolish it to which Australia is a signatory. He also highlights
altogether. However, any reduction in the minimum that children develop their understanding of right
age to below 10 years is extremely unlikely. and wrong at different stages of their lives and that
doli incapax helps to remind us of these different
Children (10–13 years) levels of maturity by forcing the prosecution to
At what age, then, does a child become responsible prove understanding on a case-by-case basis.
for their actions? The Children (Criminal Proceedings) Further, although it may slow down the prosecution,
Act 1987 (NSW) is silent on the responsibility of ultimately it does not stop it if there truly is proof of
children 10 years or older. In New South Wales, a guilty mind.
the answer is still found in the common law – the
rebuttable presumption of doli incapax. This applies Young people (14–17 years)
to children 10–13 years old. Once a person turns 14 years, the presumption of doli
Once a child turns 10, they are still presumed incapax no longer applies and the offender can be
incapable of committing a criminal offence, but this found criminally responsible for their actions.
presumption is allowed to be rebutted. That is, the Children aged 14 and over are deemed mature
prosecution may be able to show that the child, at enough to know when their actions are wrong and to
the time of the alleged offence, actually knew that know not to commit an offence. However, the law still
their act was seriously wrong, not just ‘naughty’. continues to protect young people in a number of
The rebuttable presumption recognises that ways – full criminal responsibility, publicly triable in
children of this age might have the mental capacity to adult courts, does not occur until a person reaches
understand the seriousness of their act, but it is up to 18 years of age.
the prosecution to prove it beyond reasonable doubt. For example, young people under the age of 16
Evidence that the prosecution might rely on could cannot have a criminal conviction recorded against
include psychiatric evidence, evidence of parents and them, unless the offence was an indictable offence.
teachers, or behaviour of and statements by the child. This means that the offence cannot be considered by
As in the case of R v LMW [1999] NSWSC 1343
(see the ‘In Court’ box), the application of doli
incapax has occasionally come under scrutiny,
usually through high-profile cases relating to
heinous crimes committed by children. Some of
the issues surrounding this debate are highlighted
by Thomas Crofts, Associate Professor at Murdoch
University School of Law, in his paper ‘Doli incapax:
Why Children Deserve its Protection’ ((2003) 10(3)
Murdoch University Electronic Journal of Law 26).
Crofts states that:
• opponents argue that doli incapax should be
lessened or removed because children today
are better educated and the criminal law is not
as harsh as it once was
• the rule can be unfair, especially to the victims Figure 5.7 Once a person turns 14 years old, the
of the crime presumption of doli incapax no longer applies.
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CHAPTER 5 YOUNG OFFENDERS
In Court
R v LMW [1999] NSWSC 1343
In this case, a 10-year-old child, LMW, was accused of manslaughter after he dropped another boy,
six-year-old Corey Davis, into the Georges River, knowing that he could not swim. The boy drowned,
and the New South Wales Director of Public Prosecutions (DPP) brought a charge of manslaughter
against LMW for his death.
Initially, the Senior Children’s Magistrate at the Children’s Court dismissed the case against LMW 5
at the committal hearing, saying that a jury would not convict a child so young. However, the DPP
persisted and took the case to the Supreme Court of New South Wales, to be heard in front of a jury.
LMW was the youngest person to face the Supreme Court and the youngest in Australia to be charged
with manslaughter.
After an 18-month effort by the DPP, with intense media and political interest in the case, the
Supreme Court jury acquitted LMW. Central to the case was the issue of doli incapax. Studdert J, who
heard the case, affirmed that the presumption of doli incapax applied in New South Wales, and that
it was for the jury here to decide, on the evidence, whether or not the prosecution had rebutted the
presumption.
The prosecution argued that LMW had and was capable of forming criminal intent, and that he
understood the consequences of pushing Corey Davis into the river. The DPP painted LMW as a bully
who showed malice and deception. The defence argued that it was a childish prank that had gone
wrong and that LMW did not understand the consequences of his actions.
Some of the evidence presented included evidence from a child psychiatrist who determined that
LMW probably could understand the difference between right and wrong, and evidence from three
teachers that LMW was behind intellectually at school, but that he was capable of following school
rules. Corey was also much younger and smaller than LMW and there was evidence of what LMW said
as he picked him up and dropped him into the river, and afterwards. This was based, however, only
on the evidence of two other six-year-old witnesses.
On various appeals about the available evidence from the defence and the DPP, Studdert J
determined that there was sufficient evidence for the jury to make a decision on doli incapax, but that
this decision was for the jury to make. The jury acquitted LMW after three hours of deliberation.
Legal Info
The age of criminal responsibility in New South Wales
Age (inclusive) Criminal responsibility
0–9 years old Cannot be charged with a criminal offence. Children under 10 are viewed
as insufficiently mature to commit criminal offences.
10–13 years Rebuttable presumption of doli incapax. Presumed not capable of
committing an offence, but the prosecution may prove capacity with
sufficient evidence.
14–15 years Criminally responsible for any offence committed, but no conviction can
be recorded unless it is a serious offence.
16–17 years Criminally responsible for any offence committed and a conviction may be
recorded, but the case will still be heard in the Children’s Court.
18 years or older Full adult criminal responsibility, with case to be heard in adult courts.
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CAMBRIDGE LEGAL STUDIES HSC
a court if the offender appears again later in their life. Commission. The report was titled Seen and Heard:
However, if it is an indictable offence, the magistrate Young People and the Legal Process, and examined
or judge may decide to record a conviction. This the relationship between young people and the
does not apply to children aged 16 or 17. legal process, including the criminal process. The
People under the age of 18 are subject to the report’s recommendations included:
Children’s (Criminal Proceedings) Act 1987 (NSW). • standardising the minimum age of criminal
This includes a number of protections, such as responsibility, which was achieved in all
prohibiting reporting of the child’s name (for example, jurisdictions in 2000
‘LMW’ in the ‘In Court’ box), and a requirement that • standardising national standards through
any convictions will be cleared after three years (if no legislation or policy for juvenile justice that
more have been committed). Most importantly, the extends to investigation and arrest, bail
matter will be heard in the Children’s Court. conditions, sentencing and detention.
Particularly, changes were recommended to
Review 5.2 ensure that Australian jurisdictions comply with
Australia’s obligations under the United Nations
1 Describe the meaning of the term ‘doli Convention on the Rights of the Child. However,
incapax’. national standards have not yet been implemented.
2 Explain the distinction for the The inquiry also surveyed 843 children and young
prosecution if a child is under 10 years people on dealings with the police: 78% of those
old, 10–13 years old, or 14 and older. surveyed stated that the police rarely treated young
3 Outline the facts of R v LMW. Evaluate people with a sufficient degree of respect. There
the outcome of the case and discuss could be many reasons for this, and it does not
whether you think the law was necessarily mean inadequate policing. However, it
appropriate in the circumstances. was clear that there was room for improvement in the
4 Discuss some arguments for and against relationship between young people and police. Since
the retention of doli incapax in its present the survey, a number of legislative changes have
form. been introduced to try to add certain protections for
5 Read the full article by Thomas Crofts, children and young people.
available at http://cambridge.edu.au/ As explored in Chapter 2, the main legislation
redirect/?id=6244, and elaborate further outlining police powers in New South Wales is the Law
on the contemporary issues surrounding Enforcement (Powers and Responsibilities) Act 2002
doli incapax. (NSW). The Act contains a number of requirements
for police in their dealings with young offenders.
Questioning of young people
Police in New South Wales have the power to
5.3 T
he rights of children approach young people and ask them questions at
and young people when any time, as they do for adults. Most police powers
questioned or arrested that apply to adults (for example, powers to ask a
The rights of children and young people when person to ‘move on’ and most compulsory powers
dealing with law enforcement authorities vary of search and seizure) apply equally to children and
between Australian jurisdictions. However, the law young offenders.
generally recognises that children and young people
require some special protections when dealing Identification, name and address
with the police that are not afforded in ordinary The police have a right to ask a person to identify
circumstances to adults. In 1997, the Australian themselves by giving their name and address.
Law Reform Commission (ALRC) conducted an Likewise, a person can ask a police officer for their
important inquiry into young people and the law, name and their police station. There are several
jointly with the Human Rights and Equal Opportunity situations, under various laws, where a person is
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CHAPTER 5 YOUNG OFFENDERS
legally required to respond and may commit an young person gives to police will be inadmissible as
offence if they do not, for example: evidence in court proceedings against that person,
• where the police officer suspects on reasonable unless:
grounds that the person can assist them in • there is a responsible adult other than the
investigating an indictable offence that was police officer present, such as a parent, youth
committed nearby worker, guardian or lawyer
• in a number of situations relating to vehicles • the judge or magistrate otherwise decides that
and traffic
• where a person is suspected of committing an
it should be admitted.
This is an important protection for young
5
offence on a train. offenders as it means that police must ensure that
However, some laws do apply to young people there is a responsible adult present any time a person
in particular. For example, under the Summary under 18 years old is questioned. If not, the police may
Offences Act 1988 (NSW), a person can be stopped be unable to use any information they were given as
and required to provide their details if suspected of evidence. Generally, the adult should take notes and
being under the age of 18 and carrying or consuming ensure that the young person gets legal advice and
alcohol in a public place without adult supervision knows that they do not need to answer questions.
or reasonable excuse. If the young person cannot
produce adequate identification, refuses to comply Searches
with the request or gives false details, police can Police search powers for children and young people
impose a fine of up to $20. are largely the same as for adults, apart from strip
searches. Under the Law Enforcement (Powers and
Questions and right to silence Responsibilities) Act 2002 (NSW), police can never
With regard to ordinary police questioning, the perform a strip search on a child under 10. For a
police may ask a person questions at any time.
However, in most circumstances a person is not
required to respond and may exercise their right to Review 5.3
silence. A person can refuse to answer questions,
even if they have been taken to a police station for 1 Explain if or when a young person has to
questioning or arrested. This is because it may not give their name and address to police.
be in their best interests to answer certain questions 2 Define the right to silence and discuss its
as their answers may later be used in evidence. For impact on police powers to question.
this reason, a person suspected of committing any 3 Assess why a young person might need
offence should usually not answer police questions a responsible adult present when asked
or sign any statements until they have received questions by the police.
independent legal advice.
right to silence
the right of a person to refuse to answer any question put
Legal Links
to them by the police
Legal aid hotline for under 18s
People under the age of 18 are entitled to free
Right to support of a responsible adult legal advice from Legal Aid NSW. This can be
The law provides an additional level of protection accessed over the phone on their ‘Help over
for young people under the age of 18 when they the Phone’ service on 1300 888 529. This service
are questioned by police. This is because the law is staffed by qualified lawyers experienced in
assumes that young people may not be aware of their juvenile matters and is accessible to young
rights, may not fully understand the law or may be people seven days a week. Further information
more vulnerable than adults in these circumstances. is available on the Legal Aid NSW website (see
Under s 13 of the Children (Criminal Proceedings) Act http://cambridge.edu.au/redirect/?id=6245).
1987 (NSW), any information or statement a child or
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CAMBRIDGE LEGAL STUDIES HSC
person between 10 and 18, a responsible adult other
than a police officer must also be present, and if the
person is 14 or older they must agree who the adult
should be. Police may only conduct strip searches
in serious and urgent circumstances. When
conducting a strip search, police have to respect a
person’s privacy and must not touch the person.
Arrest and interrogation
The conditions under which a young person can be
lawfully arrested are the same as those for adults.
These conditions are listed in the Law Enforcement
(Powers and Responsibilities) Act 2002 (NSW). The
Act requires that:
• police know or believe on reasonable grounds Figure 5.8 Young people must have a support person
that the person has committed or is about to present at a police interview.
commit an offence
• police have a warrant for the person’s arrest
must get the young person’s agreement on who they
• certain other conditions, relating to people who
want as the support person. The support person
are on bail conditions, be adhered to.
will assist the child or young person and observe
Police must tell a person that they are under arrest
whether or not the interview is conducted properly.
and why, and inform the person of the police officer’s
name and station. Police may use reasonable force interview friend
in arresting a young person, but the force may not be a parent, guardian, friend or legal representative present
at the police interview of a minor; the interview friend’s
excessive, and the police officer may not assault or role is to offer support and witness that statements are
intimidate them. Likewise, a person cannot assault a made voluntarily
police officer, resist arrest or use offensive language,
or they may be guilty of further offences. The police custody manager is required to assist
the child or young person. At present there is no
Support person and legal advice requirement to have legal representation during a
The ALRC’s Seen and Heard report, discussed police interview. The Seen and Heard report suggests
earlier, recommended that upon arrest a child that this should be a requirement for children and
or young person’s guardians or carers should be young people, and in 2002 the Supreme Court of
notified as soon as possible. This should not occur New South Wales ruled in the case of R v Cortez,
if the person’s carer or guardian may be a threat to CE, ME, IKEA & LT (unreported, NSWSC, Dowd J,
the child or young person’s safety, which might be 3 October 2002) that the custody manager’s duty
the case in some circumstances. includes informing a young person that legal aid
Under the Law Enforcement (Powers and advice is available over the phone and giving them
Responsibilities) Regulation 2005 (NSW), people an opportunity to ring it.
under the age of 18 are defined as ‘vulnerable people’
and are given special protection when arrested and Caution of rights
detained for questioning. The regulation requires the As with questioning in general, people have a right
police to find out as soon as possible who the child’s to silence when dealing with the police. Like adults
parent or guardian is and to contact them. Young who are arrested and interrogated, children and
people must have a support person, or interview young people may incriminate themselves without
friend, such as a parent, guardian or solicitor, present realising they are doing so and must be warned
at a police interview. Police may not conduct any against this. Under the Law Enforcement (Powers
interview of a child or young person unless a support and Responsibilities) Act 2002 (NSW), any person
person is present. For people 14 years and over, police arrested must receive a caution – that is, the police
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CHAPTER 5 YOUNG OFFENDERS
must warn the person, orally and in writing, as soon
as practicable after they are detained, that they do
‘not have to say or do anything but that anything the
person does say or do may be used in evidence’. They
must also inform them of the maximum allowable
period for detention without charge.
The accused has to sign an acknowledgement
that this caution has been given – this would usually
be completed by an interview friend, guardian or
5
carer on the child’s behalf. Some criticism of this has
been that children and young people may not always
understand the technical language used in the
caution and that it should be age-specific. It has also
been argued that admissions and confessions from
children and young people should be admissible in
court only if they have been electronically recorded.
Detention and identification
As with adults, people under 18 years of age in New
South Wales can be detained for a maximum of four
hours, or up to a further eight hours if a warrant for
the extension is granted.
The Seen and Heard report recommended that
children and young people not be detained for a
period longer than two hours in all states. This is Figure 5.9 Police cannot take a DNA sample of any
the practice at a federal level. Children may be suspect under 18 years old unless they have a court
particularly vulnerable during long periods of order allowing them to do so.
detention, so excessive periods are discouraged.
As mentioned above, the presence of an interview Similarly, police cannot take a DNA sample of any
friend is one mechanism that may help prevent suspect under 18 years old unless they have a court
evidence being obtained under duress or coercion order allowing them to do so. Children and young
during lengthy periods of interrogation. people cannot give this consent on their own. If the
criminal matter is not proved in court (for example,
Forensic procedures, photos and if the person is acquitted), or the person is found not
searches guilty, or the case is discontinued, the police must
Police will often require identification of suspects destroy any fingerprints, photos or DNA samples on
when arrested, including photographing them or request of the parent or guardian.
taking fingerprints or DNA samples.
For young people 14 years or over, police may take Additional comments
fingerprints or photographs if it is for the purpose It is hoped that good policing has preceded the
of identifying them. However, for children under 14 arrest of a child or young person, and that police
years, the police can only take photos or fingerprints have gathered sufficient evidence to bring them
if they apply to the Children’s Court to do so. The into the police station. However, this is not always
child may not be held in custody while the application the case.
is being obtained, and the Children’s Court will take In some jurisdictions, there is criticism that police
into account the seriousness of the offence, cultural may rely too heavily on powers of arrest to gather
and ethnicity considerations, the ‘best interests’ of evidence or to further the interrogation of suspects,
the child and the wishes of the child and their parent especially in the case of Indigenous youth. The United
or guardian. Nations Convention on the Rights of the Child obliges
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CAMBRIDGE LEGAL STUDIES HSC
(Criminal Proceedings) Act 1987 (NSW) also creates
Legal Info a presumption that children should not be arrested
or detained, unless, for example, the offence was a
Legal rights of children and young
serious or violent one, or there is a danger of further
people
offences or violent behaviour.
• Children and young people have a right Further, it could be argued the police in New
to have a responsible adult present when South Wales and other jurisdictions should be given
police ask them questions. additional specialist training in juvenile policing
• If the person is under 18 years old, a to enhance their understanding of many of the
strip search can be conducted only if complex issues that some troubled young people
an independent responsible adult is may be facing and that are usually influencing their
present; no strip searches are permitted offending behaviour. As stated earlier, the events
for children under 10 years old. and methods surrounding police contact matter
• If a child or young person is arrested, significantly and can affect a young person, forming
police must find out details of the lasting impressions. Improving policies or finding
person’s parent or guardian as soon as alternatives – including community- or problem-
possible and contact them. oriented strategies, adjustments to procedures
• A child or young person must have a for the apprehension of juvenile offenders,
support person present during a police interrogation and evidence-gathering guidelines,
interview. and police discretion regarding referrals to juvenile
• Police must give the caution about rights courts or other alternatives – are all areas worthy of
in the presence of the support person. refinement.
• Police must inform the child or young As a result, it could also be suggested that some
person of their right to contact Legal Aid children and young people enter the criminal justice
NSW and give them the opportunity to system unnecessarily, and is likely to have a negative
do so. impact on them. Alternatives to this approach are
• The same period of detention as for available to police under the Young Offenders Act
adults applies, but a shorter period is 1997 (NSW), which is discussed in more detail later
strongly recommended. in this chapter.
• If the person is under 14 years old,
fingerprints and photos can be taken
Review 5.4
only with a Children’s Court order.
• If the person is under 18 years old, a
1 Outline the main allowable
DNA sample can be taken only with a
circumstances for police to arrest a
Children’s Court order.
young person in New South Wales.
2 Explain what is meant by the term
‘interview friend’.
countries to use arrest only as a ‘last resort’, as it 3 Describe when a young person’s
is a negative and traumatising experience for fingerprints can be taken by police.
children and young people. The Seen and Heard 4 Outline some of the criticisms that
report also recommended that, for children are made in respect to the way that
considered ‘at risk’, welfare and health services will some young offenders are dealt with
usually be more appropriate than police to deal with under the Law Enforcement (Powers and
the situation. Responsibilities) Act 2002 (NSW).
Section 99 of the Law Enforcement (Powers
and Responsibilities) Act 2002 (NSW) lays down
the principle in New South Wales, with detailed
provisions about when and for what purpose an
arrest can be made. Section 8 of the Children
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CHAPTER 5 YOUNG OFFENDERS
5.4 C
hildren’s Court – The Children’s Court follows procedures laid
procedures and operation out under the Children’s (Criminal Proceedings)
Act 1987 (NSW). Section 6 of the Act requires
The Children’s Court of New South Wales was
the court to show regard for the following main
discussed in Chapter 3 under the topic of the court
principles:
hierarchy. The Children’s Court is a specialised
• Children have rights equal to those of adults
court established in 1987 under the Children’s Court
and have a right to be heard and participate in
Act 1987 (NSW). It has a dual role:
• dealing with the criminal matters of children
proceedings that affect them.
• Children are responsible for their actions but
5
and young people under 18 years of age
require guidance and assistance.
• dealing with matters of care and protection of
• Where possible, there should be no interruption
children and young people referred to it by the
to the education of a child.
Department of Family and Community Services.
• Where possible, a child should be able to reside
Matters in the Children’s Court are presided over
in their home.
by a magistrate, but there is no jury. Magistrates
Additional principles under s 6 relate more
undergo specialist training by the Judicial
specifically to the sentencing process.
Commission of New South Wales in dealing with
In the Children’s Court, as well as in children’s
youth matters and proceedings. Across New South
matters heard in higher courts, trial formalities will
Wales, there are 13 children’s magistrates sitting
be different from those in ordinary courts and will be
in seven Children’s Courts. Five of these are in
aimed at protecting the interests of the child. Some
metropolitan areas. There are also five children’s
of the main differences are outlined in the ‘Legal
registrars appointed to assist in the administration
Info’ box.
of matters before the Children’s Court.
In its criminal jurisdiction, the Children’s Court
Children’s Court statistics
can hear the following matters involving children:
The NSW Commission for Children and Young
• any offence committed by a child, except a
People is an independent organisation that reports
serious indictable offence (serious indictable
to the New South Wales Parliament and monitors
offences, such as murder and manslaughter,
trends in young offender rates, among its many
armed robbery or sexual assault, will be heard
tasks. The commission’s rationale for doing this
in a higher court)
is that it believes children and young people who
• committal proceedings of any indictable
become involved in crime are usually involved in
offence, including serious ones, where the
minor crimes, but that for a small group of these
accused is a child.
Legal Info
Differences in children’s criminal proceedings
• In the Children’s Court, the matter will be heard summarily (with no jury), before a single magistrate.
• Children’s proceedings are conducted in a closed court in order to protect the identity of the child –
only parties to the proceedings are present, and reporters or family victims if the court allows.
• The media cannot publish the name of any child who is involved in the process, unless
authorised by the court or the child is deceased.
• Courts in children’s proceedings will need to consider the main trial and sentencing principles
under s 6 of the Children’s (Criminal Proceedings) Act 1987 (NSW).
• The court will give the child the fullest opportunity to be heard and to participate.
• The court must take measures to be sure that the child understands the proceedings, and
answer any questions that the child asks about the process or decision.
• Available penalties and sentencing procedures differ from those of ordinary courts.
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CAMBRIDGE LEGAL STUDIES HSC
offenders regular contact with the criminal justice
system becomes a way of life, which has drastic
implications for their future.
The commission monitors data from the
Children’s Court, but statistics do not include
diversionary methods such as warnings, cautions or
conferencing. Some of the findings from its report, A
Picture of NSW Children, are that on an average day
in 2013–14 there were up to 155 children in sentenced
detention New South Wales. Of these:
• boys were 14 times more likely than girls to be
there
• it was 13 times more likely for 15–17-year-olds to
be there than 10–14-year-olds
• Aboriginal children were approximately 26
times more likely than non-Aboriginal children. Figure 5.11 A clinician assesses the child and writes
On a positive note, of the 7515 young people a report to the court to help it make a decision in the
best interests of the child.
between the ages of 10 and 17 who appeared before
a New South Wales criminal court, detention
continues to be the principal penalty for only a very a children’s case can make an order for expert
small number of cases: approximately 1%. Further assessments of a child in a particular case – a
the number of criminal cases finalised in Children's clinician then assesses the child and writes a report
Courts nationally has continued to trend down as to the court to help it make a decision in the best
illustrated in Figure 5.10. interests of the child.
In its criminal jurisdiction, the Children’s Court may
in certain cases decide that a child or young person
requires assessment by the clinic after they have been
found guilty of an offence but before they have been
sentenced. Assessments will generally be performed
in New South Wales by Juvenile Justice, but more
recently they are done through the clinic. The clinic
will be asked to complete an assessment where there
are ‘specific psychological, psycho-social or mental
Review 5.5
1 Describe the types of offences that can
Figure 5.10 Defendants finalised in Children's be heard in the Children’s Court.
Courts, by method of finalisation, 2016–17 (%). Source: 2 Outline the differences between
Australian Bureau of Statistics, 4513.0 – Criminal children’s criminal proceedings and
Courts, Australia, 2016–17, Table 3 ordinary court proceedings.
3 Identify the recent trends in cases heard
The Children’s Court Clinic by the Children’s Court and describe
The Children’s Court Clinic is an arm of the Children’s what the most common profile of
Court and is established under the Children’s Court offenders is.
Act 1987 (NSW). The clinic’s main function is to 4 Describe the role of the Children’s Court
make clinical assessments of children and submit Clinic.
reports to the court. A magistrate or judge in
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CHAPTER 5 YOUNG OFFENDERS
health issues present in the child’s situation that the any offenders of being rehabilitated and reintegrated
court needs to consider prior to passing sentence’. into society. As mentioned above, factors under s 6 of
The assessment report might deal with a variety of the Children’s (Criminal Proceedings) Act 1987 (NSW)
issues, such as mental health, intellectual disability, are to be considered in children’s proceedings.
drug and alcohol use, violence, sexual abuse/assault, Additional s 6 principles that relate more specifically
and/or psychological issues. The assessment report to the sentencing process include that:
may take time, and the child’s sentencing is likely to • The penalty imposed on a child shall be no
be postponed until the report is available. greater than that of an adult for the same
offence.
5
• Children should be assisted with reintegration
5.5 P
enalties for children into the community to sustain ties to their
The purposes of sentencing were looked at in Chapter family and community.
4. However, in children’s criminal proceedings, the • Children should take responsibility for their
purpose of rehabilitation is given primary weight. acts, and make reparation for them if possible.
This is consistent with the United Nations Convention • The effect on the victim should be considered,
on the Rights of the Child, which acknowledges that although this must be subject to other principles.
children and young people have the best chance of Many of the mitigating or aggravating factors,
Table 5.1 Penalties that apply to children
Dismissal The court can dismiss the charge without punishment or conviction, but may decide
to issue a caution to the offender.
Conviction For young offenders, the court can decide whether to record a conviction, but for
children under 16 years old no conviction can be recorded.
Adjournment The sentencing can be adjourned or deferred for up to 12 months to assess the
child’s prospects of rehabilitation, and reconsidered at that later date.
Bond The child can be released on a good behaviour bond for up to a maximum of two
years.
Youth justice The child can be released subject to the child complying with a conference youth
justice conference outcome plan.
Fine A fine of up to 10 penalty units ($1100) can be imposed, but the court must take into
account the child’s age and ability to repay it.
Probation A bond with a probation order of up to two years can be imposed, overseen by an
officer of Juvenile Justice.
Community A community service order is a severe penalty, and can be made for up to 100 hours
service order if the child is under 16, and up to 250 hours if they are 16 or over; an assessment (as
mentioned earlier) is required to confirm if the child is suitable for a community
service order.
Suspended Similar to a suspended sentence, a court can suspend a control order (see below)
control order for up to two years, subject to good behaviour.
Control order A control order is the most severe penalty, and is similar to an adult sentence
of imprisonment except it involves detention in a Juvenile Justice Centre; the
maximum time a child can be sentenced to a control order is two years.
youth justice conference control order Juvenile Justice Centre
a measure under the Young Offenders similar to an adult sentence of a detention centre housing young
Act 1997 (NSW) to divert young imprisonment, except served in a offenders subject to control orders
offenders from the court system Juvenile Justice Centre
through a conference that addresses
the offender’s behaviour in a more
holistic manner
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CAMBRIDGE LEGAL STUDIES HSC
both objective and subjective, that are relevant curfews, as well as ensuring that individuals can
to ordinary proceedings might also be relevant to only make one application for bail.
sentencing in children’s proceedings. Victim impact This led to a 32% rise in the number of juveniles
statements have also recently been permitted in the on remand from 2007 to 2011. As juvenile offenders
Children’s Court. are mainly remanded for welfare reasons such
For most children’s offences, penalties will be as a failure to comply with curfew, rather than
significantly less severe than in ordinary law and will offence-related reasons, and as four out of five
be considered with the child’s rehabilitation in mind. young offenders held on remand do not get a
For specific serious indictable offences heard by custodial sentence once they’ve been to court,
higher courts (such as murder and manslaughter), this amendment’s provisions have added to the
ordinary sentences will be applied. For other serious negative experience many young people have
offences, the higher court may decide whether the with the criminal justice system, reinforcing their
ordinary law or children’s penalties should apply. negative perception of it. There are some young
Section 33 of the Children’s (Criminal Proceedings) offenders who are a risk to the community, but even
Act 1987 (NSW) lists the penalties that can be applied for them incarceration is not always the answer.
to children. These are outlined in Table 5.1 on Preventative and rehabilitative programs which are
page 111. more resource-efficient are discussed later.
Further amendments were made to the Bail Act
Juvenile Justice Centres 1978 (NSW) after repeated criticism from within the
A control order is the most severe penalty available legal fraternity and the broader community that the
in children’s criminal proceedings. It is similar to 2007 amendments had fundamentally undermined
the adult penalty of imprisonment, except that the the presumption of a bail hearing including young
maximum time servable is two years and the young offenders. A new Bail Act 2013 (NSW) was enacted
offender is not held at an adult correctional centre and commenced operation in May 2014. For many
but at a Juvenile Justice Centre. young offenders restrictive bail conditions such as
Juvenile Justice Centres are managed by curfews and places of residence were unable to be
Juvenile Justice, which is a part of the Department of met, and hence they ended up in remand centres.
Human Services. They are overseen by the Children The new bail regime changed the approach to
(Detention Centres) Act 1987 (NSW). The programs serious offences, such as murder: instead of having
encourage rehabilitation and reintegration of young a presumption against bail, it instituted a general
offenders into the community. consideration of whether there was an ‘unacceptable
As for adult imprisonment, control orders are risk’ of the accused person reoffending. After some
only to be used as a last resort. If used, the court high-profile cases where the accused were released
must give clear reasons why it cannot impose on bail under the May reforms, the Baird government
any other penalty. Courts must also announce bowed to tabloid media criticism and after only a
a non-parole period for any control order longer month of operation the Act was again amended to
than six months, although young offenders may further restrict judicial discretion in bail applications
still be released before the end of their non- parole with a revised test where the onus is on the accused
period. to ‘show cause’ why their detention is not justified.
The reality, though, is that many young offenders The extent to which this will influence
end up in Juvenile Justice Centres, and the effects the increasing number of young offenders in
of this incarceration are mostly negative, and incarceration as opposed to appropriate diversionary
detrimental to rehabilitation. Amendments to programs remains to be seen. Figures from the
s 22A of the Bail Act 1978 (NSW) enacted in 2007 Juvenile Justice annual report stated that in 2013–14
also account for the increasing number of juveniles there were 315 young offenders in custody, of which
on remand in New South Wales, most for relatively 159 were on remand.
short stays. These amendments set tougher bail
conditions, such as movement restrictions and
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CHAPTER 5 YOUNG OFFENDERS
Figure 5.12 Riverina Juvenile Justice Centre, in Wagga Wagga, New South Wales
Sentencing considerations for However, unlike for adult offenders, where purposes
young offenders of retribution and deterrence would be likely to
Although the Children’s (Criminal Proceedings) Act increase a sentence, with children and young people
1987 (NSW) now clearly outlines the principles of the court must keep the rehabilitative focus foremost
children’s criminal proceedings, and the primary in mind.
importance of rehabilitation, the Seen and Heard There may, however, be exceptions to this rule
report noted that, in sentencing, the courts needed where a young offender is involved in repeated
to pay more attention to social factors such as offences, or where they engage in grave adult
homelessness, family circumstances, educational behaviour, which is where the offender has acted
needs or the special health and other requirements like an adult in terms of the seriousness of the
of children and young people. offence and/or the level of premeditation involved.
For example, the courts need to carefully consider The court may see that person as having acted like
issuing fines in light of the offender’s ability to repay an adult, so other sentencing objectives might come
and the effect the fine might have on their chance into play. For example, see the case of R v Pham & Ly
of rehabilitation. Community service orders would in the ‘In Court’ box on page 114.
be more beneficial if the services are close to home
and as long as the conditions to fulfil them are not so grave adult behaviour
where a young offender has acted like an adult in
difficult that they attract breaches. The very serious committing the offence, in terms of the seriousness of
effects of any control order would, of course, need the offence and other factors surrounding the behaviour,
such as premeditation
to be thoroughly considered and all other penalties
dismissed before such a penalty could be imposed.
The seriousness of the offence is a significant
consideration in determining the sentence.
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CAMBRIDGE LEGAL STUDIES HSC
In Court
R v GDP (1991) 53 a Crim R 112
Although now a relatively old case, R v GDP still outlines an important principle in child sentencing.
The offender was 14 years old when he committed serious criminal damage to property with two of his
friends. The damage included breaking through a window, drilling a safe, defacing cars, smashing
furniture and lighting dangerous fires that in total added up to $550 000 in damage. GDP had had no
prior incidents and was well regarded by his teachers. The judge in GDP’s case sentenced him to a
12-month custodial sentence.
GDP appealed to the Court of Criminal Appeal, where a panel of three judges held that the sentence
was manifestly excessive. In explanation, the court stated that sentencing principles for children are
different from those for adults – general deterrence and retribution were not as important as they
would be in the case of an adult. Rehabilitation is the primary aim with offenders as young as this. In
this case a custodial sentence would have been positively damaging to GDP’s rehabilitation; he was
by this time commencing Year 12 and facing his HSC. The court reversed the original sentence and
replaced it with a 12-month probation order.
In Court
R v Pham & Ly (1991) 55 a Crim R 128
This case involved two main offenders, one just under the age of 18 at the time of the offence.
The young offenders broke into a house early in the morning, knowing the occupants were home.
They bound and gagged their victims with stickytape and put a blanket over their heads. They then
proceeded to rob the property, taking jewellery and a number of other items.
At the time, one of the offenders was on bail and the other was on probation. The original judge
sentenced both offenders to 12 months on remand. The case was appealed in the Court of Criminal
Appeal and the sentence was overturned as ‘wholly inappropriate’ and inadequate. It was ruled that,
despite the offenders’ ages, there must be reasonable proportion between the sentence, the seriousness
of the crime committed and the need to protect the community. The case was referred for resentencing.
5.6 A
lternatives to court
Review 5.6
As for adult offenders, there are programs for
1 Identify three penalties available for children and young offenders that offer an alternative
children and assess how they differ from to the formal criminal justice process that is played
penalties for adults. out through the courts.
2 Describe the primary factors to consider In New South Wales the Young Offenders Act 1997
when sentencing a young offender. (NSW) provides the main alternative program for
3 Explain when a young offender may be young offenders. The Act came into force in New South
liable to receive an adult sentence. Wales in 1998 and was introduced to provide various
diversionary measures for young offenders and police
as an alternative to traditional criminal processes and
court penalties. The aim is to encourage rehabilitation,
reduce rates of recidivism and reduce the burden of
more minor youth offences on the court system.
The program only applies to summary offences and
to indictable offences that can be tried summarily. It
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CHAPTER 5 YOUNG OFFENDERS
does not apply to serious offences, including robbery, police caution. In deciding whether or not to give a
sexual offences or any offence resulting in a person’s caution, the investigating official will consider the
death. The principles of the Act are that: severity of the offence, the level of violence involved,
• where sanctions are applied, they should be as the harm caused and how many offences have been
unrestrictive as possible committed by the offender.
• children should be advised of their right to seek Although not a conviction, the caution may later be
legal advice taken into account in the Children’s Court and so can
• criminal proceedings are not to be started if
there is an appropriate alternative for dealing
have important consequences. Steps are to be taken to
ensure that the offender understands the nature and
5
with the matter. effect of the caution, and the offender must then sign
Under the Act, children and young offenders a ‘caution notice’. A specialist court officer or a court
who have committed an offence covered by the must make a record of a caution given by an officer
Act may proceed through a three-tiered system of or the court. Before an official caution is issued, the
diversionary processes – warnings, cautions and investigating officer may refer the matter to a specialist
youth justice conferences. court officer to decide if the matter should instead be
referred to a youth justice conference.
warning caution
a notice given to a young a formal, recorded
offender (usually for a alternative to prosecution Youth justice conferences
first minor offence) that is where the young offender
recorded by police but with admits to the offence and The Young Offenders Act also allows for youth justice
no conditions attached; consents to receiving a conferences, which can be used when a young
the offender must be told formal police caution; it offender admits to an offence and consents to having
of the nature, purpose and can later be taken into
effect of the warning account in the Children’s it dealt with by this method. The purpose of a youth
Court, but not in an adult justice conference is to allow the offender to take
court
some responsibility for their actions, to promote better
family understanding of the issues, and to provide the
Warnings offender with appropriate support services to help
A warning is an official notice given to a young them to overcome their difficulties.
offender by an investigating officer, without any Youth justice conferences also increase the rights
conditions attached. The warning is relatively of victims in the criminal justice process. Ultimately,
informal – it can be given in
any place, but the officer must
tell the offender the nature,
purpose and effect of the
warning. A warning cannot
be given for an act of violence,
a repeat offence or at the
discretion of the investigating
officer. The officer must keep
a record of the warning.
Cautions
Police may issue a caution to a
young offender to discourage
further offending. The
caution is a formal, recorded
alternative to prosecution
Figure 5.13 The purpose of a youth justice conference is to allow the
where the young offender
offender to take some responsibility for their actions. The graph shows the
admits to the offence and number of referrals that led to conferences in New South Wales from 2013 to
consents to receiving a formal 2018.
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CAMBRIDGE LEGAL STUDIES HSC
the aim is to make decisions that respect the offender’s approach to finding solutions for the offender’s
rights and take into account their needs. Conferences behaviour. A conference administrator ensures that
hold the offender accountable, but empower families records of the conference are kept.
and victims in decisions about a child’s offence and,
where suitable, make reparation to the victim. Effectiveness
Those able to participate in a conference are the The Young Offenders Act has been well received by
offender, a conference convenor, an investigating commentators. It embraces the welfare model of
official, a member of the offender’s family or juvenile justice and encourages offender rehabilitation
extended family, the offender’s legal representative, over traditional means of dealing with crime. It uses
another adult chosen by the offender and a specialist diversionary measures to find solutions to juvenile
youth officer. The victim can also attend, as well as offending. Repeat offenders can also be dealt with by
any support people the victim may want present. The the Act (for example, through a second and/or third
range of people present aims to provide a picture appearance at a youth justice conference).
of what is going on in the child’s life and enough The NSW Bureau of Crime Statistics and
expertise and experience to offer a more holistic Research in its 2013 report, The Impact of the NSW
Legal Info
Juvenile offenders
A study of juvenile offenders released by the NSW Bureau of Crime Statistics and Research has shown
that it is unusual for juveniles to receive more than three police cautions or youth justice conferences.
The bureau examined the characteristics of all (13 980) young people in 2010 who received a police
caution (8558 or 61.2%), attended a conference (960 or 6.9%) or who had a proven appearance in the
New South Wales Children’s Court (4462 or 31.9%).
The vast majority (78.4%) of those who received a police caution had no previous caution. A smaller
percentage (21.2%) had one or two previous cautions. Less than 1% (0.4%) had three or more previous
cautions. More than 95% had no previous conference or court appearance.
Prior police cautions and prior conferences were more likely among those who received a conference
or who were referred to court. Thirty-nine per cent of those who attended a conference had had one
or two previous cautions. Nearly 15% had had three or more previous cautions.
Overall, as the number of contacts (cautions,
conferences or court appearances) increases,
the likelihood of being dealt with via a caution
decreases. Thus 81.9% of those with no previous
contacts were dealt with by a caution, compared
with 8.5% of those with three or more previous
contacts.
The likelihood of a court appearance also
increases. Thus, whereas only 13.4% of juveniles
with no previous contacts were referred to court,
80.3% of those with three or more previous
contacts were referred to court.
Although the results suggest that hierarchy
of sanctions established by the Young Offenders
Act is being adhered to, the bureau noted that
juvenile offenders are far more likely to be given Figure 5.14 Number of prior police cautions by
a caution or referred to court than they are to be type of index contact. Source: NSW Bureau of
referred to a conference. Crime Statistics and Research
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CHAPTER 5 YOUNG OFFENDERS
Young Offenders Act (1997) on the Likelihood of a parents or teachers enter the room. What kind of
Custodial Order, found that the risk of receiving a awful creatures will they be when they grow up?
custodial order dropped significantly: for Indigenous
young offenders it fell by 17.5%, and for non- Socrates, 469–399 BCE
Indigenous young offenders by 16.3%.
One of the criticisms of the Act, however, is Even in Socrates’ day, adults tended to think the
that it is not being used for a wide enough range worst of children and young people at times. On the
of offences and therefore is excluding some young
offenders from the benefits that conferencing offers
face of it, the rate of young offenders compared with
adult offenders would seem to justify that view. But
5
and as a result may be perceived as a soft option. it could also suggest that on the whole the criminal
For example, the Shopfront Youth Legal Centre, justice system is failing younger people.
in response to a 2003 review of the sentencing Children can do little to control the circumstances
of young offenders carried out by the NSW Law they find themselves in – children who have been
Reform Commission, argued over 10 years ago that neglected or mistreated, or received poor and
youth justice conferencing could be suitable for dysfunctional parenting or education, might find it
even very serious offences (see http://cambridge. challenging to make good decisions as they grow
edu.au/redirect/?id=6246 for the full response). It older. The age of criminal liability recognises a
may be effective for more serious crimes because scaling level of responsibility as a person ages, up
the young offender is compelled to think about the to adulthood. And as expressed in the purposes of
consequences of their actions, in particular the the Children’s (Criminal Proceedings) Act 1987
impact on the victim. Recidivism rates in Victoria, (NSW), and attempted through programs available
where conferencing is used for wider-ranging and through the Young Offenders Act 1997 (NSW),
more serious offences, are lower. As mentioned rehabilitation is intended to be the primary concern
below, conferencing also needs to be supported by of the criminal justice system in relation to young
well-resourced rehabilitative programs. offenders.
The Australian Institute of Criminology’s 2009
study, The Specific Deterrent Effect of Custodial
Research 5.2
Penalties on Juvenile Offenders, found no difference
NSW Police provides information on youth in the rate of reoffending: young offenders given a
justice conferencing. See http://cambridge. custodial sentence were just as likely to reoffend as
edu.au/redirect/?id=6247 and complete the those given another form of sentence. The report
following tasks. states that the:
1 Explain the difference between the
following terms: ‘warning’, ‘caution’ and adverse effects of imprisonment on employment
‘youth justice conference’. outcomes and the absence of strong evidence that
2 Describe the process and the parties custodial penalties act as a specific deterrent for
involved in a youth justice conference. juvenile offending suggest that custodial penalties
ought to be used very sparingly with juvenile
offenders.
This has not happened in New South Wales. As
5.7 T
he effectiveness of the mentioned above, a trend has been the increasing
criminal justice system numbers of young people in Juvenile Justice Centres,
when dealing with young which has predominantly come about because of
offenders amendments to the Bail Act. Eighty per cent of the
young people on remand due to these changes do
Children today love luxury too much. They have not go on to receive a custodial sentence, yet they
execrable manners, flaunt authority, have no respect suffer the negative effects of being incarcerated in
for their elders. They no longer rise when their such institutions.
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CAMBRIDGE LEGAL STUDIES HSC
The average cost of detaining a young person in a [T]he conference regime established under the New
Juvenile Justice Centre is approximately $170 000 per South Wales Young Offenders Act 1997 is currently
year; proven intensive rehabilitation programs can be no more effective than the NSW Children’s Court
run for a fraction of that cost. Accredited programs in reducing juvenile re-offending among persons
run by Marist Youth and Whitelion, for example, are eligible for a conference.
funded by charities that have a high rate of success
in reintegrating serial young offenders into the Conferencing in Victoria produced lower
community. Though these programs are resource- reoffending figures, but it is suggested that this may
efficient, they fail to receive government support. reflect the fact that youth justice conferencing in
It has been suggested that this may be a result of that state considers more serious matters and is not
the government’s need to be seen to be tough on as easy to dismiss as a soft option.
crime. Juvenile Justice was allocated a budget of Dr Weatherburn went on to say:
$196.4 million in 2014 –15, of which approximately
two-thirds was spent on detention. One can only speculate about the reasons for
Max Taylor, Convener of the Bail Reform Alliance, this, but one possible explanation is that [youth
states: justice conferences] do not address the underlying
causes of juvenile offending (e.g. drug and alcohol
The Bail Reform Alliance seeks the restoration of use, parental neglect and abuse, poor school
the presumption in favour of bail, which restricts performance, boredom and unemployment).
the number of applications for bail and removal
of the limitation on bail set out in the ‘special The NSW Commission for Children and Young
circumstances’ clause. These changes are needed People supported this in its submission to the review
if the presumption of innocence is to have its full of the Young Offenders Act 1997 (NSW) and the
meaning and overcrowding in gaols and Juvenile Children (Criminal Proceedings) Act 1987 (NSW), and
Justice Centres is to be reduced. argued for further reforms. It believes the current
legislation does not meet the needs of children and
The New South Wales Government continues to young people for the following reasons:
review, as mentioned earlier, and this will ultimately • Recent research has revealed a greater
have an impact on young offenders in New South understanding that the development of the
Wales. The media article on page 120 outlines where frontal cortex of the brain continues until the
this process is at the time of its writing. age of 25 years. Research also suggests that
However, the Young Offenders Act has been when abuse and neglect are evident when
particularly successful in diverting young people the brain is undergoing such change,
from custodial sentences. The Children’s Court the adverse effects can be long term.
has the power to refer young people who appear The commission has suggested that our
before it to youth justice conferencing and some understanding of the meaning of criminal
50% of conference cases have been referred by the responsibility for children and young people
court. While this could suggest that matters might may need to be reassessed.
be unnecessarily referred to the Children’s Court • The report goes on to say, ‘[T]he attempt to
when they could be better dealt with elsewhere, combine the so called justice and welfare
youth justice conferencing remains an important models of juvenile justice in the legislation has
alternative to incarceration. created a complex and sometimes contradictory
Recent findings, however, point to conferencing amalgam of community-based sanctions and
needing to be supported by additional rehabilitative controls alongside formal court processes and
measures. In March 2012, the Director of the NSW detention. It is possible that this has led to “net
Bureau of Crime Statistics and Research, Dr Don widening”, as police warn, caution or refer to
Weatherburn, said: conferencing children who might otherwise
have been dealt with informally’.
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CHAPTER 5 YOUNG OFFENDERS
Figure 5.15 Cumulative percentage of adults and juveniles convicted in 1994 who were reconvicted each year to
2009 in New South Wales. It is as important today that preventative rehabilitative programs to interrupt the cycle
of offending for young offenders be prioritised, given that rehabilitation is more likely to succeed with young
offenders as opposed to adult offenders. Source: NSW Bureau of Crime Statistics and Research, 2012
• Lastly, it argues that the principles of legislation both reinforce, rehabilitation of young
restorative justice that underpin youth justice offenders must remain the primary focus. The
conferencing are contentious, and that there use of preventative measures alongside intensive,
is insufficient evidence for the effectiveness of long-term, well-supported rehabilitation programs
youth justice conferencing (in its current form) is essential to break the cycle of offending that
in reducing recidivism. This supports the view confronts some young offenders.
expressed by Dr Weatherburn above.
Many of these problems could be reduced by a
Review 5.7
police force dedicated to and trained in the principles
of juvenile justice and diversion. This is the case in Read the article about the Bail Act on page 120
the Northern Territory and New Zealand: 84% of and complete the following tasks.
young offenders in New Zealand never go to court 1 Identify the impact that changes to the
and the police run many of the programs for young Bail Act have had in New South Wales.
people at risk. This becomes more effective from a 2 Outline some of the changes that were
number of perspectives when it is understood that made to the Bail Act in 2014.
5% of ‘life course’ offenders commit approximately 3 Explain why the Bail Act was amended
50% of all juvenile crime in New South Wales. Many of again after only being in operation for a
these offenders have experienced a number of social short time.
and psychological problems from an early age. 4 What effect might these changes have
As with all areas of the law, the law concerning on children and young people in New
young offenders requires a careful balance. Yet as South Wales accused of committing an
studies have continually shown, and as Australia’s offence where bail may be sought?
international obligations and children’s sentencing
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CAMBRIDGE LEGAL STUDIES HSC
New South Wales Bail Act: some freedoms more equal than others
Jacqueline Maley
Sydney Morning Herald, 3 July 2014
The NSW government has announced a ‘review’ of the new bail laws, barely a month after their
commencement. The new laws replaced the presumption against bail for serious offences, such as
murder, with a broad test of whether the accused poses an ‘unacceptable risk’ of re-offending.
In assessing that risk, the judge or magistrate has to consider four factors: whether the accused
might not turn up at court, whether s/he might commit an offence while on bail, whether s/he might
be a danger to their alleged victim or to the community, and whether s/he might interfere with
evidence or witnesses while at liberty …
In 2011 then premier Barry O’Farrell’s government asked the [ NSW Law Reform Commission] to
review it. The commission spent nearly a year doing so and delivered recommendations to the
government in 2012. They were largely adopted and the new Bail Act was legislated last year and
came into operation on May 20 this year, with a plan to review the legislation in three years. A better
and more orderly public policy process you would struggle to find.
That’s when the liberty lovers hit. One shock jock pronounced the laws ‘buggered’ and ‘broken’
after sensationalised tabloid coverage of two cases of accused men who were released on bail
Figure 5.16 Comancheros bikie members Pomare Pirini (left) and Ismail Erden leave Central Local Court
with their solicitor Lesly Randle on 9 July 2009. Pirini and Erden, charged with riot and affray in relation
to the fatal Sydney Airport brawl in March 2009, were applying to have their bail conditions varied.
Mahmoud ‘Mick’ Hawi also appeared in court via video link.
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CHAPTER 5 YOUNG OFFENDERS
under them. A little over a month after they came into effect, Premier Mike Baird announced a
review of the laws.
The first case was Mahmoud Hawi, a 34-year-old former Comanchero boss who was convicted of
murdering a Hell’s Angel bikie by bashing him with a bollard at a Sydney airport brawl in 2009. The
5
conviction was later quashed and while Hawi awaits his retrial, he has been released under the new
bail laws. The second case was Steven Fesus, a 47-year-old accused of murdering his young wife in
1997. He was released pending his trial.
Both of these men, unsavoury though their alleged crimes may be, are, in the eyes of the law,
innocent as you or me before conviction. As such, society takes very seriously any deprivation of
their right to liberty. …
‘It is in the Universal Declaration of Human Rights, it is in the International Covenant on Civil and
Political Rights. It is enshrined in civil and case law in Australia,’ former NSW Director of Public
Prosecutions Nicholas Cowdery says.
This liberty sits alongside another ancient and fundamental common law right, that is, the right
to habeas corpus, or a fair hearing. As Cowdery says: ‘A presumption of innocence has to be more
than a collection of words.’ …
Even if we cast aside fancy debates about enlightenment philosophy, there are good social and
economic reasons to keep people out of jail where appropriate. The state’s prison population is at a
record high of 11 000. This is despite the fact that crime rates have fallen across all categories over
the past decade. It costs $100 000 a year to keep a person in jail, so that is an annual taxpayer bill of
roughly $1.1 billion. Jailing more people does not push crime rates down. In fact, many argue it has
the opposite effect.
In any case, as Cowdery and other experts point out, it is impossible to review the efficacy of laws
that have been in place a month. The data doesn’t exist yet.
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CAMBRIDGE LEGAL STUDIES HSC
Chapter summary
• There are two main approaches to young • When handing down penalties for a child
offenders in the criminal justice system – the or a young person, the court must take into
welfare model and the justice model. account the offender’s age and chances of
• The law recognises differing levels of criminal rehabilitation.
responsibility for young offenders on a scale of • Judges may consider other objectives of
age. punishment if the offence is particularly
• Children and young people have additional serious.
rights and protections in the face of police • Diversionary programs for young offenders
powers as the law recognises their higher level include the use of warnings, cautions and
of vulnerability. youth justice conferences.
• The Children’s Court has jurisdiction to hear • The Children’s Court and diversionary
any offences (other than serious indictable programs have been reasonably successful in
offences) involving children and young people. relation to young offenders, but there is still
• Children may receive a range of penalties that significant room in the criminal justice system
differ from adult penalties, from fines to control for improvement.
orders in a Juvenile Justice Centre.
Questions
Multiple-choice questions 4 Which of the following statements is correct with
1 Doli incapax refers to which of the following? respect to the jurisdiction of the Children’s Court?
A The children’s court jurisdiction to hear A It can hear committal proceedings and minor
matters pertaining to young offenders matters against children and young people.
B The incapacity to cause criminal harm B It can hear committal proceedings and
C Mitigating factors when sentencing all but serious indictable matters against
D The incapacity of young offenders to children and young people.
make decisions about their future in court C It can hear serious indictable matters and
proceedings committal proceedings against children and
young people.
2 Of the following statements, which is correct D It can hear all matters and committal
with respect to young offenders under arrest? proceedings against children and young
A They cannot have their fingerprints taken. people.
B They are not able to be interviewed.
C They must have an interview friend present. 5 What types of penalties can young offenders
D They will have a criminal record. receive?
A Dismissal, fine, community service order,
3 A ‘warning’ under the Young Offenders Act 1997 adjournment, control order, youth justice
(NSW) is: conference, life imprisonment
A an informal verbal reprimand without B Dismissal, fine, community service order,
consequences adjournment, home detention, control order,
B formal recorded admission by consent with youth justice conference
potential consequences C Dismissal, community service order, fine,
C an official recorded notice without control order, youth justice conference
conditions D Dismissal, fine, community service order,
D an informal written reprimand without suspended sentence, adjournment, control
conditions order, youth justice conference
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CHAPTER 5 YOUNG OFFENDERS
Chapter summary questions 3 Discuss why young people are treated
1 Describe the law in New South Wales relating differently from adults in the criminal justice
to the age of criminal responsibility. Explain system. Provide examples in your answer.
why the laws differ between children and 4 Analyse the main purposes of youth sentencing
young people. and explain how they differ from those of adult
2 Identify the rights of young offenders when sentencing.
5 Evaluate the effectiveness of the criminal
questioned and arrested, and discuss how they
differ from the rights of adults. justice system in dealing with young offenders 5
with respect to two issues studied in this
chapter.
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Chapter 6
International crime
Chapter objectives
In this chapter, students will:
• define international crime
• describe a range of legal measures used to deal with international crime
• evaluate the effectiveness of the domestic and international legal systems in dealing with
international crime.
Key terms/vocabulary
Australian Federal Police (AFP) International Criminal Police Organization
bilateral agreements (INTERPOL)
crime against humanity Nuremberg trials
crime against the international community peacekeeping
extradition Rome Statute
Geneva Conventions state sovereignty
genocide transnational crime
human trafficking universal jurisdiction
international crime war crime
International Criminal Court (ICC)
Relevant law
IMPORTANT LEGISLATION
War Crimes Act 1945 (Cth) Australian Crime Commission Act 2002 (Cth)
Geneva Conventions Act 1957 (Cth) International Criminal Court Act 2002 (Cth)
Australian Federal Police Act 1979 (Cth) International Criminal Court (Consequential
Extradition Act 1988 (Cth) Amendments) Act 2002 (Cth)
Criminal Code Act 1995 (Cth)
SIGNIFICANT TREATIES, PROTOCOLS AND CONVENTIONS
Rome Statute of the International Criminal Court Geneva Conventions
Convention on the Prevention and Punishment of United Nations Convention against Transnational
the Crime of Genocide Organized Crime
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Legal oddity
We normally think of cross-border smuggling as involving drugs, or perhaps firearms or wildlife. But people
can also purchase items legally in one country, and then smuggle them into another country that, for one
reason or another, does not allow them. In 1992, the United States Congress passed the Energy Policy Act,
which mandated low-flush toilets – specifically, a limit 1.6 gallons (approximately 6 litres) of water, rather
than the previously-allowed 3.5 gallons (over 13 litres). Larger capacity toilets were still legal in Canada, so
some people started smuggling them across the border.
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CAMBRIDGE LEGAL STUDIES HSC
6.1 D
efining international crime borders or involve international actors have
increased. Such transnational crimes have become
Historically, crime has been an issue that states
increasingly problematic within domestic borders,
have dealt with inside their own borders. Societies
which may be where the crimes originate, and/or
within individual states have determined which
where their effects are felt, and/or where the victims
acts are punishable as crimes, and how those
or perpetrators reside.
crimes are dealt with and punished in their local
criminal jurisdiction. As a result, criminal laws transnational crime
have traditionally reflected the dominant social and crime that occurs across international borders, either in
cultural values of each country, varying from state origin or effect
to state. This concept was discussed in Chapter 1 in
the context of defining crime. ‘ International crime ’ is a broad term that
Keeping criminal laws defined and contained could cover any crime with international origin or
within national boundaries is for most states a consequences. There are many types of international
crucial part of state sovereignty. Many countries crimes, and many international crimes have existed
view the criminal law as a critical area for individual since before states themselves were even formed.
states alone to decide, without any interference But until only recently most such crimes have not
from outside influence, but this has changed with been considered outside the context of domestic law.
a growing international interest in ensuring that the
international crime
human rights of people in all countries are respected. a broad term covering any crime that is punishable by a
This has affected the national sovereignty of state, but that has international origin or consequences,
or a crime recognised by the international community as
states. The legal systems and constitutions of many
punishable
countries prohibit any encroachment into state
jurisdiction and laws. But over time societies have
International crime poses considerable
evolved, with increased cooperation between states
challenges legally, financially and socially, as
and changes in the way that states see their role
there are differing ideas about what constitutes
in the international community, which is evidenced
an international crime, who should deal with
in the growth of international law and international
it, who should fund them, and what the process
organisations, in particular the United Nations (UN).
should be. Increased cooperation between states
Together with such cooperation has been a growing
is fundamental if international crimes are to be
recognition that certain actions committed within
addressed and justice is to be achieved. This
sovereign state jurisdictions may be so extreme, and
chapter explores some of the issues related to
so universally condemned, as to constitute a crime
international crime, describes a range of measures
that ought to be universally condemned as a crime
that the international community has implemented
against the international community – genocide
to combat international crime, and evaluates the
or crimes against humanity, for example.
effectiveness of these measures.
In more recent years, with globalisation, plus
increased international travel and advances in
technology, opportunities for crimes that were in
the past committed only locally to cross national
state sovereignty crime against
the authority of an the international
independent state to community
govern itself (for example, a most serious crime,
to make and apply laws; of concern to the
impose and collect taxes; international community
make war and peace; and as a whole, and recognised
form treaties with foreign by the international
states) community as requiring
punishment
Figure 6.1 International crime can take many forms.
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CHAPTER 6 INTERNATIONAL CRIME
6.2 C
ategories of international international community are a collection of offences
crime that are recognised by the international community
as being of universal concern. They include some of
For the purposes of this chapter, international
the most extreme crimes possible – crimes that are
crimes need to be distinguished from crimes
deemed so serious that they are condemned by the
that are merely violations of domestic jurisdiction
majority of the international community and may be
with some international element. For example, an
punishable internationally.
Australian citizen who, while travelling in a foreign
However, there is no fully agreed list of such
country, steals a car or assaults another person will
crimes. Many countries will disagree about specific
be criminally liable in accordance with that country’s
aspects of an offence, or about the inclusion of
laws – and liable to any applicable judgement and
sentence that country imposes. Likewise, a foreign
citizen in Australia will be subject to Australia’s
certain crimes, but they almost always include
crimes such as genocide, war crimes, piracy (at 6
sea), hijacking of aircraft and slave trading on the
criminal laws. This is a case of domestic crime
list of international crimes.
with some international element, most often the
The prosecution of crimes against the
nationality of the perpetrator.
international community can be controversial. Such
Similarly, there are instances where Australian
crimes may be committed in the context of military
legislators have deemed it necessary to criminalise
conflict. They may be highly politically motivated,
acts committed by Australians travelling abroad –
or they may have been ordered or committed by the
one example of such a law is under Division 272 of the
state itself. States can sometimes be unwilling or
Commonwealth Criminal Code (on child sex offences
unable to prosecute individuals for these crimes,
outside Australia), which makes it an offence for an
as in some instances those responsible are still in
Australian citizen or permanent resident to engage
positions of power. In other instances, the offenders
in sexual activity with a child under 16 years old
have fled to a different jurisdiction in an attempt to
while overseas. Even though the criminal act
escape prosecution.
occurs in another jurisdiction, the offender is still
The importance of all states condemning crimes
liable under Australian domestic law, or under
against the international community is that the
foreign criminal law if the act is also a crime in that
criminals may then be unable to escape prosecution
jurisdiction. This is because of the serious nature of
simply because they are still in power or have fled
the crime and the desire to discourage Australians
the jurisdiction. Other states condemning the action
from pursuing activities abroad that would be illegal
may have a right to prosecute the offender under
had they been committed in Australia.
a claim of universal jurisdiction, where a state
International crimes, however, differ from these
claims a right to prosecute a person based on the
examples in that they involve some crossing of
common international belief that the alleged crime
international borders in the commission or planning
is so serious that normal laws of criminal jurisdiction
of the crime, or in some way involve a breach of
do not apply. Some states, such as Belgium, Spain
the criminal standards set by the international
and the United Kingdom, may be more likely to
community, in the form of international treaties
assert a claim of universal jurisdiction over such
or conventions or international customs of law.
serious criminals – these cases are generally very
International crime can be broadly divided into two
high profile and politically controversial.
main categories:
• crimes against the international community genocide universal jurisdiction
• transnational crimes. the deliberate where a state claims a
extermination of a right to prosecute a person
national, ethnic, racial or for actions committed in
Crimes against the international religious group another state, based on
the common international
community opinion that the alleged
Crimes against the international community are an crime is so serious that
entirely different class of crimes. Unlike domestic normal laws of criminal
jurisdiction do not apply
or transnational crimes, crimes against the
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CAMBRIDGE LEGAL STUDIES HSC
International jurisdiction over universally The ICC was established by the international
condemned crimes represents a fundamental community as a permanent court and a separate
change to the traditional view of state sovereignty, international entity from the UN. It is independent of
and is based on the idea that some acts are so the UN and from any state other than through their
extreme and universally condemned that they can influence. The ICC does, however, require a referral
no longer be permitted under the laws of any state. from the UN Security Council to prosecute certain
individuals outside the court’s normal jurisdiction. It
International Criminal Court (ICC) consists of 18 judges, each from a different signatory
The establishment of the International Criminal country, who operate in pre-trial, trial and appeals
Court (ICC) in 2002 in The Hague, The Netherlands, divisions.
was a significant development in the law of crimes
Rome Statute
against the international community. The court’s
the Rome Statute of the International Criminal Court; the
establishment followed years of international international treaty that established the International
negotiations and deliberations, with the treaty Criminal Court
eventually signed at a 1968 UN conference in
Rome. The treaty setting it up became known as the The Rome Statute gives the ICC jurisdiction
Rome Statute of the International Criminal Court, or over three broad categories of international crime:
Rome Statute. It came into force in July 2002, when genocide, crimes against humanity and war
the requisite number of states (60) had formally crimes. These are discussed in more detail in the
ratified it. As of January 2016, there were 124 state following pages. The ICC also has jurisdiction to
parties to the ICC. These are the states who have prosecute crimes of aggression, but member states
ratified or acceded to the Rome Statute. Of those have not yet agreed on its definition. The Rome
states, 34 are African, 19 are from the Asia–Pacific, 18 Statute states that while the crime of aggression
are from Eastern Europe, 28 are from Latin America is one of the ‘most serious crimes of concern to
and the Caribbean, and 25 are from Western Europe. the international community’, the ICC is not able to
Other states, such as the Russian Federation, have exercise its jurisdiction over this crime until there
signed but not yet ratified the Rome Statute. is international agreement.
The ICC is a court of last resort. It is intended to
International Criminal Court (ICC) complement, rather than exclude, existing national
an independent international court established by
the Rome Statute in July 2002 to prosecute and try
criminal justice systems – it can only prosecute a
international crimes of the most serious nature case when state courts cannot or are not willing to
do so. This means that the main responsibility for
investigating and prosecuting these crimes still lies
Figure 6.2 Member states of the International Criminal Court
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CHAPTER 6 INTERNATIONAL CRIME
with the member states. The ICC can only exercise
jurisdiction where:
• the accused is a national of a member state of
the treaty
• the alleged crime occurred in the territory of a
member state, or
• the situation is referred to the ICC by the UN
Security Council.
Where the ICC convicts an individual, it can
impose a sentence of imprisonment up to life
imprisonment (but not the death penalty), which will
be served in a state prison designated by the court. 6
In addition to imprisonment, the court can order a
fine or forfeiture of assets.
crime against humanity war crime
described in the action carried out during
Rome Statue as an act a time of war that violates
‘committed as part of a accepted international
widespread or systematic rules of war Figure 6.3 The International Criminal Court in The
attack directed against any
civilian population’ Hague, The Netherlands
Preamble to the Rome Statute of the International Criminal Court
The States Parties to this Statute,
Conscious that all peoples are united by common bonds, their cultures pieced together in a shared
heritage, and concerned that this delicate mosaic may be shattered at any time,
Mindful that during this century millions of children, women and men have been victims of
unimaginable atrocities that deeply shock the conscience of humanity,
Recognizing that such grave crimes threaten the peace, security and well-being of the world,
Affirming that the most serious crimes of concern to the international community as a whole must
not go unpunished and that their effective prosecution must be ensured by taking measures at the
national level and by enhancing international cooperation,
Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to
the prevention of such crimes,
Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible
for international crimes,
Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular
that all States shall refrain from the threat or use of force against the territorial integrity or
political independence of any State, or in any other manner inconsistent with the Purposes of the
United Nations,
Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State
Party to intervene in an armed conflict or in the internal affairs of any State,
Determined to these ends and for the sake of present and future generations, to establish an
independent permanent International Criminal Court in relationship with the United Nations system,
with jurisdiction over the most serious crimes of concern to the international community as a whole,
Emphasizing that the International Criminal Court established under this Statute shall be
complementary to national criminal jurisdictions,
Resolved to guarantee lasting respect for and the enforcement of international justice,
Have agreed as follows …
129
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CAMBRIDGE LEGAL STUDIES HSC
involve accusations of the killing of countless people,
Review 6.1 from hundreds to millions. The court will need to
prove beyond a reasonable doubt an intention to
Read the Preamble to the Rome Statute of the destroy all or part of the particular group.
International Criminal Court on page 129 and There are numerous tragic examples of genocide
complete the following tasks. throughout history. However, claims of genocide
1 Identify some of the historical incidents are often extremely controversial and in some
the Preamble refers to in its opening cases vehemently opposed by the groups accused
paragraphs. of perpetrating the crime. The most universally
2 Describe the nature of crimes that the recognised genocide is the killing of six million
Rome Statute aims to deal with. European Jews in World War II, under a program
3 Describe the main duty that the Rome of deliberate extermination that was planned
Statute imposes on member states. and carried out by the National Socialist German
4 Identify the Rome Statute’s position on Workers Party (also known as NSDAP or the Nazi
international war. Party), and led by Adolf Hitler. Scholars suggest
5 Explain how the Rome Statute interacts that under the widest definition of genocide, and
with state jurisdictions. including the deliberate extermination of Slavs,
Romani, homosexuals, the mentally ill, political
opponents and Jehovah’s Witnesses, the death toll
Genocide was as high as 17 million.
Article 6 of the Rome Statute gives the ICC criminal Prior to the establishment of the ICC in 2002,
jurisdiction over acts of genocide that occurred after genocide, war crimes and crimes against humanity
July 2002. Genocide includes various brutal acts were often dealt with by the international community
intended to destroy all or part of a national, ethnic, in specific ad hoc tribunals set up to prosecute
racial or religious group. The Rome Statute defines particular incidents; examples are the International
the crime of genocide as including: Criminal Tribunal for the Former Yugoslavia (ICTY),
established to prosecute those most responsible
• Killing members of the group; for crimes committed during the break up of the
• Causing serious bodily or mental harm to former Yugoslavia, and the International Criminal
members of the group; Tribunal for Rwanda (ICTR), set up to prosecute
• Deliberately inflicting on the group conditions
of life calculated to bring about the its physical
destruction in whole or in part;
• Imposing measures to prevent births within the
group;
• Forcibly transferring children of the group to
another group.
Genocide has long been condemned by the
international community as a crime so serious that
the international community has a responsibility to
punish it. Acts of genocide were criminalised in one
of the first ever treaties established by the UN – the
Convention on the Prevention and Punishment of the
Crime of Genocide, signed in 1948.
Genocide is extremely difficult to prove and cases
Figure 6.4 United Nations forensic experts unearth
involve enormous amounts of documentary evidence, victims from a mass grave in Srebenica, Bosnia. The
forensic evidence, review of killings and military victims are among the estimated 8000 civilians killed
orders, testimony, expert opinions and more. It can by Bosnian Serb soldiers in July 1995.
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CHAPTER 6 INTERNATIONAL CRIME
rather than a ‘crime against humanity’, this does not
lessen the severity of the crime. Initially, genocide
was considered a type of crime against humanity.
In the Nuremberg trials following World War II,
the Allied powers prosecuted prominent leaders of
Nazi Germany for crimes against the international
community. The founding documents of the tribunals
charged the leaders with crimes against humanity,
as well as war crimes. Although the crimes against
humanity that were charged included references to
genocide, genocide was only later separated and
individually defined by the 1948 Convention on the 6
Prevention and Punishment of the Crime of Genocide.
Nuremberg trials
a series of military tribunals that took place in
Nuremberg, Germany after World War II (from 1945 to
Figure 6.5 Defendants in the dock at the Nuremberg 1946); they were organised and run by the victorious
trials Allied powers, and are famous for their prosecution of
prominent leaders of defeated Nazi Germany for crimes
against humanity and war crimes
those most responsible for crimes committed during
the Rwandan genocide. Since its creation, the ICC Formerly, crimes against humanity were
has not yet succeeded in convicting any person of considered as having been committed within the
genocide. context of war, although the genocide convention
contains no such restriction. This was because the
Crimes against humanity crimes were generally considered as in addition to
Crimes against humanity are acts ‘committed as war crimes, but arising from the same incidents.
part of a widespread or systematic attack directed However, the Appeals Chamber of the International
against any civilian population’. Included under art Criminal Tribunal for the Former Yugoslavia (ICTY)
7 of the Rome Statute, the scope of crimes against has since clarified that crimes against humanity do
humanity is significantly broader than genocide – not have to be committed within the context of an
see the definition below. armed conflict. The current ICC definition contains
Unlike genocide, which requires proof of no restriction to a war context.
‘intention to destroy’ all or part of a group (national,
ethnic, racial or religious), crimes against humanity
can occur against any civilian population; the Crimes against humanity – art 7 of the
requirement is only that the acts be widespread or Rome Statute
systematic. The Rome Statute requires multiple For the purpose of this Statute, ‘crime against
commissions of any of the listed acts, which need to humanity’ means any of the following acts
be carried out under a state or organisational policy. when committed as part of a widespread or
In effect, genocide and crimes against humanity can systematic attack directed against any civilian
involve the same or similar devastating acts. Under population, with knowledge of the attack:
the current definition, crimes against humanity may (a) Murder;
be easier to prosecute by the ICC because of the (b) Extermination;
broader definition and issues of proof. The fact that (c) Enslavement;
the term ‘genocide’ holds such enormous political (d) Deportation or forcible transfer of
weight also means that political agreement between population;
states to prosecute it may be difficult to achieve. Continued
While there might be important symbolic
differences between calling something ‘genocide’
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CAMBRIDGE LEGAL STUDIES HSC
(e) Imprisonment or other severe
deprivation of physical liberty in violation Review 6.2
of fundamental rules of international law;
Consider the Rome Statute’s definition of
(f) Torture;
crimes against humanity and complete the
(g) Rape, sexual slavery, enforced prostitution,
following tasks.
forced pregnancy, enforced sterilization, or any
1 Identify some of the differences between
other form of sexual violence of comparable
the crime of genocide and crimes
gravity;
against humanity.
(h) Persecution against any identifiable group
2 Explain some of the reasons why crimes
or collectivity on political, racial, national,
against humanity might be easier to
ethnic, cultural, religious, gender as defined
prosecute than the crime of genocide.
in paragraph 3, or other grounds that are
3 Article 7(2) of the Rome Statute contains
universally recognized as impermissible under
extended definitions of the acts outlined
international law, in connection with any act
above. You can find the Rome Statute on
referred to in this paragraph or any crime
the ICC’s website (see http://cambridge.
within the jurisdiction of the Court;
edu.au/redirect/?id=6248). Looking at art
(i) Enforced disappearance of persons;
7(2), describe what is meant by the terms
(j) The crime of apartheid;
‘extermination’, ‘torture’ and ‘forced
(k) Other inhumane acts of a similar character
pregnancy’.
intentionally causing great suffering, or
serious injury to body or to mental or physical
health.
The Rome Statute includes as war crimes any
War crimes ‘grave breaches’ of the Geneva Conventions, as
In its broadest definition, a war crime is an activity well as a long list of serious violations of the laws
performed during a time of war that goes against of international armed conflict. It is universally
the rules of war as accepted by the international understood that during the hostilities of armed
community. A number of international agreements conflict there is a need to protect innocent
outline actions in war that constitute criminal civilians and their communities from violence. For
violation – the most well known are the Geneva example, war crimes listed under the Rome Statute
Conventions. The Geneva Conventions date back include:
to 1864 and are a series of treaties (and additional • torture or inhuman treatment, including
protocols to the treaties) that set standards for biological experiments
humanitarian treatment of the victims of war, such • wilful killing or wilfully causing great suffering
as civilians, the sick and wounded, prisoners of war or serious injury
and medical or religious personnel. • extensive and militarily unjustified destruction
or appropriation of property
Geneva Conventions • intentionally directing attacks at civilian
four treaties, with three extra protocols, that set the
populations or objects
international law standards for the humane treatment of
the victims of war, whether military or civilian • intentionally directing attacks at humanitarian
personnel or equipment.
Article 8 of the Rome Statute also provides an
extensive list of activities that can constitute war Transnational crimes
crimes. The actions must have taken place during Transnational crimes are crimes that take place
an armed conflict, either international or domestic, across international borders. Unlike crimes against
and in particular the ICC has jurisdiction where the the international community, which are a class of
acts are part of a plan or policy, or part of any large- extremely serious crimes punishable internationally,
scale commission of war crimes. transnational crimes are similar to domestic crimes,
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CHAPTER 6 INTERNATIONAL CRIME
Case Study
Prosecution of Sudanese President Omar al-Bashir
On 14 July 2008, ICC prosecutors filed a number of charges against the President of Sudan, Omar al-
Bashir, over a series of ongoing atrocities against three tribal groups in Darfur. The situation had had
large-scale international attention and been subject to intensive campaigning by political leaders,
human rights groups and high-profile celebrities.
Ten of the charges were for war crimes, five for crimes against humanity, three for genocide and
two for murder. Prosecutors presented evidence that al-Bashir ‘masterminded and implemented a plan
to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity’.
On 4 March 2009, the ICC issued a warrant for President al-Bashir’s arrest for war crimes, 6
intentionally directing attacks against a civilian population and pillaging, and for crimes against
humanity, including murder, extermination, forcible transfer, torture and rape. The charge of genocide
had not been pursued. This was the first arrest warrant issued by the ICC against a sitting head of
state, and it was opposed by the African Union, the League of Arab States, the Non-Aligned Movement,
and the governments of China and the Russian Federation.
While the initial charges against al-Bashir did not include genocide, on appeal by the prosecutor’s
office, the pre-trial chamber was found to have improperly dismissed the genocide charges, and was
ordered to re-examine the evidence. On 12 July
2010, the pre-trial chamber found that there was
enough evidence, and so second arrest warrant,
which included three counts of genocide, was
later issued.
However, on 26 December 2014 the ICC
suspended the case against al-Bashir, on the
grounds that nothing had been done to secure
his arrest. This further highlighted the difficulty
in gathering sufficient political will, especially
in the UN Security Council, to mount such cases
and ensure the accused appear before the court.
The court’s prosecutor, Fatou Bensouda, stated
Figure 6.6 Sudanese President Omar al-Bashir
that she was shelving the Darfur investigation
because of a lack of support from the UN Security
Council.
Research 6.1
Visit the ICC website (http://cambridge.edu.au/redirect/?id=6249) and then do the following.
1 Research art 8 of the Rome Statute and identify a list of activities considered to be war crimes.
2 Research the circumstances that led to the issuing of the arrest warrant for the Sudanese
President Omar al-Bashir and identify any recent developments in the case.
such as fraud, hacking or drug trafficking, but another, or may be committed in one country but the
have movement across international borders as an result or injury may occur in another.
element of the criminal act. Transnational crimes Some transnational crimes have existed for
may originate in one country but be completed in centuries, whereas others have been made possible
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CAMBRIDGE LEGAL STUDIES HSC
by the development of modern technologies.
Due especially to the rise of rapid international
telecommunications and international travel, local
authorities and policy-makers increasingly have
to confront offences and offenders whose origins
are outside their jurisdiction. The move to a
global economy, as well as the increased volume
and diversity of migration, has also led to more
opportunities for transnational crime.
Some of the main types of transnational crimes
include:
• human trafficking and people smuggling
across borders
• international fraud and white-collar crime (for
example, tax evasion or money laundering) Figure 6.7 The rise of rapid international
• transnational internet crimes, including data telecommunications means local authorities and
policy-makers increasingly have to confront offences
theft, internet fraud, copyright infringement
and offenders whose origins are outside their
and spam networks
jurisdiction.
• international terrorism, including cyber-
terrorism such as disruption of infrastructure,
including via electrical systems or computer • the desire for prohibited goods or services,
networks where suppliers are based in one country and
• creation and trafficking of child pornography consumers in another
• transnational trade in illegal substances, • differences in political or ideological viewpoints
including via international air, shipping and (for example, international terrorism or
postal networks. international hacking for political or ideological
reasons)
human trafficking
• hope that the transnational element will
the commercial trade or trafficking in human beings for
the purpose of some form of slavery, usually involving prevent detection (for example, international
recruiting, transporting or obtaining a person by force, money laundering or tax evasion)
coercion or deceptive means
• opportunistic desire for power or financial gain.
Transnational crimes will usually be prosecuted
It is impossible to itemise all forms of transnational
under the law of one or another country’s domestic
crime as there may be a number of crimes and
jurisdiction. For many crimes, the elements of the
parties involved and various methods employed to
crime will not be complete until the border has
commit the crime. Some crimes may cross many
been crossed, so the target country will often be
borders; for example, terrorism may be planned in
the enforcer, through its local legislation and law
one country, while training can occur in another,
enforcement.
funds or materials can be sourced in another
The nature of transnational crime can make
country, and the act itself is carried out in the target
prosecution very difficult. For example, a person in
country. Organised crime rings can have operations
Nigeria who sends bulk spam or fraudulent emails
across many countries and various elements of the
to Australian addresses will be very difficult for
crimes may take place at different locations.
Australian law enforcement authorities to track
Causes of transnational crimes might include:
down or prosecute. Similarly, the creation and
• differences in socioeconomic conditions
dissemination of child pornography throughout the
between countries; for example, human
world is a major concern – authorities in Australia
trafficking or internet fraud may originate in
and around the world find it difficult to break
less advantaged countries
through the anonymity of child pornography rings
that operate in many countries.
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CHAPTER 6 INTERNATIONAL CRIME
Due to the difficulties in trans-border detection many other important actions have been taken in
and enforcement of criminal laws, many laws Australia to combat international crime; these are
relating to such crimes are now underpinned by considered below.
cooperation agreements between a pair or group of
countries affected in some way by those crimes. Crimes against the international
Some of the methods used to enforce these laws are community
discussed below. The most significant recent development in
Australia in terms of dealing with crimes against
the international community was the signing and
Review 6.3
ratification of the Rome Statute. Australia was
1 Explain how transnational crimes differ
from ordinary crimes.
one of the first signatories, signing on 9 December
1998. Australia ratified the statute on 1 July 2002,
6
2 Identify some of the types of which was the date the statute came into force
transnational crime. internationally.
3 Assess some of the causes of Prior to the introduction of the Rome Statute,
transnational crimes and the difficulties Australia had legislated to criminalise a number
in combating them. of recognised crimes against the international
community: the War Crimes Act 1945 (Cth) and in
particular the Geneva Conventions Act 1957 (Cth),
which outlawed the recognised war crimes listed in
6.3 D
ealing with international the Geneva Conventions, for example. Coinciding
crime with Australia’s ratification of the Rome Statue,
Dealing effectively with international crime the federal government passed the International
requires an approach that combines domestic and Criminal Court Act 2002 (Cth) and the International
international measures. The methods used to deal Criminal Court (Consequential Amendments) Act 2002
with crimes against the international community (Cth) to ensure that Australia’s domestic laws would
and transnational crimes are considered separately comply with the statute.
below. In addition to procedural amendments, the
legislation introduced a new chapter to the
Domestic measures Commonwealth Criminal Code: Chapter 8 – Offences
Domestic responses to international crime are limited against Humanity and Related Offences. The new
by jurisdiction. Australian law enforcement cannot chapter made all the crimes listed in the Rome
operate in a foreign country, Australian courts do Statute offences in Australia. It did the same for
not have jurisdiction over crimes committed under some existing offences, such as many of the war
foreign laws, and Australian parliaments cannot crimes listed under the Geneva Conventions Act 1957
make laws that affect the laws of other countries. (Cth).
As a result, the ability of the Australian legal system As a consequence, any crime against the
to respond is inhibited unless there is cooperation international community outlawed by the Rome
with foreign countries. Statute is also a crime in Australia. The ICC’s role
There are specific circumstances where as a court of last resort was discussed earlier in this
exceptions may be possible, such as where chapter. The ICC is intended to complement rather
express permission has been granted for the than exclude existing state criminal justice systems
presence of Australian law enforcement by the and it can only prosecute a case when state courts
host country (for example, assisting in crisis relief cannot or are not willing to do so. Australia now
efforts), where parliament legislates on actions of has primary jurisdiction to investigate and prosecute
Australian residents abroad (for example, child such crimes if they occur in Australian territory or
sex tourism laws) or where an Australian court involve Australian citizens.
claims jurisdiction under a rule of international Australia also has a role to play as a state party
law (for example, universal jurisdiction). However, to the ICC and actively participates in discussions
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CAMBRIDGE LEGAL STUDIES HSC
Australian Federal Police (AFP)
Australia’s Commonwealth police force, established
to uphold Commonwealth criminal law and to guard
Australia’s interests from crime both in Australia and
internationally
The role of the AFP has grown considerably in
recent years with the growth in transnational crime.
In addition to its many domestic duties, the AFP is
also engaged in various international activities. This
includes posts in more than 25 countries, deployment
of Australian police for international capacity-building,
monitoring and peacekeeping, and specialist training
for international law enforcement agencies to help
prevent transnational crimes at their source and
encourage greater international cooperation.
Figure 6.8 Head office of the Attorney-General’s
peacekeeping
Department in the Australian Capital Territory the activity of creating conditions for sustainable peace
in countries affected by conflict, through the use of
force, quite often provided by a number of countries
and consisting of soldiers, civilian police and civilian
among the state parties and in administration of the personnel
court. At the time of publication, there has yet to be
an Australian judge appointed to the court. Under Some of the AFP’s international operations include
the Australian legislation, the Commonwealth child protection, counter-terrorism operations,
Attorney-General must report annually on the stopping human trafficking and drug operations.
operations of the ICC, and on any impact it has For example, the Jakarta Regional Cooperation
had on the Australian legal system. According to Team has helped Indonesian police investigate and
the report of the Attorney-General’s Department arrest suspects in relation to the 2002 Bali bombings
for 2008–09, there have so far been no Australian in Indonesia and the bombings of the Australian
prosecutions for crimes under the Act, and the ICC Embassy and the Marriott Hotel in Jakarta in 2004 and
has had ‘no discernible impact’ on Australia’s legal 2005, respectively. The AFP has also established the
system. Jakarta Centre for Law Enforcement Cooperation,
which aims to increase the skills of regional law
Transnational crime enforcement to deal with transnational crime. Over
The Australian Government, like many governments 5000 participants have now completed the Jakarta
around the world, has moved in recent years to Centre’s programs, which include training in criminal
combat the rise of transnational crimes. The following intelligence, forensics and financial investigation.
are some of the measures in place to monitor and The AFP is also continuing to develop relations
respond to issues of transnational crime. with other regional bodies such as the Southeast
Asian Regional Centre for Counter Terrorism
Australian Federal Police (AFP) in Kuala Lumpur and the International Law
The Australian Federal Police (AFP) was Enforcement Academy in Bangkok.
established under the Australian Federal Police Act
1979 (Cth) to uphold Commonwealth criminal law Commonwealth Attorney-General’s
and to guard Australia’s interests from crime in Department
Australia and overseas. The AFP interacts with a The Commonwealth Attorney-General’s Department
variety of law enforcement groups at state, territory, plays varied roles in relation to transnational crimes.
Commonwealth and international levels. It reports and provides valuable advice on Australia’s
compliance with its international obligations,
oversees the operation of legislation relating to
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CHAPTER 6 INTERNATIONAL CRIME
transnational crimes and provides advice on its to assist in investigating and analysing intelligence
implementation, and provides general information concerning national and transnational crimes.
to the public and to parliament on the status of According to the ACIC's 2017 annual report, the
Australia’s efforts against transnational crime. role of the agency includes 'reducing serious and
organised crime threats of most harm to Australians
Australian Criminal Intelligence and the national interest, and providing national
Commission (ACIC) policing information systems and services'. Some
The Australian Crime Commission Act 2002 (Cth) areas that the ACIC specifically investigates include
established a national statutory body, the Australian Southeast Asian organised crime (the primarysource
Crime Commission (ACC), to combat serious and of the heroin that comes into Australia), money
organised crime. In July 2016 this body merged
with CrimTrac to become the Australian Criminal
laundering and tax fraud, identity crime, cybercrime
and human trafficking for sexual exploitation. 6
Intelligence Commission (ACIC). It investigates
matters of national concern, and in coordination Australian Border Force
with other international law enforcement agencies Australian Border Force (formerly the Australian
it delivers specialist law enforcement capabilities Customs and Border Protection Service) is a national
Legal Info
Ending human trafficking
Human trafficking is a very serious issue in transnational crime. It involves the movement of people
by force, coercion or deceptive means, often of women and children into the sex industry. The global
trade in people is a complex and difficult crime to eradicate and estimates suggest there are between
500 000 and 4 000 000 victims annually. In the last decade, over 250 trafficking matters in Australia
were referred to the AFP.
The Australian Government has introduced a number of measures since 2003 to combat human
trafficking. Various offences related to human trafficking are listed in the Criminal Code Act 1995
(Cth), including slavery or any commercial transaction involving a slave, sexual servitude or deceptive
recruiting, or trafficking in people and forced labour. Similar legislation has been passed in Australian
states and territories. The government has also dedicated a significant amount of money (about $60
million from 2003) to the problem, involving numerous government bodies and attempting to tackle
the issue from initial recruitment to eventual
reintegration of victims, including:
• AFP funding to strengthen its ability to
detect, investigate and provide specialist
training for tackling the crime
• a National Policy Strategy to combat
trafficking of women for sexual servitude
• support measures and special visa
arrangements for victims of trafficking
• cooperation with regional and international
agencies in tackling the sources and
prosecuting the offenders
• support and training for the Commonwealth
Director of Public Prosecutions to help
prosecute people trafficking.
The issue of human trafficking is explored in Figure 6.9 Many women and children are victims
more detail in Chapter 9. of human trafficking.
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CAMBRIDGE LEGAL STUDIES HSC
agency that looks after the security and integrity of International measures
Australian borders. The agency works closely with There have been many international measures aimed
other government and international agencies to at tackling international crime. These measures can
prevent illegal transfer of goods or people across be generally divided into the following categories:
Australia’s borders. • cooperation among governments through
international treaties and international
Australian High Tech Crime Centre organisations targeted at specific types of
(AHTCC) international crime
The Australian High Tech Crime Centre (AHTCC) • international courts and tribunals to deal with
was created in 2002 to coordinate all Australian law enforcement of international law
enforcement authorities in fighting serious types • cooperation and intelligence sharing between
of crime that involve the use of technology. It now national and sub-national agencies to tackle
forms part of the AFP’s High Tech Crime Operations. problems of trans-border crime.
Its main functions include:
• coordinating a national approach to serious, Crimes against the international
complex and multi-jurisdictional crimes community
• assisting all Australian jurisdictions in their Most of the international efforts aimed at preventing
ability to deal with high-tech crime. or prosecuting crimes against the international
The AHTCC has representatives from every community have been discussed above. Governments
Australian jurisdiction and is funded by all states have showed continuing commitment and close
and territories. cooperation in their development of international
treaties such as the Geneva Conventions and the Rome
State and territory bodies Statute of the International Criminal Court. It is in the
There are numerous state and territory bodies that nature of such crimes that the international community
investigate transnational crimes due to their cross- recognises and universally agrees to condemn them.
jurisdictional nature. In New South Wales, some of
these include the Independent Commission Against Courts and tribunals
Corruption (ICAC), the New South Wales Crime Before the establishment of the ICC, international
Commission, the Police Integrity Commission and crimes were usually dealt with on a domestic level by
divisions within the NSW Police Force. Intelligence courts or military tribunals. However, throughout the
sharing and cooperation and coordination between 20th century, and particularly in the 1990s, various
national, state and territory bodies are essential in ad hoc international tribunals were also established
combating transnational crime. in order to prosecute atrocities relating to particular
events. This began with the Nuremberg trials and
the Tokyo trials, which prosecuted crimes against
humanity and war crimes relating to World War II.
More recently, the International Criminal Tribunal
Review 6.4 for the former Yugoslavia (ICTY) was established
in 1993 by the UN Security Council to investigate
1 Describe the domestic regime in and prosecute individuals for war crimes, crimes
Australia applying to crimes against the against humanity and genocide committed during
international community. the Yugoslav conflict in the 1990s.
2 Outline some of the domestic measures The International Criminal Tribunal for Rwanda
available to Australia to combat (ICTR) was established in 1994, also as a Security
transnational crime. Council ad hoc court to prosecute those most
3 Evaluate the effectiveness of using responsible for crimes committed during the Rwandan
domestic measures alone in dealing with genocide from April to June of that year. Following this,
international crime. two hybrid international courts were established for
the conflicts in Sierra Leone and Cambodia. Hybrid
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CHAPTER 6 INTERNATIONAL CRIME
Legal Info
Situations under ICC investigation as
of July 2018.
• Democratic Republic of the Congo
(June 2004)
• Uganda (July 2004)
• Darfur, Sudan (June 2005)
• Central African Republic (two situations
– May 2007 and May 2014)
• Kenya (March 2010) 6
• Libya (March 2011)
• Côte d’Ivoire (October 2011)
Figure 6.10 International flags outside the Yugoslavia
Tribunal building. • Mali (January 2013)
• Georgia (January 2016)
• Burundi (October 2017).
Legal Links
TRIAL (Track Impunity Always) is an
independent Swiss association that works for Research 6.2
justice against the perpetrators, accomplices
and instigators of genocide, war crimes and On the website of the ICC (http://cambridge.
crimes against humanity. It occasionally edu.au/redirect/?id=6249) and on the internet
appears before courts, including the ICC, generally, research two of the situations listed
on behalf of victims. Its website tracks the in the ‘Legal Info’ box and complete the
progress of cases involving crimes against following tasks.
the international community (see http:// 1 Explain what events the situation relates
cambridge.edu.au/redirect/?id=6250). to.
2 Identify when the situation was referred to
the ICC and who referred it (for example,
courts are distinct from ad hoc tribunals in that while a state or the UN Security Council).
they both focus on international crimes, the hybrid 3 Identify some of the accused people
tribunals are established by agreement between the and describe what stage their matter is
government in question and the UN, whereas the ad currently at (for example, pre-trial, trial
hoc tribunals are imposed upon a government. or appeal).
The world’s first non-conflict specific tribunal 4 Describe any new situations that have
was established in 2002 in the form of the ICC. It has been referred to the ICC.
launched investigations and prosecutions into a
number of more recent events. To date, a number
of state parties have requested investigations into
internal matters and one matter has been referred example, if a person commits murder in another
to the court by the UN Security Council. country and flees to Australia before they are
caught, they might be extradited back to the original
Extradition treaties country. It is relevant to all types of crimes, including
international crimes.
One of the most important tools in fighting
international crime is extradition treaties.
extradition
Extradition is the process whereby one country the legal surrender of a suspect or convicted criminal by
surrenders a suspect or convicted criminal to another one jurisdiction to another to face criminal charges or
sentence
country to face criminal charges or sentencing. For
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CAMBRIDGE LEGAL STUDIES HSC
Extradition is generally governed by a series war criminals that may be living in our jurisdiction.
of bilateral agreements with other countries. The case of Dragan Vasiljkovic (discussed in the
Australia currently has extradition agreements with media article on page 141) illustrates some of the
about 130 countries – more information is provided issues that may arise under an extradition request.
on the website of the Commonwealth Attorney-
General’s Department (see http://cambridge.edu. Transnational crimes
au/redirect/?id=6251). There is a long list of international organisations
and international treaties that aim to combat
bilateral agreement
transnational crimes, either in general or in relation
an agreement between two countries
to specific crimes. Some specific examples of these
are provided below.
However, a few international agreements,
including the Rome Statute and the Geneva
International Criminal Police Organization
Conventions, also have their own specific extradition
(INTERPOL)
arrangements. For example, Australia has received
INTERPOL is the world’s largest international
three extradition requests from the ICTY against
police organisation, and to date it has 188 member
people residing in Australia who are accused of
countries, including Australia. INTERPOL was
committing war crimes.
created in 1923 as a means of improving cooperation
In Australia, extradition is governed by the
between police around the world. Its mission
Extradition Act 1988 (Cth). The Act sets out the
is to prevent or combat international crime. Its
criteria for extradition to be granted. It must be
headquarters are in Lyon, France.
determined that the accused has a case to answer
on the evidence and that the accused will receive
International Criminal Police Organization
a fair trial in the state to which they are being (INTERPOL)
returned. It must also be shown that the offence the world’s largest international police organisation,
established in 1923 to facilitate collaboration among
is a crime in both Australia and the target country. intelligence agencies around the world
Extradition is an extremely important method of
combating international crime as it ensures that an At any given time, the organisation is engaged in
offender cannot simply flee the jurisdiction where numerous operations, investigating and providing
the offence was committed in order to escape advice to states’ law enforcement agencies on
prosecution for their crime. Australia is obliged under
the Rome Statute to fulfil its obligations in regard to
Review 6.5
Read the media article on page 141 and
complete the following tasks.
1 Identify the types of crimes Mr Vasiljkovic
is accused of and the international
situation that they allegedly occurred in.
2 Explain the nature of the extradition
request and identify the main issue that
Australian courts have raised.
3 Outline the court process that Mr
Vasiljkovic’s case has progressed
through.
4 Evaluate whether or not you think justice
can be properly served in this case. Figure 6.11 Police from different nations at the 82nd
INTERPOL General Assembly, 2013
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CHAPTER 6 INTERNATIONAL CRIME
Croatia to appeal to High Court over Dragan Vasiljkovic extradition
Angus Hohenboken
The Australian, 12 February 2010
The High Court has granted the Croatian Government special leave to appeal a full Federal Court
decision preventing the extradition of Serbian paramilitary leader ‘Captain Dragan’ to Croatia to face
questioning over his alleged involvement in war crimes.
The Croatian Government argues the decision has wide implications for Australia’s ability to pursue
6
the alleged perpetrators of international crimes. In its application the Croatian Government said that
the Federal Court was wrong to conclude that Mr Vasiljkovic, an Australian citizen, could not receive
a fair trial in Croatia because of his political beliefs.
Under section 7c of Australia’s Extradition Act, an accused person can be exempted from extradition
if on surrender to the extradition country ‘the person may be prejudiced at his or her trial, or
punished, detained or restricted in his or her personal liberty, by reason of race, religion, nationality
or political opinions’.
The full Federal Court found in its September judgement that Croatia’s courts had allowed [the
country’s] own soldiers to rely upon their service in the Croatian armed forces during the Balkans’
‘homeland war’ to mitigate sentences in criminal matters, but [that] Serbian soldiers had not
received the same consideration.
The Federal Court concluded that, if convicted, Mr Vasiljkovic might be incarcerated for a longer
period than a Croatian counterpart, largely as a consequence of his political beliefs.
The Croatian Government will argue that the Federal Court wrongly concluded that Mr Vasiljkovic
might receive a longer sentence if convicted because of his political beliefs, and that the mitigating
factor applied to Croatian soldiers was irrelevant to Mr Vasiljkovic.
Mr Vasiljkovic was the commander of a paramilitary unit known as the Red Berets during the ethnic
conflict in the Balkans between 1991 and 1993.
The republic of Croatia wishes to question Mr Vasiljkovic in relation to allegations against him
including that he directed his troops to commit the war crime of torture and committed the war
crime of torture during his time in Srpska Krajina, a Serbian-dominated part of Croatia, until 1993.
He has vigorously denied the claims …
Last February, a Federal Court judge dismissed a challenge by Vasiljkovic against a magistrate’s
finding that he was eligible for surrender to the Republic of Croatia.
But in September, a full bench of the court allowed Mr Vasiljkovic’s appeal, and he was released from
Sydney’s Parklea prison after almost four years in custody.
transnational crimes. For example, some of its There has recently been some movement towards
current operations include targeting organised crime developing a ‘global police force’, as advocated by
in Asia and Eurasia, international counterfeiting and INTERPOL in cooperation with the UN, to improve
money laundering, trafficking in arms and drugs, the skills of police peacekeepers and the sharing of
and international terrorism. communications networks and criminal data. One
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CAMBRIDGE LEGAL STUDIES HSC
result of sharing resources and developing common
standards might be an increase in the ability to track Legal Links
the movement of criminals around the world.
For more information on the United Nations
Convention against Transnational Organized
Research 6.3 Crime and its protocols, visit the website of
the UN Office on Drugs and Crime (see http://
INTERPOL’s website contains detailed
cambridge.edu.au/redirect/?id=6252).
information on transnational crime. Select
one of INTERPOL’s priority crime areas and
research it on INTERPOL’s website, and then
complete the following tasks.
1 Identify the types of transnational crimes Pacific Transnational Crime Network
that are included in that priority area. (PTCN)
2 Describe the background to one of the The Pacific Transnational Crime Network (PTCN)
crimes as explained by INTERPOL. was formed in July 2002 as a response to increases
3 Assess some of the measures that in regional transnational crime. It was an initiative
INTERPOL is taking to deal with the of the AFP, who realised that strong relationships
crime. were needed between Australia and its Pacific
neighbours if it were to combat the problem of
transnational crime. The network’s headquarters are
now at the Pacific Transnational Crime Coordination
United Nations Convention against Centre (PTCCC) in Apia, Samoa.
Transnational Organized Crime The PTCN, with the AFP, has created a regional
The United Nations Convention against Transnational network of transnational crime units in Pacific states
Organized Crime is regarded as the main international with a focus on combating cross-border criminal
instrument in the fight against transnational activity such as drugs and arms smuggling or
organised crime. It began operation in 2000 and has money laundering. It manages, coordinates and
three protocols that countries become a party to enhances law enforcement intelligence and data
once they sign the convention. across the region. Pacific countries have been
These are: identified as particularly vulnerable to the threats
• Protocol to Prevent, Suppress and Punish of transnational crime, especially from organised
Trafficking in Persons, especially Women and crime groups. They may also have fewer resources
Children to tackle law enforcement or to detect and prosecute
• Protocol against the Smuggling of Migrants by such crimes, and the PTCN provides technical
Land, Air and Sea assistance, training and resource sharing and helps
• Protocol against the Illicit Manufacturing of to strengthen the rule of law in Pacific countries.
and Trafficking in Firearms, Their Parts and The PTCCC was opened in 2008 to coordinate and
Components and Ammunition. analyse criminal intelligence data in the Pacific
Signature states commit themselves to ensuring region. It acts as a ‘one-stop’ agency for the flow
that their own domestic criminal law makes of information for the Transnational Coordination
offences of the activities of organised crime, money Units (TCUs) set up around the region.
laundering and other aspects of corruption. States The PTCN has been successful in the region.
must also adopt broad changes to extradition For example, in 2004 it discovered and dismantled
procedures, commit to providing ‘mutual’ legal a methamphetamine laboratory in Suva, Fiji – the
assistance and cooperation among law enforcement largest in the southern hemisphere. The laboratory
agencies, and undertake to upgrade the capacity posed serious environmental and physical danger to
of national authorities to deal with organised local communities, and the drugs could have been
transnational crime networks. intended for markets in Australia and New Zealand,
Europe and the United States. Recently, there have
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CHAPTER 6 INTERNATIONAL CRIME
been some high-profile arrests of Pacific regional effort will be needed to tackle the issues they
figures engaged in various immigration, financial present.
fraud and money-laundering activities.
Crimes against the international
community
6.4 T
he effectiveness of Clearly the most significant development in
measures dealing with combating crimes against the international
international crime community has been the establishment of the ICC,
Some of the most significant measures used which followed numerous specific ad hoc tribunals
to combat international crime were described set up to cope with crimes committed in specific
above. However, due to the complex and difficult
nature of transnational crimes, the effectiveness
situations, such as Rwanda and Yugoslavia.
Generally, ad hoc war crimes tribunals have
6
of those measures is not always as great as we been reactive and extremely resource-inefficient
would hope. if the number of prosecutions is a measure of
performance. The International Criminal Tribunal for
Transnational crime the Former Yugoslavia (ICTY) has had more success
In transnational crime, there are often complex than any other such body, having indicted close to
organised criminal groups at work using 260 people, with all but one of these cases having
sophisticated measures to avoid detection. being dealt with. This is a victory for international
Authorities around the world have to combat a justice, but the cost has run to billions of dollars.
number of crimes, including identity fraud, internet Eventually ad hoc war crimes tribunals will run
crime, paedophilia rings and the trafficking and their course as matters are resolved or remain
smuggling of people and contraband. Some states unprosecuted and the ICC is used to prosecute more
may lack the skills, training and resources to combat recent offences.
such crimes or may be unable to do so due to political A permanent court such as the ICC is
unrest or high levels of state corruption. Such symbolically very powerful, and sends a message
states may become targets or breeding grounds for
transnational crime affecting other states, making it
very difficult to combat the problem.
The main areas for efforts against transnational
crime to address include:
• the extent of international cooperation between
states – the provision of adequate resources
and the effectiveness of coordination among
international agencies, including the exchange
of information
• the level of compliance among weaker or
poorer states – states where the rule of law may
be weak become targets by organised crime
groups.
To be successful, states will require cooperation
and the sharing of skills, resources, funding and
intelligence on an unprecedented scale. To date,
some important measures, both domestic and
international, have been put in place to cope
with transnational crime and they have had some
success. However, as with domestic crime,
transnational crimes are unlikely to disappear any Figure 6.12 Crimes such as smuggling can spread
time soon and, as the world changes, an increased across multiple states and countries.
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CAMBRIDGE LEGAL STUDIES HSC
to leaders or other criminals that they can no longer crimes and crimes against humanity have occurred,
hide behind immunity in their own state when they has shown little political will to investigate the
have committed appalling acts. Also, the threat of possibility of such people living within the Australian
later prosecution may act as a deterrent, stopping community. Having signed and ratified the Rome
rogue leaders using any such tactics. It also offers Statute, Australia is in fact obliged to do so.
enormous support to victims of the crimes by Having said this, a permanent court, with
attempting to bring to justice those responsible for established investigative and court mechanisms as
these atrocities. The ability of the ICC to deal with well as permanent staff, is a step towards greater
these issues is, however, questionable. efficiency. The effectiveness of any international
The tribunals and the ICC have not been without institution will usually come down to the sum of
criticism. In particular, the courts are established its parts. While the ICC now has over 110 member
to deal with these atrocities after they have been states, it lacks some of the world’s most important
committed, and there is valid criticism that and influential countries. These include some of
international law and the international community the world’s major powers (such as the United
have been too slow to stop these atrocities before States, China and India), as well as some very
they occur, or even while they are occurring. Short influential countries (such as Pakistan, Vietnam and
of intervention by the UN Security Council, which Indonesia).
has been rare, there is also no international force Most objecting states claim that joining the
or police that can capture such offenders, especially ICC would violate their state sovereignty. As
when they remain inside their own state. discussed above, one of the biggest advantages of
This is particularly evident, for example, in the the court is that it can act independently of state
conflict in Darfur, Sudan, where charges by the ICC jurisdictions where they are unwilling or unable to
were not laid against President al-Bashir until 2008, do so. However, critics claim that in many cases
five years after the atrocities began, and ultimately states fear subjecting themselves to investigation
were dropped as discussed previously. This was of their own affairs – India over Kashmir, or China
some 15 years after the world had witnessed the over Tibet or Xinjiang, for example. Nevertheless,
gruesome genocide in Rwanda, where 500 000 people the ICC only has jurisdiction for crimes committed
were killed within just 100 days: the international after its establishment, and it still has jurisdiction
community had condemned this and vowed never over any individuals from non-member states
to let such a thing happen again. who commit crimes against or in the territory of
The enormous cost of such investigations and a member state. Supporters of the court argue
prosecutions also needs to be borne by member that the danger of crimes against the international
states. As such it is never likely to be possible for community occurring again without independent
the international community to prosecute all the oversight or responsibility ought to outweigh the
offenders who commit these crimes. So the ICC is national interests of state parties.
primarily focused on the ‘main players’ orchestrating In 2012, the ICC successfully prosecuted its first
the commission of the crimes outlined in the Rome case. Congolese warlord Thomas Lubanga Dyilo
Statute. As is the case with other international was found guilty of war crimes (see the media article
tribunals and courts, it must prosecute those ‘most on page 145).
responsible’. The Special Court for Sierra Leone The continued development of the international
(SCSL) was mandated to prosecute those most criminal justice system is a promising tool to combat
responsible for crimes committed during the Sierra crimes against the international community.
Leone civil war, but only nine have been convicted. With adequate resources and political determination
On 26 April 2012, the former President of Liberia, from states around the world, the ICC has the
Charles Taylor, was convicted of crimes relating to potential to make a significant difference in
his role in the conflict and was later sentenced to 50 preventing further atrocities or bringing to justice
years’ imprisonment. those responsible where they do occur. However,
It should also be noted that Australia, with a strengthening the rule of law and combating other
refugee intake from areas of the world where war conditions that lead to conflict are ultimately more
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CHAPTER 6 INTERNATIONAL CRIME
United Nations News Centre
16 March 2012
The Security Council today noted with appreciation the issuance of the first verdict of the ICC, which
this week found Congolese warlord Thomas Lubanga Dyilo guilty of conscripting child soldiers under
the age of 15 into his militia.
‘War crimes involving the most vulnerable members of society, such as children, are of particular
concern and this verdict is an important step towards ensuring that those responsible for such
6
crimes are held accountable,’ the Council said in a press statement read by Ambassador Mark Lyall
Grant of the United Kingdom, which holds the Council’s presidency this month.
The Court’s trial chamber found Mr Lubanga Dyilo guilty of the war crimes of conscripting and
enlisting children under the age of 15 into the Patriotic Forces for the Liberation of Congo, and
using them to participate actively in hostilities
in the Ituri district of northeastern Democratic
Republic of the Congo (DRC) from September
2002 to August 2003.
‘The members of the Security Council reaffirm
their strong opposition to impunity for the most
serious crimes of international concern,’ the
Council’s statement said.
The 15-member body said that it recognised
that this is an important moment for the victims
who suffered as a result of Mr. Lubanga Dyilo’s
actions and expressed its sympathy to the
survivors and others who have endured similar
crimes during hostilities in DRC.
Yesterday, ICC Prosecutor Luis Moreno-
Ocampo told reporters in Geneva that he will on
Figure 6.13 Luis Moreno-Ocampo, the ICC’s first
18 April ask the Court to sentence Mr Lubanga
Prosecutor, who was replaced by Fatou Bensouda
Dyilo to a prison term that is close to the
on 16 June 2012
maximum 30 years.
resource-efficient than drawn-out prosecutions justice system’s success – its true effectiveness will
under the Rome Statute. At this stage it is too early be judged as history unfolds throughout the 21st
to genuinely comment on the international criminal century.
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CAMBRIDGE LEGAL STUDIES HSC
Figure 6.14 Child soldier in the Lord’s Resistance Army
Legal Info
Investigations by the ICC
There are numerous cases in 11 situations under investigation by the ICC at the start of 2018. The
majority of these come out of Africa. This is a contentious point in legal scholarship: while African
conflicts are the focus of international tribunals, including the ICC, European and more generally
Western individuals who commit similar crimes are not pursued. In 2017 there were calls by Human
Rights Watch for the Security Council to investigate alleged crimes against the international community
inflicted upon Rohingya Muslims in Myanmar by the Burmese Military and that the ICC be allowed
to investigate these incidences. At http://cambridge.edu.au/redirect/?id=6253 you can monitor the
progress of these cases and others as they arise.
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CHAPTER 6 INTERNATIONAL CRIME
Chapter summary
• International crime includes transnational • Extradition is an agreement between states
crimes and crimes against the international that allows transfer of suspects and prisoners
community. between states for trial or sentencing.
• Crimes against the international community • There has been a growth in the federal and
include genocide, crimes against humanity state agencies responding to the threat of
and war crimes. These crimes are punishable transnational crime.
internationally. • Greater coordination of international agencies
• Transnational crimes are crimes that occur and sharing of resources are considered
across international borders, in their origin or essential in combating transnational crimes
effect. regionally and internationally. 6
• The main development in dealing with crimes • Greater state agreement and support, as well
against the international community is the as improved methods of enforcement, are
establishment of the ICC in The Hague, The required to effectively prevent crimes against
Netherlands. the international community.
Questions
Multiple-choice questions 4 The Extradition Act 1988 (Cth) ratifies a number
1 Which of the following contains an example of of international treaty agreements entered into
both a transnational crime and a crime against by the federal government. Which of the following
the international community? statements best reflects the criteria used by the
A Genocide and war crime federal government when deciding whether or
B Drug trafficking and human trafficking not to return an offender to another state?
C Murder and money laundering A The offence is criminal in both states and
D Genocide and human trafficking the accused will receive a fair trial.
B The accused has a case to answer on the
2 Genocide is most accurately defined as acts evidence, the accused will receive a fair trial
which have the intention of destroying all or in the country to which they are being sent,
part of: and the offence is criminal in at least one of
A a political, ethnic, racial or religious group the states.
B a national, social, ethnic or religious group C The accused has a case to answer on the
C a national, ethnic, racial or religious group evidence, the accused will receive a fair trial
D a political, ethnic, social or religious group in the country to which they are being sent,
and the offence is criminal in both states.
3 Which of these statements is the most correct D The accused has a case to answer on
explanation of the complementary jurisdiction the evidence, the accused will meet bail
of the ICC? conditions, and the offence is criminal in at
A It allows member states’ courts to investigate least one of the states.
crimes against the international community.
B It allows member states’ courts to 5 Which of the following has not been attributed
investigate and prosecute crimes against as a cause of the growth in transnational crimes?
the international community. A Better communication
C It allows regional courts to investigate and B Growth of technology
prosecute crimes against the international C Ease of movement between jurisdictions
community. D Lack of cooperation between law
D None of the above enforcement agencies
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CAMBRIDGE LEGAL STUDIES HSC
Chapter summary questions
1 Define international crime and describe how it 4 Evaluate the effectiveness of the ICC in
differs from ordinary domestic crime. dealing with crimes against the international
2 Explain the difference between genocide and community.
crimes against humanity. 5 Evaluate the effectiveness of international
3 Identify two domestic responses to international measures dealing with transnational crime.
crime and assess their effectiveness in dealing
with the problem.
Themes and challenges for Part I Crime
The role of discretion in the Issues of compliance and non-
criminal justice system compliance in regard to criminal
• Discretion acknowledges that the law can be a law
blunt instrument in delivering justice. It allows • The majority of individuals within a society
individual circumstances to be taken into obey the law most of the time. Individuals also
account when applying the law. It is considered enjoy the freedoms and protection a well-
important if the criminal justice system is to organised and, at times, well-regulated society
balance the rights of the community with the gives. It is partly for this reason that the majority
rights of individuals – the accused and victims – complies with the law. The law can also enforce
and if it is to address the tension between these compliance and sanction violations on behalf of
competing interests. Discretion can also be society where individuals do not comply.
used in a biased or corrupt way undermining • Some of the reasons why people do not comply
justice. with the law include greed, self-interest,
• Discretion is a part of most steps in the criminal thrill, peer pressure, addiction, mental
justice system. illness, political need or necessity. There is
• There are many people in authority who have no set pattern and the specific reason for an
discretionary power in the exercising of their individual’s non-compliance may vary.
roles. Police have discretionary powers of arrest • Issues that could also be critiqued could
in certain matters and they also have discretion include ways in which the criminal justice
in the exercising of their powers when carrying system tries to ensure greater compliance
out their duties. References to course material through:
can be used here and critiqued. – crime prevention (situational and social)
• The Director of Public Prosecutions (DPP) – more effective investigation of crime
has discretion with respect to what matters it – the purposes of punishment to reduce
will prosecute. It examines if there is enough criminal behaviour (the lack of success with
evidence and if it is in the public interest to high rates of recidivism)
prosecute. – emphasis on rehabilitative initiative with
• Magistrates and judges have discretion in young offenders (such as youth justice
matters pertaining to bail, rules of evidence and conferencing)
procedure as well as in sentencing matters. – measures to combat transnational crime.
They also have discretion in matters on appeal.
• Reference to these areas, and more, and an
evaluation of the course content are essential.
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CHAPTER 6 INTERNATIONAL CRIME
The extent to which the law • alternatives to full-time imprisonment such
reflects moral and ethical as periodic detention, home detention or
standards community service orders
• Crimes are actions that individual societies • international crime – the ICC, INTERPOL or
have decided should be illegal. For this reason, initiatives of the AFP
jurisdictions differ in what actions constitute a • failure of the existing law to deal effectively
crime, and crimes change over time. with sexual assault matters (low reporting and
• Most crimes are the result of moral and ethical conviction rates)
judgements by society (public morality) about • rehabilitation, rates of recidivism – refer to the
behaviour that may be deemed harmful and prison system
therefore warrant sanctions by the state. • gathering of evidence – DNA, surveillance,
remote witness facilities and transcript
6
In other words, what currently exists in
international law, statute and common law is a evidence; balancing police powers with the
reflection of our public morality. The ways the rights of the individual; and reliability and the
law may change to respond to shifts in public process of such evidence contributing to delays
morality, and the areas today that are in a state in the court system.
of flux, reflect the moral and ethical standards
of our community. Examples include: The extent to which the law
– specific domestic legislation and balances the rights of victims,
international treaties concerning offenders and society
international crime that reflect a degree of • This picks up on part of the principal focus
public morality of the topic: the ‘tension between community
– areas where there have been law reforms interests and individual rights and freedoms’.
or changes to the law as a result of shifting In many instances society’s needs may
public morality – sentencing laws, sexual outweigh the rights of individuals in light of, for
assault laws, decriminalisation of certain example, anti-terrorism legislation or restriction
behaviours, legislation concerning in bail laws, where individual civil liberties
young offenders, and the growth of the have been eroded in the name of protection of
international criminal justice system. the community. The law and order debate that
has been ongoing in some areas has gained
The role of law reform in the the upper hand in the balancing act that is the
criminal justice system tension mentioned above.
Any example where the law changes is law reform. • Areas that could be critiqued include police
There are many examples already contained in the powers against the rights of suspects, or the
previous chapters. Agencies of law reform such as criminal trial procedures that aim to balance
law reform commissions, parliaments, courts and the rights of victims, offenders and society. The
other non-legal measures can be examined here right to a fair trial, supported by strict rules of
with examples of how they have reformed the law. evidence and procedure, is fundamental to the
Some examples of law reform in the criminal justice criminal justice system and this balancing act.
system include: The criteria used by judges when sentencing
• laws of sexual assault are also features of this balance and ongoing
• majority verdicts in juries tension. This balance is further reflected in
• guidelines in charge negotiation, alternative the decision to grant bail, charge negotiations
methods of sentencing such as circle negotiated by the DPP and the ability of the
sentencing, and restorative justice international criminal justice system to bring
• youth justice conferencing or other alternatives offenders of mass atrocities to justice. These
for young offenders are just some of the areas to be addressed in
respect to this theme.
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CAMBRIDGE LEGAL STUDIES HSC
The effectiveness of legal and
non-legal measures in achieving
justice
• This is a very broad theme that can be applied • Broad areas of criminal law that outline the
across all aspects of the crime topic. The legal statute/common law responses, such as young
measures include all institutions and processes offenders, international crime or the sentencing
enabled by law to deal with aspects of the process, may be chosen. Non-government
criminal justice system. Non-legal measures organisations, the media and so on can also be
must also be critiqued as change agents that highlighted here and their role outlined and
can help improve and develop awareness of evaluated.
law, or pressure law-makers to regulate or deal
with an area of concern within the criminal
justice system.
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Part II
Human rights
20% of course time
Principal focus
Students investigate the concept of human rights while discovering how the legal system attempts to protect
and promote our rights by examining current issues and examples.
Themes and challenges
Themes and challenges covered in Part II include:
• changing awareness in the connection between human rights and state sovereignty
• dealing with compliance and non-compliance in respect to human rights
• how changing ethical standards and values are reflected in the development of human rights
• how law reform helps to continually protect human rights
• effectively protecting human rights through legal and non-legal measures.
HSC external examination information
The HSC examination will be a written paper worth a total of 100 marks. The paper will consist of three
sections.
Questions relating to Part II of the syllabus – ‘Human rights’ – will appear in sections I and II of the
examination.
Section I: Core 20 marks total (5 of the possible 20 marks will be
based on ‘Human rights’)
Section I will consist of objective response (that is, multiple-choice) questions. Questions to the value of 5
marks will be drawn from ‘Human rights’. Some of these questions may be based on, or refer to, stimulus
materials.
Section II: Core 30 marks total (15 of the possible 30 marks will
be based on ‘Human rights’)
Section II will be divided into two parts: Part A and Part B. Only Part A will relate to ‘Human rights’. There
will be three or four short-answer questions to the value of 15 marks. These questions may be in parts. These
questions may refer to stimulus materials.
Chapters in this Part
Chapter 7 The nature and development of human rights
Chapter 8 Promoting and enforcing human rights
Chapter 9 Contemporary human rights issues
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Chapter 7
The nature and development
of human rights
Chapter objectives
In this chapter, students will:
• define the concept of human rights
• explain the origins of the modern concept of human rights
• describe the achievements of the various movements for human rights
• identify the various types of human rights that have developed over the last two centuries
• locate the details of key human rights treaties
• discuss the significance of the Universal Declaration of Human Rights (UDHR) for the postwar
development of international human rights law
• communicate the main features of the UDHR, the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)
• evaluate the effectiveness of the International Bill of Rights.
Key terms/vocabulary
abolitionism Magna Carta
collective right natural law
debt slavery non-government organisations (NGOs)
Four Freedoms positivism
hard law ratify (ratification)
human rights right to peace
human trafficking self-determination
inalienable right slavery
Industrial Revolution soft law
International Bill of Rights suffrage
International Covenant on Civil and Political Rights suffragette
(ICCPR) trade union
International Covenant on Economic, Social and transatlantic slave trade
Cultural Rights (ICESCR) Universal Declaration of Human Rights (UDHR)
international customary law universal education
International Labour Organization (ILO) universal suffrage
labour rights
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Relevant law
IMPORTANT LEGISLATION
Magna Carta (1215) Universal Declaration of Human Rights (1948)
Constitution of the United States of America 1787 International Covenant on Civil and Political Rights
(US) (1966)
Bill of Rights 1789 (US) International Covenant on Economic, Social and
Slave Trade Act 1807 (Great Britain) Cultural Rights (1966)
Slavery Abolition Act 1833 (Great Britain) Stockholm Declaration (1972)
Education Act 1870 (UK) African Charter on Human and Peoples’ Rights
Trade Unions Act 1871 (UK) (1981)
Public Instruction Act 1880 (NSW) Declaration on the Right of Peoples to Peace (1984)
General Act of Brussels (1890) American Convention on Human Rights (1988)
Representation of the People Act 1918 (UK) Rio Declaration (1992)
Treaty of Versailles (1919) Kyoto Protocol (1997)
Slavery Convention (1926) United Nations Declaration of the Rights of
Charter of the United Nations (1945) Indigenous Peoples (2007)
SIGNIFICANT CASES
R v Knowles; ex parte Somersett (1772) 20 State United States v Libellants and Claimants of the
Tr 1 Schooner Amistad 40 U.S. (15 Pet.) 518 (1841)
Legal oddity
Towards the end of the 19th century, women in democratic countries began campaigning for the right to vote.
In 1908 over 300 000 people took part in a march through London. To further draw attention to their cause,
some women began committing acts of civil disobedience, such as chaining themselves to railings, smashing
windows and even detonating bombs. More than one thousand women were sent to prison for public order
offences, and many went on hunger strikes while imprisoned. In response, the British Government passed the
Prisoners (Temporary Discharge for Ill Health) Act 1913, (also known as the Cat and Mouse Act), which meant
that women whose health deteriorated due to hunger striking would be released from prison, but readmitted
later to finish their sentence. This way, the government could not be blamed if the women died, and it also
meant the released women would be too weak and ill to engage in further activities.
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CAMBRIDGE LEGAL STUDIES HSC
7.1 T
he definition of ‘human the international declaration of these rights that has
rights’ formed the basis for laws, constitutions, international
treaties and ongoing international debate on human
The Preamble to the Universal Declaration of
rights. It arose out of World War II and is the first
Human Rights (UDHR), adopted by the General
internationally asserted declaration of human rights.
Assembly of the United Nations (UN) in 1948, sets
Human rights are a collection of fundamental
out the fundamental purpose for recognising human
standards, decided upon by the international
rights. It states that ‘recognition of the inherent
community, for the treatment of individuals. They
dignity of and the equal and inalienable rights of
aim to protect individuals from injustice, allow people
all members of the human family is the foundation
to achieve their full potential in society, and prevent
of freedom, justice and peace in the world’.
discrimination against groups of people because of
Universal Declaration human rights their physical characteristics or beliefs. Countries
of Human Rights in a general sense, basic
(UDHR) rights and freedoms around the world are seen to have a moral and legal
a declaration of rights believed to belong to all obligation to respect and uphold these rights.
adopted by the UN in human beings The generic term ‘human rights’ is relatively
1948; the first universal
acceptance of the idea new and has only come into use since the late 19th
of human rights and inalienable right century. But the rights themselves have developed
the reference point of a right that cannot be
all subsequent human taken away gradually over many centuries. They relate to
rights treaties. In 1948 the theories of the law itself, such as ‘divine will’, natural
UDHR was hailed as being law and positivism. Historical sources include:
‘a Magna Carta for all
humanity.’ • the laws of ancient civilisations in
Mesopotamia, Ancient Rome and India
The precise nature of human rights is not fixed, • philosophers and religious scholars
however, and is often the subject of debate. In a • historical events/documents
general sense, human rights refer to fundamental • major conflicts.
rights and freedoms that are believed to belong to Today, the term is used in many different contexts
all human beings. As stated in the UDHR, these and human rights have evolved into an essential
rights differ from ordinary rights under domestic ingredient of justice, occupying an important place
law in that they are considered to be universal, in law, society and international relations.
inalienable and inherent in all people. The UDHR is natural law positivism
the theory that certain the theory that laws are
laws come from an valid simply because
unchanging ‘natural’ body they are enacted by
of moral principles that authority or from existing
are the basis for all human decisions, and that moral
conduct, and so have considerations do not apply
validity everywhere
Magna Carta
a document signed in 1215 which recognised the
principle that everyone, including the king, was subject
to the law; 2015 was this historic document’s 800th
anniversary
However, human rights continue to be violated
in many countries around the world. This can make
human rights a perplexing concept. It may seem
odd to read about the various treaties and laws
that protect human rights, while knowing that
Figure 7.1 The Magna Carta was signed by King these same rights are often ignored or suppressed.
John in 1215. It has since been seen hailed as a
Despite this, the concept of human rights is central
symbol of the rule of law.
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7
CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS
most of human history, slavery was taken for granted
and was considered integral to society and the
economy. Slavery predates recorded history – it was
common in antiquity and continued worldwide in
various forms throughout the Middle Ages. Slavery
was practised legally in many parts of the world until
the 20th century.
In the ancient Mediterranean, the most common
forms of slavery included debt slavery (being
forced to pay a loan with labour rather than money),
slavery as a punishment for crime, or prisoners of
war committed to slavery. Children could be born
into slavery and spend their entire lives as slaves,
possibly paying off debts that were incurred
generations earlier.
Figure 7.2 Many basic human rights are still violated,
such as the right to seek asylum from persecution as slavery debt slavery
stated in art 14 of the UDHR. a type of forced labour slavery in order to pay off
in which a person is a loan with forced labour
considered to be the legal rather than money
property of another
Review 7.1
1 How do human rights differ from Types of slavery differed around the world, but
ordinary rights under domestic law? slavery was usually used as a way to fill certain roles
2 Identify five rights in the UDHR which in society for little or no cost, without needing to pay
are particularly relevant to Australia at wages. Slaves were forced to carry out menial or
this time. labour-intensive jobs, in return receiving food and
3 Explain why respect for human rights accommodation, in places where the structure of
is essential for the maintenance of a the modern welfare state did not exist. Some slaves
healthy democracy. were well educated and highly valued in their
households, and occasionally could be awarded
freedom (as freedmen). But in many instances slaves
were mistreated and brutalised, and had no real
to the operation of law in modern democratic legal rights and no means of escape. Laws generally
societies and is an integral part of the international treated slaves as objects, rather than as subjects of
legal system. the law.
Moves to abolish slavery and slave trading in
European cities and states began as early as the 12th
7.2 T
he abolition of slavery
century. Iceland, for example, officially abolished
slavery in 1117. Although slavery of European citizens
Universal Declaration of Human Rights – gradually became uncommon, slavery was still widely
abolition of slavery practised on the fringes of Europe and elsewhere in
the world. As Europeans began to conquer the New
Article 4
World and their empires expanded, they required
No one shall be held in slavery or servitude; more and more resources to grow and support their
slavery and the slave trade shall be prohibited new colonies. Slave labour was sought from newly
in all their forms. discovered populations or races. European empires
supported the use of slaves from new territories, but
particularly from trade posts in Africa. Although
Slavery is a type of forced labour in which a person
the Roman Catholic Church prohibited the export
is considered to be the legal property of another. For
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CAMBRIDGE LEGAL STUDIES HSC
of Christian slaves, it legitimised the use of non-
Christian slaves in overseas territories.
Known as the transatlantic slave trade, this
operated from the 17th century to the early 19th
century – European ships would trade products
for slaves in West Africa, where slavery was still
widely practised, and carry the slaves to the New
World colonies to grow and manufacture cash
crops such as sugar. The profits would be returned
to the European powers, and the trade cycle would
continue. An estimated 12 million Africans were
shipped from Africa to the Americas during this
period, into often appalling conditions of slavery.
transatlantic slave trade
the trading of African people by Europeans, who
transported them as slaves from Africa to the colonies of
the New World
However, as the horrors of the slave trade became
known in Europe, a political movement aimed at
abolishing it began. Known as abolitionism, the
movement began in the 18th century and gradually Figure 7.3 A postage stamp from the United
grew. Rationalist thinkers began to criticise slavery Kingdom commemorating William Wilberforce
as violating the rights of man, and evangelical (1759–1833) and his campaign against slavery, which
Christians began to criticise it as ‘unchristian’. In led to its abolition in 1807
Britain, slavery was ruled illegal in the common
law of England in a 1772 judgement by the Court of
King’s Bench in the case of Somersett (R v Knowles; remaining slaves in the British Empire were freed
ex parte Somersett (1772) 20 State Tr 1, which arose the following year. Most European countries ceased
during a period when many African, Indian and East exporting slaves in the following decades. Many
Asian slaves were being brought to England to work countries in Latin America abolished it during the
as servants. The judge, Lord Mansfield, held that wars of independence from Spain (1810–22).
slavery was no longer legal in England – but this did Following the 1776 US Declaration of
not affect slavery elsewhere in the British Empire. Independence, the northern states began to abolish
slavery. Although the declaration stated that ‘all men
abolitionism
are created equal’, slavery continued in the southern
a worldwide political movement that sought to abolish
slavery states, where it was still a powerful social and
economic institution, particularly in the agricultural
Anti-slavery campaigns continued in Britain, led industry. The US abolitionist movement campaigned
in particular by British politician and campaigner vigorously against slavery and it became one of the
William Wilberforce, and exerted pressure on the main causes of the American Civil War (1861–65).
British Government to end the trade in slaves in By the start of that war, the slave population had
its overseas territories. Although fiercely opposed grown to over four million. The then newly elected
by those with interests in the trade, importation of US president, Abraham Lincoln, was an abolitionist
slaves to the colonies was officially ended in the who, the southern states believed, threatened their
British Empire with the passing of the Slave Trade way of life. All US slaves were freed by the end
Act 1807 (UK). The United States followed in 1808. of the war in 1865, and slavery was abolished by
However, it was not until the Slavery Abolition Act the addition of the Thirteenth Amendment to the
1833 (UK) that slavery itself was abolished, and all Constitution of the United States of America 1787 (US).
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7
CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS
The abolitionist movement continued in the rest
of the world, but by this stage there was agreement
among many countries that slavery was no longer
acceptable. In 1890, European countries met in
Brussels, Belgium to sign the General Act of the
Brussel’s Conference relating to the African Slave
Trade. This was the first ever major collaboration of
international states to abolish slavery and was aimed
mainly at the slave trade in European protectorates
in Africa. The next significant attempt was the
Slavery Convention, a comprehensive international
convention on abolishing slavery worldwide, passed
in 1926 after the end of World War I by the League of
Nations, the precursor to the UN.
After the end of World War II, the member states
Figure 7.4 A major cause of the American Civil War
of the UN made a clear statement that slavery was
(1861–65) was the increasing difference in views
on human rights issues between the slave-holding prohibited, under art 4 of the UDHR. In some parts of
southern states and the non-slave-holding northern Africa, Asia and the Islamic world, slavery persisted
states. as a legal institution further into the 20th century,
In Court
The Amistad case 1841: United States v
Libellants and Claimants of the Schooner
Amistad 40 U.S. (15 Pet.) 518 (1841)
This case was fought in the northeastern US
state of Connecticut. The central issue was the
fate of a group of slaves who mutinied on the
ship La Amistad against slave-traders who had
kidnapped them from Africa in order to sell them
in the southern United States. The US Supreme
Court was given the task of deciding whether the
Africans should be freed or sent back into slavery.
John Quincy Adams, former US President, acted
as the slaves’ defence lawyer and argued for their
freedom. The 1997 film by Steven Spielberg,
Amistad, details the legal case.
Figure 7.5 Memorial to the Amistad case, set up in
New Haven in 1992
Research 7.1
Read the above ‘In Court’ box, and either view the film Amistad or refer to http://cambridge.edu.au/
redirect/?id=6254 and http://cambridge.edu.au/redirect/?id=6255 to complete the following tasks.
1 What legal principles were contested in this case?
2 In what court was this case finally decided and what was the outcome of this case?
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CAMBRIDGE LEGAL STUDIES HSC
and later treaties addressed issues of ongoing himself and his family an existence worthy
slavery in more detail. of human dignity, and supplemented, if
The last state to officially abolish slavery necessary, by other means of social protection.
was Mauritania (West Africa), where slavery (4) Everyone has the right to form and to join
was abolished in 1981, criminalised in 2007 and trade unions for the protection of his interests.
designated as a crime against humanity under Article 24
the 2012 constitutional reform. This constitutes a
Everyone has the right to rest and leisure,
major achievement for the eradication of slavery
including reasonable limitation of working
practices. However, despite centuries of anti-slavery
hours and periodic holidays with pay.
efforts, slavery still occurs today, with an estimated
45.8 million people enslaved worldwide. Human
trafficking, child labour, sexual slavery and forced As discussed, slavery was an institution of forced
labour are still serious issues around the world labour, where slaves were considered legal property
and new measures have begun to be taken to try to of the owner (master), without legal rights of their
combat these forms of slavery. Slavery still exists, own. As the world progressed and forced labour was
but its forms have changed. The issue of human made illegal, conventional labour was the only legal
trafficking is discussed in more detail in Chapter 9. means of securing large groups of workers.
Employment law as we know it today is a relatively
human trafficking
recent development. Rights to a minimum wage,
the commercial trade or trafficking in human beings for
the purpose of some form of slavery; usually recruiting, safe working conditions or paid holidays were not
transporting or obtaining a person by force, coercion or recognised in older legal systems. Although much
deceptive means
of the work carried out in ancient times was done
by slaves, non-slave labour groups also existed. For
example, recent archaeological evidence suggests
Review 7.2
that the Egyptian pyramids were not, as previously
1 Describe the transatlantic slave trade. thought, constructed by slaves, but by craftsmen and
2 What was abolitionism and what impact farm hands who were given food and accommodation
did it have on slavery? for three-month periods and possibly a small wage.
3 How was slavery progressively outlawed In Rome, the purchase of slaves was probably the
from the mid-19th century? cheapest means of securing labour, but hired labour
was also frequently used.
In early Europe, regulation of the workplace was
more generally based on status. Some groups of
7.3 T
rade unionism and labourers and craftsmen formed associations based
labour rights on their trades, known as craft guilds. Serfs, who
were agricultural labourers tied to the land, were
the lowest but largest social class and in many
Universal Declaration of Human Rights – ways resembled slaves. As serfdom diminished
labour and trade union rights in England, there was some form of legislative
Article 23 regulation of labour and wages, but these laws were
generally designed to compel labourers into work
(1) Everyone has the right to work, to free
rather than to protect them.
choice of employment, to just and favourable
In Europe, labour law as protection for workers,
conditions of work and to protection against
including demands for better conditions and the right
unemployment.
to organise, arose with the Industrial Revolution
(2) Everyone, without any discrimination, has
and the introduction of mechanised manufacture.
the right to equal pay for equal work.
The Industrial Revolution, which occurred during
(3) Everyone who works has the right to just
the 18th and 19th centuries, began in the United
and favourable remuneration, ensuring for
Kingdom and spread to Europe, America, Australia
and most of the rest of the world. Major changes in
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7
CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS
the fields of manufacture, agriculture and transport to campaign for higher wages. Six of the leaders
redefined society and acted as the catalyst for were arrested and sentenced to transportation to
changes to labour laws. Australia for seven years. They became known as the
‘Tolpuddle martyrs’. After many similar struggles,
Industrial Revolution the first Trades Union Congress took place in 1868.
the rapid development of industry in the 18th and 19th
centuries, characterised by changes in manufacturing, By the time of the second congress, in 1869, the 40
agriculture and transport representatives who attended represented over a
quarter of a million workers in the United Kingdom.
Trade unions first emerged during the Industrial Finally, the British Parliament passed – under
Revolution in response to the appalling conditions, pressure – the Trade Unions Act 1871 (UK), which
lack of safety, low wages and long working hours secured the legal status of trade unions. Since then,
in the factories of the new industrial cities. Large trade unions have played an integral role in securing
numbers of employees in industry, particularly rights for workers in the United Kingdom. Similarly,
manufacturing, began to demand better working in Australia the union movement developed from
conditions and wages, while employers tended to the 19th century. Due to harsh tactics employed
deny improvements and keep wages low to decrease by governments and employers to break large-
costs. It was only through action by all the workers scale strikes in the 1890s, the unions in Australia
in a factory that employers could be forced to joined together to form their own political party, the
improve conditions for workers. If all the workers Australian Labor Party (ALP).
went on strike, the employer would have to listen Trade unions worked to ensure that fair wages
to their demands – they could not sack their entire and conditions were maintained, and many working
workforce. For this reason, employers also sought to conditions taken for granted today in industrialised
deny employees any right to organise. countries came about due to union action (for
example, minimum wages and working conditions,
trade union
an organisation of workers created to preserve and
equal pay, long service leave, paid public holidays,
further their rights and interests maternity leave, annual leave, occupational health
and safety laws, and workers’ compensation). A series
The earliest trade unionists faced difficult of laws was passed in the late 19th century aimed at
conditions. Laws were created to criminalise workers’ improving safety and working conditions in many of
involvement in trade unions and heavy penalties the prime industries, such as mining and textiles.
were applied. For example, in 1834 a group of farm Late in the 19th century, associations of workers
labourers in Tolpuddle, England, formed a society began to link up with similar organisations in other
countries to protect workers’ rights internationally.
The First International (1864–76) and the Second
International (1889–1916) were gatherings of
representatives of unions and political parties from
around the world to urge improved conditions for
workers.
In 1919, following the end of World War I, a group
of pioneering scholars, social policy experts and
politicians succeeded in creating the International
Labour Organization (ILO) to discuss social
reforms and put them into practice. It was formed
as an agency of the League of Nations, with its
office in Geneva, Switzerland. The organisation’s
aim was to improve conditions for workers around
the world, and over time it has been responsible for
Figure 7.6 Trade unions first emerged during the
Industrial Revolution. Now they are an important many conventions on working conditions and rights.
feature of a democratic society. In addition to slavery, this was one of the few areas
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CAMBRIDGE LEGAL STUDIES HSC
in which the League of Nations promoted modern (3) The will of the people shall be the basis
human rights. After the League of Nations was of the authority of government; this will
disbanded, the ILO became an agency of the UN, shall be expressed in periodic and genuine
and it continues its work today. elections which shall be by universal and equal
suffrage and shall be held by secret vote or by
International Labour Organization (ILO)
equivalent free voting procedures.
an international agency of the UN, created with the aim
of improving conditions for workers around the world
The theory of democracy, that the authority of
Labour rights were finally enshrined in the
government should be based on the will of the people
UDHR under arts 23 and 24. Later treaties, such as
as expressed through genuine periodic elections, is
the International Covenant on Economic, Social
not a new concept; it can be traced back to ancient
and Cultural Rights (ICESCR) (1966), as well as the
times. However, even where democracies have
ongoing work of the ILO, have further defined those
existed throughout history, the right to vote, known
rights and sought to implement them around the
as suffrage, was usually restricted (for example,
world.
by status, gender, race, age, beliefs or nationality).
labour rights International Covenant The concept of universal suffrage is only a recent
rights at work, including on Economic, Social
development in the world, but where it has been
rights to safe working and Cultural Rights
conditions, minimum (ICESCR) achieved, it is now considered an essential human
wages, paid leave or to join the binding international right.
a trade union treaty creating obligations
on states to respect suffrage universal suffrage
the economic, social the legal right to vote in a the right of all citizens to
and cultural rights of democratic election vote in political elections,
individuals regardless of status,
gender, race or creed
Review 7.3 The first modern countries to achieve democracy
allowed only a limited number of men to vote,
1 Describe the reasons for the emergence usually only those men with higher status – those
of trade unions. who owned large amounts of property or came from
2 How did trade union movement give certain backgrounds. This was usually due to a
birth to the Australia Labor Party? mistrust or suspicion of the general population, or
3 Outline the key rights and conditions an assumption that they could not understand the
that were due to the trade unions’ affairs of government.
campaigns in the past. Demands for suffrage for all males began in world
democracies in the 19th century. For example, in the
United Kingdom, rights for male voters were only
gradually extended – to males who rented land of a
7.4 U
niversal suffrage certain value (1832), to all male householders (1867)
and to males in the countryside (1884). However, this
still represented only about 60% of the adult male
Universal Declaration of Human Rights –
population. It was not until the Representation of the
universal suffrage
People Act 1918 (UK) that the vote was extended to
Article 21. the whole adult male population.
(1) Everyone has the right to take part in the Among democratic countries, pressure grew
government of his country, directly or through to extend voting rights to women. Women who
freely chosen representatives. campaigned for the right to vote were known as
(2) Everyone has the right of equal access to suffragettes . They waged a long and difficult
public service in his country. campaign for the right to vote in democracies
dominated by male interests. The right to vote
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CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS
United States, following the American Civil War,
the right to vote was extended by the Fifteenth
Amendment to all adult males, regardless of ‘race,
color or previous condition of servitude’. In New
Zealand, Māori voters were not expressly excluded
from voting, but a requirement of property ownership
effectively excluded them. In 1867, this requirement
was removed, extending the vote across the male
population. This legislation also established Māori
representation in the lower house of parliament.
In Australia, Indigenous peoples had the right
to vote since the time of Federation in 1901, if their
state of residence granted them that right, and some
South Australian Aboriginal men and women voted
Figure 7.7 Delegates to the April 1915 Womens’
for the first Commonwealth Parliament. However,
Congress at The Hague. A key point that came out of
due to later interpretations by the government and
this congress was that giving all women the vote in all
countries would help prevent future wars. discriminatory measures adopted by the states,
Indigenous peoples were effectively denied the right
to vote until 1962. In that year, the Commonwealth
regardless of gender was an important symbol of the legislated to ensure that Indigenous peoples had
struggle of women for equality in general. In 1893, the right to vote regardless of their state voting
New Zealand became the first country in the world rights although, unlike other Australians, voting
to give women an equal right to vote. The Australian was not compulsory for them. A 1967 constitutional
state of South Australia followed in 1894, with the referendum finally gave Indigenous Australians
Australian Commonwealth granting women’s the right to be counted in the Australian Census.
suffrage in 1902. It was not until 1918, after the end of The constitutional amendment became a symbol
World War I, that the United Kingdom gave women of public recognition of the rights of Indigenous
a limited right to vote; this was not made equal with Australians.
men’s rights until 1928. The United States passed The right to vote was recognised as a universal
the Nineteenth Amendment, allowing women to human right in art 21 of the UDHR. By 2015, 89
vote, in 1920. countries, representing 46% of the world’s total
population, were classified as democratic. However,
suffragette 51 countries, representing 26% of the world’s
a supporter of women’s right to vote (or women’s
suffrage); the term was first used in Britain at the end of population, were still classified as ‘not free’. The
the 19th century remaining 55 countries were ‘partly free’. The
1990s was a time of optimism about the spread of
Apart from status and gender, race was another democracy. After the initial optimism of the Arab
issue that conflicted with rights to vote. For example, Spring in 2012, the tide may be turning against
in the Americas, social stigma was strongly attached democracy with increased violence and chaos in
to certain races, particularly native Americans and various regions around the world, notably the Middle
the African-American populations. In 1870 in the East.
Legal Links
Freedom House is an independent organisation established in 1941 to encourage democratic freedom
around the world. The Freedom House website at http://cambridge.edu.au/redirect/?id=6256 has up-
to-date statistics on the state of freedom in every country.
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CAMBRIDGE LEGAL STUDIES HSC
100
Number of democracies in the world
80
60
40
20
0
1900 1920 1940 1960 1980 2000 2020
Year
Figure 7.8 Growth of democracy since 1900
Review 7.4
1 Explain the importance of universal suffrage to a healthy democracy.
2 Identify three major advances in the campaign for universal suffrage.
3 Assess the extent to which the principle of the right to vote has been accepted by nations in the
world today.
7.5 U
niversal education
(3) Parents have a prior right to choose the
kind of education that shall be given to their
Universal Declaration of Human Rights – children.
universal education
Article 26
(1) Everyone has the right to education. Universal education is the idea that all human
Education shall be free, at least in the beings have a right to an education. This concept has
elementary and fundamental stages. only achieved wide acceptance in relatively recent
Elementary education shall be compulsory. history. Although today some type of education is
Technical and professional education shall be compulsory for children in almost all countries, in
made generally available and higher education early civilisations formal education was generally
shall be equally accessible to all on the basis of associated with wealth and power or with certain
merit. trades, beliefs or religions. Most people would have
(2) Education shall be directed to the full received informal education from their families and
development of the human personality and to community, with other skills learnt directly through
the strengthening of respect for human rights their daily work.
and fundamental freedoms. It shall promote
universal education
understanding, tolerance and friendship free and compulsory education for all children
among all nations, racial or religious groups,
and shall further the activities of the United With the development and spread of writing
Nations for the maintenance of peace. systems, it became possible for ideas and information
to be accurately passed on over time and space, and
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7
CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS
writing became associated with law, commerce, the ages of six to 15; there are variations from state
religion and civil administration. But until recent to state. From 2010, the school leaving age in New
times, illiteracy was still the norm in most of the South Wales was raised to 17 years. The Australian
world and formal schooling was only available to a population now has a 99% literacy rate.
select few. The push for universal education within By the 20th century and the end of World War
individual countries did not really begin until the 19th II, free and compulsory education had spread
century. There were some exceptions. For example, throughout developed countries and was regarded
one Aztec tribe was one of the first communities in as not only a desirable goal for all governments
the world to have compulsory education for nearly all to pursue but also a basic human right. The UN
children, regardless of gender or rank – in the 14th made education a major priority of its economic
to 16th centuries. and social development programs, and the right to
In Europe, the church was generally the first to free education for all human beings was included
take on the role as educator for all, and it was only under art 26 of the UDHR, which goes on to state that
much later superseded by the state. For example, in children’s elementary (primary) education should be
Scotland in 1561, the Church of Scotland put forward compulsory and be made widely available.
the principle of free education for the poor and a Although free and compulsory education is
school teacher for every parish. In Norway in the 16th now available in almost all countries, there are still
century, cathedral schools were turned into Latin many children who for numerous reasons cannot
schools (what we would call grammar schools) and access education. In 2001, all member states of the
made mandatory for every market town – later, in UN agreed to a series of Millennium Development
1736, training in reading was made compulsory for Goals, which aimed to improve economic and social
all children. In England in the 19th century, churches conditions in the poorest countries of the world. The
began giving free education on Sundays, originally second goal was for children everywhere to be able
called ‘Sunday schools’. They were designed to to complete a full course of primary schooling. By
teach students reading, writing and arithmetic. By the end of 2015, the target date for achieving this
the mid-1800s in Europe, the increasing demands of goal, enrolment in primary education in developing
industrialisation, competition between countries and regions had reached 91%.
widening suffrage required a literate and educated
population. European governments began providing
funding for schools, and over time governments
also administered these schools. In 1870, the British
Parliament passed the Education Act 1870 (UK), and
in 1880 education was made compulsory for all British
children from the age of five to the age of 10; this was
extended to 12 years in 1889. In France, by 1880 all
children under the age of 15 were required to attend
school, with free and secular public instruction.
Similarly, laws were passed in the Australian
states to make education free and compulsory
at primary level. In New South Wales, the Public
Instruction Act 1880 (NSW) led to government taking
control of all the church-run schools, except those
run by the Catholic Church, and making education
free, secular and compulsory. The first government
school for Indigenous Australians was also created,
but fewer than 200 out of 1500 eligible children were
being taught. These schools were later merged into Figure 7.9 The second Millenium Development Goal
the general public system. Today, it is compulsory was for children everywhere to be able to complete a
for all Australians to attend school from at least full course of primary schooling.
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CAMBRIDGE LEGAL STUDIES HSC
Political self-determination is something that
Review 7.5 has been fought for throughout history by peoples
against various powers and regimes. It is closely
1 Describe what education was like in related to democratic rights in that it involves the
ancient societies. consent of the people as the basis for a sovereign
2 Explain how universal education evolved state. Self-determination as a right became
in Europe. particularly important after world colonisation
3 How does the UN view education? by European powers, where people around the
world were placed under direct control of imperial
powers, rarely if ever with their interests in mind.
7.6 S
elf-determination Over the centuries, bloody conflicts arose in Africa,
the Americas, Asia, the Middle East and Oceania
against colonial rule. Europe itself experienced
Charter of the United Nations – constant conflict between groups wishing to
self-determination exercise self-determination and ever-changing
Article 1 The purposes of the United Nations are imperial powers.
… The rise of self-determination as a right began
(2) To develop friendly relations among perhaps most clearly with the 1776 US Declaration of
nations based on respect for the principle of Independence against British colonial rule. The right
equal rights and self-determination of peoples, of self-determination was also fought for in Europe
and to take other appropriate measures to during the French Revolution of 1789–99, and in Latin
strengthen universal peace. America in the various wars of independence from
the 18th century onwards against European colonial
rule. However, it was World Wars I and II that truly
International Covenant on Economic, Social began the push for international recognition of the
and Cultural Rights right as a path to peace.
All peoples have the right of self- The 1919 establishment of the League of Nations
determination. By virtue of that right they was a consolidation of many of the new states
freely determine their political status and that arose following World War I, but it lacked
freely pursue their economic, social and the membership of the United States. It was the
cultural development. establishment of the Charter of the United Nations
(UN Charter) in 1945, following the atrocities of World
War II, that led to the first universal recognition of
The rights discussed so far have been rights of the the right to self-determination. Article 1(2) of the
individual, such as the right of an individual to join UN Charter calls for respect for the principle of self-
a trade union or the right to universal education. determination, and is further strengthened by art 15
However, the right to self-determination differs of the UDHR, which states that:
from individual rights – it is a collective right, a
right of a group or a people. The collective right to 1. Everyone has a right to a nationality.
self-determination means that people of a territory 2. No one shall be arbitrarily deprived of his
or national grouping have the right to determine nationality nor denied the right to change his
their own political status: the group has the right nationality.
to choose how it will be governed without undue
influence from another country. The International Covenant on Social, Economic
and Cultural Rights (ICSECR), adopted by the
self-determination collective right
the right of people to a right belonging to a UN in 1966 and in force since 1976, includes self-
determine how they will be group or a people, as determination as its primary right, under art 1(1).
governed, or their political opposed to an individual
status based on territory or right Self-determination of peoples was one of the
national grouping conditions the United States imposed on the Allied
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7
CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS
forces before entering World War II. Chapter 13 of the
UN Charter later provided for a Trusteeship Council
of the UN to provide international supervision for
the transition of ‘trust’ territories to self-government
after the end of World War II. The last trust territory
was Palau, which achieved independence in 1994.
Colonial powers were encouraged to oversee the
independence of their territories in the best interests
of the territories’ peoples. Between 1960 and 1993,
53 territories became self-governing independent
states. The most recent country to be granted
independence was South Sudan, which achieved
UN membership in July 2011. It is a member of the
UN, the African Union and the Intergovernmental
Authority on Development. There are still many
groups in the world claiming a desire to self-govern,
and it is likely that more independent territories will
be recognised in future years.
A more recent issue of self-determination is that of
indigenous peoples. There are over 5000 indigenous
peoples recognised in the world, made up of over 300
million people in more than 70 countries. In many
countries, indigenous people have been regularly
excluded from the democratic process, forcefully
assimilated, economically exploited or generally
oppressed. In 2007, the UN adopted the Declaration
of the Rights of Indigenous Peoples. This declaration Figure 7.10 The people of East Timor exercised their
took over 20 years to complete and, as with the right to self-determination in 1999 and East Timor
UDHR, it is a declaration non-binding on member became Timor-Leste in 2002.
states. Only four states rejected the declaration,
of which Australia was one; however, a number of
others abstained from voting. The Howard Coalition and protection of the world’s indigenous peoples.
government, at the time, stated its reason for As we know, the UDHR itself was only a declaration
rejection as ‘there should only be one law for all but, as we have learnt, it became the foundation for
Australians’. However, in April 2009, the Rudd Labor all international human rights law.
government formally endorsed the declaration on
behalf of Australia.
East Timor exerted its right to self-determination
when in 1999 the East Timorese people voted on
whether they should be independent of Indonesia. Review 7.6
The majority voted for independence and Timor-
Leste was recognised a nation state by the UN 1 Explain the right to self-determination.
in 2002. However, there are many groups in the 2 Identify the milestones in the gradual
world today who would like to exercise their right recognition of the right to self-
to self-determination but have failed to do so, such determination.
as the Palestinians, the Kurds and the people of 3 Identify three groups in the world today
Irian Jaya. who desire self-determination but have
There is every indication that the declaration will failed to achieve it.
be a significant stepping stone to greater awareness
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CAMBRIDGE LEGAL STUDIES HSC
7.7 E
nvironmental rights is said to relate not only to current generations but
also to future generations.
Environmental rights have been recognised in
African Charter on Human and People’s some international agreements. For example, the
Rights – environmental rights African Charter on Human and Peoples’ Rights, which
Article 23 came into force in 1981 and has been adopted by 53
All peoples shall have the right to a general African states, includes the right to a satisfactory
satisfactory environment favourable to their environment under art 23. Similarly, the American
development. Convention on Human Rights, under the Organization
of American States, includes in its second Protocol,
which opened for signature in 1988, the explicit right
Second Protocol to the American to a healthy environment and the obligation of all
Convention on Human Rights state parties to protect, preserve and improve the
Article 11 Right to a Healthy Environment environment.
(1) Everyone shall have the right to live in a Although there has been no universal recognition
healthy environment and to have access to of environmental rights, there have been numerous
basic public services. treaties that attempt to deal universally with specific
(2) The States Parties shall promote the environmental threats. For example, the Stockholm
protection, preservation, and improvement of Declaration (1972), the Rio Declaration (1992) and
the environment. the Kyoto Protocol (1997) are all attempts by the
international community to deal with environmental
problems, such as global warming, the spread of
More recent discussions of human rights have been epidemics, marine pollution, the depletion of the
focused on the possibility of universally recognised ozone layer and atmospheric pollution.
environmental rights. Environmental rights are Again, one of the main problems in achieving
unlike individual rights, or even collective rights, but progress in this area is the failure of all states
are argued to relate to many existing agreed rights. to commit to measures to benefit the global
For example, the rights to life, health or property are community when they may seem to be to the short-
already contained in human rights declarations, term disadvantage of their national interest. This
treaties and many other international agreements. is particularly true of countries who rely heavily on
Supporters of environmental rights argue that these environmentally damaging practices to support their
rights cannot be fully realised without the right to a economy. Yet failure to achieve global consensus
healthy, safe and adequate environment. This right on environmental issues could see dramatic
deterioration in the rights and living standards of
millions of people globally. The UN Climate Change
Conference in December 2015 produced the Paris
Agreement, a plan to stabilise global warming below
2°C above pre-industrial levels.
Another area in which environmental rights are
being dealt with under international law is in the
International Criminal Court (ICC). There are many
examples in history where peoples’ environmental
rights have been violated (for instance, with
unscrupulous national leaders destroying the natural
environment to achieve strategic goals in wartime).
Australian lawyer Steven Freeland argues in his
Figure 7.11 Changes to our planet due to global recent book, Addressing the Intentional Destruction of
warming will have impacts on the rights of the most the Environment during Warfare, that the intentional
vulnerable people first. destruction of the environment in wartime should be
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CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS
treated as an international crime and should be dealt Despite some successes, the League of Nations
with under the Rome Statute of the ICC. was unable to stop the military aggression of those
major powers – Germany, Italy and Japan – and
World War II broke out in 1939. In the aftermath of
Review 7.7
World War II, the UN was formed, with the United
1 Explain how environmental rights are States leading the other Allied forces in joining.
linked to other human rights. The Charter of the United Nations, signed on 26 June
2 Identify international measures that have 1945, explicitly made maintaining peace the primary
been taken to protect environmental purpose of the UN, in art 1(1). The first line of the
rights. charter states its purpose as ‘to save succeeding
3 Describe how the ICC might become generations from the scourge of war, which twice in
involved in enforcing environmental our lifetime has brought untold sorrow to mankind’.
rights in the future. Article 1(1) of the charter also, most importantly,
gives the UN the power to take measures to prevent
and remove threats to peace.
These statements, in possibly the most
7.8 P
eace rights significant agreement in history, effectively outlaw
war, except in specific circumstances. They can
be taken to declare the right of every state, and
Charter of the United Nations – peace
individuals within those states, to live in peace. Until
and security
the 20th century, there was no concept of a right to
Article 1 peace in international law. In fact, for all of human
The purposes of the United Nations are: history until recently, war was generally seen as a
(1) To maintain international peace and legal and legitimate means of solving disputes and
security, and to that end: to take effective determining political and economic control over
collective measures for the prevention and territories and populations.
removal of threats to the peace, and for the
suppression of acts of aggression or other right to peace
the right of citizens to expect their government to do
breaches of the peace, and to bring about by all in its power to maintain peace and work towards the
peaceful means, and in conformity with the elimination of war
principles of justice and international law,
adjustment or settlement of international On 12 November 1984, the UN General Assembly
disputes or situations which might lead to a adopted Resolution 39/11 titled the Declaration on
breach of the peace … the Right of Peoples to Peace with 92 votes in favour,
none against, and 34 abstentions. Although as a
declaration it is non-binding, it proclaimed that all
In 1919, the countries that emerged victorious ‘peoples of our planet have a sacred right to peace’.It
from World War I held a peace conference at also declared that promoting and implementing the
Versailles, France. This became known as the Paris right to peace is a fundamental obligation of states,
Peace Conference. The parties to the conference and that government policies should be:
produced the treaties that officially ended World
War I, including the Treaty of Versailles, but also directed towards:
established for the first time in history a world body • elimination of the threat of war, particularly
with the primary aim of preventing war: the League of nuclear war
Nations. The main purpose of the League of Nations • renunciation of the use of force in international
was expressed in the first line of the Covenant of relations
the League of Nations: ‘to promote international co- • the settlement of international disputes by
operation and to achieve international peace and peaceful means on the basis of the UN Charter.
security’.
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CAMBRIDGE LEGAL STUDIES HSC
The establishment of the right of peace, plus an
international body to oversee it, and international
means to enforce it, is a worthy objective. Though
the idea of a right to peace may seem extremely
difficult to promote or enforce, there are many nation
states in favour of giving greater clarity to this right
under international law. Also, there is a continuing
campaign, spearheaded by academics, lawyers
and non-government organisations (NGOs) ,
for acceptance of this right as an international
norm. In 2013, the Human Rights Council passed
Resolution 23/16 in support of the 1984 General Figure 7.12 Dr Zeny Edwards (fourth from the left),
Assembly resolution, with 30 votes to nine and UN International Day of Peace Director, with some
eight abstentions. So it is apparent that, unlike the volunteers from the 2015 Day of Peace team in Sydney
UDHR, the 1984 Declaration on the Right of Peoples
to Peace does not have near-unanimous support. for example, yet the intention of that resolution and
Nevertheless, there is a determination on the part the legality of the invasion are still in dispute.
of the proponents of peace rights to pursue their The right of peace, especially the Declaration
full acceptance as a norm under international law. on the Right of Peoples to Peace, makes it clear
In 2015, a Working Group was established by the that peace for all people should be the paramount
Human Rights Council and tasked with finding a consideration. Legal or illegal, a war has tragic
non-binding statement reflecting the international and catastrophic effects on individuals and
community’s consensus what a ‘right to peace’ communities. Where a state commences an illegal
implies. war, it is considered a breach of the peace, or a ‘war
of aggression’. Where any war, legal or illegal, is
non-government organisation (NGO)
conducted, all parties must comply with the various
an independent non-profit group that often plays an
important role in advocating, analysing and reporting on laws of war that aim to minimise the effect of war
human rights worldwide on peace and the community. The ICC’s Assembly
of States Parties agreed on 15 December 2017 that
Despite the fact that the UN bodies are at the ICC can now prosecute crimes of aggression,
a stalemate regarding the right to peace, civil making it the fourth crime (after war crimes, crimes
society has taken up the cause. The theme of the against humanity, and genocide) to fall within the
International Day of Peace on 21 September 2014 was Court’s jurisdiction. This complements the political
a commitment to reaffirming the 1984 Declaration on powers of the United Nations. For more on the ICC,
the Right of Peoples to Peace. Peace groups around see Chapter 6.
the world looked back to this important resolution on
this significant international day.
In international law, the right of peace is balanced
against the right of self-defence. Article 51 of the Review 7.8
UN Charter declares that states have a fundamental
right to collective or individual self-defence if there 1 Explain the reasoning behind the right to
is an armed attack against them, and under art 39 peace.
the UN Security Council can authorise actions to 2 List the rights contained in the
maintain or restore peace. Many wars have been Declaration on the Right of Peoples to
considered legal on this basis. This right is often Peace (1984). What is the status of this
abused: the 2003 invasion of Iraq by the United UN declaration?
States, the United Kingdom and allies was claimed 3 Identify a legal mechanism designed to
by the parties to be legal under a resolution made by deal with violations of the right to peace.
the Security Council under art 39 (Resolution 1441),
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CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS
7.9 F
ormal statements of Universal Declaration of Human
human rights Rights
This chapter has considered how various rights Pressure for an international bill of rights had been
developed over time into modern and internationally growing for some time, but it was World War II that
recognised human rights. These rights have only finally stirred the world into action.
recently been given formal recognition by the In 1941, US President Franklin Roosevelt called
international community. The catalyst for recognition for the protection of Four Freedoms for all people:
of many of these rights was the horrors of the two freedom of speech and conscience, and freedom
world wars, and the sense of shared purpose of the from fear and want. With the formation of the UN
international community at the end of these wars. in 1945, human rights were brought to centre stage:
This shared purpose led to the establishment in 1945 the second purpose listed in the UN Charter, after
of a body to oversee the international community and the purpose of peace, was ‘to reaffirm faith in
act as a forum for discussion for all states – the UN. fundamental human rights, in the dignity and worth
The General Assembly of the UN gave the of the human person’. It also created an obligation
international community a voice for their concerns to promote ‘universal respect for and observance
and a place to agree on measures that needed to of human rights and fundamental freedoms for all’.
be put in place throughout the world. It quickly
Four Freedoms
became a forum for developing and expanding the freedoms for all people called for by US President
international laws through international treaties and Franklin Roosevelt in his 1941 State of the Union address:
declarations of shared intent. Almost immediately, freedom of speech and conscience, and freedom from
fear and want
formal recognition of human rights was placed on
the international agenda.
The UN Charter did not define what those
human rights and fundamental freedoms were. A
Figure 7.13 Eleanor Roosevelt holding the Universal Declaration of Human Rights in November 1949
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CAMBRIDGE LEGAL STUDIES HSC
formal statement of universal rights was needed and may have had in mind was NGOs, which are non-
work began on developing one. The UDHR, the first profit groups that often play an important role in
declaration written by the UN, became the high point advocating, analysing and reporting on human
in the quest for the recognition of human rights. The rights worldwide, and ‘shaming’ governments into
UN Commission on Human Rights entrusted with action. The number of NGOs worldwide has grown
drafting the document was chaired by former US exponentially over the last century.
First Lady and delegate to the General Assembly,
soft law hard law
Eleanor Roosevelt. The commission referred to international statements, conventions and treaties
historical documents containing rights as well as such as declarations, that under international
that do not create legal law create legally binding
worldwide political, philosophical and religious obligations upon states but obligations
movements. Its membership was broad, including do create pressure to act in
representatives from Australia, Chile, Egypt, France, accordance with them
India, Iran, the Soviet Union and Uruguay, as well
as from the United States and the United Kingdom. The UDHR has become an enduring statement
The declaration was adopted on 10 December that has inspired more than 200 international treaties,
1948 and was originally signed by 48 of the 58 conventions, declarations and bills of rights in the
states that existed in the world at that time. The last 50 years. It is possibly the most important of all
UN General Assembly proclaimed in the statement human rights documents and has stood the test of
made on this day that ‘Governments of Member time. Despite ongoing human rights abuses by some
States show their adherence to Article 56 of the countries, the UDHR has gained wide acceptance
Charter by using every means within their power by the international community. Even though it is
solemnly to publicize the text of the Declaration not a formal treaty, it has arguably become part of
and to cause it to be disseminated, displayed, read international customary law, and has become the
and expounded principally in schools and other foundation for eight core human rights treaties, two
educational institutions, without distinction based of which are discussed below, as well as various
on the political status of countries or territories’. treaty bodies that continue to monitor and report on
The UDHR has 30 articles, covering rights such as the state of human rights around the world.
the right to life, liberty, security, thought, religion,
international customary law
education, work, equality of movement and asylum. actions and concepts that have developed over time to
The right to join a trade union, have an adequate the extent that they are accepted by the international
community and have become law
standard of living and be able to participate fully
in cultural life are also included, as are the rights
to freedom from slavery and torture. Each of these
rights is extremely important and has potentially
enormous implications for society and the individual. Research 7.2
The UDHR was adopted as a declaration, rather
than a fully binding treaty, for the purpose of defining Access the full text of the UDHR at http://
‘fundamental freedoms’ and ‘human rights’ in the cambridge.edu.au/redirect/?id=6258 and
UN Charter, which is binding on all member states. complete the following tasks.
As a declaration, the UDHR is soft law, meaning 1 Examine the Preamble to the UDHR and
officially non-binding but still influential, rather briefly describe the reasons behind the
than containing enforceable hard law obligations. creation of the UDHR.
In hindsight, this was probably the correct decision 2 Critically assess how arts 1 and 2 of the
because it meant that the maximum number of UDHR relate to its overall purpose.
countries were willing to sign it. When the UDHR 3 Identify five rights listed in the UDHR
was first adopted, Eleanor Roosevelt was quoted that are not discussed in this chapter
as saying that it would create a ‘curious grapevine and describe which articles they are
[that] may seep in even when governments are not contained in.
anxious for it’. One particular grapevine that she
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CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS
International Bill of Rights
When the UDHR was drafted, it was intended to
include three components: the declaration itself,
an international treaty relating to it, and measures
of implementation. However, once the UDHR was
approved by the General Assembly, it was many
years before any binding covenants relating to the
rights were finally established.
The formation of a binding treaty of rights would
oblige states to guarantee human rights in their
domestic legislation. The UN Commission on Human
Rights was given the task of drafting this document.
However, Cold War tensions in the 1960s led to a
dispute over what rights should be covered in the
treaty. The Western European and American states
wanted only civil and political rights covered, while
the communist countries wanted only economic and
social rights dealt with.
To resolve this problem the covenant was split
in two: the International Covenant on Civil and
Figure 7.14 Written in 1948, the UDHR is a very small
Political Rights (ICCPR) and the International
document consisting of 30 statements about human
Covenant on Economic, Social and Cultural Rights rights, yet it forms the foundation for all international
(ICESCR). Together, the UDHR and these two human rights law.
covenants are collectively known as the International
Bill of Rights.
The ICCPR creates an obligation on states to
International Covenant International Bill of respect the civil and political rights of individuals,
on Civil and Political Rights
Rights (ICCPR) the informal term including equality between men and women (arts
the binding international collectively describing 2 and 3), the right to life (art 6), the right to freedom
treaty creating obligations the UDHR, ICCPR and
of movement, the right to a fair trial and the right
on states to respect the ICESCR combined
civil and political rights of to be presumed innocent until proven guilty (arts
individuals 9 and 14). It also guarantees freedom of thought,
conscience, speech, religion and assembly (arts
18, 19, 27 and 22). In addition, it states that people
International Covenant on Civil and have the right to marry whoever they wish and have
Political Rights (ICCPR) a family, and it provides for all children to be given
The ICCPR and ICESCR were both drafted and special protection under the law (arts 23 and 24).
approved in 1966, but neither came into force until Torture and slavery are outlawed and prisoners must
1976, when they were finally ratified by the requisite be treated with respect (arts 7 and 8). Finally, the
number of countries: 35. Unfortunately, neither of covenant guarantees the right to vote and receive
the covenants received much support from the equal protection under the law, and ensures that
superpowers of the time – the United States and the ethnic minorities have the right to enjoy their own
USSR. cultures (art 26).
The ICCPR contains monitoring and periodic
ratify (ratification)
the process of a state formally approving a treaty, making reporting arrangements for member states. It
it legally binding is overseen by the Human Rights Committee (a
separate body from the Human Rights Council),
which reports on compliance by member states and
investigates violations. At the beginning of 2018,
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CAMBRIDGE LEGAL STUDIES HSC
Figure 7.15 The General Assembly in 1948 urged all governments to educate school students about
the UDHR.
the ICCPR had been ratified by 169 states. Notable The ICESCR is overseen by the UN Committee
exceptions include China and Cuba, both of which on Economic, Social and Cultural Rights. At the
have signed but not ratified the treaty. The United beginning of 2015, the ICESCR had also been ratified
States ratified the ICCPR in 1992 but added many by 164 states. Notably, the United States signed the
reservations that significantly reduced its domestic ICESCR in 1979 but has never ratified it. South Africa
effects. A number of countries, including Myanmar, has also signed but never ratified the covenant.
Malaysia, Saudi Arabia and Singapore, have to this Notable countries that have neither signed nor
day neither signed nor ratified the ICCPR. ratified the ICESCR include Burma, Malaysia and
Saudi Arabia.
International Covenant on Economic,
Social and Cultural Rights (ICESCR)
Like the ICCPR, the ICESCR was approved in 1966
and came into force in 1976. It created an obligation
on states to work towards granting economic, social Review 7.9
and cultural rights to individuals. The ICESCR
includes labour rights, such as the right to just 1 Explain why two treaties were created in
conditions and fair wages at work, and the right 1966 based on the UDHR.
to join trade unions. It also created rights to an 2 Identify five key rights in each treaty.
adequate standard of living, including the right to 3 Which nations have not ratified the
adequate food, clothing, housing and health care. ICCPR and the ICESCR?
Finally, the right to education is guaranteed – it 4 Explain how these two treaties enhance
states that primary education should be compulsory the rights in the UDHR.
and free for all.
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7
CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS
7.10 E
arly development of
domestic and international
documents and treaties
Refer to the digital versions of this textbook for Constitution of the United States of America
information relating to the early development 1787 and Bill of Rights 1789, and the French
of domestic and international documents Declaration of the Rights of Man and of the
and treaties, including the Magna Carta Citizen (1789).
(1215), English Bill of Rights (1688), the US
Figure 7.16 One of four surviving copies of the 1215 Magna Carta
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CAMBRIDGE LEGAL STUDIES HSC
Chapter summary
• The term ‘human rights’ came into existence • The collective right of self-determination
in a formal way in the 20th century and refers was long fought for and followed centuries
to fundamental and inalienable rights and of colonisation, yet some indigenous peoples
freedoms of every person. around the world are still struggling to have
• Human rights are now an integral part of their rights respected.
international law. • Environmental rights are a type of collective
• Slavery was for most of human history a right that advocates say should be protected as
legitimate institution and has only recently a human right.
been outlawed in international law. • Peace rights are recognised as fundamental to
• Trade unions fought long and hard campaigns the UN, yet war still continues.
for labour rights in many countries but the right • The Universal Declaration of Human Rights
to join one was not always guaranteed. (UHDR) was created in 1948 and is the formal
• Universal suffrage has only become a feature international statement of human rights.
of many countries’ governments in the last 120 • The UDHR, the ICCPR and the ICESCR
years or so. together make up what is called the
• Universal education came to be valued by International Bill of Rights, and together impose
European governments little more than 100 obligations on states to respect and promote
years ago, but hundreds of millions of people in human rights.
developing countries are not yet guaranteed a
full primary school education.
Questions
Multiple-choice questions 3 The Universal Declaration of Human Rights
1 Which international conference advocated that (UDHR) of 1948 was influenced by President
giving the right to vote to all women would help Franklin Roosevelt’s Four Freedoms speech in
prevent future wars? 1941. The main ideas in this speech were:
A Paris Peace Conference (1919) A freedom of belief and freedom of speech,
B Hague International Congress of Women freedom from fear and want
(1915) B free trade, freedom of movement, freedom of
C Congress of Vienna (1815) religion, freedom of information
D First Hague Peace Congress (1899) C freedom of the seas, freedom of the press,
freedom of opinion, free enterprise
2 The right of self-determination was first D freedom of parliament and of the legislature,
recognised internationally by the: executive and judiciary
A Geneva Convention (1864)
B Charter of the United Nations (1945) 4 The International Bill of Rights consists of the:
C International Covenant on Civil and Political A Magna Carta, English Bill of Rights and US
Rights (ICCPR) (1966) Bill of Rights
D Declaration of the Rights of Indigenous B Genocide Convention, Geneva Convention
Peoples (DRIP) (2007) and Refugee Convention
C UDHR, ICCPR and ICESCR
D All of the above
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7
CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS
5 Which of the following is not something that in Chapter summary questions
the UN General Assembly’s Declaration on the 1 Identify the key steps in human rights
Right of Peoples to Peace (1984) says government becoming a key component of international law.
policies should be directed towards? 2 Slavery was an accepted legal institution for
A Renunciation of the use of force in most of human history. Explain how the world
international relations moved to a position of making slavery an illegal
B Promotion of international cooperation to institution.
achieve international peace and security 3 To what extent could it be argued that the
C Elimination of the threat of war, particularly peace rights are still developing?
nuclear war 4 Explain how the UDHR of 1948 became the
D The settlement of international disputes foundation of all international human rights
by peaceful means on the basis of the UN law.
Charter 5 Given that 2018 is the 70th anniversary of the
UDHR, how should the community be educated
on the significance of this historic document?
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Chapter 8
Promoting and enforcing
human rights
Chapter objectives
In this chapter, students will:
• evaluate the effect of state sovereignty on the protection of human rights
• describe the role of the various UN agencies and programs in advancing the cause of human rights
• describe the role of various non-government organisations and the media in promoting human rights
• identify the international and domestic courts and tribunals that investigate and enforce human rights
• explain how international human rights treaties become integrated into Australian domestic law
• outline the sections of the Australian Constitution that give some protection of human rights
• explain how the High Court can protect human rights
• discuss the arguments for and against having a charter of rights.
Key terms/vocabulary
delegated legislation ratify (ratification)
division of powers residual powers
dualist system resolutions
Economic and Social Council (ECOSOC) Secretariat
express rights separation of powers
heads of power state
implied rights state sovereignty
incorporation Trusteeship Council
International Court of Justice (ICJ) UN General Assembly (UNGA)
international humanitarian law UN Human Rights Council (UNHRC)
monist system UN Security Council (UNSC)
nation
Office of the United Nations High Commissioner
for Human Rights (OHCHR)
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Relevant law
IMPORTANT LEGISLATION
Universal Declaration of Human Rights (1948) Australian Human Rights Commission Act 1986
International Covenant on Civil and Political Rights (Cth)
(ICCPR) (1966) Disability Discrimination Act 1992 (Cth)
International Covenant on Economic, Social and Human Rights (Sexual Conduct) Act 1994 (Cth)
Cultural Rights (ICESCR) (1966) International Criminal Court Act 2002 (Cth)
Racial Discrimination Act 1975 (Cth) International Criminal Court (Consequential
Anti-Discrimination Act 1977 (NSW) Amendments) Act 2002 (Cth)
Sex Discrimination Act 1984 (Cth) Age Discrimination Act 2004 (Cth)
SIGNIFICANT CASES
Mabo v Queensland (No. 2) (1992) 175 CLR 1 Legal Consequences of the Construction of a Wall
Toonen v Australia, CCPR/C/50/D/488/1992, UN in the Occupied Palestinian Territory (Advisory
Human Rights Committee (HRC), 4 April Opinion) International Court of Justice, 9 July
1994 2004
Croome v Tasmania (1997) 191 CLR 119 Roach v Electoral Commissioner [2007] HCA 43
Lange v Australian Broadcasting Corporation Giller v Procopets [2008] VSCA 236
(1997) 189 CLR 520 Australian Crime Commission v Louise Stoddart and
ABC v Lenah Game Meats Pty Ltd [2001] HCA 63 Anor [2011] HCA 47
Legal oddity
Australia is the only common law country that does not have a bill of rights enshrined in either its constitution
or federal legislation. While our Constitution does include some rights, both express and implied, attempts
to introduce greater human rights protection by way of federal legislation have been unsuccessful. Two
states – the Australian Capital Territory and Victoria – have enacted their own human rights charters.
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CAMBRIDGE LEGAL STUDIES HSC
8.1 I ntroduction implementation have an impact on state sovereignty,
and there are widely divergent cultural, religious
Historically, human rights have developed through
and social views and priorities among the UN
various campaigns, which first achieved partial and
member states. So despite formal recognition and
scattered recognition, and finally resulted in a formal
the development of binding treaties, progress has
declaration and binding international treaties. As
been gradual in securing governments’ respect
with any type of rights, however, the effectiveness of
for human rights and universal conformance with
recognition depends on the will of the community to
the treaties. While some states have functioning
implement the rights, and the mechanisms in place
and independent institutions, a politically free and
to ensure that they are respected, promoted and
active population and funds available to tackle the
enforced.
problems, other states lack the resources, structures
Human rights are advanced on two broad levels –
or political will to enforce those rights.
internationally and domestically. On each level there
Today, the promotion and enforcement of human
are governing bodies responsible for complying
rights commands a great deal of attention from
with and promoting them, courts responsible for
both governments and citizens, but also from the
enforcing them, and various organisations and
international community, including:
pressure groups that report on them and expose
• numerous branches of the UN
violations.
• international courts, tribunals and other
authorities
8.2 H
uman rights in the • intergovernmental organisations (IGOs)
international community • non-government organisations (NGOs)
media groups.
Since the establishment of the United Nations (UN)
Each of these will be considered in turn below.
in 1945 and the recognition of universal human
First, however, one of the most important issues of
rights through the Universal Declaration of Human
human rights in international law, and perhaps one
Rights (UDHR) in 1948, the idea of universal human
of the largest hurdles impeding their success, will be
rights has gained importance in the international
considered – the issue of state sovereignty.
community. However, the concept remains a
controversial one: the international community state sovereignty
has failed to agree on what should be prioritised the authority of an independent state to govern itself
as far as human rights are concerned, some states (for example, to create and implement laws; impose and
collect taxes; make war and peace; and form treaties with
have argued that human rights treaties and their foreign states)
Figure 8.2 The International Committee of the
Red Cross (ICRC) world headquarters in Geneva,
Figure 8.1 The UN Human Rights Council Switzerland. The ICRC is one of the largest NGOs in
headquarters located in Geneva, Switzerland the world.
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
8
8.3 S
tate sovereignty clearest mark of statehood, but there is no clear
definition of statehood that binds the international
The concept of state sovereignty is central to
community, and in practice the granting is usually a
international law and to the capacity of the world to
political matter, with recognition by leading nations
enforce states’ compliance with recognised human
being the most influential factor, rather than legal
rights. States often cite infringements of their state
considerations.
sovereignty as a justification for failing to comply
The issue of statehood can have implications
with international human rights standards.
for human rights. People may be unable to claim
protections under the international human
Statehood
rights regime if they live within the territory of an
To understand state sovereignty, the concept of
unrecognised state, or if they live in a state with
a ‘state’ needs to be clarified. A state is the basic
which relations have broken down. For example,
unit of the international system. Generally known as
in 2009 the Taiwanese Parliament ratified both the
countries, states are the only entities in international
International Covenant on Civil and Political Rights
law capable of exercising full political capacity.
(ICCPR) and the International Covenant on Economic,
state Social and Cultural Rights (ICESCR) into domestic
a government and the people it governs; a country law. As they live in an unrecognised state without
UN membership, Taiwan’s 23 million citizens do
Statehood should not be confused with political not have access to the international human rights
entities within a federal system, such as the domestic framework, which includes the right to complain
states of Australia or the United States. Strictly to the UN Human Rights Committee. It also means
speaking, a state should also be distinguished from that no other state can submit any complaint about
a nation, which is a people who share a common Taiwan to the committee.
heritage, language, culture or race – nations do not
always correspond with state borders. Nations or
peoples seeking independent statehood will often
claim a right to self-determination.
nation
a people that share a common heritage, language or
culture and sometimes a common race
In international law, recognition as a state
requires a number of factors. Outlined in art 1 of the
Montevideo Convention on the Rights and Duties of
States (1933), their characteristics must include:
a) a permanent population
b) a defined territory
c) government; and
d) capacity to enter into international relations.
A sovereign state is a geographical area that is
controlled by a central government which exercises
supreme independent authority over that area
internally and externally. A state must therefore also
be recognised by a number of other states so that
Figure 8.3 By 2015 ISIS had occupied sections of
it can exercise its full political and legal capacity. Iraq and Syria, claiming that they had established an
This recognition is sometimes controversial. In Islamic state. To some analysts at the time it came
most cases, membership of the UN will be the close to having the characteristics of a state.
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CAMBRIDGE LEGAL STUDIES HSC
Legal Info
How many states are there?
The exact number of states in the world is disputed. In 2016, the status of states and disputed states
was as follows:
• There were 193 fully recognised state members of the UN, though there were 196 states in the
world.
• The last state to become a UN member was South Sudan in 2011.
• Vatican City (the Holy See) is a recognised state, but only has observer status at the UN.
• Taiwan (Republic of China) has the characteristics of a state, but its international status is
disputed. It originally represented all of China in the UN, but it was replaced in 1971 by the
People’s Republic of China. Currently, Taiwan has no UN representation but continues to
function as a state, with informal diplomatic relations. China, the main state opposing Taiwan’s
recognition as a state, has veto power on the Security Council, further evidence that states are
recognised as a result of political rather than legal considerations.
• Though Kosovo has been recognised as a nation state by over 90 other states by 2012, it is still
not a member of the UN due to opposition from Russia, which, like China, can use its veto to
block Kosovo’s bid for UN membership.
Five states have veto power in the UN – the United States, Russia, China, France and the United
Kingdom. The makeup of the Security Council has been much contested. While every member state
of the UN has a vote, the reality is that the states which are more powerful politically and militarily, and
those that donate and support developing countries, use those ties to wield additional influence. There
are many disputed territories claiming statehood, including Somaliland, Abkhazia and Palestine,
some with growing international recognition. Their claim to statehood may be strongly disputed by
other states; this highlights a long-held argument in international law over when a state becomes a
state not just in the eyes of the international community but also for the purposes of the application
of international law.
Sovereignty limited under international law by certain duties
The sovereignty of states is one of the most owed to the international community. Without any
essential components of the international system. such limitations, a system of international anarchy
State sovereignty refers to the ultimate law-making would result – allowing governments to attack each
power of a state – its independence and freedom other without cause, abuse their own citizens or
from external interference in its affairs. Sovereignty commit genocide on their own populations, with
is the source of a state’s legal and political power to no fear of consequences nor any means for their
make laws over its own population and to enforce citizens to seek help. Such a system is reminiscent
those laws. of the atrocities committed by Nazi Germany or the
It is also a major issue in human rights, as in Empire of Japan during World War II.
its strictest sense it means that no foreign state
or law can interfere in another state’s domestic State sovereignty and human
jurisdiction, unless it has the consent of that state. rights
Under the UN Charter, all states are fundamentally In regard to human rights, one of the major problems
equal – art 2(1) of the charter states: ‘The [UN] is of state sovereignty is that not all governments
based on the principle of the sovereign equality of equally accept the idea that their own people have
all its Members.’ certain rights. While robust democracies may have
Critically, however, in the modern international developed institutional respect for their citizens’
system a state’s sovereignty is not absolute. It is rights, with internal mechanisms to enforce them,
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
Review 8.1
1 List the characteristics of statehood as
laid down by the Montevideo convention
of 1933.
2 Briefly describe three examples of where
statehood is disputed.
3 Explain how state sovereignty can either
promote or impede human rights.
These and other mechanisms, including the
Figure 8.4 The Holocaust memorial in central Berlin. capacity of the UN to intervene, are discussed next.
The international community now imposes limitations
on state sovereignty to try to prevent mass atrocity
crimes, like the Holocaust, from happening again.
8.4 T
he role of the United
Nations
some countries without democratic processes may The UN is a vast organisation with substantial
rely on sovereignty to justify mistreatment of their power, consisting of 193 member states, including
own citizens. In extreme cases, such countries may almost every sovereign state in the world, and has
commit human rights abuses with impunity, with responsibility for almost every aspect of international
little or no avenue for their citizens to respond. In affairs. It is the avenue through which much of the
such cases, state sovereignty may be used as a world’s international development assistance and
shield against outside interference. the majority of international cooperation takes
However, countries do not exist in a vacuum. They place. The UN has five principal organs under the
form part of a community and are interdependent and
interrelated – politically, financially, environmentally
and legally. In particular, states have signed
numerous international agreements (treaties),
including the UN Charter, that create concrete
legal obligations. These agreements are by nature
consensual so do not infringe on sovereignty, but
they do put responsibility squarely on the sovereign
state to uphold its commitments or face the agreed
consequences, which may be severe.
For example, at the beginning of 2018, 169 states
had ratified the ICCPR and another 166 states had
ratified the ICESCR – and all UN states are subject
to the UDHR. Known collectively as the International
Bill of Rights, these treaties create concrete legal
obligations on states to comply with their human
rights provisions, which include submitting periodic
reports to the Human Rights Committee, allowing
other states to submit complaints about them and,
Figure 8.5 The UN Trusteeship Council has been
for most members, allowing their own citizens to inactive since 1994, but it was originally responsible
complain to the committee about their treatment in for overseeing transition of UN trust territories after
the state. decolonisation.
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CAMBRIDGE LEGAL STUDIES HSC
UN Charter (not including the former Trusteeship
Council) – all of these have some role to play in the
promotion or protection of human rights.
Trusteeship Council
inactive since 1994 but originally responsible for
overseeing the transition of UN trust territories to self-
government after decolonisation
Organs of the UN – human rights
responsibilities
• UN General Assembly (UNGA) – consisting
of representatives from all member states
with equal voting power (in theory),
this is the main forum for international
discussions, deliberations, declarations and
Figure 8.6 The UN Security Council (UNSC) is the
recommendations, many relating to issues
most powerful organ of the UN.
of human rights. Numerous committees,
programs and funds are attached to
the General Assembly, such as the UN body was transferred to the General Assembly
Development Program. The UN’s principal to become the UNHRC.
human rights body, the UN Human Rights • UN Secretariat – this is the main administrative
Council (UNHRC), reports directly to the body of the UN with over 40 000 staff working
General Assembly. worldwide. It provides the various information,
• UN Security Council (UNSC) – this is studies, tasks and facilities needed by the
the UN organ charged with preservation of UN. It includes the UN’s departments and
international peace and security. It exercises offices, including the Office of the High
its power through legally binding resolutions, Commissioner for Human Rights (OHCHR).
and can authorise military actions, sanctions The Secretariat is headed by the UN Secretary-
or peacekeeping operations. The UNSC has General, António Guterres, the most visible and
five permanent members who have the power influential figure in the UN.
to veto decisions (the United States, the United • International Court of Justice (ICJ) – this
Kingdom, China, Russia and France) and 10 is the primary judicial organ of the UN. The
non-permanent members with two-year terms. ICJ has jurisdiction, under the UN Charter, to
The council, it is argued, has the power to settle international disputes submitted to it by
intervene in the most serious of human rights member states, and produce advisory opinions
abuses by states. Numerous proposals have on matters of international law submitted to it
been made to change the structure and power by international organs and the UN General
of the Security Council to more accurately Assembly. Its cases will only rarely relate to
reflect today’s world, but this has yet to occur. issues of human rights.
• Economic and Social Council (ECOSOC) –
UN General Assembly UN Human Rights
this body has 54 rotating members meeting (UNGA) Council (UNHRC)
annually to assist in promoting international the UN organ representing the UN forum of member
economic and social cooperation and all UN member states; states responsible for
acts as a forum for global overseeing and making
development. It includes various committees discussion and runs recommendations on
and acts as the central forum for discussion numerous committees and human rights in all
programs member states
of economic, social, environmental and
humanitarian issues. It used to house the
Commission on Human Rights, but in 2006 this
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
8
UN Security Council resolution to be in charge of the OHCHR. His term as High
(UNSC) a decision passed by the
Commissioner is expected to last until at least
the UN organ responsible UN General Assembly or
for preservation of Security Council; when 2018. Mr Al Hussein played a central part on the
international peace and passed by the Security establishment of the International Criminal Court
security; has power to Council it can be legally
authorise military action binding on all member (ICC) in 2002.
and other measures states
UN Human Rights Council (UNHRC)
Economic and Social Secretariat The UNHRC is a relatively new intergovernmental
Council (ECOSOC) the UN administrative
body under the UN General Assembly, made up of
the UN organ that body headed by the
acts as a forum for UN Secretary-General; representatives of member states – its 47 member
international economic contains the departments seats are rotated on three-year terms. It aims to
and social cooperation and and offices of the UN
development address human rights violations worldwide and
make recommendations, and works closely with the
Office of the High International Court of OHCHR to perform its duties.
Commissioner Justice (ICJ) The UNHRC was established in 2006 following
for Human Rights the primary judicial organ
(OHCHR) of the UN; has jurisdiction
a General Assembly resolution – it was set up to
the UN human rights office to hear disputes submitted replace the previous Commission on Human Rights,
responsible for monitoring by member states and which had been a part of ECOSOC since 1946, but
and reporting on human issue advisory opinions
rights worldwide had been heavily criticised for failing to achieve its
purpose. The previous body had allowed states with
some of the poorest records on human rights to be
Office of the UN High Commissioner members, effectively preventing criticism of those
for Human Rights (OHCHR) states’ actions and allowing the abuses to continue.
The Office of the UN High Commissioner for Human The UNHRC has recently adopted a series of
Rights (OCHR) is an administrative agency under specific measures that aim to increase its power to
the UN Secretariat that works to promote and protect address human rights abuses, including:
the human rights contained in the UDHR and • a complaints procedure allowing individual
international law. Established in 1993 after a World people to bring issues to the council’s attention
Conference on Human Rights held by the UN, the if they have been a victim of human rights
OHCHR’s purposes include: abuse in a state
• advancing universal ratification and • compulsory periodic reviews of the human
implementation of the UDHR and human rights rights situation in all 193 member states (not
standards and treaties just those who are signatories to the ICCPR and
• promoting universal enjoyment of human other treaties)
rights and international cooperation, including • an Advisory Committee to provide expertise and
education, information and technical advice and recommend issues for the council to
assistance, taking preventative action and consider.
responding to serious human rights violations Because the UNHRC is relatively new, it is too
• providing support and information for other early to judge its success. The United States, under
UN human rights bodies and treaty-monitoring former President George Bush, originally refused to
bodies, including the UNHRC and the Human participate in the UNHRC, but in 2009 US President
Rights Committee. Barack Obama reversed the United States’ position
The office is headed by the High Commissioner and joined the council, thereby strengthening its
for Human Rights, who reports directly to the international influence.
Secretary-General. On 1 September 2014, Zeid However, the council has already received some
Ra’ad Al Hussein, a former Jordanian Ambassador criticism, from former Secretaries-General Ban
to the United States and veteran UN diplomat, was Ki-moon and Kofi Anan, as well as from the former
appointed as the seventh High Commissioner for High Commissioner for Human Rights. It has been
Human Rights. Mr Al Hussein is the first Muslim criticised for acting not in the interests of human
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CAMBRIDGE LEGAL STUDIES HSC
rights, but according to political considerations – In the years up to 2015, a post-2015 development
particularly influential states, including China agenda was finalised after extensive consultations
and Russia, have also been accused of backing in 70 countries. The result was 17 ‘Sustainable
and controlling certain candidates to block Development Goals’, or SDGs, agreed upon in
criticism of themselves. It remains to be seen if or 2015:
how effective the council can become. Despite heavy 1. No poverty
criticism of Australia over the issue of asylum seekers 2. Zero hunger
in the past, the Australian Government showed strong 3. Good health and well-being
interest in lobbying other UN member states to support 4. Quality education
Australia’s successful election to the UNHRC in 2018. 5. Gender equality
6. Clean water and sanitation
MDGs and SDGs 7. Affordable and clean energy
In 2002, all member states of the UN agreed to a 8. Decent work and economic growth
declaration at the end of a conference on world 9. Industry, innovation and infrastructure
poverty. This became known as the Millennium 10. Reduced inequalities
Declaration. The declaration outlined eight ambitious 11. Sustainable cities and communities
Millennium Development Goals (MDGs) that all 12. Responsible consumption and production
member states pledged to try to reach by 2015. The 13. Climate action
goals covered areas of poverty, health, education, 14. Life below water
sustainability and development. 15. Life on land
There was uneven progress in achieving the 16. Peace, justice and strong institutions
goals, which depended less on economic growth, 17. Partnerships for the goals
and more on the development of programs. The The goals are for the next 15 years, with each one
Global Financial Crisis reduced both the ability of having specific targets to achieve by 2030 – there
some countries to take action towards the goals are 169 targets in total. The aim, stated in in the UN
and the ability of developed countries to support document ‘17 Goals to Transform Our World’, is
programs in traditionally less economically stable to create a ‘fairer, more prosperous, peaceful and
countries. Problematically, geographic areas sustainable world where no one is left behind’. The
that would most benefit from the goals, such as SDGs have been guiding all international efforts at
sub-Saharan Africa, had not made the necessary sustainable development since 2015.
improvements in meeting the MDGs by 2015.
Legal Info
UN intervention and the Responsibility to Protect (R2P)
One of the most contentious arguments on the role of the UN relates to the ability of the UN Security
Council to act in cases of the most serious human rights abuses within a state’s own borders. State
sovereignty traditionally restrains the international community from interfering in another state’s
territory. When situations of serious human rights abuses are exposed, usually involving crimes
against humanity or genocide, the international community will often call for the UN to intervene to put
a stop to atrocities that are about to occur or are occurring. Recent examples include serious human
rights abuses in the Middle East and North Africa.
However, the UN’s powers to intervene within any state are restricted by art 2(7) of the UN Charter:
‘Nothing contained in the present Charter shall authorise the UN to intervene in matters which are
essentially within the domestic jurisdiction of any state.’
Under Chapter VI of the charter, the Security Council can recommend measures for the peaceful
settlement of disputes or situations that may lead to international friction. Although this has occasionally
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
8
Legal Info
been used to send UN peacekeeping troops into troubled regions, it requires the consent of the state
or states involved and will fail if the state refuses to allow intervention. Since 2002, the Security Council
can also refer international criminal law matters to the ICC, as it did with Darfur, Sudan in 2005, but this
may do little to stop a situation that is still occurring. In 2014, despite 65 UN member states wanting the
ICC to prosecute Bashar Al-Assad for war crimes in Syria, Russia and China vetoed a UNSC resolution
that proposed this course of action in Syria.
Article 2(7) of the charter does limit sovereignty in one instance: ‘This principle shall not prejudice
the application of enforcement measures under Chapter Vll.’ Chapter VII empowers the Security
Council to take military or non-military action to ‘restore international peace and security’. This makes
it the most powerful organ of the UN, and indeed the world, giving it the power to intervene without
a state’s consent.
The Security Council has been heavily criticised for reluctance to use its intervention powers to
prevent mass atrocities or intervene where serious abuses are occurring. At the World Summit 2005
on reform of the UN, the world community decided to embrace a new doctrine, a new international
approach to human rights abuses, called the ‘Responsibility to Protect’, or R2P. The doctrine aims to
make protection of human rights an integral part of the responsibility that goes with being a sovereign
state – if a state fails to protect its own citizens, then the international community has the responsibility
to step in under the Chapter VI or Chapter VII powers.
In 2006, the Security Council (by Resolution 1674) reaffirmed the World Summit Outcome Document
‘regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and
crimes against humanity’. In 2009, the UN Secretary-General, later supported by a resolution of the
General Assembly, expressed commitment to the doctrine under three ‘Pillars’ of responsibility:
• It is a responsibility of states to protect their populations from these crimes.
• The international community is responsible for helping states develop the protective ability
before such crises or conflicts break out.
• When a state has manifestly failed to protect its citizens, and peaceful means are not sufficient,
the international community must take action to prevent harm.
The R2P was first invoked in 2011, when Libya descended into civil war and a state of armed
conflict following protests in Benghazi, during which armed state security forces fired into the
crowd of protesters. The resulting backlash spread across the country, and there was disagreement
internationally as to how the conflict should be stopped. The Security Council declared a ‘no-fly zone’
under Resolution 1973, which was designed to prevent dictator Muammar Gaddafi from inflicting
further harm on Libyan people who had joined the uprising. The resolution authorised UN member
states to use ‘all necessary measures’ to prevent attacks on civilians. The resolution passed with the
abstentions of Russia and China. The resulting military action by NATO caused much controversy,
with some arguing that the intervention infringed national sovereignty and the ability of Libyans to
resolve the conflict for themselves. Others argued that according to the R2P doctrine, it was the duty
of the international community to act. The NATO-imposed no-fly zone allowed the Libyan rebels to
overthrow the regime of Muammar Gaddafi, but for years afterwards Libya imploded into anarchy
and violence. This UN-sanctioned (with R2P reasons) and NATO-led limited intervention succeeded
in ridding Libya of a dictator; but without helping Libya to establish a strong democratic nation state
there was no hope of guaranteeing civil, political and economic rights. Intervention in a troubled nation
state is never a simple matter. It is often the case that there is a choice between tyranny and anarchy.
To create a strong democratic state where there is no previous history of this takes enormous political
will and resources from the international community.
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CAMBRIDGE LEGAL STUDIES HSC
8.5 T
he roles of other
Review 8.2 international groups
1 Identify the five active organs of the UN Intergovernmental organisations
and briefly describe the role they play in (IGOs)
promoting or protecting human rights. An intergovernmental organisation (IGO) is an
2 Describe the role of the UNHRC and international institution made up of member states.
evaluate its effectiveness in responding IGOs are created by agreement between states, and
to cases of human rights violations. each has an international treaty that acts as a charter
3 Define the doctrine of R2P and explain outlining the organisation’s purpose and operation.
why its use in Libya in 2011 has not They are usually permanent, meet regularly and
strengthened R2P as an international have international legal ‘personality’, which means
norm. they can enter into enforceable agreements and are
4 One concern about the R2P is that subject to international law.
Security Council politics might influence Some of the first worldwide IGOs were the
its use, either in favour of or against International Telegraphic Union in 1865 and the
certain states. Evaluate the effectiveness Universal Postal Union in 1874. In 1909, there were
of the doctrine in light of this or any other 37 IGOs in the world, and by 1960 this figure had
issues you can identify. risen to 154. Today, the number stands at around
1000. The UN, created by the 1945 UN Charter, is
the most important of all IGOs. Other powerful IGOs
Legal Links include the World Trade Organization (WTO), the
International Monetary Fund (IMF), the North Atlantic
Go to the following UN websites, which offer Treaty Organization (NATO) and INTERPOL.
a wealth of information on human rights Apart from the UN, a number of IGOs have the
internationally, including current status, promotion of human rights as part of their stated
progress, goals and various complaints goals and can exert significant influence on the
mechanisms: human rights situations of their member states,
• Office of the High Commissioner for although the influence of every organisation differs.
Human Rights – http://cambridge.edu. Examples are:
au/redirect/?id=6259 • Commonwealth of Nations – made up of 54
• UN Human Rights Council – http:// members, including the United Kingdom,
cambridge.edu.au/redirect/?id=6260 Australia and almost all former colonies of the
• Millennium Development Goals – http:// British Empire, it operates within a framework
cambridge.edu.au/redirect/?id=6261 outlined in the Singapore Declaration of
• Post-2015 Development Goals – http:// Commonweath Principles. The Commonwealth’s
cambridge.edu.au/redirect/?id=6262. stated aims include the promotion of
democracy, the rule of law, human rights,
individual liberty and good governance. Several
members have been suspended due to serious
or persistent violations and human rights
abuses, including Zimbabwe in 2002 and Fiji on
various occasions due to military coups.
• African Union (AU) – established in July 2002,
the AU includes almost all African states;
currently, 55 African countries are members
with the most recent addition, Morocco,
being admitted as a member state in
January 2017. Adherence to democratic
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
8
principles and sound economic practice are
expected of AU members. Madagascar and
Mali are currently suspended due to coups
d'etat. The African Union’s aims include
bringing about security and peace in Africa
and promoting good governance, democratic
institutions and human rights. Its decisions
are made by the Assembly of the African
Union. The African Union includes the
African Commission on Human and People’s
Rights, with responsibility for monitoring
and promoting compliance with the African
charter of the same name, and the African
Court of Justice and Human Rights.
• Organization of American States – this includes
all the states of North, Central and South Figure 8.7 The Commonwealth of Nations consists of
America. Two of the organisation’s bodies, the 54 nations that once belonged to the British Empire.
Inter-American Commission on Human Rights
and the Inter-American Court of Human Rights,
are responsible for overseeing the regional
human rights instrument – the American
Convention on Human Rights.
Courts, tribunals and independent
authorities
There are numerous international courts, tribunals
and other independent authorities with power to
hear matters involving human rights abuse.
International Court of Justice (ICJ)
The International Court of Justice (ICJ) is an organ
of the UN. It started operation in 1946 at the Peace
Palace in The Hague, The Netherlands. The ICJ
has two roles: to hear and judge disputes between Figure 8.8 In 2014, the Marshall Islands filed a
states, and to issue advisory opinions on matters of lawsuit against the nine nuclear weapons states for
international law. their failure to comply with art 6 of the Nuclear Non-
Proliferation Treaty, which required them to eliminate
The ICJ has heard relatively few cases since
their nuclear weapons in return for the rest of the
its establishment, but has issued some important
countries of the world not acquiring them. The case is
judgements and opinions. For instance, in Legal currently being heard in the ICJ (pictured).
Consequences of the Construction of a Wall in the
Occupied Palestinian Territory (Advisory Opinion), claimed that the barrier causes serious humanitarian
presented on 9 July 2004, the ICJ issued an important, problems or violates Israel’s obligations under
though controversial, advisory opinion that the Israeli international humanitarian law. Israel has disputed
West Bank barrier – a 700-kilometre wall partitioning these claims, and the Security Council has yet to
the Palestinian-occupied West Bank from Israeli accept and enforce the ICJ’s ruling.
territory – was contrary to international law and The strongest criticism of the ICJ is that it
encroached on disputed territory. International requires the consent of state parties to hear matters
NGOs such as the International Committee of the and so has very little jurisdiction. States can consent
Red Cross (ICRC) and Amnesty International have to ‘compulsory’ jurisdiction of the court, but by
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CAMBRIDGE LEGAL STUDIES HSC
2010 only 66 states had done so, most – including it a powerful institution for combating individuals
Australia – with some form of reservation limiting who seek to use state sovereignty as a defence for
the court’s power. The court is unable to hear their abuses. Australians work at the ICC in both the
cases brought by individual people or private prosecution and defence areas.
organisations, is restricted to states themselves,
and has very little power of enforcement, with European Court of Human Rights
Security Council members being able to veto any (ECHR)
enforcement action. Despite these limitations, the In her 2015 book, A Magna Carta for All Humanity,
court has issued important judgements that carry Francesca Klug reminded us that the UDHR (1948)
the weight of international law and act as significant and the European Convention on Human Rights
guides to future actions. (ECHR) (1950) both had a common heritage in the
Other forums, including the Security Council Magna Carta, but that the ECHR was also inspired by
(see earlier), the ICC, regional courts such as the the UDHR, which was signed two years earlier. Both
European Court on Human Rights, and the UHRC, the UDHR and the ECHR were landmark human
are arguably much more effective for hearing rights documents written in the wake of World War
matters of serious human rights violations. II and many of the statements in them are a rejection
of the racism and persecution of Nazi-occupied
International Criminal Court (ICC) and Europe. The European Court of Human Rights
ad hoc tribunals (ECHR) was set up in 1959 in Strasbourg, France to
The International Criminal Court (ICC) was apply and protect the human rights of the citizens
established in 2002 to prosecute international of Europe. It considers cases brought by individuals,
crime. The ICC was preceded by various tribunals as well as by organisations and states, against all
(known as ‘ad hoc’ tribunals – established for countries bound by the ECHR. The ECHR has played
a particular purpose) established by the UN an important role in promoting the awareness of
Security Council or the UN to deal with specific human rights in Europe.
events involving serious international crimes. The The ECHR is an extremely influential human
tribunals established by the Security Council, rights body, and compliance has been incorporated
including the International Criminal Tribunal for into the treaties of the European Union (EU). This
the Former Yugoslavia (ICTY) and the International means that the laws of all 27 member states of the EU
Criminal Tribunal for Rwanda (ICTR), are in the must comply with the rulings of the ECHR. This has
process of finalising their operations. In contrast, had an enormous effect on member state laws – for
the courts established by agreement between
the UN and the governments in question, such
as the Special Court for Sierra Leone (SCSL)
and the Extraordinary Chambers in the Courts
of Cambodia (ECCC), provide scope for more
domestic governmental and legal input into the
operations of the international court structure.
The ICC is not a court for human rights violations
specifically, but it does prosecute and hear matters
relating to the most serious international crimes,
including those that fall under international
humanitarian law, such as genocide, crimes
against humanity and war crimes, although these
acts would also constitute serious human rights
abuse. It also has jurisdiction to hear crimes of
Figure 8.9 The European Court of Human Rights
aggression (illegal war). (ECHR) was established in 1959 and is based in
Importantly, the ICC has jurisdiction to prosecute Strasbourg, France. It is seen as the most successful
individual people rather than states, which makes regional court in the world.
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
8
example, numerous laws of the United Kingdom state and make rulings on that state’s compliance.
have had to be revised following ECHR rulings. Although its decisions are not enforceable, they
Some of these are to be repealed when Britain leaves are highly influential: they are embarrassing for the
the EU in 2019. In 2015, the ECHR was seen as the government of a state accused of violation, and they
most successful regional court in the world. might influence local legal interpretation. These
judgements will also be raised by the committee
The Australian situation in its periodic reports to each member state, which
Unlike Europe, or Africa or the American states, may include recurring recommendations to address
Australia is not currently party to any regional the issues until the committee is satisfied that the
human rights instrument or human rights court. The state is compliant. A number of cases have been
Association of Southeast Asian Nations (ASEAN) raised against Australia, and the strong persuasive
is in talks to develop a human rights charter and a power of the Committee’s rulings can be seen in the
human rights court. case of Toonen v Australia (see the ‘In Court’ box on
The ASEAN charter contains some provisions page 190).
on upholding law with respect to human rights and
enabling the establishment of a human rights body
and unresolved dispute mechanism, and there is Legal Info
a working group for a human rights mechanism,
Human rights treaty bodies
which would create:
• a regional declaration of human rights A number of UN treaty bodies similar in
principles function to the UNHRC have been established
• a regional human rights commission for by various human rights treaties. Some of
monitoring and recommendation purposes these are:
(established in 2009) • Committee on Economic, Social and
• a court that would render binding decisions. Cultural Rights
• Committee on the Elimination of Racial
Other authorities established by Discrimination
treaties • Committee on the Elimination of
Discrimination Against Women
The International Bill of Rights, as well as some other
• Committee Against Torture
key human rights treaties, has established particular
• Committee on the Rights of the Child.
authorities to hear matters of compliance by member
states with the treaties.
One of the most important of these is the
Human Rights Committee, a quasi-judicial body Research 8.1
which assesses member state compliance with the
ICCPR and can hear petitions raised by the states 1 Visit the website of UN High
about each other’s compliance. Significantly, the Commissioner for Human Rights
ICCPR also gives the committee jurisdiction to (OHCHR) at http://cambridge.edu.au/
hear personal complaints brought by individuals redirect/?id=6263.
of member states about human rights violations 2 Research two of the committees listed
in their own country. Currently, 116 countries in the ‘Legal Info’ box above and identify
have ratified this optional protocol, including the international treaty the committee
Australia. Citizens can take complaints directly to is responsible for, and the power the
the committee, providing they have first attempted committee has to hear matters against
to resolve the matter with human rights bodies member states.
in their own country – or region, if applicable –
such as the ECHR.
At the committee, a group of human rights
experts will hear a complaint brought against a
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CAMBRIDGE LEGAL STUDIES HSC
In Court
Toonen v Australia, CCPR/C/50/D/488/1992, UN Human Rights Committee (HRC), 4 April
1994; Croome v Tasmania (1997) 191 CLR 119
Toonen was a landmark case on Australia’s human rights. It was brought to the UN Human Rights
Committee by Nicholas Toonen, a Tasmanian resident. The case illustrates the power of human rights
laws to effect local change.
The case revolved around a complaint by Toonen that existing Tasmanian laws that criminalised
consensual sex between adult males were in violation of his human right to privacy. This right is
protected under art 12 of the UDHR and art 17 of the ICCPR. The complaint also claimed discrimination
on the basis of sexual activity and orientation, and that homosexual men were unequal before
Tasmanian law, in violation of arts 2 and 7 of the UDHR and art 26 of the ICCPR.
Australia historically inherited anti-homosexuality laws from Great Britain, which were then
retained in the states’ criminal laws. These were gradually repealed by states, commencing in South
Australia in 1972. By 1991, Tasmania was the last remaining state to maintain these laws. Toonen also
complained that people in authority in Tasmania would regularly make derogatory remarks about
homosexual people, amounting to a campaign of official and unofficial hatred.
The UN committee found that adult consensual sexual activity in private was covered by the human
right to privacy, and that Toonen’s right was interfered with by Tasmania’s laws, without any reasonable
justification for that interference. The law violated art 17 of the ICCPR, and the committee ordered
Australia to respond to the committee’s finding and repeal the incompatible law. The committee’s
views were also widely publicised internationally and carried significant authority.
However, Tasmania refused to repeal the law. The federal government was forced to enact the
Human Rights (Sexual Conduct) Act 1994 (Cth), which legalised consenting sexual activity between
adults throughout Australia. Tasmania still refused to repeal its law, and in 1997 Tasmanian rights
campaigner Rodney Croome took the matter to the High Court of Australia (Croome v Tasmania (1997)
191 CLR 119), where the law was deemed illegal as it was now inconsistent with both the ICCPR and
Australian law. Tasmania had no option but to abolish its law and decriminalise homosexuality.
Since being forced to overturn its laws, with the negative national and international publicity
it received, Tasmania has become one of the most progressive states in Australia in combating
discrimination based on sexuality, as well as other human rights. In 2003, Tasmania became the first
jurisdiction in Australia, and one of the first in the world, to recognise and register same-sex domestic
partnerships under the law.
Non-government organisations already playing an important role in contributing
(NGOs) to international discussion. Today, many NGOs
Non-government organisations (NGOs) are collaborate on a daily basis on human rights and
organisations that are independent of and without humanitarian work with various government and
representation of any government. They include intergovernmental organisations and specialised
private voluntary organisations, citizen associations UN agencies.
and civil society organisations. The number of NGOs engaged in human rights play an
NGOs has grown exponentially in recent times. indispensable role in informing the global
In 1914 there were an estimated 176, in 1970 there community, governments and the UN of human
were an estimated 2000, and by the beginning of rights violations and progress. They help ensure
the 21st century there were over 100 000 NGOs. At greater government compliance by investigating,
the establishment of the UN in 1945, NGOs were researching, documenting and publicising cases
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
8
of human rights violations. This process of ‘naming
and shaming’ can have a profound effect on Legal Links
government behaviour. Some NGOs will also work
These are some of the more well-known
directly with violators or victims, providing evidence
international NGOs working for human rights:
to international courts, or encouraging other states
• Amnesty International – http://
or the UN to apply diplomatic pressure or take action
cambridge.edu.au/redirect/?id=6264
against violating states.
• Freedom House – http://cambridge.edu.
One of the oldest and most important
au/redirect/?id=6265
international NGOs is the International Committee
• Human Rights Watch – http://
of the Red Cross (ICRC). With origins tracing back
cambridge.edu.au/redirect/?id=6266
to 1863, the ICRC’s missions are strictly concerned
• Carter Center – http://cambridge.edu.au/
with international humanitarian law – protecting
redirect/?id=6267
the life and dignity of the victims of international
• International Committee of the Red
and other armed conflicts; this work often overlaps
Cross – http://cambridge.edu.au/
with human rights abuses. The importance of
redirect/?id=6268
the ICRC is recognised internationally, and since
• Reprieve – http://cambridge.edu.au/
1990 it has been allowed observer status at the UN
redirect/?id=6269.
General Assembly. The ICRC also works closely
with the International Federation of Red Cross and
Red Crescent Societies (IFRC), which is made up of
190 National Red Cross and Red Crescent Societies Research 8.2
that lead and organise relief assistance missions in
response to large-scale emergencies. Visit two of the NGO websites mentioned in
the ‘Legal Links’ box above and complete the
international humanitarian law following tasks.
a body of international law developed from the Geneva
and Hague conventions that deals with the conduct of 1 Identify when the NGO was first
states and individuals during armed conflict; also known established and who established it.
as the law of armed conflict 2 Describe the work that the NGO does in
promoting human rights.
3 Consider the types of human rights that
the NGO is attempting to protect.
4 Evaluate how the NGO might affect
the human rights performance of
governments.
The media
Like NGOs, the media plays a crucial role in the
‘naming and shaming’ of governments and human
rights violators by investigating, reporting and then
exposing instances of human rights abuse. This can
have a significant influence on public opinion and
government, and can help bring about change.
This is, however, largely the case only in the
Western world, as many countries that inflict the
Figure 8.10 Amnesty International is one of the most
influential human rights NGOs. It was founded in 1961 greatest human rights abuses on their people do not
and has over seven million supporters around the allow freedom of the media – limiting internet access,
world. for instance, severely restricts the information
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CAMBRIDGE LEGAL STUDIES HSC
Legal Links
Reporters Without Borders (RWB) aka
Reporters Sans Frontieres (RSF)
RWB is a vital international NGO with
correspondents and offices worldwide. RWB
aims to promote press freedom in all countries
by fighting censorship and laws undermining
the press, defending journalists imprisoned
or persecuted in their job, and working for the
safety of journalists, especially in war zones.
In recognition of the organisation’s
importance, RWB holds consultant status
at the UN. Detailed information on press
freedom in every country around the world is
available on RSF’s website (http://cambridge.
edu.au/redirect/?id=6270).
Figure 8.11 Australia journalist Peter Greste was
jailed in Egypt in December 2014 and released in
February 2015. He had been accused by the Egyptian Review 8.3
Government of reporting news that was ‘damaging to
the government’. 1 Explain the difference between IGOs
and NGOs and assess how either type of
people can access, and so affects the decisions they organisation can help promote human
can make about their government. rights.
The role of a free and impartial media and people’s 2 Compare the role of different courts,
right to information is recognised as a human right: tribunals and other authorities in hearing
art 19 of the UDHR states ‘everyone has the right to matters of human rights. Identify what
... seek, receive and impart information and ideas types of human rights matters can be
through any media and regardless of frontiers’. heard by which body.
The influence of the media is also recognised by 3 Identify the dangers faced by journalists
violators of human rights. Media freedom is severely in countries where there is little press
restricted in many countries – it is often unsafe for freedom.
reporters to undertake their work, as it could result in
censorship, imprisonment, beatings or even death.
According to one important NGO, the Committee
The Australian media still has a largely Western
to Protect Journalists (CPJ), at least 42 journalists
focus in its reporting of worldwide events.
were killed in 2017; the CPJ is investigating the
killing of another 20. Iraq and Syria were the
deadliest countries. Almost 262 journalists were 8.6 H
uman rights in Australian
jailed worldwide in 2017, with most in Turkey, China domestic law
and Egypt. Three-quarters of those imprisoned were
In Australia, there is no one document where all
arrested in relation to anti-state charges.
human rights can be found – rights that correspond
The international NGO Reporters Without
with internationally recognised human rights are
Borders (RWB) releases an annual index of media
drawn from different sources. These sources include
freedom of all states. In 2018, Australia ranked
international treaties, the Australian Constitution, the
19th in the world for degree of press freedom. At
common law, and statute law of the Commonwealth,
the other end of the scale were countries such as
states and territories.
China (176th), Iran (165th) and North Korea (180th).
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
8
dualist system incorporation
a legal system that the process by which a
does not deem treaties country incorporates a
enforceable domestically treaty into domestic law
until and unless they are
incorporated into domestic
law, usually by passing
similar legislation
he role of the Australian
8.7 T
Constitution
The Australian Constitution plays two important
roles in protecting human rights for Australians:
• It lays down the system of Australian
Figure 8.12 Treaties need to be incorporated into government through which human rights
Australian law to make the rights and obligations are recognised, including the separation of
enforceable, such as those concerning refugees. powers and division of powers.
• It is the source of some specific human rights.
When an international treaty is negotiated and
separation of powers division of powers
formed, states indicate their agreement to the preventing one person or how powers are divided
principles of the treaty by signing it. Signing a treaty group from gaining total between the federal and
power by dividing power state governments
means the country will have to act in the spirit of the between the executive,
treaty, but it is not directly binding. In most cases a the legislature and the
treaty will need to be ratified by the state before it judiciary
becomes binding and enforceable.
Some countries have monist systems, meaning
that when the country’s government ratifies a treaty, Separation of powers and division
the treaty automatically becomes law in the country of powers
as if it were an Act of Parliament. Such countries can The doctrine of separation of powers, as previously
sign and ratify a treaty at the same time. France and studied, is important in protecting human rights. It
The Netherlands have monist systems. involves the separation of the branches of state:
On the other hand, Australia, like the United • the legislature – elected law-makers in
Kingdom, is a dualist system. This means that parliament
simply signing a treaty does not make it enforceable • the executive – government, including
in Australian law. The rights and obligations of the ministers and agencies
treaty will need to be incorporated into Australian • the judiciary – the courts that interpret and
law in some way. Parliament will usually pass apply the law.
legislation that echoes the words of the treaty or In Australia, separation of powers is protected
amends existing laws. For example, when Australia under chapters I to III of the Australian Constitution,
ratified the Rome Statute of the International Criminal which describe the functions of each branch
Court in 2002, the Commonwealth Parliament respectively. As a Westminster system of
simultaneously passed the International Criminal responsible government, Australia has no strict
Court Act 2002 (Cth) and the International Criminal separation between the legislature and executive –
Court (Consequential Amendments) Act 2002 (Cth) to the Constitution provides for ministers to sit in
enact the provisions of the treaty into Australian law. parliament and to be part of the executive, which
can make delegated legislation.
ratify (ratification) monist system
the process of a state a legal system that deems delegated legislation
formally approving a treaty, treaties enforceable in laws made by people or bodies to whom parliament has
making it legally binding domestic law as soon as delegated law-making authority
they have been signed
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CAMBRIDGE LEGAL STUDIES HSC
The
Legislative power Executive power Judicial power
Govenor-General High Court
Parliament The Ministry Other federal courts
House of
Senate
Representatives Government departments
Figure 8.13 Separation of powers under the Australian Constitution – judicial power is strictly separated from
political power.
However, the High Court has constantly ruled that especially, for example, in use of the corporations
strict separation of the judiciary from the other two power (s 51(xx)).
‘political’ branches is a fundamental principle in the
Constitution. The independence of the judiciary is an heads of power residual power
powers listed in ss 51 a government power that
essential mechanism for upholding the rule of law, and 52 of the Australian is not listed in s 51 of the
ensuring that all people, including government, are Constitution: the areas that Australian Constitution
equally subject to the same law. It also helps ensure the Commonwealth can as a legislative power
legislate on of the Commonwealth
that rights and liberties are protected from the risk Parliament, and thus
of abuses of power that could come with a politicised belongs to the states
judiciary. Finally, the separation of power enables
the judiciary to strike down any legislation that it One area that has been crucial for the
deems incompatible with the rights and limitations development of human rights in Australia has been
provided for in the Australian Constitution. the external affairs power (s 51(xxix)). This power
The Constitution also defines the division gives the Commonwealth authority to legislate on
of powers between the Commonwealth and external affairs, which includes Australia’s treaty
Australian states. This is the basis of the Australian obligations. Since Federation, the growth in the
federation: how legislative power is divided between number of international treaties has been enormous,
Commonwealth and state parliaments. Most specific and treaties have been developed to cover many of
areas that the Commonwealth can make laws on are the areas of the law that would traditionally have
listed under s 51 of the Constitution – these areas been solely within the power of the Australian states.
are known as Commonwealth heads of power and Human rights treaties have transformed the country
include, for example, currency (s 51(xii)), marriage by enabling the Commonwealth Parliament to bind
(s 51(xxi)) and copyright and patents (s 51(xviii)). states to those rights and if necessary legislate
Powers that are not listed in the Constitution are to protect rights universally across Australian
deemed residual powers – they are the powers jurisdictions.
the states can use. States can decide to refer such
powers to the Commonwealth, as they did, for Express and implied rights
example, with air navigation and terrorism. Unlike the United States, Australia does not have
While the division of powers can act as a check a bill of rights to bind state and Commonwealth
on government by ensuring that power is not action relating to human rights. However, the writers
too centralised, the Commonwealth’s power has of the Constitution did include some rights; these
grown significantly since Federation in 1901, are known as express rights. Additionally, over
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
8
189 CLR 520) held that the Constitution contains an
implied right to freedom of political communication,
a type of freedom of speech, in order for Australia’s
political system as established in the Constitution to
function effectively.
Despite this, a finding of implied rights by the
judiciary has often been controversial and the ability
of the Constitution to act as a protector of human
rights is very limited. Most Australian human rights
are found in other sources of law.
Review 8.4
1 Explain how international treaties are
incorporated into Australian law.
2 Define the doctrine of separation of
powers and identify which power in
Australia is kept strictly separate.
3 Describe how the external affairs power
has transformed Australia’s law.
4 Explain the difference between an
Figure 8.14 Women displaying electoral identity
cards. While most consider the right to vote a
express and an implied right.
universal human right, in many countries certain
groups are prevented from practising that right.
8.8 O
ther human rights roles in
the last century the High Court has interpreted Australia
the Constitution as necessarily holding certain
other rights. Even though they are not written in it, Common law
the High Court has found that certain rights must The common law in Australia is the body of law
have been intended in order for the Constitution to made by judgements of the courts. It has evolved and
function effectively – these are known as implied been passed down over centuries, independently of
rights. government, and carries the power to protect many
human rights. Many Australian statutes, particularly
express rights implied rights in criminal law, are silent on many aspects of the
rights that are included rights that can be implied
(written) in a document through the text, structure law; it is the common law that contains and defines
or purpose of a document these rights and obligations. Some examples of
fundamental rights protected by the common law
Express rights in the Constitution include freedom are the presumption of innocence and the right to
of religion (s 116), the right to vote in Commonwealth a fair trial.
elections (s 41), the right to a trial by jury in federal However, the common law does not offer absolute
indictable cases (s 80) and the right to ‘just terms’ protection of human rights, because common law
where the Commonwealth compulsorily acquires rights are not fixed – that is, rights in the common
property (s 51(xxxi)). These rights are clearly very law, no matter how crucial they may be seen to be,
limited, and over time the High Court has judged that can be removed by any Act of Parliament, because
certain other rights can be implied in the text and any legislation that conflicts with the common law
structure of the Constitution. For example, the High position overrides that common law position. For
Court has on a number of occasions (most clearly in example, strict anti-terrorism laws passed by the
Lange v Australian Broadcasting Corporation (1997) Commonwealth Government in the aftermath of the
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CAMBRIDGE LEGAL STUDIES HSC
11 September 2001 attacks on the United States and • Disability Discrimination Act 1992 (Cth)
the Bali bombings were widely criticised as removing • Age Discrimination Act 2004 (Cth)
long-standing criminal law rights for certain people. • Marriage Amendment (Definition and Religious
The common law cannot be relied upon to develop Freedoms) Act 2017 (Cth)
new rights, as judgements will only define those rights
on a case-by-case basis, if and when a relevant matter Courts and tribunals
is brought before a court. However, it has still been In Australia, all courts and tribunals have some
instrumental in establishing some rights in recent role in applying and enforcing human rights laws.
times. For example, in 2001, in the case of ABC v Lenah Occasionally, courts also play a role in interpreting
Game Meats Pty Ltd [2001] HCA 63, the High Court and developing human rights law. The most important
suggested the possibility of a tort for invasion of privacy. Australian human rights bodies are discussed
In 2008, the Supreme Court of Victoria recognised a further.
person’s right to privacy in Giller v Procopets [2008]
VSCA 236. In that case, privacy was breached by the Australian Human Rights Commission
defendant, who was the plaintiff’s partner, after he (AHRC)
unlawfully showed a private sexual videotape of her to The most significant human rights body in Australia
her friends, family and employer. The High Court has is the Australian Human Rights Commission
yet to determine whether or not this right of privacy (AHRC). It was previously known as the Human
applies in the common law Australia-wide. Rights and Equal Opportunity Commission
On the other hand, in a decision reached on 30 (HREOC). An independent national body, it was
November 2011 in Australian Crime Commission v established under the Australian Human Rights
Louise Stoddart and Anor [2011] HCA 47, the High Commission Act 1986 (Cth) (formerly the Human
Court found that spouses had no right to silence. Rights and Equal Opportunity Commission Act 1986
This overturned a presumption that has existed for (Cth)) to deal mainly with alleged violations of the
hundreds of years and that protected the privacy of Racial Discrimination Act 1975 (Cth) and the Sex
communication within a marriage. Some concern Discrimination Act 1984 (Cth), but to also report
was expressed by civil libertarians about the broader and deal with human rights generally. States and
consequences of this decision. territories also have equal opportunity or anti-
discrimination bodies to oversee compliance with
Statute law state human rights laws.
Over the last half-century, a large body of Australian As Australia’s human rights legislation has
statute law, both Commonwealth and state, that matured, the functions of the AHRC have expanded.
protects human rights has been adopted. While It now has a responsibility to:
many of the laws have been adopted in response to • receive and investigate complaints into
the establishment and ratification of international discrimination and breaches of human rights
treaties protecting rights, some have also been • promote public awareness about human rights
established independently by state or federal and provide legal advice
parliaments. Statute law is a powerful tool in human • conduct public inquiries into human rights
rights protection and many laws have been wide- issues and produce recommendations
reaching, but like common law, rights laid out in • give advice and make submissions to
statute are not fixed – they too can be removed by a parliament and governments on the
later Act of Parliament. development of laws, policies and programs
Some of the most important pieces of human consistent with human rights.
rights legislation in recent times are: The commission has had an important influence
• Racial Discrimination Act 1975 (Cth) on Australia’s laws. For example, in 1997 it conducted
• Anti-Discrimination Act 1977 (NSW). an inquiry into the separation of Indigenous children
• Sex Discrimination Act 1984 (Cth) from their families (known as the Stolen Generations).
• Australian Human Rights Commission Act 1986 The commission’s report, Bringing Them Home,
(Cth) recommended that the Australian Government make
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
8
an apology to the victims. This recommendation
was ignored for over a decade by the Coalition Legal Links
government. However, in February 2008, a landmark
The website of the AHRC (see http://
apology to the Stolen Generations was made by the
cambridge.edu.au/redirect/?id=6271 )
newly elected Labor Prime Minister, Kevin Rudd.
provides detailed information and educational
There have been other important inquiries,
resources on human rights in Australia. It
including inquiries into children in immigration
describes the various complaints procedures
detention, people with mental illness, racial violence
available, and provides advice and guidelines
and same-sex entitlements. In 2010, the commission
on complying with human rights law. It also
played a key role in making recommendations about
contains the results of its inquiries into
the possibility of having an Australian Charter
human rights and reports on all findings of
of Human Rights. However, in 2015 when the
human rights breaches.
commission released the Forgotten Children report
about asylum seeker children, the President of the
Commission, Gillian Triggs, was verbally attacked by
then Prime Minister Tony Abbott for what he saw as High Court of Australia
a biased report. Some pressure was placed on Gillian While matters involving human rights might appear
Triggs to give up her position as president of the before the state or federal courts and tribunals,
commission. However, Professor Triggs refused to it is in the High Court where they often become
budge, citing that she had a five-year term to serve out. most important. This is because the High Court
The Human Rights Commission has two has the power to set precedents that are binding
complaints functions. First, it has the power to on other courts and to overturn state or
investigate many kinds of discrimination, including Commonwealth legislation where it conflicts with
race or ethnic origin, age (young or old), disability the Constitution.
or gender, and can also investigate workplace High Court cases involving human rights include
discrimination relating to sexual preference, trade the decriminalisation of homosexuality (Croome v
union activity or political opinion. The commission Tasmania), a constitutional right to freedom of political
will investigate and try to conciliate the complaint, communication (Lange v Australian Broadcasting
but if it cannot be resolved the complainant can Corporation) and a possible common law right to
take the matter to the Federal Court of Australia, privacy (ABC v Lenah Game Meats). In another case,
which has the power to make enforceable orders on the High Court upheld the constitutional right of all
recommendation of the commission. people to vote, including prisoners (Roach v Electoral
Second, the commission can hear complaints on Commissioner [2007] HCA 43).
many other human rights breaches in Australian law The High Court’s methods of interpretation in
and international human rights law. In these cases, cases involving human rights have been particularly
the complainant is unable to take the matter to the influential, and occasionally controversial. For
Federal Court, but the commission can make a report example, the case of Mabo v Queensland (No. 2)
to the Attorney-General, who is required to table (1992) 175 CLR 1 is one of the most important cases
the report in parliament. While this is an important in Australian law and involved recognition for the
function, these findings are not enforceable and the first time of Australia’s Indigenous peoples’ right to
complainant will have no right to have the wrong title in their traditional land. This principle became
rectified. There are calls for many of these matters known as ‘native title’.
to be made directly actionable in the courts as is the In the decision in that case, international law
case with discrimination cases. was influential for the judges in reaching their
The Human Rights Commission also conducts conclusion. Justice Brennan stated that international
a strong educational program on social media. The law was ‘a legitimate and important influence on
Something in Common project uses Facebook, Twitter the common law, especially when international law
and YouTube to encourage greater community declares the existence of universal human rights
engagement with human rights issues. [and that] a common law doctrine founded on unjust
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CAMBRIDGE LEGAL STUDIES HSC
discrimination in the enjoyment of civil and political law, the High Court is arguably the most important
rights demands reconsideration’. This represents protector of human rights in Australia.
an important step in human rights recognition,
opening up the numerous international human Non-government organisations
rights documents to domestic consideration. Some, As in the international arena, there are numerous
however, have criticised the court for exceeding its NGOs in Australia that work in the area of human
powers, under the doctrine of separation of powers, rights. Like international NGOs, these organisations
and argue that expanding such rights is a matter for play a vital role in researching and reporting on
parliament only. human rights issues, making submissions to state
The power of the judiciary, particularly the High and Commonwealth parliaments or law reform
Court, to protect human rights is critical, especially bodies on human rights, and working in the field
where judges can be influenced by agreed of human rights with victims of rights violations.
international standards, and have the potential to Australian NGOs are important in protecting
apply those standards in the absence of conforming individuals’ rights, shaping public and political
legislation passed by parliaments. Combined with opinion and exposing violations of human rights by
the court’s power to declare legislation inconsistent governments and individuals.
or invalid, to uphold the rights provided for in the
Constitution and to continue to develop the common Legal Links
Some of the more well-known NGOs in
Review 8.5 Australia in the field of human rights include:
• New South Wales Council for Civil
1 Explain why statute law may be a Liberties (NSWCCL) – http://cambridge.
stronger mechanism for enforcing edu.au/redirect/?id=6273
human rights than common law. • Civil Liberties Australia – http://
2 Identify three important human rights cambridge.edu.au/redirect/?id=6274
statutes and describe some of the rights • Australian Council of Social Service
they protect. (ACOSS) – http://cambridge.edu.au/
3 Explain some of the functions of the redirect/?id=6275
AHRC. • Asylum Seeker Resource Centre – http://
4 Critically evaluate the role of the High cambridge.edu.au/redirect/?id=6276.
Court in protecting human rights in
Australia.
The media
Research 8.3 The rights of Australian reporters to disseminate
information and the right of the public to receive
Visit the website of the New South Wales information are not enshrined in law. The freedom
Council for Civil Liberties (http://cambridge. of political communication is protected by the
edu.au/redirect/?id=6272) and complete the Constitution, but in Australia there is not yet any
following tasks. general right to freedom of speech. Nevertheless,
1 Identify when the organisation was Australian reporters, particularly those from the ABC
founded. and SBS, play an important role in investigating and
2 Describe some of the functions of the reporting on human rights on both a regional and
organisation. worldwide basis.
3 Find and discuss some of the cases the
organisation has conducted defending
human rights.
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
8
prohibition on cruel or unusual punishment, a right
to due process, protection against self-incrimination
and protection from unreasonable search and
seizure. The important thing about the US Bill of
Rights is that the rights were given constitutional
force as provisions of the US Constitution, ensuring
their fundamental status in US law and their future
survival.
Other countries have enacted similar bills of
rights by statute; these are highly influential, but
they lack the full force of constitutional provisions.
This form has been preferred by some jurisdictions
as it allows for some future flexibility, while still
declaring protection of the wide range of rights
and giving the judiciary the power to declare any
inconsistent legislation incompatible. For example,
Canada introduced the Canadian Bill of Rights in
Figure 8.15 EngageMedia is a non-profit media,
technology and culture organisation that uses the 1960, New Zealand introduced a Bill of Rights in 1993
power of video, the internet and open technologies to and the United Kingdom enacted the Human Rights
create social and environmental change. Act 1998 (UK). In Australia, both the Australian
Capital Territory (in 2004) and Victoria (in 2006) have
enacted human rights charters – in line with many
of the rights protected under the UDHR, the ICCPR
8.9 A
charter of rights for and the ICESCR – to protect human rights in relation
Australia to their legislation and decisions.
This chapter has shown how human rights are In Commonwealth law, various attempts have
protected internationally by various documents, been made to introduce greater human rights
treaties and organisations. Similarly, Australia protection, but they have failed. The most notable
protects certain human rights by statute, common attempts were in 1944, when the Labor government
law, courts and local organisations. However, tried to introduce constitutional amendments to
the protection of rights in Australia is scattered, guarantee freedom of expression and freedom
and in many cases fragile. Arguably, most rights from want and fear, and the 1983 Australian Human
could be overturned by the simple passing of an Rights Bill. In 1997, the issue of a human rights
Act of Parliament. While Australia currently lives bill was again raised, but it too failed during the
under a peaceful and vibrant democracy, where Constitutional Convention on making Australia a
rights for most people are respected and protected, republic.
history shows that this may not always be the case.
Minorities and non-Australian citizens lack the
benefits that a human rights charter, for example, Legal Links
would give.
Many states have opted to protect their citizens’ The full National Human Rights Consultation
rights through adoption of a bill or charter of rights, Report is available at http://cambridge.edu.
which aims to restrict the power of future parliaments au/redirect/?id=6277. Chapters 12 and 13 of
to reduce or infringe certain rights. For example, the report are relatively short but explain in
in 1791 the United States introduced a series of detail each of the arguments for and against a
constitutional amendments known as the US Bill of charter, respectively. The arguments in Table
Rights. This followed some precedents, notably the 8.1 on page 200 reflect each of the arguments
English Bill of Rights of 1689. The US Bill of Rights examined in the report.
includes numerous rights, such as trial by jury, a
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CAMBRIDGE LEGAL STUDIES HSC
Figure 8.16 Former High Court Justice Michael Kirby is an outspoken proponent of a Charter of Rights for
Australia.
In 2008, on the 60th anniversary of the UDHR, the adopt some form of a charter of rights. The inquiry
then Federal Attorney-General, Robert McClelland, sparked a nationwide debate about the status of
announced an inquiry, called the National Human rights protection, the merits of adopting a charter
Rights Consultation, into whether Australia should and the future of rights in Australia. The consultation
Table 8.1 A summary of all the main arguments put forward by supporters and
opponents of a charter of rights
Arguments for a charter of rights Arguments against a charter of rights
Extremely high community support The adequacy of current human rights protections
in Australia
Remedying the shortcomings of existing human Undermining a tradition of parliamentary
rights protections sovereignty, including transferring legislative
power to unelected judges
Reflecting basic Australian values No better human rights protection is guaranteed
Protecting the marginalised and disadvantaged Potentially negative outcomes for human rights
Improving the quality and accountability of Excessive and costly litigation
government
Supporting a culture of regard for human rights Democratic processes and institutions offer better
protection of rights
Improving how the international community views A major economic cost
Australia with regard to human rights
Bringing Australia into line with other democracies Unnecessarily legalised human rights
Generating economic benefits
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
8
was widely successful. After receiving over 35 000
submissions, conducting 66 community roundtables
and three days of public hearings, and conducting
extensive research into the issue, the consultation
released its report at the end of 2009.
Of all the submissions entered to the
consultation, 95% discussed enacting a charter
of rights or a human rights Act, similar to that of
the United Kingdom or New Zealand. Of all those,
87.4% were in favour of such a charter and only
12.6% were opposed. In April 2010, the Australian
Government rejected the key recommendation of
the National Human Rights Consultation Committee
report: to implement a legislative charter of human
rights. Instead, the government announced that it
would adopt a human rights framework including
various measures, such as education initiatives and
enhanced parliamentary processes. It remains to be
seen whether a future government will decide to act
on the recommendation and implement a compre
hensive charter of human rights and whether its
implementation would have any benefit to minorities
and those most at risk of rights infringement in this
country.
Figure 8.17 Participants at the Eritrea vigil in London
on 17 May, 2015 protesting against the Eritrean
government’s religious policies.
Research 8.4
Read all the arguments for and against adopting a charter of rights, then review the more detailed
arguments contained in chapters 12 and 13 of the National Human Rights Consultation Report (see
http://cambridge.edu.au/redirect/?id=6277) and complete the following tasks.
1 Research at least three arguments for and three arguments against introducing a charter in the
report.
2 Explain in detail what the argument consists of and any arguments against it.
3 The Rudd government in 2010 failed to attempt to introduce a charter of human rights. Should a
future government try again?
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CAMBRIDGE LEGAL STUDIES HSC
Chapter summary
• Protection of human rights differs • Australia incorporates international treaties
internationally and domestically. into domestic law by legislation.
• State sovereignty can be used to promote or to • The Australian Constitution enshrines some
hinder human rights. minimal human rights.
• The various UN bodies and international courts • Most Australian human rights are found in
have differing roles to play in the protection of statute or in common law.
human rights. • The High Court has a crucial role in upholding
• The Responsibility to Protect is a UN doctrine human rights in the Constitution and common
that attempts to make the prevention of human law.
rights abuses the collective responsibility of the • Freedom of speech and freedom of information
international community. are essential for a healthy democracy and the
• Many IGOs and NGOs play an important role in maintenance of the rule of law.
promoting human rights internationally. • A charter of rights for Australia was considered
• The UNHRC can hear complaints submitted in 2010 but the government at the time decided
directly by citizens of states. against going ahead despite strong public
• The ICC was the first permanent international support. There are many arguments for and
court to deal with violations of human rights against a charter.
and crimes against humanity.
Questions
Multiple-choice questions 3 Which of the following is not protected by the
1 Which of the following is not an organ of the Australian Constitution?
UN? A The right to vote
A Security Council B The right to religious freedom
B International Committee of the Red Cross C The right to privacy
C Secretariat D The right to federal trial by jury
D Economic and Social Council
4 The separation of powers in Australia is best
2 Which of the following best describes the described by which of the following?
Responsibility to Protect? A The separation of parliament, the army and
A States have the sole responsibility to protect the judiciary
their populations from human rights abuses. B The separation of legislative power between
B The international community has the the Commonwealth and the states
responsibility to intervene whenever there C The separation of parliament, the executive
are human rights abuses. and the judiciary
C The responsibility to protect people’s D The separation of parliament, the judiciary
human rights is shared between the state and the Senate
and the collective international community.
D The responsibility to protect people’s
human rights is shared between the
UN Security Council and the collective
international community.
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CHAPTER 8 PROMOTING AND ENFORCING HUMAN RIGHTS
8
5 Which of the following contains only arguments Chapter summary questions
for a charter of rights? 1 Assess how state sovereignty can either be
A Reflecting basic Australian values; high used to uphold human rights or to shield a
community support; excessive and costly government from international action resulting
litigation from human rights violations.
B High community support; adequacy 2 Describe the role of the various organs of the
of current human rights protections; UN in protecting human rights.
generating economic benefits 3 Describe the role of the various international
C Improving Australia’s international courts in enforcing human rights.
standing; reflecting basic Australian values; 4 Assess the High Court’s ability to protect
transferring legislative power to unelected human rights.
judges 5 Is an Australian charter of human rights still
D High community support; improving the worth pursuing?
quality and accountability of government;
redressing the inadequacy of existing
protections
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Chapter 9
Contemporary human
rights issues
Chapter objectives
In this chapter, students will:
• identify and apply legal terminology to contemporary human rights issues
• describe how international and domestic law are used in the promotion of human rights
• discuss ways in which the law is used to deal with human rights issues
• explain the role of the law in educating the public about human rights and encouraging cooperation as
a means of progress on human rights issues
• evaluate the effectiveness of legal measures to promote human rights
• communicate legal information about contemporary human rights issues using logical and well-
structured arguments
• analyse the operation of international law and domestic legal systems in promoting human rights.
Issue 1 Human trafficking and slavery
Issue 2 Child soldiers
Issue 3 Exploitation of workers – digital versions only
Note that to meet the requirements of the NSW Legal Studies syllabus, only one of these three issues must
be studied.
Legal oddity
Researchers at Georgia State University tracked Islamic State (IS) propaganda and eulogies over 13 months.
The data, published by the US military’s Combating Terrorism Center at West Point, claimed 89 boys aged
eight to 18 had been killed fighting in a number of various warfare roles. Between January 2015 and January
2016, 39% of the boys were killed in suicide car bombings and 33% in battle.
The number of children who have died fighting for IS in the last year is nearly twice the previous estimate.
The researchers also found that three times as many children were involved in operations than during 2014.
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Issue 1:
Human trafficking and slavery
Key terms/vocabulary
child soldier forced marriage
contemporary slavery human trafficking
debt bondage people smuggling
forced labour sexual slavery
Relevant law
IMPORTANT LEGISLATION AND TREATIES
Slavery Convention (1926) Protocol to Prevent, Suppress and Punish
Universal Declaration of Human Rights (1948) Trafficking in Persons especially Women and
Supplementary Convention on the Abolition of Children (2000)
Slavery, the Slave Trade and Practices Similar to Trafficking Victims Protection Act of 2000 (US)
Slavery (1956) Criminal Code Amendment (Trafficking in Persons
Criminal Code Act 1995 (Cth) Offences) Act 2005 (Cth)
Criminal Code Amendment (Slavery and Sexual
Servitude) Act 1999 (Cth)
SIGNIFICANT CASES
R v Tang (2008) 237 CLR 1
R v Wei Tang (2009) 233 FLR 399
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
9.1 C
ontemporary slavery forced labour. Forced labour is work performed
The history of slavery and the advancement of the
under the threat of a penalty or harm (such as 9
threat of hardship, detention, violence or even
abolitionist movement were discussed in Chapter 7.
death to the person or to another person); it
As discussed in that chapter, the worldwide
is work that the person has not voluntarily
movement to abolish slavery began in the 18th
submitted to. Victims might include domestic
century. It culminated in the development of
workers and workers in factories or sweatshops,
numerous anti-slavery treaties in the 20th century,
mining and agriculture or construction. A
leading eventually to the abolition of slavery. Article
person may, for example, be lured by the
4 of the 1948 Universal Declaration of Human Rights
promise of a legitimate job opportunity and
(UDHR) states: ‘No one shall be held in slavery
instead be forced to work without pay or while
or servitude; slavery and the slave trade shall be
enduring physical abuse. It can often be difficult
prohibited in all their forms.’
for authorities to find such individuals or groups.
Today, almost every country has enacted laws
• debt bondage – the United Nations (UN)
officially abolishing slavery, and by doing so has
defines debt bondage as ‘modern-day slavery’,
undertaken to end the practice within its own
often a form of forced labour. Debt bondage
borders. Minimum working conditions have been
is where a person is forced to repay a loan
established, as have complex laws on the migration
with labour instead of money. Debt bondage
and movement of individuals across international
also involves the proper value of the labour
borders. Yet despite this, slavery is still far from being
not being applied towards repayment of the
an issue of the past. Illegal slavery and the trade and
debt, and/or the type or duration of services
trafficking of human beings continue to this day,
not being properly limited. In many cases, the
including in developed countries such as Australia.
person may be deceived into paying extremely
It is difficult sometimes to look at a situation today
high rates of interest, making it impossible
and be able to label it slavery, because as a society
to repay the debt. They might be tricked or
we tend to think of slavery as something from the
trapped into working for no or very little money,
past that no longer exists.
or have unreasonable expenses deducted from
As contemporary slavery involves illicit
any pay or added to the debt. In some cases,
activity, accurate statistics describing the extent
children of the borrower may be forced to repay
of the problem are difficult to obtain; and it can be
the debt across generations.
difficult to recognise some activities as slavery. The
• sexual slavery – this involves repeated
International Labour Organization (ILO) estimates
violation or sexual abuse or forcing the victim
that at least 40 million adults and children were
to provide sexual services. It can take many
in forced or bonded labour, or commercial sexual
forms, including forced prostitution, single-
servitude in 2016. This is more people than at any
owner sexual slavery, slavery associated with
other time in history.
religious practices or other types of slavery,
Refer, for example, to the websites for Anti-
such as forced labour where sexual abuse
Slavery International (http://cambridge.edu.au/
is also common. Sexual slaves are usually
redirect/?id=6278) and iAbolish (http://cambridge.
women and children. The victims might be
edu.au/redirect/?id=6279).
captured, coerced, deceived or even sold by
contemporary slavery their own families or acquaintances into sexual
a form of forced or bonded labour, with or without pay, slavery. The Vienna Declaration and Programme
under threat of violence
of Action calls for an international response
to this. Sexual slavery’s most problematic
Contemporary slavery can take a number of
aspect is commercial sexual exploitation of
forms. The main categories include:
children in the form of child prostitution, child
• forced labour – the ILO estimates that at least
pornography and sex tourism.
25 million people in the world are subjected to
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CAMBRIDGE LEGAL STUDIES HSC
9.2 H
uman trafficking and
slavery
Today, many victims of slavery are forced into
slavery by way of human trafficking, which is the
commercial trade or trafficking in human beings
for the purpose of some form of slavery. It includes
recruiting or transporting a person for forced labour
or debt bondage, or providing or obtaining a person
for forced labour or debt bondage by use of force,
fraud or coercion, or trafficking people for sexual
slavery. The Protocol to Prevent, Suppress and
Punish Trafficking in Persons especially Women
and Children was adopted by the UN in 2000; it has
since been ratified by 173 countries, and entered into
force in 2003. It is a protocol to the UN Convention
against Transnational Organised Crime (2000).
Figure 9.1 In some countries, girls as young as 15 are
forced into marriages with much older men. human trafficking
the commercial trade or trafficking in human beings for
the purpose of some form of slavery, usually involving
forced labour debt bondage recruiting, transporting or obtaining a person by force,
work performed under the a situation where a person coercion or deceptive means
threat of a penalty or harm is forced to repay a loan
and which the person has with labour instead of
Human trafficking is a complex crime involving
not voluntarily submitted money, where the proper
to value of the labour is some of the most serious violations of human rights.
not applied towards It should be distinguished from people smuggling,
repayment, and/or the type
or duration of services is which is where people voluntarily pay a fee for the
not properly limited smuggler’s service, not necessarily involving any
deception. With people smuggling, the people are
sexual slavery usually free to continue on their own after arrival,
repeated violation or sexual abuse or forcing of a victim to often in the hope of starting a new life in the new
provide sexual services; it often takes the form of forced
prostitution or forced labour where sexual abuse is also country. With human trafficking, however, the victim
common will usually be exploited or forced into performing
some sort of labour or service on arrival.
There are other more specific situations that may
result in conditions of slavery, which might arguably people smuggling
illegal transportation of people across borders, where
fall into one or more of the categories above. They people voluntarily pay a fee to the smuggler, and then are
include domestic workers kept in captivity, the usually free to continue on their own after arrival in the
hope of starting a new life in the destination country
adoption of children who are in effect forced to work
as slaves, child soldiers and those pushed into a
Human trafficking can involve a whole line of
forced marriage.
criminal activity, from recruitment and harbouring
of victims, to transport and sale, to obtaining or
child soldier forced marriage
a person under the age marriage in which one or buying and finally exploiting that person in slavery
of 18 who participates, both parties is married or forced labour. Victims of human trafficking can be
directly or indirectly, in against their will, often
armed conflict as part of on promise of payment recruited in a number of ways (for example, they may
an armed force or group, of money or goods to the be lured by a false job offer or offer of migration or a
including both armed and family of the other person
marriage proposal). In other cases, victims may be
support roles involved
sold by family members, recruited by former slaves,
deceived, intimidated or even physically abducted.
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
over 2.5 million victims of human trafficking across
state borders. However, this does not include the 9
millions of people trafficked within their own
countries, which is especially difficult to detect.
According to the UN’s Global Report on Trafficking in
Persons, sexual exploitation is the most documented
type of trafficking because it is more frequently
reported by countries; instances of forced labour
and debt slavery, as well as forced marriage and
domestic servitude, may be less well documented.
The ILO estimates that at least 57.6% of all forced
labour victims are women and girls. This is part of a
much wider problem – the place and value of women
in society – in developing countries.
Figure 9.2 Many victims of human trafficking are It is a global problem involving people of many
children.
nationalities trafficked in many countries, including
Australia, the United States and European Union
The victims might be falsely imprisoned or states. While many victims come from developing
threatened, or bonded with debt; or it might be countries, poverty is not the sole source of the
practically impossible for the victim to survive problem, which is driven by fraudulent recruiters,
outside. Victims might be exploited in a commercial exploitative employers and corrupt officials, all
industry, such as the commercial sex industry or seeking to reap profits from the victims’ exploitation.
agriculture or mining, or in a private residence Siddharth Kara, an expert of human trafficking
(for example, in a forced marriage or as domestic and slavery, has suggested that profits from human
workers). Thailand and Brazil are considered to have trafficking worldwide are well over US$150 billion,
the worst child trafficking statistics. which, according to the ILO in 2015, makes it second
only to drug trafficking. Regardless of the numbers,
human trafficking is an important issue and affects
9.3 E
xtent of human trafficking almost every country in the world – whether as a
Estimates of the number of people trafficked across source, transit or destination country. The following
international borders vary dramatically. The UN section explores some of the measures adopted
Office on Drugs and Crime estimates that there are worldwide to combat the problem.
Legend
Countries of origin:
Moderate number of people
High number of people
Very high number of people
Countries of destination:
High number of people
Very high number of people
Figure 9.3 Human trafficking – countries of origin and destination
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CAMBRIDGE LEGAL STUDIES HSC
Case Study
Human trafficking – victims’ stories
The following stories are extracted from the US Department of State’s Trafficking in Persons Report
for 2015. They illustrate some of the suffering of victims of human trafficking and the different places
and circumstances in which it can occur.
• With the help of a labor broker, 16-year-old Lok left Nepal for a job in Qatar. He was too young to legally
migrate for work, but the broker who recruited him obtained a fake passport so Lok would appear to be 20
years old. The broker charged Lok an illegally high recruitment fee, so he left with a large debt that he had
agreed to pay back at a 36 percent interest rate. Two months later, Lok died of cardiac arrest while working
in harsh conditions. Migrant workers in parts of the Gulf, including Qatar, have complained of excessive
work hours with little to no pay in scorching heat. Many workers also allege their housing complexes are
overcrowded and have poor sanitation. Lok’s parents received no money for his two months’ work.
• Thema paid approximately $1480 to Sierra Leonean recruiters who promised her a nursing job or
hotel work in Kuwait. Upon her arrival in Kuwait, however, Thema was instead forced to work as a
domestic worker for a private Kuwaiti family. Thema worked all day, every day without compensation.
Her employers forbade her from leaving the house or from using a cell phone. The family eventually
returned Thema to her recruiter, taking advantage of a guarantee allowing them to obtain a refund
for domestic workers they are not happy with. She ran away from the recruiter to the Sierra Leonean
Embassy and was placed in a Kuwaiti government-run shelter with approximately 300 other former
domestic workers. Thema likely faces the same fate as other trafficking victims in Kuwait who run away
from private homes – the cancellation of her residence permit and deportation.
• When she was 14 years old, Cara met Max while on vacation in Greece with her mother. She fell in love
with him and, after only a few weeks, Max persuaded her to move in with him, rather than return to
England. He soon broke his promise to take care of her and forced Cara to have sex with strangers. Max
first convinced her that the money she made was helping to keep them together; he later threatened
to kill her mother if she tried to stop. In time, Max gave Cara to another trafficker who forced her to
send postcards to her mother depicting a happy life in Athens. Cara eventually suffered an emotional
breakdown and, once hospitalized, was able to ask for help. Hospital staff contacted her mother, who
had no knowledge of Cara’s abuse. They returned to England, where Cara is rebuilding her life and
aspires to help other trafficking victims.
• Tanya was only 11 years old when her mother traded her to a drug dealer for sex, in exchange for
heroin. Both Tanya’s mother and the drug dealer have been indicted on multiple charges, including sex
trafficking. In addition, the drug dealer was accused of rape as well as videotaping his sex crimes. At
the end of the school year, after four months of such abuse and being forced to take heroin, Tanya went
to live with her father and stepmother and confided in them about what had happened. Both her mother
and the drug dealer face the possibility of life in prison if convicted on all counts.
Review 9.1
1 Identify the form or forms of slavery applicable to each story featured above.
2 Explain how each of these individuals was trafficked – describe the methods used and the
purpose for which they were trafficked.
3 Describe the person or people likely to benefit from the victim’s exploitation in each of these
instances. Identify where any profit was likely to be involved.
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
including, for example, debt bondage, forced
Legal Links marriage and child slavery. 9
Although these treaties provided for the official
The US Department of State releases an
abolition of slavery worldwide, they did not address
important annual report on human trafficking
issues of illicit slavery and human trafficking. Greater
titled the Trafficking in Persons Report.
awareness of human trafficking and international
The report contains detailed information
pressure to deal with it grew, particularly at the end
on measures against human trafficking
of the 20th century, culminating in 2000 with the
worldwide, including the status of current
UN General Assembly’s adoption of the Protocol
national legislation, and on prosecution
to Prevent, Suppress and Punish Trafficking in
and prevention of human trafficking and
Persons especially Women and Children, as part of
protection of victims.
a larger treaty tackling transnational crimes.
The report also lists each country
The protocol entered into force in 2003 and was
according to its development or success in
the first legally binding instrument with an agreed
combating human trafficking, and places
definition of human trafficking. It aimed to provide
them in different levels or ‘tiers’. The most
an umbrella of overall protection, outlining an
recent report is available on the Department
appropriate regime of protection, prosecution and
of State’s website (see http://cambridge.edu.
prevention in order to effectively and more uniformly
au/redirect/?id=6280).
combat human trafficking. It was designed for
member states to enact into the most appropriate
domestic laws. The protocol has created greater
Research 9.1 global awareness of the issue, greater conformity in
national laws that tackle the various issues of human
Looking at the latest edition of the US trafficking, and better cross-border cooperation in
Trafficking in Persons Report, make a brief investigating and prosecuting violations.
list of some of the highest (tier 1) and lowest As of 2018, there were 173 state parties to the
(tier 3) ranked countries, then complete the protocol. In the past few years the number of states
following tasks. seriously implementing the protocol has more than
1 Identify any patterns you can find in the doubled. However, there are still many countries
highest and lowest country rankings. that do not have the required legal instruments
2 Choose one country featured in the
report. Find more detailed information on
that country and summarise its progress.
9.4 R
esponses to human
trafficking and slavery
Legal responses
International responses
Legal responses to human trafficking began with
the worldwide abolition of slavery, largely in the
early 20th century through the Slavery Convention
of 1926. This treaty was expanded in 1956 by the
Supplementary Convention on the Abolition of Slavery,
the Slave Trade and Practices Similar to Slavery, which Figure 9.4 Human trafficking campaign sign outside
clarified and expanded the definition of slavery, the UN building in New York
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CAMBRIDGE LEGAL STUDIES HSC
or political will. Although the protocol has been
reasonably successful, there is still a lot of progress
to be made that will require considerable resources,
focus and cooperation.
Research 9.2
A link to the full text of the Protocol to Prevent,
Suppress and Punish Trafficking in Persons
especially Women and Children is available at
http://cambridge.edu.au/redirect/?id=6281.
Look at the text of the protocol and
complete the following tasks.
1 Looking at both the Preamble and art
2 of the protocol, summarise the main
reasons for the treaty being created. Figure 9.5 The Australian Federal Police (AFP) plays
an important role in detecting and investigating cases
2 Identify the article containing the
of human trafficking.
definition of human trafficking and
explain how this might apply to the
various types of and participants in to the federal Criminal Code in the Criminal Code
human trafficking. Amendment (Trafficking in Persons Offences) Act
3 Describe the purpose of Parts II and III 2005 (Cth). The current provisions are found under
to the protocol and evaluate how these Divisions 270 and 271 of the Criminal Code Act 1995
might improve the effectiveness of the (Cth); they include penalties of up to 25 years’
treaty. imprisonment for some offences. Similar offences
also included under state and territory legislation
include:
• Division 270 – Slavery, sexual servitude and
Domestic responses deceptive recruiting. This division contains
Although opportunities for trafficking into Australia offences including possession of a slave,
may be fewer than for some other countries, due to engaging in slave trading and entering into
geographic isolation and strong migration controls, any commercial transaction involving a slave.
Australia is still a destination country for victims of It also contains prohibitions on the deceptive
trafficking, particularly those from Asia, Southeast recruiting of a person for sexual servitude.
Asia and Eastern Europe. • Division 271 – Trafficking in persons and debt
The Australian Government established a human bondage. This division makes it an offence to
trafficking strategy in 2003 and since then has traffic in adults or children, internationally or
dedicated almost $60 million to tackling the problem. domestically. It also contains offences relating
This strategy covers the full trafficking cycle, from to debt bondage, forced labour and the trade in
recruitment to reintegration, and the key areas of human organs.
prevention, detection and investigation, prosecution Additional measures have been introduced by
and victim support are all given the same weight. the Australian Government since 2003, in particular
Australia ratified the Protocol to Prevent, Suppress under the 2004 Commonwealth Action Plan to
and Punish Trafficking in Persons especially Women Eradicate Trafficking in Persons. In 2008, the federal
and Children with effect from 14 October 2005. government introduced new measures under
Australia first introduced sexual slavery laws the Commonwealth Government Anti-Trafficking
with the Criminal Code Amendment (Slavery and Strategy.
Sexual Servitude) Act 1999 (Cth). It refined these and
added more specific human trafficking offences
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
In Court 9
R v Tang (2008) 237 CLR 1; R v Wei Tang (2009) 233 FLR 399
This involved Australia’s first jury conviction under the slavery provisions of Division 270 of the
Commonwealth Criminal Code. It involved a brothel owner, Wei Tang, who was accused of bringing five
women from Thailand to work in a licensed brothel in Fitzroy, Melbourne, under unlawful conditions
of debt bondage and slavery.
The women arrived in Australia on validly obtained tourist visas, although in their visa applications
they had not stated that the true purpose was to work. The women had worked in the sex industry in
Thailand, and voluntarily entered into agreements with a broker. Wei Tang then purchased them from
a Thai recruiter for $20 000 each.
Each woman was required to repay a debt of $45 000, and the repayments formed the basis of the
slave trading charges. When the women arrived, Wei Tang withheld the women’s passports as well
as their return plane tickets, and the women were told the debt was to be repaid by working six-day
weeks over seven to eight months. Each client serviced by the women counted towards $50 off the
payment, amounting to a total of 900 clients required to repay the debt. If the women worked on the
seventh day as well, they were permitted to keep $50 per client for themselves.
The women were not normally kept locked in, but they had little money and limited English, and
their passports were retained. Because their visas had been illegally obtained, they were afraid of
immigration authorities, and they were required to work extremely long hours. However, there was
no evidence that Wei Tang had physically abused the accused, and after six months two women had
paid off their debts, and were able to choose their working hours and be paid for their work.
In 2006, Wei Tang was convicted of five counts of intentionally possessing a slave and five counts
of intentionally exercising a power of ownership over a slave, contrary to section 270.3(1)(a) of the
Commonwealth Criminal Code, and sentenced to
10 years’ imprisonment. However, the conviction
was overturned and ordered for retrial in the
Victorian Court of Appeal in 2007 on the basis that
the judge had misdirected the jury on the meaning
of the term ‘slavery’, and should have instructed
them that the prosecution needed to prove that
Wei Tang knew or believed the powers she was
exercising were powers attaching to ownership.
The prosecution then appealed to the High
Court of Australia, where the original conviction
was upheld in 2008 by a six-to-one majority. The
High Court found that the prosecution needed
only to prove Wei Tang’s intent to exercise
powers attaching to ownership, and that Wei
Tang had had ‘the power to make each woman
an object of purchase, the capacity to use the
women in a substantially unrestricted manner
for the duration of their contracts, the power to
control and restrict their movements, and the
power to use their services without [adequate]
compensation’. Figure 9.6 Wei Tang
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CAMBRIDGE LEGAL STUDIES HSC
Some of the measures introduced include: Non-legal responses
• increased specialist training and funding for There are many programs and organisations, both
the Australian Federal Police to detect and international and domestic, that aim to combat
investigate human trafficking operations the causes, organisation, execution and effects of
• additional funding and training for the human trafficking worldwide.
prosecution of human trafficking through the
Commonwealth Director of Public International responses
Prosecutions At the international level the UN, the ILO and various
• a National Policy Strategy to combat trafficking NGOs are involved in combating slavery and human
in women for sexual servitude trafficking. The UN has established a Global Initiative
• victim support measures and special visa to Fight Human Trafficking (UN.GIFT), which aims to:
arrangements to support victims of trafficking • increase awareness about human trafficking
• a targeted Communication Awareness Strategy • assist non-state actors (such as NGOs) in their
that gives information about trafficking and the anti-trafficking campaigns by encouraging
help available cooperation and joint action between NGOs
• cooperation with regional and international and the efficient prosecution of criminals
agencies in tackling the sources of human • reduce the demand for the exploitation of
trafficking and prosecuting offenders. people and the vulnerability of potential
The Australian Government has made a number victims, and ensure support for victims who
of prosecutions under the criminal provisions, in have escaped.
particular the case of Wei Tang, which is described The ILO also plays a crucial role in implementing
in the ‘In Court’ box on page 213. One of the serious and reporting on workers’ rights worldwide. The
problems in Australia’s enforcement campaign ILO has campaigned ceaselessly against forced
has been the issue of protection visas and threat of labour. In 2001, the ILO established a Special Action
deportation of victims on discovery by authorities. Programme on Forced Labour (SAP-FL) to attempt
This can effectively deprive the system of necessary to raise global awareness of forced labour in its
witnesses and can have the effect of punishing the different forms. It has undertaken several worldwide
victims of the crimes. A number of government and country-specific studies and surveys on a
proposals in recent years have attempted to address range of aspects of forced labour, including human
these deficiencies; their effectiveness remains to be trafficking, bonded labour, rural servitude, forced
seen in future prosecutions. domestic work and forced prison labour.
Review 9.2
Read the media article on page 213 and
answer the following questions.
1 Identify the section and division of the
Commonwealth Criminal Code under
which Wei Tang was prosecuted.
2 Describe where the women came from
and how they came to be working in
Australia.
3 Outline the conditions of the ‘contract’
that Wei Tang had made with the women.
4 Describe some of the conditions that led
to a finding of the women being kept as
slaves, and outline the powers that Wei
Tang was found to have exercised.
Figure 9.7 An anti-human-trafficking poster
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
As discussed in Chapter 8, NGOs play an and diplomatic representatives to stop trafficking.
extremely important role in combating human rights One of the United States’ most important efforts has 9
abuses (for example, by reporting on and exposing been the US Department of State’s detailed annual
abuses, by researching and informing the public Trafficking in Persons Report (TIP Report).
and governments on incidents and patterns of In Australia, there are also a number of NGOs
abuse, and by working to combat causes, incidents that make an indispensable contribution to fighting
of or effects of abuse). NGOs involved in combating all forms of modern slavery. The media also plays a
human trafficking and slavery include: role informing the public about the existence and
• Anti-Slavery International (see http:// nature of modern slavery in this country. Films, books
cambridge.edu.au/redirect/?id=6278), an and documentaries have also played an important
international NGO founded in 1839 and based in role. For example, in July 2006 SBS aired Trafficked,
the United Kingdom; it aims to draw attention a documentary about sex slavery in Australia which
to the continuing problem of slavery worldwide was watched by over 500 000 viewers. Trafficked
and campaign for recognition and action in the shocked the country and acted as a catalyst for
countries most affected today. some victims of trafficking to lodge compensation
• American Anti-Slavery Group, iAbolish (see claims. As the director, Luigi Acquisto, said, ‘the
http://cambridge.edu.au/redirect/?id=6279), film made legal history and set precedents for future
an anti-slavery NGO that works on awareness, victims’.
advocacy and aid, and focuses primarily on Australian universities are also crucial in
slavery in Sudan and Mauritania. researching and reporting on trends in human
trafficking in Australia. For example, University of
Legal Links Technology Sydney’s Anti-Slavery Project began
in 2004; it is dedicated to the elimination of modern
• UN.GIFT – for more information on the slavery in all its forms through collaboration with
UN.GIFT initiative, see the website http:// government agencies and community groups. The
cambridge.edu.au/redirect/?id=6283. University of Queensland established a Human
• ILO – information on the ILO’s forced labour Trafficking Working Group in 2008; it researches and
program, SAP-FL, is available at http:// analyses cases and statistics on human trafficking
cambridge.edu.au/redirect/?id=6284. and slavery in Australia.
Effectiveness of responses
At the international level, the problem of modern
Domestic responses slavery is showing no signs of going away. The
Actions by states are also crucial in combating main contributors to the risk of people trafficking
slavery. As mentioned earlier, the United States plays and slavery and the difficulty in preventing it have
a significant role in combating human trafficking been identified as:
worldwide. The United States first began monitoring • Developing states do not have the resources
human trafficking in 1994 and has broadened its to fight these forms of exploitation and
reporting over the years to cover all main forms of transnational crime.
contemporary slavery. In 2000, the United States • There are socio-political and economic factors
passed the Trafficking Victims Protection Act. This driving the movement of people from one place
established the Office to Monitor and Combat to another.
Trafficking, which has initiated programs and In a globalised economic system there is an
provided millions in grants to organisations around increased demand for all types of labour, legal
the world. It has assisted many countries with and illegal. This demand is exploited by criminal
training, investigating and prosecuting offenders, organisations, and vulnerable people are trafficked
and with protection of victims from abuse. In 2004, as victims to meet this demand. Poverty in source
the United States established a centre to coordinate countries, combined with a lack of both education
the activities of federal agencies, police, intelligence, and the rule of law, can contribute to the vulnerability
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CAMBRIDGE LEGAL STUDIES HSC
of victims and the success of recruiters’ coercive or that crime was becoming increasingly recognised
deceitful techniques. in the Asia–Pacific region, with a 30% increase in
The implementation and enforcement of prosecutions in one year in Indonesia, and legislation
international treaties, especially the 2000 protocol, now in place in over half of the Pacific Island nations.
is left up to national governments. While some Regional reform has been key: many technical
states vigorously pursue offenders, others may be assistance programs and policy frameworks have
unwilling or unable to effectively tackle the problem. been produced or managed by regional bodies, and
The UN, the ILO and NGOs all play a crucial role Australia has played a particularly important role.
in encouraging such countries to continue their We cannot expect much change in the short
efforts, and reporting mechanisms such as the US term to the economic drivers of migration and
TIP Report help expose the continuing deficiencies people movement, but improved awareness and
of these countries’ efforts. monitoring of vulnerabilities, including locations,
The 2012 TIP Report lists Australia as a tier 1 best sectors and businesses where trafficking occurs,
practice country, but identifies a number of areas will help prevent and reduce trafficking in people in
where improvements can be made. The report noted Australia and the wider region.
Legal Links Review 9.3
• Anti-Slavery Australia – information 1 Describe some of the efforts of the
on the Anti-Slavery Project is UN and the ILO in tackling human
available at http://cambridge.edu.au/ trafficking.
redirect/?id=6278. 2 Explain the role of the media, NGOs and
• Human Trafficking Working Group – other non-legal responses in combating
research, case reports and statistics human trafficking. Evaluate how these
on human trafficking in Australia are groups can complement the legal
available at http://cambridge.edu.au/ measures in place.
redirect/?id=6285. 3 Critically evaluate the effectiveness of
• Trafficked – further information on legal and non-legal responses to human
the SBS documentary Trafficked is trafficking based on consideration of
available at http://cambridge.edu.au/ the causes of and drivers behind the
redirect/?id=6286. problem.
Figure 9.8 On the International Day for the Abolition of Slavery, 2 December, IOM Ukraine opened a public art
installation titled Invisible in Plain Sight. The installation was to raise awareness about trafficking in human
beings and tell the real stories of its victims who live among us, but often remain unseen.
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Issue 2:
Child soldiers
Key terms/vocabulary
child soldier press-ganging
human shield war crime
Relevant law
IMPORTANT LEGISLATION AND TREATIES
Defence Act 1903 (Cth) Rome Statute of the International Criminal Court
Universal Declaration of Human Rights (1948) (1998)
Declaration of the Rights of the Child (1959) ILO Worst Forms of Child Labor Convention (1999)
United Nations Convention on the Rights of the Optional Protocol to the Rights of the Child on the
Child (1989) Involvement of Children in Armed Conflict (2000)
SIGNIFICANT CASES
Prosecutor v Thomas Lubanga Dyilo ICC-01/04-01/06
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CAMBRIDGE LEGAL STUDIES HSC
9.5 D
efining the issue of child In some countries, children are also recruited into
soldiers armed forces as child soldiers.
Children, like adults, are entitled to the protection of child soldier
human rights. The Universal Declaration of Human a person under the age of 18 who participates, directly or
Rights (UDHR) is intended to be universally applied, indirectly, in armed conflict as part of an armed force or
group, including both armed or support roles
and the rights it declares apply to children and
young people just as they do to adults. However,
Children have been involved in military
children have less power in society and thus may
campaigns in many cultures throughout history,
be more susceptible to victimisation and human
even when their use was widely condemned by
rights violations than the average adult citizen.
society. For example, child soldiers have been
The special vulnerability of children is recognised
documented as having participated as aides, scouts,
in art 25 of the UDHR, which provides that children
support personnel or in historical events such as
are ‘entitled to special care and assistance’. In
the Children’s Crusade of medieval Europe in 1212,
1959, the UN expanded on this with the adoption
as drummer-boys under Napoleon in the Battle of
of the Declaration of the Rights of the Child. The
Waterloo, as young militia in the Spanish Civil War,
declaration restates several provisions of the UDHR
and in the Hitler Youth in Nazi Germany during
as applicable to children, adding that children need
World War II.
‘special safeguards and care, including appropriate
In the 20th century, many international
legal protection, before as well as after birth’.
campaigns were undertaken to stop the participation
Although significant progress has been made in
of children in armed conflict and to bring about
children’s rights in the last century, many children
greater awareness of their exploitation. However, the
across the world today are still denied basic human
use of children is still widespread in some areas of
rights or have those rights violated; for example,
the world, particularly areas where instability is rife.
children in some countries are denied the right
The use of children in armed conflict will usually be
to education or to a fair trial, and suffer violence,
highly exploitative, and is often considered a form of
or punishment by cruel and inhumane methods,
contemporary slavery or human trafficking. Children
including, in some countries, the death penalty.
are often unlawfully recruited though the use of
force, intimidation or deception, and are used for
labour in conflict areas, or sexually exploited.
Figure 9.9 The UDHR (1948) and the Declaration of the
Rights of the Child (1959) started the process of giving Figure 9.10 The Islamic State or ISIS openly recruited
global recognition to the rights of children. These children to be soldiers and encouraged them to
rights are not enforced equally around the world. commit atrocities.
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
Children in armed conflict are likely to be exposed human shield
to high levels of danger or abuse and significant the placement of civilians in or around military targets to
deter the other party from attacking that target
9
psychological trauma. They may also be injured or
killed, or suffer other kinds of serious harm. Groups
may target children for use in armed conflict because
they are seen as free and expendable labour, or as 9.6 E
xtent of the issue
easier to abduct or manipulate. Children may also be
It is impossible to calculate how many children
more willing than adults to take risks, while the other
around the world are involved in armed conflict as
side may also be less inclined to suspect children,
child soldiers, but the issue has come to the public’s
or may hesitate to attack where children are present.
attention due to conflicts in Sierra Leone, Liberia,
Children are particularly vulnerable to military
Uganda and Iraq that involve heavy use of child
recruitment – they may be more easily manipulated,
soldiers. Child soldiers may serve in government
their youth makes it harder for them to resist, and
armies, but they also serve also in government-
they do not fully understand the conflicts they are
linked militias and opposition or rebel forces, where
being recruited for.
reliable data are unavailable. Some countries may
The parties recruiting children can be
have inadequate procedures to verify the ages of
government forces, paramilitary organisations or
new recruits. In other countries, low levels of birth
rebel groups. Children might be recruited at home,
registration mean that children may be inadvertently
on the street or even at school, or they might be
or even deliberately recruited; in Paraguay, for
physically abducted by recruiters. They might even
example, this assisted forced conscription of
be forcibly conscripted by governments. In many
children as young as 12.
cases, children ‘voluntarily’ join armed groups: there
The NGO Peace Direct estimates that the number
are social or economic pressures on them, and they
of child soldiers in the world is about 250 000, while
believe that joining the group will get them food or
Human Rights Watch says that it could be as much
security. In other cases, children may be abducted
as 300 000. The UN reported 57 armed groups
or press-ganged by armed groups.
worldwide using child soldiers.
press-ganging
For example, recent conflicts in Sri Lanka,
the act of forced conscription used in England during Uganda, Colombia, Myanmar (Burma), Iraq, Israel
the 1800s; groups of men known as press gangs were and the Occupied Palestinian Territories and Sudan
employed by the government to recruit people forcibly
into lifetime service with the armed forces have involved some use of child soldiers. In one of
the worst cases, in Uganda, the rebel group Lord’s
Children are usually unable to escape or are Resistance Army (LRA) kidnapped over 30 000
subjected to severe punishment for attempting children and used them as soldiers and slaves.
to escape. Sometimes children may be forced or According to a 2009 US TIP Report, boys in the rebel
indoctrinated into committing atrocities against group are forced to loot and burn villages and torture
neighbours or even their own families, and may and kill their neighbours.
become stigmatised in their communities because Girls who are abducted are usually raped or
of this, making it impossible for them to return home. become sex slaves. In the Sierra Leone conflict
The use of child soldiers takes three main forms: they became ‘bush wives’. In countries such as
• direct involvement in armed conflict, where Uganda, Sri Lanka or Nepal, it is claimed that a third
the child may be expected to take part in the or more of the children recruited are girls. In April
fighting and armed with a weapon 2014, in the Chibok area of Nigeria, nearly 300 girls
• indirect involvement through support roles, were kidnapped from their school by the notorious
such as messenger, scout, cook, porter, Nigerian terrorist group, Boko Haram. These were
servant, to lay or clear landmines or even as a among thousands of girls, boys and young men who
sexual slave have been kidnapped in 2014. These young people
• use for particular political advantage, such as have been used as soldiers, sex slaves and suicide
propaganda or as a human shield. bombers in Boko Haram’s rebel army.
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CAMBRIDGE LEGAL STUDIES HSC
Figure 9.12 Arms manufacturers have made their
Figure 9.11 In April 2014, nearly 300 hundred girls were
weapons lighter and simpler, making it easier for
kidnapped by Boko Haram from Chibok in Nigeria.
child soldiers to use.
The majority of child soldiers are aged between Research 9.3
15 and 18 years, and in some cases their use may
be considered legal under national laws. However, Explore the United Nations website, ‘Children
in some countries children under 15 years old, and and Armed Conflict’ at http://cambridge.edu.
in some cases as young as seven years old, may be au/redirect/?id=6287.
recruited, especially by rebel or guerrilla movements. 1 Identify and make a list of the conflict
Recruiting children under the age of 15 years is situations around the world where the
considered a war crime under international law. use of child soldiers is currently an
issue (there should be about 23 conflict
war crime
situations). Identify the regions where
action carried out during a time of war that violates
accepted international rules of war the use of child soldiers is particularly
widespread.
While the use of child soldiers is universally 2 What are the ‘6 Grave Violations’?
condemned, the NGOs report that hundreds 3 In what ways are children affected by
of thousands of children have fought and died armed conflict?
worldwide as a result of use in conflict over the 4 From the ‘Library’ tab download the
last decade. They are frequently forced to conduct most recent UN document on one of
hazardous tasks such as laying landmines or the conflict situations which is close
explosives, or even sent on suicide missions, and are to Australia. What is the nature of this
usually forced to live in harsh conditions, often with document? What information does
no health care and/or without enough food. Almost this document give about this conflict
always they will be subject to cruel and brutal situation?
treatment, including beatings and humiliation, 5 From the ‘Library’ tab find the latest
or severe punishment for mistakes or attempts to Secretary General’s report on children in
escape. conflict situations.
Technological advances in weaponry have also 6 Describe the latest campaign about
contributed to an increase in the use of child soldiers; children in conflict situations. How
small arms and lightweight automatic weapons are effective do you think this campaign is in
simpler and lighter, and thus easier for children to raising awareness about this issue?
operate. Recently, some armed groups have given
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
Case Study 9
Child soldiers – victims’ stories
The following stories illustrate some of the suffering endured by children forced to serve in armed
conflicts, as well as the different circumstances and places around the world where the practice
occurs.
• In the Democratic Republic of Congo (DRC), a militia group abducted 11-year-old Lucien and
11 of his classmates from their school. Lucien submitted to military training after he was tied up
and stabbed in the stomach. Sixty other children submitted to the severe training and those who
resisted were beaten. Lucien saw people die from starvation and illness, with the children given
only one plate of maize per day to share with 12 others. Lucien managed to escape after several
years in captivity and now lives with a host family.
• In Burma (Myanmar), 11-year-old Aung was travelling home when army recruiters picked
him up. Aung tried to refuse, but the soldiers told him that if he did not join them, he would
be imprisoned for six years. Aung believed he had no choice, so he agreed to join. He was
frequently beaten during training. At only 12 he was sent into combat, and at 13 he witnessed
members of his unit murder 15 women and children. At 14, Aung managed to escape across the
border into Thailand, where he found an illegal job. He knew that, if discovered, he would be
returned to Burmese authorities, where he would be arrested – and also risk his family’s safety.
• In Uganda, rebel soldiers from the Lord’s Resistance Army (LRA) abducted 14-year-old Charlotte
and 139 other girls from their dormitories at a Catholic boarding school. They were marched to
a military camp in Sudan. Charlotte was put in military training for 35 days before being sent to
fight the government army. She was also
given to an older male soldier as a ‘wife’
and gave birth to two children while in the
bush, nearly losing her own life during the
delivery of her first child. Charlotte and
her children escaped after eight years in
captivity, and have been reunited with
Charlotte’s family. Charlotte has also
returned to school.
• In Colombia, 16-year-old Estelle ‘voluntarily’
joined the guerrilla movement, FARC, when
she was 11, in order to escape the physical
and sexual abuse she suffered at home.
Estelle believed that FARC would offer her
protection and a support network. Once
she joined, however, she was told that if
she attempted to escape she would be
sentenced to death. Before managing to
escape, Estelle was forced to kill, and lived
in constant fear of being killed.
See http://cambridge.edu.au/redirect/ Figure 9.13 Areas in Uganda affected by the
?id=6288 for source information. Lord’s Resistance Army
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CAMBRIDGE LEGAL STUDIES HSC
children drugs to make them more dangerous or less 9.7 R
esponses to the issue of
fearful during conflict. For example, during conflict child soldiers
in Sierra Leone children were reportedly given a
mixture of gunpowder and cocaine before battle.
Legal responses
Sexually transmitted diseases and other health
Although the use of child soldiers has throughout
problems have also become more prevalent among
history been condemned as morally or ethically
these children, and there are high rates of unwanted
wrong, it is only relatively recently that a proper
pregnancies in girls. Where children do manage to
international framework has been put in place to try
escape, the physical and psychological scarring, as
to bring the practice to an end.
well as stigmatisation in their former communities,
makes reintegration into normal life very difficult.
International responses
As a final point, many countries around the
The recognition of children’s special vulnerability and
world also continue to officially recruit under-18s
need for a higher level of human rights protection
into government armed forces. Over 60 countries,
was mentioned in the introduction to this section.
including developed countries such as Australia and
However, it was not until 1977 that the specific issue
the United States, still allow voluntary recruitment
of child soldiers was first addressed. The Geneva
of 17-year-olds into the army, and calls to raise
Conventions, known as the ‘laws of war’, are a series
the minimum age to 18 have been countered by
of four treaties adopted between 1864 and 1949 to
arguments around manpower requirements. For
regulate the conduct of armed conflict and attempt
example, the US Army has acknowledged that in
to limit its effects. In 1977, a number of additional
2003 and 2004 it sent nearly 60 17-year-old US citizens
protocols to the Geneva Conventions were adopted, in
to Afghanistan and Iraq. In recent years, the US
which the problem of child soldiers was recognised.
Army has lowered educational requirements, and
The minimum age for recruitment or use in armed
increased bonuses for recruitment: this has led to a
conflict was set at 15 years, for both government and
striking increase in the number of under-18s joining
non-government parties. International law now has
the military.
this as the standard custom.
On 26 April 2012, the Special Court for Sierra
Later treaties also aimed to address the issue in
Leone convicted Charles Taylor, the former
different ways:
President of Liberia, for his role in the civil war in that
• The United Nations Convention on the Rights
country which included the extensive use of child
of the Child (1989), one of the most important
soldiers. On 30 May 2012 Taylor was given a 50-year
international human rights treaties, and now all
prison sentence. The sentence was later upheld by
but universally adopted, includes art 38, which
the Appeals Chamber.
relates to children in armed conflict. Article 38
restates the minimum age of recruitment as
Review 9.4 15, and discourages recruitment of children
under 18 years old. It also creates obligations
1 Identify the place, age and gender of the to minimise harm to all children during armed
children involved in the Case Study on conflicts.
page 221. • The Rome Statute of the International Criminal
2 Explain whether the children in these Court (1998), discussed in Chapter 6, set up a
stories were recruited by official or non- permanent court for trials concerning charges
government forces and describe the way of war crimes, crimes against humanity,
in which they were recruited. and genocide. Recruiting children under 15
3 Describe the tasks the children were years old into armed forces or using them to
forced to do and the way in which they participate in hostilities was specifically added
were treated, including any abuse or as a war crime that can be tried and punished
hazards they were exposed to. by the International Criminal Court (ICC). The
Rome Statute came into force on 1 July 2002.
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
• The ILO Worst Forms of Child Labor Convention
(1999) prohibits children under the age of 18 Research 9.4 9
from being forced to take direct part in armed
conflict. It defines this as one of the worst The full text of the Optional Protocol to the
forms of child labour, along with other forms of Convention on the Rights of the Child on the
slavery and sexual exploitation. The treaty has Involvement of Children in Armed Conflict
now been ratified by over 170 countries. is available at http://cambridge.edu.au/
The UN, NGOs and countries around the world redirect/?id=6289.
became particularly focused on eradicating the use Look at the text of the protocol and
of child soldiers towards the end of the 20th century. complete the following tasks.
In the year 2000, the UN adopted the most important 1 Looking at the Preamble to the protocol,
and comprehensive treaty on child soldiers – the summarise the main reasons for the
Optional Protocol to the Convention on the Rights treaty being created.
of the Child on the Involvement of Children in Armed 2 Identify the article(s) containing the
Conflict. prohibition on recruiting and using child
The optional protocol, which entered into force soldiers and explain the obligations they
in 2002, says 18 years of age is the minimum for impose.
compulsory recruitment or direct participation 3 Critically evaluate how Australia’s
in hostilities. It also raises the absolute minimum reservation to the protocol and current
voluntary recruitment age to 16. It requires certain recruitment practice corresponds with
safeguards for recruitment and calls on governments the purpose and obligations of the treaty.
to cooperate to put an end to the use of child soldiers
and to provide for support and rehabilitation of
former child soldiers. The optional protocol has The framework is relatively new and will take
received wide support and has now been ratified by time to take full effect. However, in one of the most
over 130 countries. significant developments, the ICC, under the Rome
Many countries, however, including Australia Statute, has begun to charge a number of individuals
and the United States, have signed up with with war crimes relating to child soldiers in armed
reservations on lowering the recruitment age to 17. conflicts, particularly in conflicts in Uganda,
For example, the Australian Defence Force (ADF) Sudan and the DRC. This is particularly important
currently permits voluntary recruitment at 17, with because the international prosecution of individuals
a birth certificate and written informed consent of a where countries themselves are unable or unwilling
parent or guardian, and the ADF must fully inform to prosecute is a critical way of putting an end
the child of the nature of the duties and be satisfied to local practices, seeking justice for victims
that the child is signing up on a ‘genuinely voluntary involved and acting as a deterrent for would-be
basis’. offenders. The case of Thomas Lubanga Dyilo is
The various treaties have been some of the discussed in the ‘In Court’ box on page 224.
most rapidly and widely ratified treaties worldwide
and have created a much stronger international
framework for ending the recruitment and use of Legal Links
child soldiers. However, violations do continue by
both government and non-government parties. Further information on the ICC trial of
The UN Security Council has adopted a number of Thomas Lubanga Dyilo is available on the
resolutions recently, particularly in 2004 and 2005, ICC’s website (http://cambridge.edu.au/
condemning the use of child soldiers and calling redirect/?id=6290) and at a website devoted
for a rigorous monitoring and reporting system for to the Lubanga trial (http://cambridge.edu.
abuses. Research, monitoring and reporting on au/redirect/?id=6291), which is put together
compliance by all countries around the world now by the Open Society Justice Initiative.
occurs and abuses are more regularly exposed.
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CAMBRIDGE LEGAL STUDIES HSC
In Court
Prosecutor v Thomas Lubanga Dyilo ICC-
01/04-01/06
The year 2006 marked the first time a person
was arrested under a warrant issued by the
International Criminal Court (ICC): Thomas
Lubanga Dyilo of the Democratic Republic of the
Congo (DRC). In 2009, his trial became the first
ever by the ICC. A rebel militia leader, he was
accused of conscripting child soldiers to fight in
armed conflicts in the DRC during 2002 and 2003.
Context
Conflict between groups had been occurring
in the north eastern region of DRC for many
years. It related mainly to competition for land,
but later became entangled in larger conflicts
over mineral and diamond deposits, and involved
ethnic groups from neighbouring Rwanda and
Uganda. There were many fighting groups and
factions forming complicated rivalries. Many
Figure 9.14 Thomas Lubanga Dyilo
children were recruited into armed groups on all
sides. Widespread killing and appalling levels
of sexual violence were among the atrocities committed, without accountability, against civilians. By
2004, this conflict had lead to the deaths of around four million people, either directly through killings
or from disease and starvation.
Lubanga was alleged to have served from 2002 as commander-in-chief of one armed group, the
Patriotic Forces for the Liberation of Congo. In March 2004, the DRC Government authorised the ICC
to investigate and prosecute international crimes in the DRC relating to the conflict.
Arrest
Lubanga was strongly suspected of having committed war crimes during the conflict. Rebel soldiers
under his command were accused of massive human rights violations. These included ethnic
massacres, mutilation, torture, rape, murder and the forcible conscription of child soldiers. He was
arrested in March 2005 and transferred from the DRC to the ICC in The Hague, The Netherlands, in
March 2006, where he was held in an ICC prison cell. He was accused of the following war crimes:
• September 2002 to June 2003 – enlisting and conscripting children under the age of 15 for active
participation in hostilities in the context of an international armed conflict (art 8(2)(b)(xxvi) of the
Rome Statute)
• June to August 2003 – enlisting and conscripting children under the age of 15 for active
participation in hostilities in the context of an armed conflict not of an international character
(art 8(2)(e)(vii)).
Human rights organisations claimed that at one point Lubanga maintained around 3000 child
soldiers between the ages of eight and 15. It was also reported that he had ordered every family in the
territory under his control to donate something that would assist the war effort – money, a cow, or a
child to join his militia.
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
In Court 9
Trial
The ICC held multiple hearings in preparation for the Lubanga trial to determine evidence, victim
and witness testimony, and the process and form of the trial. In total, eight legal representatives of
victims, representing a total of 93 victims, were to take part. After many delays, the trial commenced
on 26 January 2009.
A verdict was reached on 14 March 2012. Lubanga was found guilty of the war crimes of enlisting
and conscripting children under the age of 15 to participate actively in hostilities between 2002 and
2003. This was the first verdict issued by an ICC chamber and is important for demonstrating the
court’s effectiveness in dealing with crimes of this nature. On 10 July 2012, Lubanga was given a
sentence of 14 years. This sentence was confirmed by the Appeals Chamber on 1 December 2014.
On 3 March the Appeals Chamber instructed the Trust Fund for to implement a plan for collective
reparations for victims.
The Lubanga judgement was a milestone in international law and in the criminalisation of the use
of child soldiers. The ICC used the precedent of the Special Court for Sierra Leone to hold that the
crime of conscription of child soldiers is committed as soon as the child joins the armed group, whether
this is with or without compulsion. This is a very high threshold. The judgement also established a
high threshold for the protection of children who have an indirect role in conflict by being involved
in domestic duties or general support: the chamber found that children were said to be involved in
hostilities even if they were not involved in direct fighting.
There are few known cases of domestic
Review 9.5 prosecutions for the recruitment or use of children in
armed conflicts, with the exception of some cases in
1 Identify the articles of the Rome Statute
the DRC and recent truth commissions – established
under which Lubanga was charged and
following serious conflicts in Sierra Leone, Timor-
describe the crimes he was charged
Leste and Liberia – that are known to have addressed
with.
child soldier issues.
2 Briefly summarise the context of the
As mentioned previously, the international
charges and the allegations against
treaties have been well accepted and widely ratified,
Lubanga.
and domestic legal systems have had to be brought
3 Describe the process by which Lubanga
into line with their requirements. For example, in
was arrested and finally brought to trial.
2008 the United States enacted the Child Soldiers
4 Critically evaluate the effectiveness
Accountability Act, which allowed the United States
of the ICC in achieving justice for the
to prosecute domestically individuals who have
victims. Consider issues of national
knowingly recruited or served as child soldiers in
resources, delay, exposure and
or outside the United States or to deny such people
deterrence.
entry into the country. Similar laws have been
enacted in other countries. These not only send an
important message to military commanders but also
Domestic responses prevent travel or fleeing by offenders to international
Although numerous treaties have now been safe havens.
established to try to combat the various issues In Australia, the minimum compulsory
around child soldiers, these treaties rely on the conscription age under s 59 of the Defence Act
will of states to implement them and pursue their 1903 (Cth) is 18 years, but voluntary recruitment is
objectives. different. After ratification of the Rome Statute in
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CAMBRIDGE LEGAL STUDIES HSC
Figure 9.15 Canadian protesters against the conviction of Omar Khadr, a child soldier convicted of war crimes
while fighting with the Taliban in Afghanistan in 2002
2002 and the child soldiers optional protocol in 2006, The Defence Department disagreed, arguing that
the Criminal Code Act 1995 (Cth) was amended to raising the minimum age would ‘severely restrict the
meet Australia’s ICC and treaty obligations. Sections quality and quantity of recruits’.
268.68 and 268.88 were added to the Criminal Code Child soldiers have more recently become a
to criminalise the use, conscription or enlistment domestic concern in Australia due to ‘foreign
of children as part of an international or national fighters’ going to Syria and Iraq to fight with ISIS
armed conflict. These sections make it a crime to or Islamic State. The case of 15-year-old Canadian
use, conscript or enlist children under the age of Omar Ahmed Khadr, who was caught by the US
18 for armed groups or forces other than national military fighting with the Taliban in Afghanistan
armed forces. However, for national armed forces it in 2002 and held at Guantanamo Bay for 10 years,
is only a crime if the child is under 15 years old. may be relevant for Australia as it deals with its
In 2007, in Australia there were almost 500 returning foreign fighters. Though Khadr was a
young people under 18, boys and girls, serving in minor at the time, he was prosecuted in a US military
the ADF, but the ADF had no record of under-18s commission. The UN condemned his prosecution
being deployed into operations areas. As mentioned and while being held in Guantanamo Bay detention
earlier, the minimum voluntary recruitment age is 17 camp his case was taken up by many protestors.
years, according to the ADF’s Defence Instructions, From 2015, Australia has been faced with young
and the ADF has put procedures in place to ensure foreign fighters or their families wishing to return to
that child recruitments are on a ‘genuinely voluntary Australia. In cases where these people are minors,
basis’. Young applicants can first apply to join at then under international law they should be treated
16 years and 6 months, and children as young as 10 as child soldiers, and that means that though
can register their interest online with Defence Force they were perpetrators they were also victims.
Recruiting. The controversy over how to deal with such cases
In 2005, the ADF Ombudsman released a report continues in Australia.
on the management and administration of under-age
personnel. It included a recommendation for review Non-legal responses
of the costs and benefits of accepting children for There are many programs and organisations,
enlistment, with a view to raising the age to 18 years. international and domestic, which aim to combat
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
the causes and effects of the recruitment and use of Hand Day’, as it is known, is a campaign that takes
child soldiers worldwide. place on 12 February every year to commemorate and 9
draw attention to the issue of child soldiers. It has
International responses proved hugely successful and participants all over
At the international level, the UN plays an important the world, particularly in schools, take part every year
role in monitoring the use of child soldiers around the in raising funds, showing support, educating others
world. The ILO and the UN Children’s Fund (UNICEF) and lobbying governments.
in particular play a role in research into and studies of Other forms of domestic responses include groups
the problem, providing recommendations to the UN or individuals who assist with rehabilitating former
and to member states where necessary, and promoting child soldiers by helping to relocate their families,
the spirit and obligations of the treaties on children in getting them back into school or vocational training,
armed conflict. For example, in 2010 UNICEF and the and helping them re-enter life. The media also plays
government of Chad held a conference that sought a role in informing the public about the existence
to end the use of child soldiers by armed forces and and problems of child soldiers. Films, books and
groups across Central Africa. documentaries have also played an important role. The
There is also a host of international NGOs that 2006 movie Blood Diamond, for example, dramatised
conduct important work in monitoring and reporting some of the horrific aspects of the diamond trade in
on the issue, educating the public and lobbying parts of Africa, including the recruitment and use of
government and international organisations to take child soldiers in diamond-related conflict areas. Films
action. like this, which have wide audience appeal, are an
effective non-legal means of focusing global attention
Legal Links on the issue, as are books by the victims themselves.
Further information from the following Effectiveness of responses
intergovernmental organisations (IGOs) Progress has been made on child soldiers, but there
and NGOs on the issue of child soldiers is is still a long way to go, and any further advances will
available from their websites: require commitment and political will.
• the Roméo Dallaire Child Soldiers Despite the significant efforts of the international
Initiative – http://cambridge.edu.au/ community, particularly in the last decade, with the
redirect/?id=6292 adoption and ratification of ground-breaking human
• Amnesty International – http:// rights treaties, the pace of progress has been slow
cambridge.edu.au/redirect/?id=6293 and the tens of thousands of children currently
• International Labour Organization – involved in armed conflict have yet to feel its impact.
http://cambridge.edu.au/ More must be done to make it less attractive to recruit
redirect/?id=6295. children for use in armed forces by strengthening
the enforcement mechanisms. There has been a
huge increase in the number of child soldiers in
Syria, Yemen and Iraq, according to the UN, with
the number doubling over 2017.
Domestic responses While the establishment of the ICC – and the
As on the international level, there are many domestic first trial of charges relating to child soldiers – is
NGOs that work in the area of children’s rights. These encouraging, this is only the tip of the iceberg.
may include focusing on issues relating to child Political will is needed at all levels to strengthen
soldiers, particularly in countries where recruitment the enforcement mechanisms, but it will be an
of child soldiers is a significant problem. Recently, one uphill battle if the root causes of conflicts that draw
strong movement that enables local interest groups, children into the battlefield are not addressed. This
individuals, schools and other institutions to take part involves the wider issues of tackling poverty, ending
in a global effort to raise awareness about children in conflicts and establishing the rule of law and respect
armed conflict has developed internationally. ‘Red for human rights in all countries.
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CAMBRIDGE LEGAL STUDIES HSC
Figure 9.16 In March 2012 the issue of child soldiers was catapulted into the world spotlight with a social media
campaign called ‘StopKony’, which was designed to focus attention on the notorious Lord’s Resistance Army
leader Joseph Kony.
Figure 9.17 A rare image of Joseph Kony, leader of the rebel group, Lord’s Resistance Army
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
One radical method of tackling this difficult
issue was the ‘StopKony’ campaign. In March 2012, Review 9.6 9
the issue of child soldiers was catapulted into the
world spotlight with a social media campaign called 1 Describe some of the efforts of NGOs
‘StopKony’, which was designed to focus attention and governments in tackling the issue of
on the notorious Lord’s Resistance Army leader child soldiers.
Joseph Kony. The campaign featured a YouTube 2 Explain the role of the media, NGOs and
clip that went viral on the internet, particularly other non-legal groups in combating
in social media. Despite being indicted by the the use of child soldiers. Evaluate how
International Criminal Court in 2005, charged on 33 these groups can complement the legal
counts, Kony still remained at large in 2017. There measures in place.
was controversy at the time about the effectiveness 3 Critically evaluate the effectiveness of
of this campaign in pressuring political leaders to legal and non-legal responses to child
have the political will to get results, and about the soldiers based on consideration of the
extent to which the organisation used money on the causes and drivers behind the problem.
campaign that had been donated for use with the
actual children in these situations.
Figure 9.18 David Ojok was abducted at the age of 13, and forced to become a child soldier. Now he is working
as a bricklayer, thanks to training he received at the Northern Uganda Youth Development Centre, which is
supported by UK aid.
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Issue 3:
Exploitation of workers
Issue 3 is covered in the digital versions of
the textbook.
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
Issue 1 summary
• Although slavery has officially been abolished • There are many IGOs and NGOs doing
9
internationally, it continues as a form of important work all over the world to end
criminal activity today. contemporary slavery.
• Slavery can take the form of forced labour, debt • The Australian Government has recently
bondage or sexual slavery. improved its approach to combating human
• Human trafficking is an illicit activity involving trafficking and a number of prosecutions have
the trade in slaves. been made.
• International treaties have provided a
framework to help countries implement
measures to deal with human trafficking.
Issue 1 questions
Multiple-choice questions C Developing a new treaty, cooperation with
1 Human trafficking differs from people regional and international agencies and
smuggling in that: specialist training for the AFP
A human trafficking is a criminal activity while D Training for Commonwealth prosecutors,
people smuggling is not mandatory detention and improved victim
B human trafficking involves deception of the protection scheme
person involved
C people smugglers allow a person to go free 4 The annual Trafficking in Persons Report has
after transport is complete been invaluable in monitoring the progress of
D all of the above anti-trafficking efforts worldwide. It represents
which type of the responses below?
2 The Protocol to Prevent, Suppress and Punish A A domestic response of the Australian
Trafficking in Persons especially Women and Government
Children achieves which of the following? B A domestic response of the US Government
A It makes trafficking an international crime C An international response of the UN
punishable by the ICC. D An international response of a coalition of
B It makes all UN states enact domestic laws NGOs
on human trafficking.
C It lays out agreed definitions and a 5 Which of the following is one of the main
framework of approach. contributors to the risk of people trafficking?
D It gives signatories the resources to tackle A A lack of political will
the underlying problems. B A lack of international consensus
C Inadequate interception and detention
3 Australia’s approach to combating human facilities
trafficking has included which of the following? D Socio-political and economic factors
A Amendment of the Criminal Code, funding
of around $60 million and specialist training
for the AFP
B Funding of around $60 million, training
for Commonwealth prosecutors and more
detention centres
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CAMBRIDGE LEGAL STUDIES HSC
Chapter summary questions 3 Outline the international responses to human
1 Identify when slavery was officially abolished trafficking, including reference to the purpose
and explain why it still remains a problem of the main treaties.
today. 4 Describe some of the non-legal responses to
2 Identify the forms of contemporary slavery and the issue of human trafficking.
the ways in which slaves are recruited and 5 Critically evaluate the effectiveness of legal
trafficked. and non-legal responses to the issues of human
trafficking and contemporary slavery.
Issue 2 summary
• The use and recruitment of child soldiers in decade, and the first international trial before
armed conflict can involve serious abuses of the ICC has now occurred.
human rights and can amount to a war crime. • IGOs and NGOs play an important role in
• The extent of the problem is hard to gauge, but monitoring and reporting on the issue of child
child soldiers are still used in conflicts all over soldiers.
the world. • More needs to be done to combat the issue of
• International responses to child soldiers are child soldiers: poverty, conflict and the lack of
relatively recent but have accelerated in the last the rule of law and respect for human rights
remain as root causes of the problem.
Issue 2 questions
Multiple-choice questions 3 Which of the following best describes the
1 Which of the following statements about the Australian position on recruiting child soldiers?
issue of child soldiers is not true? A It is a crime to recruit children under
A The UN has estimated there could be as 18 years into national armed forces for
many as 300 000 child soldiers worldwide. participation in armed conflict, and to
B The use of children under 18 in armed recruit children under 15 years for other
conflict is generally confined to developing armed forces or groups.
countries. B It is a crime to recruit children under 18
C The advent of modern weaponry has years into armed forces or groups other than
worsened the problem of child soldiers. national armed forces, but national forces
D The recruitment of children under 15 years can recruit at 17 years.
into armed conflict is an international war C It is a crime to recruit children under 18
crime. years for direct involvement in armed
conflict in either national or other armed
2 Which of the following treaties was used to forces, but recruitment for indirect
prosecute Thomas Lubanga Dyilo? involvement is possible at 17 years.
A Kyoto Protocol D It is a crime to recruit children under 18
B Optional Protocol to the Rights of the Child years into armed forces other than national
on the Involvement of Children in Armed armed forces, but national armed forces can
Conflict recruit at 15 years.
C Rome Statute
D Additional protocols to the Geneva
Conventions
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
4 The Office of the Special Representative of
the Secretary General for Children and Armed
Chapter summary questions
1 Describe how child soldiers are recruited
9
Conflict is: and some of the conditions they may have to
A the leading UN advocate for the protection endure.
of children in war 2 Explain the roles that child soldiers might be
B an IGO that researches and releases annual expected to play in a conflict.
reports on child soldiers 3 Outline the international responses to child
C a humanitarian NGO that works with former soldiers, including reference to the purpose of
child soldiers the main treaties.
D a body of the UN that campaigns against 4 Describe some of the non-legal responses to
child soldiers the issue of child soldiers.
5 Critically evaluate the effectiveness of legal
5 Which of the following is most needed to and non-legal responses to the issue of child
address the issue of child soldiers? soldiers and contemporary slavery.
A tackling poverty and ending conflicts
B encouraging respect for human rights and
the rule of law
C prosecutions by governments and the ICC
D all of the above
Themes and challenges for Part II Human rights
The changing understanding of Issues of compliance and non-
the relationship between state compliance in relation to human
sovereignty and human rights rights
This area of the syllabus requires examination of the • In this area of the syllabus it is necessary to
reasons why state sovereignty can be used both to examine why nation states comply with the law
promote human rights and undermine human rights. as opposed to reasons why they put themselves
• Sovereignty – this assumes that the government outside the law.
of a nation has the sovereign right to make any • Monitoring and enforcement mechanisms –
laws they like within their borders and that no there are now mechanisms, such as
other nations have the right to intervene. international courts and tribunals, that aim
• Human rights law – this has gradually to hold people accountable for violations of
undermined the idea that sovereignty human rights, such as the Human Rights
is a barrier to external intervention. The Committee or the ICC.
international community is able to exert • Mutual benefit – nations realise that they have
pressure in a number of ways on states that much to gain from following the vast majority of
blatantly allow violations of human rights. international law regarding human rights.
• Responsibility to Protect – this UN doctrine
makes it every government’s responsibility to The development of human rights
protect the human rights of their citizens. If a as a reflection of changing values
government is unable to do this then it is the and ethical standards
international community’s responsibility to • Moral values and ethical standards – the bitter
assist them. experience of two world wars and genocide
on a massive scale in the first half of the 20th
century had led to a change in values and a
determination to do everything to build a new
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CAMBRIDGE LEGAL STUDIES HSC
world order where human rights are respected • Responsibility to Protect – this promotes reform
and upheld. in which the international community has the
• The UN Charter, Genocide Convention, UDHR responsibility to help struggling nations build
and Geneva Conventions – these historic their capacity in their economic development,
events, which occurred within a few years of their government administration and
the end of World War II, promoted a dramatic institutions.
shift in the international community by placing
human rights centre stage in international law The effectiveness of legal and
as they never had been before. non-legal responses in protecting
• Human rights law – now a major branch of human rights
international law, it connects in some way with • Political will – the effectiveness of responses
all other areas of international law. often depends on the political will of the
leaders of major world powers to take action
The role of law reform in to strengthen the enforcement mechanisms to
protecting human rights protect human rights.
• Human rights treaties – never before in history • Public opinion – a public that is informed
have human rights been given so much and made aware of human rights issues can
protection. However, enforcement of human pressure their leaders to promote human
rights is not guaranteed in many countries of rights. NGOs, IGOs and the media play a critical
the world. role in the areas of research, documentation,
• Rule of law – countries that are governed by the education and lobbying. In many cases, little
rule of law have the best chance of protecting would be achieved without these groups
human rights. playing these roles.
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Part III
Options
50% of course time
Principal focus
Each option has its own principal focus, listed at the start of the chapter.
Themes and challenges
Each option has its own set of themes and challenges, listed at the start of the chapter.
HSC external examination information
The HSC examination will be a written paper worth a total of 100 marks. The paper will consist of three
sections.
Questions relating to Part III of the syllabus – ‘Options’ – will appear in Section III of the examination.
There will be seven extended response questions, one for each option offered in the syllabus. Students will
be required to answer two of these questions, each relating to a different option they have studied.
Section III: Options 50 marks total (25 marks per option)
The question relating to each option will have two alternatives.
The expected length of response is around 1000 words (approximately eight examination writing booklet
pages).
Chapters in this Part
Each option is in a separate chapter. Students must study two options (each option amounts to 25% of course
time).
Chapter 10 Option 1: Consumers
Chapter 11 Option 2: Global environmental protection
Chapter 12 Option 3: Family
Chapter 13 Option 4: Indigenous peoples (digital only)
Chapter 14 Option 5: Shelter (digital only)
Chapter 15 Option 6: Workplace
Chapter 16 Option 7: World order
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Chapter 10
Option 1: Consumers
25% of course time
Principal focus
Students will be investigating consumers’ legal rights and how the law attempts to achieve justice for
consumers by referring to a variety of current issues and examples.
Themes and challenges
Themes and challenges to be incorporated throughout this option include:
• how the law works in encouraging cooperation as well as resolving conflicts of consumers
• dealing with compliance and non-compliance
• how changing values and ethical standards are being reflected in consumer laws
• recognising the rights of consumers in the legal system
• achieving justice for consumers through legal and non-legal responses.
At the end of this chapter, you will find a summary of the themes and challenges relating to consumers.
The summary draws on key points from the text and links them to each of the themes and challenges. This
summary is designed to help you revise for the external examination.
Chapter objectives
In this chapter, students will:
• outline the developing need for consumer protection
• outline the objectives of consumer law
• examine the nature, function and regulation of contracts
• evaluate the effectiveness of the regulation of marketing, advertising and product certification in
achieving consumer protection
• examine the role of occupational licensing in achieving consumer protection
• recognise the importance of awareness and self-help
• examine the range of remedies available to consumers
• evaluate the effectiveness of non-legal and legal measures in achieving justice for consumers
• identify and investigate contemporary issues involving the protection of consumers and evaluate the
effectiveness of legal and non-legal responses to these issues.
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Key terms/vocabulary
acceptable quality contract monopoly
acceptance cooling-off period negligence
advertising damages offer
alternative dispute resolution duress offeree
(ADR) express term offeror
auction fiduciary duty price-fixing
Australian Consumer Law (ACL) fit for purpose procedural fairness
bait advertising implied term product warranty
cartel injunction pyramid selling
caveat emptor invitation to treat rescind
conciliation laissez-faire economy remedy
condition licensee unconscionable conduct
consideration litigation warranty
consumer contract mediation weights and measures laws
Relevant law
IMPORTANT LEGISLATION
Sale of Goods Act 1923 (NSW) Corporations Act 2001 (Cth)
Minors (Property and Contracts) Act 1970 (NSW) Spam Act 2003 (Cth)
Contracts Review Act 1980 (NSW) National Consumer Credit Protection Act 2009 (Cth)
Fair Trading Act 1987 (NSW) Competition and Consumer Act 2010 (Cth)
Telecommunications Act 1997 (Cth) Civil and Administrative Tribunal Act 2013 (NSW)
Australian Securities and Investment Commission Motor Dealers and Repairers Act 2013 (NSW)
Act 2001 (Cth)
SIGNIFICANT CASES
Australian Knitting Mills Ltd v Grant (1933) 50 CLR Blackpool & Fylde Aero Club v Blackpool Borough
387 Council, Court of Appeal [1990] 3 All ER 25
G.H. Myers & Co. v Brent Cross Service Co. (1934) 1 Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd
KB 46 (1991) 22 NSWLR 298
Grant v Australian Knitting Mills [1936] A.C. 562 Qanstruct Pty Ltd v Bongiorno Ltd (1993) 113 ALR 667
Johnson v Buttress (1936) 56 CLR 113 Astley v Austrust (1999) 197 CLR 1
Beale v Taylor (1967) 1 WLR 1193 Director of Consumer Affairs of Victoria v AAPT Ltd
Reardon v Morley Ford Pty Ltd (1980) 49 FLR 401 (Civil Claims) [2006] VCAT 1493
Commercial Bank of Australia Ltd v Amadio (1983) eBay International AG v Creative Festival
151 CLR 447 Entertainment Pty Ltd (2006) 170 FCR 450
Legal oddity
A class action was brought against energy drink provider Red Bull for false advertising. The claim was that
the tagline of the company, and associated advertising, said that the drink would improve performance and
focus. However, articles about nutrition said that the ‘boost’ from energy drinks comes entirely from the
caffeine, rather than other ingredients such as guarana, and so the performance benefits from the energy
drink were no greater than those from a (less expensive) cup of coffee. Although Red Bull argued that their
product was a better source of ‘energy’, there was no scientific data to back this up. While not accepting
any wrongdoing, Red Bull agreed to settle on the lawsuit. As a result, anyone living in the United States
who purchased at least one can of Red Bull between 1 January 2002 and 3 October 2014 was entitled to a
$10 cash reimbursement, or else free Red Bull products to the value of $15.
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CAMBRIDGE LEGAL STUDIES HSC
10.1 T
he nature of consumer poor, uneducated workers. The power imbalance
law was evident, and the notion of caveat emptor came
into question. Governments began to create laws
The developing need for that would, in time, address the need for consumer
consumer protection protection.
The need for consumer protection has grown over caveat emptor laissez-faire economy
time. Prior to the Industrial Revolution, the vast a Latin term meaning an economic system in
‘let the buyer beware’; it which the state refrains
majority of people throughout Europe lived simple implies that consumers from interfering with
lives based on subsistence agriculture. The typical should use their own markets by regulation or
care and knowledge to other means
marketplace of the time offered a small range of protect themselves against
products. The consumer therefore did not need exploitation
sophisticated knowledge of the quality and value of
most goods in order to make a purchase. Furthermore,
because there was no product packaging, goods The definition of a consumer
could be inspected closely. Part I s 4B of the Competition and Consumer Act 2010
The situation for contemporary consumers could (Cth) defines a consumer as: ‘a person who acquires
not be more different. Today, we often need to rely goods or services that are priced at less than
upon the expertise of others (shop assistants or $40 000’. Further, an individual or a company is also
financial advisers) when purchasing products such considered to be a ‘consumer’ if they purchase goods
as superannuation plans or electrical equipment (for or services that cost more than $40 000 provided that
example, computers and mobile phones). A highly they are ‘of a kind ordinarily acquired for personal,
specialised level of product knowledge is required domestic or household use or consumption’ and not,
in the marketplace of the 21st century. Therefore, it for example, for resale.
is essential that legislators put safeguards in place In most cases consumers can decide whether or
to resolve conflict and protect consumers from not to purchase an item – whether it’s a can of soft
exploitation. A peasant consumer often had the drink, a computer or an insurance policy – but we are
advantage of knowing the producer of the goods. often influenced by marketing and advertisements.
If any problems arose with the item that had been When making purchases, consumers have a
bought or bartered for, the buyer could easily range of expectations about the products and/or
confront the seller to resolve the problem. Modern
consumers, on the other hand, usually deal with
salespeople (who rarely have a role in the production
of the goods they sell) or multinational corporations
that may be remote or inflexibly bureaucratic.
Early markets were also characterised by the
common law notion of caveat emptor. Purchases in
pre-industrial markets were at the buyer’s own risk.
If a product was faulty, it was the buyer’s problem.
Caveat emptor is based on the assumption that
the buyer and seller meet on equal terms. Modern
Australian consumer protection laws recognise that
this is not the case.
In a laissez-faire economy, the interaction
between buyers and sellers of goods is considered
to be a private realm, and intervention by the state
is minimal. In the late 18th century, manufacturers Figure 10.1 It is important that tourists shopping at
and sellers of goods were generally wealthy, well- the Grand Bazaar in Istanbul, Turkey understand the
educated industrialists, while the buyers were often concept of caveat emptor.
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10
CHAPTER 10 OPTION 1: CONSUMERS
services they are buying. Primarily, consumers
expect that the products they buy will work properly Review 10.1
for a period of time as indicated by the manufacturer,
and that the services they receive will be of a standard 1 Why has the need for consumer
promised by the supplier. Although these types of protection grown over time?
expectations have existed since the trade in goods 2 Explain the necessity for legislative
and services began, laws to protect consumers and consumer protection in the 21st-century
their rights are relatively new. marketplace.
As far as the law is concerned, an individual is 3 Upon what is the idea of caveat emptor
generally considered to be a ‘consumer’ when the based?
goods or services purchased are essentially for 4 What do you understand by the notion
private use or consumption. Every time we purchase of a laissez-faire economy? Why is
a commodity or service, we enter into a special it problematic for contemporary
legal relationship with the seller. In other words, consumers?
there is a legal expectation that parties will behave 5 According to the Australian Consumer
in a manner that ensures that both buyer and seller Law legislation, what is a consumer?
are treated fairly. Without this legal arrangement,
purchases would be characterised by mistrust and
uncertainty, with greatly increased vulnerability for • the state (parliament and judiciary)
the party in the weaker bargaining or enforcement • consumers, as defined by the legislation.
position. All three groups pursue particular interests,
and can be considered to be interdependent in the
Objectives of consumer laws contemporary marketplace. The common law of
Consumer law relates to the interaction between contract, equity and a variety of federal and state
three legal entities: statutes govern much of our day-to-day dealings
• manufacturers or suppliers of goods and with manufacturers or suppliers.
services that are intended for personal, The primary objective of consumer law is
domestic or household consumption to protect the legal rights of consumers when
purchasing goods or services, while supporting an
effective marketplace. The law achieves this by:
Research 10.1 • educating the public to make them aware of
their rights – educated consumers can protect
Access the Australian Consumer Law themselves from exploitation
home page at http://cambridge.edu.au/
redirect/?id=6302 and click on ‘The Australian
Consumer Law’ at the top of the menu on the
left of the screen. Complete the following
tasks.
1 When did the Australian Consumer Law
(ACL) come into force?
2 In point form, outline the main features of
the ACL.
3 The ACL applies nationally and in
all states and territories, and to all
Australian businesses. Is this a good
thing? Why?
4 How does the ACL deal with transactions
that occurred prior to its enactment? Figure 10.2 The primary objective of consumer law is
to protect consumers.
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CAMBRIDGE LEGAL STUDIES HSC
• articulating and mandating standards for the The basis of a contract is agreement, which in
quality of goods and services – this promotes most cases consists of an offer made by one party
transparency and accountability in the to another person, and an acceptance of the offer
manufacturing and service sectors by that person and consideration for the promise
• providing remedies for consumers made. The person making the offer is referred to as
the offeror and the person to whom the offer is made
remedy is known as the offeree.
a means by which redress or reparation is provided for
the breach of a legal right offeror offeree
the person making an offer the person to whom the
• implementing weights and measures laws that of an agreement offer of an agreement is
made
provide consumers with reliable benchmarks of
quality
Consumer contracts can be executed:
• ensuring that various occupations are licensed
• in written form, by signing a document
• protecting consumers in a time of global
• orally, by agreeing in person or over the phone
advertising, mass marketing and e-commerce
• by a combination of the above two
where there has been a marked reduction
• by clicking an ‘I agree’ button on a web page.
in personal interaction between buyers and
sellers
Written contracts
weights and measures advertising Many consumer contracts are in writing. Those for
laws any action designed
the sale or lease of real property (land) should be.
laws that govern weights to draw the attention
and measures stated of consumers to the They are usually characterised by:
on the packaging of availability of goods • a clear identification of the parties to the
products (such as food and or services in the
beverages) or as indicated marketplace contract
on the trading premises • contractual terms that are in writing for all to
(for example, at a petrol
see
station) in order to protect
consumers from being • precise language which describes the terms
cheated or deceived of the contract in such a manner as to avoid
the need to rely upon memories of the original
• regulating contractual relationships between agreement
buyers and sellers – especially ‘unfair’ contract • the parties’ signatures
terms • the assumption that all the terms have been
• guarding against unsafe and defective read and agreed to.
products Normally, parties to contracts opt for written
• helping vulnerable and disadvantaged contracts in order to avoid having to prove:
consumers. • that the contract existed
• what the terms of the agreement actually were,
and/or
10.2 C
ontracts • to try to limit the obligations to what is on the
paper rather than what was said or understood
Types of contracts in the negotiations.
A contract is a voluntary agreement made between Since the contract will often be a standard form
two or more people that is recognised by the courts contract developed by a large commercial service
as being legally binding on the parties. or goods provider, it may be long and difficult
to read. The consumer is likely to have relied on
contract
a voluntary agreement made between two or more people
representations made to them at the point of sale
that is recognised by the courts as being legally binding by the retailer or dealer. The written contract in
on the parties these circumstances will not necessarily reflect the
consumer’s understanding of the agreement.
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10
CHAPTER 10 OPTION 1: CONSUMERS
Review 10.2
1 What is the primary objective of
consumer law? In point form, how is this
achieved?
2 Define the notion of a ‘contract’.
3 Do contracts have to be in writing?
Provide four examples of the ways in
which contracts can be executed.
4 Many contracts exist in an oral format.
How does the court deal with breaches of
oral contracts?
Figure 10.3 Contracts do not have to be in writing to
be legally binding.
the circumstances under which parties who make
promises to each other are legally bound by them.
Oral contracts For a contract to exist, the following elements must
Many contracts are oral. Every time we buy a be present:
hamburger or a carton of milk we enter into a • the intention of both parties to create legal
contract for the sale of goods. The only writing we relations
may have may be a receipt. Oral agreements may • an offer by one party (the offeror)
be difficult to prove and/or remember precisely, so • the unconditional acceptance of that offer by
they are open to misinterpretation. In resolving a the other party (the offeree)
contractual dispute, the court will closely examine • consideration from the offeree
statements made and the conduct of each party • legal capacity of both parties.
leading up to the negotiation of the contract.
Oral agreements can be supported in court by Intention to create legal relations
information about the other party’s: If an agreement is to be treated as a contract, it is
• behaviour both before and after the agreement essential that the parties to it intended to enter into
• specific actions a legally binding relationship.
• past dealings. Social and domestic agreements are presumed
not to give rise to a legal relationship. For example,
Written–oral contracts a promise to meet someone for dinner or to give a
Contracts may be a mixture of written and oral colleague a lift home from work would not be legally
agreements. If a written contract contains few terms, enforceable should one of the parties fail to arrive.
and appears to be ‘incomplete’, oral undertakings If your parents offered to pay you a sum of money
and conduct will be scrutinised very closely by the for doing the housework or the gardening and then
court, and may be accepted as part of the contract. changed their minds after you did the work, the law
Where the parties have put down their agreement presumes that this arrangement did not involve
in writing, the ‘parol evidence rule’ will apply. If a an intention to create legal relations and would
written agreement appears to be a complete record not entitle you to sue them for breach of contract.
of the agreement, it will be accepted against a However, where an agreement is made in the course
contradictory term made orally. of business, there is a presumption that the parties
intend to create a legal relationship.
Elements of a contract
The law of contract is one of the areas of civil law Offer
and is essential to the successful operation of The second element required for the formation of a
modern capitalist economies. It attempts to define contract is an offer. Without an offer there can be
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CAMBRIDGE LEGAL STUDIES HSC
no acceptance, and hence no agreement between
the parties.
An offer is a firm proposal, made with a
willingness to be bound by the terms. A preliminary
proposal, enquiry or price quotation during the
process of negotiation does not constitute an offer.
While this may appear to be an offer, it is viewed as
merely an encouragement to others to make offers.
This is known as an invitation to treat.
offer invitation to treat
a firm proposal to form a an initial invitation to
binding contract, made others to make an offer Figure 10.4 An acceptance of a contract is an
with a willingness to be
agreement with the terms within it.
bound by its terms
acceptance rule states that acceptance is completed
An invitation to treat is not an offer, and therefore
when the contract is posted, not when it is received.
its acceptance cannot give rise to a contract. At an
The offeree must make an unqualified acceptance
auction sale, the call for bids by an auctioneer is an
of all the terms of the offer. If they attempt to impose
invitation to treat (that is, an invitation to buyers to
a conditional acceptance, this becomes a counter
make an offer) and the bid by the intending buyer is
offer and so is a rejection of the offer. An offer can
the offer. The acceptance is indicated and completed
only be accepted by those people to whom it was
by the fall of the auctioneer’s hammer. Thus a bid
made. An offer may be revoked at any time before it
may be withdrawn by a buyer at any time before it is
is accepted. Any acceptance must be within the time
accepted by the auctioneer. Similarly, an auctioneer
period stipulated in the offer. If an offer, for example,
may refuse to accept an offer if the bid does
states that acceptance must be within three days,
not reach the minimum (or reserve) price set by the
then any attempt to accept after five days will be
seller. Prices on marked articles in shop windows
invalid. If no time period is specified, the offer may
are just invitations to treat – they are not offers
be accepted within a reasonable time.
to sell at the marked price. Therefore, a shopkeeper
is not required to sell an item on display, nor are
Consideration
they obliged to sell it at the marked price. Catalogues
and advertisements that offer goods or services The element of consideration is essential to any
for sale, and timetables that offer transport at a valid contract. This is what turns a mere promise into
particular place and time, are typically invitations a contract that the law will enforce. Every contract
to treat. contains at least one promise, and the enforceability
of a promise depends on the promisee’s response.
acceptance auction The promisee must have given, done or suffered
the unconditional consent a public sale in which
to all the terms of an offer people bid for goods or something in exchange for the promise, and that
property, and the sale is to ‘price paid for the promise’ is called consideration.
the highest bidder
Consideration needs to be of some value, and
cannot be illegal or unlawful. It must move from
the promisee to the other party to the contract. In
Acceptance of the offer
most cases, consideration is in the form of money
An acceptance of an offer is the unconditional given in return for goods or services. Consideration
agreement to all the terms of the offer. For a binding may also take the form of someone’s reliance on
contract to exist between the parties, the acceptance a promise, to their disadvantage or detriment (for
must be communicated to the offeror. It is open to example, doing something, refraining from doing
the offeror to state how the offer shall be accepted. something, giving up something, or taking on some
Quite often, an offeror makes it clear that the offer responsibility in order to obtain the benefit promised
must be accepted in writing by mail. The postal by the promisor).
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10
CHAPTER 10 OPTION 1: CONSUMERS
In Court
Blackpool & Fylde Aero Club v Blackpool Borough Council, Court of Appeal [1990]
3 All ER 25
This is a leading case in English contract law and focuses upon the legal duties of parties in a tendering
process.
Since 1975, Blackpool & Fylde Aero Club had held a series of licences from the local council operate
pleasure flights out of Blackpool Airport. However, when their licence was approaching its expiry date
in 1983, the council decided to invite seven organisations, including the Blackpool & Fylde Aero Club,
to submit tenders for the new licence.
In order for the new tender to be considered by council, all tender applications were required to be
submitted at the Town Hall ‘not later than 12 o’clock noon on Thursday 17 March 1983’. The Blackpool
& Fylde Aero Club placed their offer in the letter box at the Town Hall one hour before the cut-off time:
11 am on the 17th. They expected the letter box to be cleared at noon, but the Town Clerk’s staff failed
to do this. Consequently, the letter was not considered ‘delivered’ until after the deadline thus resulting
in a new licence being awarded to one of the other bidders – Red Rose Helicopters.
Discussions between the Aero Club and the council made it clear that the letter had in fact been
delivered on time. As a result, the council declared the previous round of tenders invalid, and invited
the submission of new tenders. When this happened, Red Rose Helicopters advised the council that
it was contractually bound to grant the licence to them. The council therefore withdrew its offer of a
second round of tenders in order to pursue the contract with Red Rose Helicopters. The Aero Club
immediately sued for ‘breach of contract’, arguing that the council had not lived up to its promise to
consider all applications that were submitted by the deadline.
The High Court of Justice found in favour of
the Blackpool & Fylde Aero Club, and held that
the council was liable for damages to the Aero
Club for breach of contract and negligence.
Blackpool Council resolved to appeal to the
Court of Appeals, where it was decided that,
while an invitation to tender could in certain
circumstances give rise to binding contractual
obligations, the council in this instance had a
‘legal duty’ to consider all applications equally.
The Blackpool & Fylde Aero Club was therefore
entitled as a matter of contractual right to have
its tender opened and considered along with the
Figure 10.5 Breach of contract – Blackpool
others because it was submitted in accordance
Council was found liable in damages to the Aero
with the council’s guidelines. Hence the appeal Club for not considering its tender application
by Blackpool Council was dismissed. fairly.
consideration • Parties must have the capacity to enter into
something given, done or suffered by the promisee in
a contract – that is, they must be capable at
return for a promise in a contract
law of entering a voluntary agreement. Hence,
contracts entered into by people who lack
Other requirements contractual capacity (for example, children,
people who have relevant mental incapacity,
Other conditions for an enforceable contract include
and people under the influence of alcohol or
the following:
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CAMBRIDGE LEGAL STUDIES HSC
drugs) may not be enforceable by the other
party. Research 10.2
• Certain types of contracts have requirements
set out in legislation. For example, in New Visit the website of the Law Society of NSW
South Wales, contracts for the sale of land at http://cambridge.edu.au/redirect/?id=6303
must be in writing or there must be a written and answer the following questions.
note or memorandum of the contract signed 1 What happens when someone breaks a
(Conveyancing Act 1919 (NSW) s 54A). contract?
• The obligations in a contract will be negated 2 Outline the features that make a
if either or both of the parties have not given contract?
their free and voluntary consent, due to mistake 3 When can you get out of a contract?
(one or both parties misunderstand each
other or agree on the basis of an incorrect
understanding of the facts), misrepresentation
can terminate the contract and sue for damages.
(one party induces the other to enter the
Warranties, on the other hand, are terms that are
contract by making a false statement), duress
less important or peripheral aspects of a contract
(a party’s consent was obtained by violence or
(for example, a manufacturer’s promise to repair or
threats) or undue influence (one party’s use
replace faulty goods). If a party fails to honour its
of power or status to obtain the consent of the
warranty, the aggrieved party can sue for damages
other).
but is not entitled to end the contract.
• Contracts for illegal acts (such as a contract
to kill someone) or that otherwise contravene condition warranty
(of a contract) a term of a minor term of a contract
public policy (for example, that endanger
fundamental and essential whose breach entitles the
public safety) are void and unenforceable. importance; if a condition aggrieved party to sue for
is breached by a party the damages, but not to end
duress other party is entitled to the contract
coercion or pressure used by one party to influence terminate the contract and
another party can sue for damages
damages
Terms of contracts (contractual) money ordered by a court to be paid to a
plaintiff where a contract is breached, for the purpose
The terms of a contract relate to the basis of the of placing the plaintiff in the same situation as if the
agreement; for example, Amy agrees to sell certain contract had been performed
goods to Liam, and Liam agrees to pay the sum of
$500 to Amy. These promises are known as the terms Once a contract is made, legal obligations and
of the contract, and can be express or implied. rights flow from it. Consequently, if one party to a
Terms may appear in the form of a written contract fails to perform their side of the bargain
document, usually signed by both parties, or may (that is, if they breach the contract), contract law
consist of oral statements. If a document is not provides a remedy.
signed, written terms may be incorporated into a
contract that would otherwise be an oral contract Express and implied terms
(for example, terms on the back of a ticket, or on a The terms of a contract may be express or implied.
sign at the entrance to a place where the customer Express terms are contractual terms that are either
has paid for entry). spoken or written into a contract and are agreed to
by both parties. They clearly set out the legal rights
Conditions and warranties of both parties. Implied terms can arise under
A term within a contract can be either a condition general law or statute. Terms may be implied in
or a warranty. If one party to a contract breaches a certain types of contracts, such as contracts for
condition (for instance, using the earlier example, the sale of goods. They may also be implied in a
if Liam refuses to pay Amy), the aggrieved party particular contract based on the parties’ presumed
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10
CHAPTER 10 OPTION 1: CONSUMERS
intentions as interpreted by the court, or on the basis
of ordinary custom or usage in a particular market or
situation. An implied term should be reasonable and
consistent with the express terms of the contract. In
other words, it needs to allow the parties to perform
their tasks efficiently and fairly.
express term implied term
a contractual term that has a contractual term that has
been specifically stated not been included in the
and agreed to by both formal agreement; terms
parties at the time the can be implied by custom
contract is made, either in or law, or because of the
writing or orally presumed intentions of the
parties
Australian legislatures operate on the principle
that certain standards must be upheld when people
enter contractual agreements, even where these
standards are not stated expressly. An example of Figure 10.6 In a car park, a contract is entered into
the moment a ticket is accepted from an automatic
an implied term for the protection of consumers is
dispensing machine. On the back of the ticket or on
a guarantee of acceptable quality for the sale of
a sign near the ticket machine there will be a notice
goods under Australian Consumer Law (ACL). In drawing the motorist’s attention to any exemption
simple terms, this means that when a consumer clauses.
makes a purchase, there is an implied term that the
goods will be fit for purpose. to the car while it is parked on their premises. In
Implied terms add another layer of consumer these circumstances, the party wishing to rely on
protection because they ensure that individuals who the exemption clause will have to show that they
are sold inadequate goods, for instance, can seek a took reasonable steps to give notice of the clause to
remedy. the other party before or at the time the contract is
made. Where a reasonable person would not expect
acceptable quality fit for purpose
an implied guarantee in an implied term in ACL, the ticket or document to contain contractual terms,
ACL that goods sold are guaranteeing that the then the exclusion clauses cannot be relied on.
fit for purpose, acceptable goods sold will do what
in appearance, free from they were designed to do Acts done outside the terms of the contract will not
defects, safe and durable normally be covered by exemption clauses.
Other examples include an airline ticket that
guarantees a flight, but not necessarily on the
Exclusion clauses stipulated date, and housing insurance that will not
Exclusion clauses are incorporated into contracts cover acts of God or terrorism.
to attempt to limit a party’s liability for conduct that
would otherwise breach the contract. These clauses Unconscionable contracts
limit or take away the other party’s right to claim The general rule is that the court will not grant relief
damages. Such clauses are almost always contained to a party just because the contract operates against
in a written document; it may or may not be signed. them. However, where a contract is entered into as
For example, when a motorist parks in a car park, a result of one party’s unconscionable conduct,
a contract is entered into the moment a ticket is the other party may seek a remedy. A contract can
accepted from an automatic dispensing machine. be set aside (rescinded) where one party, if at a
On the back of the ticket or on a sign near the ticket special disadvantage against another party, has this
machine there will be a notice drawing the motorist’s disadvantage exploited by the other party using their
attention to the fact that the owners of the parking superior bargaining power or position in an unfair
station will take no responsibility for any damage way.
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CAMBRIDGE LEGAL STUDIES HSC
In Court
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
An elderly Italian couple who were not fluent in English and had little formal education signed a
mortgage with the bank, as security for the debts of one of their sons’ building companies. The
mortgage included a guarantee that the parents would be liable for the debts of the company. Their
son’s explanation to them of the guarantee was inaccurate, and the bank made no attempt to explain
it to them. When the son’s business went into liquidation, the bank claimed nearly $240 000 under the
guarantee. The contract was set aside on the basis of unconscionable dealing by the bank.
The High Court held that a contract can be rescinded where one party has knowledge of, or is
aware of the possibility, or a reasonable person would be aware of the possibility of another party’s
‘special disadvantage’, and takes unfair advantage of this through their superior position in entering
into a transaction. In this case the parents were considered to have a ‘special disadvantage’ because
of their age, background and reliance on their son’s misleading information about the extent of their
liability under the guarantee.
unconscionable conduct rescind
one party’s exploitation of the vulnerability of another to revoke, retract or cancel
party to a contract; the victim may have been impaired
by some external factor (such as age, disability or lack of
education) or may have been deceived or threatened by There are also remedies under the law of equity
the stronger party for parties who have entered into a contract based on
the unconscionable conduct of another party.
Research 10.3
Access A Guide to the Unfair Contracts Terms Law at http://cambridge.edu.au/redirect/?id=6304 and
complete the following tasks.
1 In broad terms, what is a standard form contract? Give some examples of such contracts.
2 In deciding whether a contract is a standard form consumer contract, what factors must a court
take into account?
3 Read Schedule 2, s 24(1) of the ACL and s 12BG of the Australian Securities and Investment
Commission Act 2001 (Cth), and briefly outline the test to determine unfairness in a consumer
contract.
Review 10.3
1 What elements must exist before a contract can come into existence?
2 Differentiate between an ‘offer’ and an ‘invitation to treat’.
3 Explain what you understand by the ‘postal acceptance rule’. Why is it important?
4 Parties to a contract must have the ‘capacity’ to enter into contractual negotiations. Explain what
this means and provide examples of those individuals who are deemed at law to be lacking in that
capacity.
5 Explain the notion of an unconscionable contract? What remedy is available to individuals who
enter such contracts?
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10
CHAPTER 10 OPTION 1: CONSUMERS
The legal notion of unconscionability is best (such as for unsatisfactory work). The company
understood by considering whether, if one party urgently needed the helicopter, which the
suffers from a special disadvantage, the other party painting company knew. The court accepted
has used their superior position to exploit that person. the argument that the document ought to
be voidable on the grounds of duress, as the
Available relief in equity charter company believed the helicopter would
As noted previously, a party who is a victim of be kept if the document had not been signed.
duress, undue influence or unconscionable dealing • The product purchased must be of
may be entitled to obtain relief in equity by having merchantable (acceptable) quality. For example,
the contract rescinded. in Australian Knitting Mills Ltd v Grant (1933) 50
Equitable remedies and legislative provisions CLR 387, underwear purchased caused a severe
protect consumers in transactions involving the sale skin reaction. Grant initially lost this case, but
of goods. Legislation provides guarantees that are was successful on appeal in Grant v Australian
implied in all sale of goods transactions. Knitting Mills [1936] A.C. 562. The Privy Council
The following cases illustrate some of the ways (highest court of appeal at the time) found that
that the law protects consumers: the manufacturer and the retail shop had been
• A party may seek relief because of undue negligent and in breach of the implied term of
influence. This is where a party exploits a the contract of sale – that the goods would be
relationship of influence (where one party satisfactory for the buyer’s use.
depends on another) to induce the other • The product must be fit for the purpose for
party into entering the contract. For example, which it is required. In an early English case,
a person who is materially or emotionally G.H. Myers & Co. v Brent Cross Service Co. (1934)
dependent upon another can be easily 1 KB 46, the court held that a repair company
influenced: see Johnson v Buttress (1936) 56 that installed faulty connecting rods in a car
CLR 113, in which a will was successfully was liable for the breach of this implied term.
challenged on the ground that an illiterate This case established that this term should
widower had been influenced by a relative, be implied both in contracts for the supply of
whom he relied on for advice, into leaving this goods only, and in contracts for the supply of
relative his only asset. goods along with work to be done.
• A contract for professional services must be • A product must match its advertised description,
performed with reasonable care. For example, where the buyer relies on that description,
in Astley v Austrust Ltd (1999) 197 CLR 1, a whether or not they have seen the product or
company sued a law firm for poor legal advice, has bought it on the basis of the description
which had left the company with onerous debts. alone. For example, in Beale v Taylor (1967) 1
The court considered the question of whether WLR 1193, a car for sale was advertised as a
the company could succeed in an action for ‘1961 Herald 1200 convertible’. Although the
breach of the implied term in the contract that buyer examined the car and saw that there
the solicitors would act with reasonable care. was a metal disc on the rear of the car showing
• A party may seek relief because of duress ‘1200’, in fact a 1961 model and an earlier one
or coercion. For example, in Hawker Pacific had been welded together. The buyer was
Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 entitled to damages for breach of the English
NSWLR 298, the contract was for paintwork statute applying to the sale of goods.
on a helicopter. When the charter company • Manufacturers/suppliers cannot engage
arrived to pick up the helicopter, which in deceptive or misleading marketing and
had been sent back to have defects in the advertising. In Qanstruct Pty Ltd v Bongiorno Ltd
paintwork corrected, the document presented (1993) 113 ALR 667, the members of a company
by Hawker Pacific, and then signed by the were induced to purchase four life insurance
charter company, showed a lower price, but policies, and also to finance their purchase by
included a term excluding any further liability borrowing from a company associated with
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CAMBRIDGE LEGAL STUDIES HSC
Bongiorno. They were told that payments on The Contracts Review Act 1980 (NSW) allows the
the policies would be tax deductible. They court to grant relief for unjust contracts. The court
suffered financial loss as a result of going into may refuse to enforce any or all provisions of the
debt without gaining the promised tax benefits. contract, make an order declaring the contract void,
The statements of the defendant company, or make an order varying (changing) any provision
Bongiorno, were held to have been misleading. in the contract. When deciding whether or not a
contract or a term is unjust, the court must consider
the public interest, all the circumstances of the case,
Review 10.4
whether the aggrieved party had the opportunity to
negotiate the terms before signing, whether the
1 Explain what you understand at law by
terms were reasonable or difficult to comply with,
the concept of an equitable remedy.
and whether the parties had equal bargaining
2 Why is Johnson v Buttress (1936) 56 CLR
power. Section 9(2) sets out the ways in which a party
113 a good example of equitable relief?
may have been at a disadvantage, such as undue
3 How does Hawker Pacific Pty Ltd v
influence or pressure, as well as conditions of age,
Helicopter Charter Pty Ltd (1991) 22 NSWLR
mental capacity and literacy, and lack of legal or
298 demonstrate consumer protection?
other expert advice.
4 What does the phrase ‘fit for purpose’
The Australian Securities and Investment
mean? Give an example of classic case
Commission Act 2001 (Cth) sets out the powers of the
law that underlies this ideal.
Australian Securities and Investment Commission
(ASIC) and governs consumer protection in relation
to financial services, including education of
consumers through a financial literacy framework
Statutory protection and enforcement of court-ordered remedies.
The Australian Consumer Law (ACL), a The ACL also introduced a new protection for
comprehensive law for consumer issues that consumers in dealing with standard form contracts.
established uniform consumer laws in all states A consumer contract, which is a standard form
and territories in Australia, commenced on 1 contract, is prepared by one party – generally the
January 2011. As noted above, the ACL provisions party with all or most of the bargaining power – and
are contained in Schedule 2 of the Competition and then presented to the other party (the consumer),
Consumer Act 2010 (Cth) (formerly Trade Practices who is required to accept or reject the terms. A term
Act 1974 (Cth)). We now have one national legislative of a standard form contract is considered unfair if it
instrument that governs all fair trading and consumer would ‘cause a significant imbalance in the parties’
protection. rights and obligations, is not reasonably necessary in
The provisions of the ACL broadly reflect those
in the Trade Practices Act, but some additional
protections have been added. It also picks up most
of the consumer protection provisions in the fair
trading legislation of each state and territory. So now
a number of state and federal statutes ensure that all
consumer contracts contain implied terms providing
broad protection against unconscionable conduct,
defective products, and deceptive or misleading
advertising. The most significant of these are:
• Competition and Consumer Act 2010 (Cth)
• Australian Securities and Investments
Commission Act 2001 (Cth)
• Fair Trading Act 1987 (NSW)
• National Consumer Credit Protection Act 2009 (Cth)
• Contracts Review Act 1980 (NSW). Figure 10.7 A court can overturn an unfair contract.
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CHAPTER 10 OPTION 1: CONSUMERS
order to protect the legitimate interests of the party by the customer, and AAPT’s ability to terminate
who would be advantaged by the term, and would service and to charge a reconnection fee for an
cause detriment (whether financial or otherwise) to overly broad range of reasons. The tribunal held that
a party if it were to be applied or relied on’ (s 12BG). these terms were indeed unfair.
consumer contract
a contract for the supply of goods or services, or for a sale
or grant of interest in land, to an individual purchasing
10.3 C
onsumer protection
the goods, services or land for personal, domestic or
household use
Negligence and consumer
protection law
In determining whether a term in a consumer
Where goods manufactured without proper care
contract is unfair, a court must take into account:
cause injury, loss, damage or death, the consumer
• the contract as a whole, and
is entitled to bring an action under the relevant
• the extent to which the term is clear and readily
federal or state legislation. Alternatively, they may
understood by both contracting parties.
have a cause of action for breach of contract, if the
The court may also take into account any other
supplier or manufacturer has expressly or impliedly
matters it considers relevant.
promised that the goods are free of defect. A third
A good example can be seen in Director of
type of claim is an action in negligence (breach of a
Consumer Affairs of Victoria v AAPT Ltd (Civil
duty of a person to take reasonable care not to cause
Claims) [2006] VCAT 1493. This case concerned state
harm to other people), as demonstrated in Grant v
legislation that had objectives and terms similar to
Australian Knitting Mills [1936] A.C. 562, a case in
the amendments to the ACL. In 2003, Part 2B had been
which sulphite was left in woollen underpants,
inserted into the Fair Trading Act 1999 (Vic), making
causing the plaintiff to contract dermatitis.
a consumer contract with an unfair term in it void.
Consumer Affairs Victoria brought an application negligence
before the Victorian Civil and Administrative Tribunal a breach of the duty of reasonable care owed by one party
to another, and damage to the plaintiff resulting from this
against the telephone company AAPT, alleging that breach
certain terms in its mobile telephone contracts were
unfair. Some of these terms concerned variations to In Australia, governments seek to keep unsafe
the contract that could be made by AAPT but not products from the market and inform consumers
about product safety by ensuring that:
• safety warning notices for goods or services are
Research 10.4 published regularly (ACL ss 129–130)
• consumer goods or product-related services
Go to the NSW Fair Trading home page at may only be provided if they comply with a
http://cambridge.edu.au/redirect/?id=6305 compulsory safety standard (ACL ss 104–108)
and then use the ‘Consumer Guarantees, • suppliers notify the Commonwealth minister
warranties & refunds’ option in the within 48 hours of becoming aware that a
‘Consumers’ tab at the top of the page to person has suffered serious injury, illness or
complete the following tasks. death associated with a consumer good or
1 Outline the automatic guarantees to product-related service they supplied – either
which you as a consumer are entitled at in Australia or overseas (ACL ss 131–132A)
law, regardless of any other warranties • unsafe products that reach the market are
that merchants might provide. readily detected and reported
2 What products and services are • there is effective and timely removal of unsafe
guaranteed under the ACL? products from the market (ACL ss 109–119)
3 Under what conditions do consumer • compulsory product recall occurs if required
guarantees not apply to you? (ACL ss 128 and 201 for supplier-initiated recall;
ss 122–127 for minister-ordered recall)
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CAMBRIDGE LEGAL STUDIES HSC
Legal Links
Go to http://cambridge.edu.au/redirect/
?id=6306 to view the ACCC product safety
recall list.
Regulation of marketing and
advertising
Figure 10.8 Product recalls occur in order to protect Statutory protection
the safety of consumers. Although common law provides some protection for
consumers with regard to the deceptive practices
• compensation is available to consumers who of manufacturers and suppliers, it was not until it
suffer injury because of a safety defect (ACL was codified into statute that consumer law truly
Parts 3–5). emerged as a force for social and economic justice.
Suppliers have a duty to warn consumers of Provisions protecting consumers from deceptive
products that are considered to have dangerous advertising and marketing practices are contained
characteristics that are discovered after they are in both federal and state consumer legislation.
already on the market. They may also be required They are found in the Australian Consumer Law
to recall the product, under the Competition and (ACL), which is Schedule 2 of the Competition and
Consumer Act 2010 (Cth) (see previously for ACL Consumer Act 2010 (Cth).
sections) or the Fair Trading Act 1987 (NSW) (s 45).
Where a product has been recalled and a supplier Australian Consumer Law (ACL)
federal legislative provisions contained in Schedule 2 of
does not comply with this recall notice, a consumer the Competition and Consumer Act 2010 (Cth) – formerly
may still be able to sue for damages if they suffer loss the Trade Practices Act 1974 (Cth)
or damage as a result of this failure (Fair Trading Act
1987 (NSW) s 46).
Some recent examples of product recalls include: Deceptive or misleading conduct
• Takata airbags (2017) were installed in 2.3 million Section 18 of the ACL, formerly s 52 of the Trade
cars in Australia and are a subject of the largest Practices Act 1974 (Cth), contains provisions providing
vehicle recall in history. Some of these are faulty protection against deceptive or misleading conduct.
on deployment, having already caused serious At law, ‘conduct’ means ‘doing or refusing to
injury (April 2017) and a death (July 2017). do any act’. Conduct is considered misleading
• Target Australia’s Girl’s Frill Night Shorts (2017) if it has the capacity to lead into or cause error.
did not comply with the Safety Standard 2017 Making a statement that is literally true may
and could be a fire hazard. nonetheless constitute misleading or deceptive
Legislative provisions regarding consumer conduct. Misleading or deceptive conduct includes
product safety standards, which include exaggerated statements about a product, failure
requirements for testing of goods and the inclusion to disclose all relevant information, and in some
of warnings or instructions with products, are circumstances silence. It also includes promises
intended to prevent or reduce the risk of injury to that are not kept and incorrect predictions. The
any person. See, for example, Part 3-3 of the ACL. court will determine objectively whether conduct is
Children’s prams, smoke detectors and kitchen likely to mislead the public. In determining this, the
ovens are examples in which the importance of these court will look at what a reasonable person’s reaction
safety standards is particularly evident. would be to the representation.
In addition to these provisions, there are state and It makes no difference whether the company
federal laws governing the provision of information intended to mislead or deceive consumers; even
about products and services. omitting to say something can amount to misleading
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CHAPTER 10 OPTION 1: CONSUMERS
or deceptive conduct if this involves a deliberate • a claim that a product is sponsored by or used
decision to withhold information. If an advertisement by a celebrity when in fact it is not
creates a misleading perception about an item (for • a false or misleading claim about a potential
example, if a manufacturer of small toys with many consumer’s need for any goods or services
detachable parts failed to disclose the risks to infants • a false or misleading claim about the existence,
and toddlers), then the company may be in breach of exclusion or effect of any condition, warranty or
the ACL. Recent case law has suggested that a clear guarantee
causal link will need to be shown for a court to find • a false claim about the place of origin of a
that silence contributed to an erroneous impression. product.
Under the ACL, a consumer can recover damages
for the loss or damage suffered by the conduct of Unconscionable conduct
another which contravenes provisions in the ACL. The ACL (in ss 20, 21 and 22) provides protection for
Under the Australian Constitution, a federal consumers against unconscionable conduct.
Act applies to all trading, financial and foreign
corporations within Australia, as well as to people Offering gifts and prizes
who are engaged in trading, financial and foreign Suppliers who entice consumers to buy their goods
trade across state borders. The Fair Trading Act 1987 or services by offering gifts, prizes or other free items
(NSW) regulates people who have a link to New South with the intention of not providing the advertised gift
Wales and who are not covered by the federal Act. contravene s 32 of the ACL. Suppliers participating
in such marketing schemes are considered to have
In Court been engaging in deceptive practice.
eBay International AG v Creative Bait advertising
Festival Entertainment Pty Ltd (2006) 170 Bait advertising is the practice of advertising
FCR 450 something at a specified price, with the knowledge
A concert promoter sold tickets that stated that it will not be possible to offer it at that price for a
that all tickets resold for profit would result reasonable time and in reasonable quantities. Often
in the holder of the newly bought ticket referred to as ‘bait and switch’, this tactic has the
being refused entry to the concert. The objective of getting the consumer into shops, where
court held that the promoter had engaged in sales staff inform customers that they have ‘run out
misleading and deceptive conduct and that of’ a particular line and attempt to convince them
the new condition of sale conveyed a false to buy a more expensive product or model. Such
representation that all tickets resold for profit behaviour contravenes s 35 of the ACL.
would be cancelled.
bait advertising
advertising goods or services for sale at a specified price
with the knowledge that the company will not be able to
offer them at that price for a reasonable period
False or misleading representations
In addition to the provisions concerning misleading For example, in Reardon v Morley Ford Pty Ltd
and deceptive conduct, the ACL contains specific (1980) 49 FLR 401, the Federal Court found that a car
provisions regarding representations (s 29). A dealership breached what is now s 35 of the ACL
representation is a statement or assertion. A person (it was then s 56(1) and (2) of the Trade Practices
contravenes (breaches) this provision by making Act). It advertised a car at a price, but when a
false or misleading representations to consumers prospective buyer came to inspect it, he was told the
about their goods or services, such as: model advertised had already been sold – in fact,
• a false claim about the quality or value of a that model at that price had never been for sale by
product that dealer.
• a claim that goods are new when in fact they
are second-hand
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CAMBRIDGE LEGAL STUDIES HSC
Reebok EasyTone claims false: ACCC
Lucille Keen
The Australian Financial Review, 24 October 2014
Reebok has been fined $350 000 for misleading
consumers about a pair of shoes that it claimed
would tone the buttocks up to 28 per cent more
than regular sneakers.
The Federal Court in Perth said it was
misleading for Reebok to claim that its
EasyTone shoes will increase the strength
and muscle tone of the wearer’s calves, thighs
and buttocks more than if they were wearing
traditional walking shoes.
The court found these claims contravened
the ACL and the company had no reasonable
grounds for making the representations. Figure 10.9 Reebok EasyTone
Reebok is required to refund $35 to
every customer who bought the shoes – the trainer version retails for up to $179 – between
September 2011 to February 2013, and who believe they suffered loss or damage as a result of the
company’s representations.
The advertisements promised that the shoes would strengthen hamstrings and calves by up to 11 per
cent and tone the buttocks up to 28 per cent more than regular sneakers, just by walking.
Reebok claims the ‘balance ball inspired’ shoes use pockets of air to ‘absorb energy’, create ‘micro
instability’ and ‘tone and strengthen key leg muscles while you walk’.
‘It’s as easy as that,’ one of the slogans on the box said.
‘This shoe can help tone some of your hard-earned leg muscles’, ‘Better butt and legs with every
step’, ‘Take the gym with you’ were other claims made.
Only doing the hard yards works
Fitness expert Jacqui Ambrus-Bonazzi said instability devices don’t really tone muscles.
‘You’ve got to do resistance training and eat a clean, balanced diet,’ the owner of Canberra-based
business PT2U said. ‘To say a shoe will do this is far-fetched and a marketing ploy. If people think it
has helped it is probably more of a placebo effect.’ …
The shoes had been imported and sold by Reebok in Australia to stores such as Myer, Rebel Sport,
Foot Locker, Jim Kidd Sports and The Athlete’s Foot, since December 2009, but the proceedings
related to promotional material from September 2011 to February 2013.
Reebok was ordered to pay $25 million by the Federal Trade Commission to settle a similar claim
in the United States. After the US case in November 2011 and until May 3, 2012 Reebok Australia
supplied 16 448 pairs of EasyTone shoes to retailers that may have contained the promotional
material, court documents claim …
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CHAPTER 10 OPTION 1: CONSUMERS
Australia Competition and Consumer Commission deputy chairman Delia Rickard said when
companies claim their products have certain performance characteristics and benefits, they have a
responsibility to ensure that those claims are accurate and supported by credible evidence.
‘This is particularly important in cases such as this where it is difficult for consumers to
independently verify the claims,’ Ms Rickard said. ‘The fact that these claims made about the alleged
benefits of EasyTone shoes had come to the attention of regulators in other jurisdictions, but still
continued to be made in Australia by Reebok was of particular concern to the ACCC’.
Reebok is required to establish a hotline for consumers to call, and to publish corrective notices with
details of how consumers can seek redress.
Review 10.5 Unsolicited and unordered goods
Sections 69–95 of the ACL deal with unsolicited
Read the media article about Reebok consumer agreements. An unsolicited consumer
EasyTone and complete the following tasks. agreement is where a ‘dealer’ enters into an
1 Why was Reebok fined by the ACCC? agreement for the supply of goods or services with
2 List the false claims in the Reebok a consumer as a result of negotiations, and these
advertisement. negotiations were not invited by the consumer.
3 Besides paying the actual fine, what else Under s 39 of the ACL, a person must not send
did the ACCC require Reebok to do? unsolicited credit cards through the mail; there is
an exception for credit card companies that are
providing a replacement for an expired card. Section
40 of the ACL prohibits a person from claiming they
Referral selling have a right to be paid for unsolicited goods or
Section 49 of the ACL states that a supplier cannot services unless the person reasonably believes they
offer discounts, rebates or other benefits to have a right to the payment.
consumers in return for their providing information
about other prospective customers. Coercion
Under s 50 of the ACL, a person must not use
Pyramid selling coercion, physical force or unwarranted harassment
Under ss 44 and 46 of the ACL, it is illegal for a person in connection with the supply, possible supply or
to participate in a pyramid selling scheme. This payment for goods or services.
is a scheme in which prospective participants are
promised payment or other benefits for introducing Cooling-off period
others to the scheme. The practice is fraudulent Legislative provisions permit cooling-off periods
because what is really being sold is the right to in relation to certain contracts because the law
distribute, not the actual product or service being acknowledges the existence of high-pressure
marketed. sales tactics that can influence consumers to make
pyramid selling cooling-off period
an illegal type of selling in which an individual pays to a period of time that gives buyers an opportunity to
become a distributor of goods in return for a reward for rethink their decision to enter into a contract of sale
recruiting new distributors
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CAMBRIDGE LEGAL STUDIES HSC
purchases they otherwise would not. These tactics
may not constitute unconscionable conduct, but Research 10.5
may result in purchases that put the buyer at a
disadvantage. Legislation that provides for a cooling Read the ACL sales practices guide (see
off period includes: http://cambridge.edu.au/redirect/?id=6307)
• ACL – allows for a 10-day cooling-off period and complete the following tasks.
and the right to terminate a contract after 1 Can a business or person issue an
the cooling-off period where the contract is invoice that states an amount to be paid
an unsolicited (direct marketing) consumer for unsolicited goods or services?
contract (s 82) 2 What is the maximum penalty for
• Motor Dealers Act and Repairers Act 2013 (NSW) requesting payment for unsolicited goods
– provides a one-day cooling-off period where and/or failing to include a warning notice
the vehicle is purchased by a consumer on on an invoice?
credit arranged through the dealer (ss 80–81)
• Conveyancing Act 1919 (NSW) – specifies a five-
day cooling-off period for sales of residential Standards Board and the Advertising Claims
property (s 66S) Board. These boards operate on the principle that
• Student Assistance Act 1973 (Cth) – provides for advertisers have a shared interest in promoting
a 14-day cooling-off period for a loan contract consumer respect for, and confidence in, general
between a student and a financial company advertising standards.
(s 12KA). The ASB provides a free complaint resolution
service to the public. It also makes decisions
on complaints about most forms of advertising
Review 10.6
and marketing. Issues from which complaints
arise include the use of language; discriminatory
1 When is a consumer entitled to bring an
presentation of people; concerns about children;
action in negligence?
depictions of violence, sexuality and nudity; and
2 Explain the significance of Grant v
health and safety. There is an appeal mechanism by
Australian Knitting Mills [1936] A.C. 562.
which the community and advertisers can challenge
3 List and explain the relevant sections of
decisions made by the ASB.
the ACL that relate to the protection of
The Advertising Claims Board provides a
consumers from unsafe products.
complaint resolution service regarding issues of
4 Why is s 18 of ACL so important?
truth, accuracy and legality of advertising. The
5 What do you understand by the notion of
complainant bears the cost of the resolution process.
a ‘false and misleading representation’?
Its primary purpose is to resolve disputes between
Provide some examples of this behaviour.
competitors through alternative dispute resolution
6 Differentiate between ‘referral’ and
(ADR), rather than through expensive and time-
‘pyramid’ selling. Why are they deemed to
consuming litigation.
be illegal?
alternative dispute resolution (ADR)
methods other than formal court proceedings for settling
disputes, including arbitration, negotiation, mediation
Non-statutory controls on advertising and conciliation
Non-statutory bodies provide protection when it
comes to deceptive and/or misleading marketing Both boards use professional codes of ethics
and advertising. Australia has a highly accessible as the basis for their determinations. These codes
self-regulatory framework which complements its include the Australian Association of National
statutory regime. Advertisers (AANA) Code of Ethics, the AANA Food
That system is administered by the Advertising & Beverages Code and the AANA Code for Advertising
Standards Bureau (ASB) through the Advertising and Marketing Communications to Children.
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CHAPTER 10 OPTION 1: CONSUMERS
Review 10.7
1 How does statute law combat high-pressure sales tactics?
2 List and explain the statutes that have inbuilt cooling-off periods.
3 Briefly outline the non-statutory controls that exist to address deceptive and/or misleading
marketing and advertising in Australia.
that people employed in various occupations have
Legal Links the requisite skills and perform their roles honestly.
Licensing controls govern most professions, trades
The AANA codes can be viewed at http://
and businesses, including those in Table 10.1.
cambridge.edu.au/redirect/?id=6308.
Self-regulation
One way that industries may set practising standards
Occupational licensing and regulate the entry of individuals into their field
Regulation of professions and occupations may is self-regulation through professional bodies. Two
include: notable examples of this are the Australian Medical
• registration – listing practitioners on an official Association (AMA) and the NSW Law Society. The
register to identify them and to ensure that they former is a national body that regulates the ethics,
comply with legal requirements work standards and academic qualifications of
• certification – a way of recognising those who doctors, and the latter has co-regulatory duties,
have obtained qualifications that are necessary with the Office of the Legal Services Commission,
and/or desirable for practising the profession; to enforce professional standards, provide licences
it also provides information to the public that for practising, investigate complaints and provide
will help them choose between competing disciplinary action.
professionals In some professions, self-regulation works closely
• licensing – a means of identifying those who in tandem with legal requirements. However, in
have fulfilled criteria related to education, others, the absence of compulsory standards can lead
experience and compliance with professional to a lack of uniformity in matters such as complaints
codes of ethics, and authorising them to and disciplinary processes; difficulty for employers
practise; it generally involves a regulatory body in assessing a breach of professional ethics; and a
to administer the licence. burden on consumers to inform themselves about
If all individuals in the workforce could be trusted the quality of a professional’s practice. Individuals
to maintain high standards of ethical practice, there in occupations as diverse as social workers,
would be no real need for licensing. The imposition of accountants, migration agents and opticians –
licensing and registration is an attempt to guarantee as well as their professional organisations – have
Table 10.1 Examples of regulated professions, trades and businesses
Professionals Trades Businesses
Doctors Plumbers Travel agents
Lawyers Electricians Car dealers
Engineers Builders Credit providers
Dentists Motor mechanics Hotels
Architects Carpenters Motels
Veterinarians Fitters and turners Restaurants
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CAMBRIDGE LEGAL STUDIES HSC
Figure 10.10 Licensing is designed to protect consumers from unqualified professionals, tradespeople and
businesses.
addressed the need for legislation to ensure that all all licensed auto-electricians, panel beaters, spray
practitioners meet standards of competence and painters, and brake and transmission mechanics to
ethical behaviour. ensure that only licensed repairers complete such
work. Any licensee whose work is below the industry
State regulation minimum standard may have their licence revoked
As a consequence of the problems with self- and will not be able to undertake any repair work
regulation, Australian states have been forced to which could potentially harm a vehicle owner or
intercede via rules. In recent times, state parliaments cause further damage to the car.
have enacted rules that provide guidelines regarding
licensee
the fiduciary duties and licensing requirements of
licence holder
real estate agents and solicitors. The objective is to
compel businesses and professionals to act honestly
and in accordance with their duties to consumers.
Review of licensing decisions
An example of a statutory licensing regime in
The regulatory body for a particular profession or
New South Wales, that for automobile dealers and
occupation may grant or revoke a licence. When it
repairers, is discussed below.
fiduciary duty
where one person (the fiduciary) undertakes to act in the
interests of a second person (the beneficiary) and has
the power to effect the interests of the beneficiary
Licensing of motor car dealers and
repairers
The activities of car dealers and repairers in New
South Wales are governed by the Motor Dealers and
Repairers Act 2013 (NSW). The Act ensures that
someone wishing to buy or sell cars is licensed to do
so. This legislation stipulates that dealers must not
make false or misleading statements regarding the
quality of the vehicles they are selling. The Act also
Figure 10.11 The activities of car dealers and
makes it illegal to trade as a vehicle repairer without repairers in New South Wales are governed by the
a licence. This statute also governs the activities of Motor Dealers and Repairers Act 2013 (NSW).
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CHAPTER 10 OPTION 1: CONSUMERS
Review 10.8
1 Outline the three ways in which professions and occupations are regulated in our country. Why
is this regulation necessary?
2 Self-regulation is undertaken by a number of professions. Give two examples of professions that
are self-regulated and explain what is monitored in each case.
3 Why is self-regulation potentially problematic? How is this addressed by law-makers?
Table 10.2 Reasons for a licence to be refused or revoked
Possible reasons for the refusal of a licence Possible reasons for revoking a licence
Inadequate training or education of the applicant Malpractice by the licence holder
Inability of the licence holder to meet minimum Fraudulent, misleading or deceptive behaviour by
industry or professional standards the licence holder
Concern regarding the character of the applicant, A breach of the licence holder’s fiduciary duty with
such as their honesty regard to trust funds
makes an administrative decision to deny access Complaints to suppliers
to, or revoke a licence, it must do so in accordance Under the law, consumers can seek redress in the
with the rules of procedural fairness. In simple form of repair, replacement or refund. If the product
terms, this means that individuals must be given an or service supplied does not do the job that the
opportunity to hear the reasons why their licence has customer was led to believe it would, or there is
been denied or revoked and to present arguments as some serious fault in the product, the customer is
to why the licence should be granted or reinstated. entitled to seek a legal remedy. In most cases, this
If an individual is unsuccessful in obtaining or is initially achieved by the consumer complaining
retaining a licence, they can apply to the Office of Fair in person to the supplier. Usually, the supplier of
Trading for an internal review. If dissatisfied with the a faulty product will repair or replace the product
result, the person can apply to the Administrative or provide a refund. This is because most suppliers
Decisions Tribunal for further review. are aware of the statutory protections in place for
consumers, but also because it is an opportunity to
procedural fairness
the body of rules that ensure that decision-makers act foster goodwill and customer loyalty. A dissatisfied
fairly, in good faith and without bias when resolving customer whose complaint is taken seriously and
disputes
promptly addressed can become an ambassador for
that supplier through word of mouth.
10.4 C
onsumer redress and Complaints to manufacturers
remedies
Consumers do not always have direct access
to manufacturers. Once the location of the
Awareness and self-help manufacturer has been determined, it is prudent
Self-help avenues are open to consumers who for the aggrieved consumer to contact them via
feel they have been treated unfairly by suppliers telephone and in writing.
or manufacturers. Redress can be obtained by Under the Competition and Consumer Act 2010
complaining to the supplier or manufacturer. Self- (Cth), manufacturers have an obligation to fulfil
help is a useful mechanism for consumer redress their express warranties and implied guarantees
because it is resource-efficient and easily carried out. and to ensure that a supply of spare parts and repair
Further, it can provide just outcomes for consumers facilities is reasonably available for a reasonable
without their having to undertake costly litigation. period after goods are supplied to consumers.
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CAMBRIDGE LEGAL STUDIES HSC
investigates unfair practices and administers the
licensing of operators in a range of industries,
including home building, the automotive trades, real
estate, business and retail, and retirement villages.
Consumers can contact NSW Fair Trading for
information on their rights and responsibilities and for
the resolution of disputes. It covers a range of services,
including a statutory public register with information to
help buyers of second-hand cars, bicycles and boats;
help selecting qualified builders and tradespeople
for those thinking of building or renovating a house;
and information for tenants, landlords and real estate
agents about their rights and responsibilities. It has
also released short YouTube video clips on consumer
rights in 11 different languages to increase accessibility
to new migrants.
Figure 10.12 Many companies handle their customer NSW Fair Trading is also the agency where
service through call centres. business owners can register their business names,
and obtain the licences and certificates needed to
Manufacturers must also meet the requirements for operate in New South Wales.
acceptable quality and fitness for purpose.
Government organisations Research 10.6
State government organisations
Visit NSW Fair Trading at http://cambridge.
There are various bodies within or authorised by edu.au/redirect/?id=6309.
the New South Wales Government that deal with 1 Use the links in the menu to research
consumer complaints. The roles of these agencies and make brief notes on each component
include: of consumer rights – myths and facts.
• educating the public about their rights in the 2 Use the links in the menu to select
area of consumer law consumer guarantees, warranties and
• providing advice to consumers about refunds. Make notes under the following
negotiating with providers of goods and headings:
services, and assisting them in their • consumer guarantees
negotiations • warranties
• advising the government about consumer issues • repairs, refunds and replacements
• investigating serious complaints • compensation for damage and loss
• in the event of a breach, applying to the • cancelling a service
relevant tribunal or court to bring an action. • proof of transaction.
Some of the relevant agencies are discussed
below.
NSW Fair Trading NSW Ombudsman
This government body is a division of the New The NSW Ombudsman is a statutory ‘watchdog’
South Wales Department of Finance, Services and body dealing with complaints against the New
Innovation, whose role is to manage consumer South Wales Government. It lists the type of
laws, safeguard the rights of consumers and advise services consumers can lodge a complaint about.
businesses and traders regarding fair and ethical This includes complaints about organisations
practice. The legislative framework that this body delivering community services in New South Wales.
oversees sets the rules for fairness in the daily Those organisations include the New South Wales
transactions between consumers and traders. It Department of Family and Community Services,
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CHAPTER 10 OPTION 1: CONSUMERS
and non-government services that get funding • Tenants NSW (http://cambridge.edu.au/
from these departments. It also conducts reviews redirect/?id=6312) – free tenancy advice funded
of people in care and monitors community service by government.
issues. The NSW Ombudsman can assist anyone
who is a consumer of community services in New Federal government organisations
South Wales, including: Several Commonwealth agencies deal with the
• children and young people in care regulation of industries and protect consumer rights.
• people with disabilities
• the families and the advocates of children and Competition and Consumer Policy Division
young people in care or people with disabilities of the Commonwealth Department of the
• people who use supported accommodation Treasury
services This division of the Treasury provides advice to the
• people who use childcare services Commonwealth Government on the consumer policy
• people who use local neighbourhood centre framework contained in federal legislation and on
services how to promote competitive and informed markets.
• people who use home and community care This includes advice on the policy and regulatory
services. frameworks for promoting competition, and for
consumer protection.
Legal Aid NSW
Legal Aid NSW is an independent statutory body Commonwealth Consumer Affairs
that was set up under the Legal Aid Commission Act Advisory Council (CCAAC)
1979 (NSW). It provides legal advice and assistance CCAAC provides independent advice to the Minister
to socially and economically disadvantaged people, for Competition Policy and Consumer Affairs on
including court representation if there has been a consumer policy issues. Its specific tasks are to:
successful application for a grant of legal aid. Legal Aid • receive reports, papers and issues from the
NSW also gives talks in schools, community centres and minister and advise on the implications for
libraries to educate the public about the law, people’s consumer policy
legal rights and responsibilities, and services; has • investigate and report on consumer issues
information stalls at community events; and publishes referred to it by the minister – for example,
booklets, CDs and DVDs for purchase. Legal Aid NSW it compiled a report on statutory implied
can help with consumer law issues such as matters conditions and warranties in 2009 to inform the
relating to the purchase of goods and services, credit development of the ACL in 2010
matters, matters relating to unconscionable contracts • advise the minister of any emerging issues
and unfair contract terms, as well as matters relating that could affect Australian markets and
to insurance and superannuation. All Australian states consumers.
and territories have legal aid, but not all provide as
much assistance in civil matters. The Australian Securities and Investments
Commission (ASIC)
Other legal and advocacy organisations in ASIC is an independent Commonwealth body that
NSW regulates Australia’s corporate and financial services
Other legal and advocacy organisations that are sectors and ensures that Australia’s financial markets
funded by government and that assist people on are fair and efficient. Among its responsibilities
low incomes are: is the enforcement of consumer protection laws
• Community Legal Centres NSW (http:// covering investments, superannuation, credit
cambridge.edu.au/redirect/?id=6310) – free activities, insurance and financial advice. These
legal advice services laws are primarily found in the Australian Securities
• Financial Counsellors’ Association of NSW Inc and Investments Commission Act 2001 (Cth) and the
(http://cambridge.edu.au/redirect/?id=6311) – Corporations Act 2001 (Cth). ASIC licenses financial
free services for people with debts and services businesses, conducts public education
problems with money
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CAMBRIDGE LEGAL STUDIES HSC
initiatives for consumers, provides information to a $36 million fine in November 2008 for price-fixing
businesses to help them fulfil their obligations, and in the market for cardboard cartons. The penalty
monitors compliance through surveillance. ASIC’s handed down in the Federal Court followed an ACCC
powers include: investigation that found Visy breached the then Trade
• commencing prosecutions, usually conducted Practices Act by engaging in illegal cartel behaviour
by the Commonwealth Director of Public with rival packaging company Amcor Ltd. Billionaire
Prosecutions Visy chairman Richard Pratt was also to face criminal
• seeking civil penalties from the courts charges for lying to the ACCC, but these were dropped
• as a consumer credit regulator, license and when he became terminally ill (he died in April 2009).
regulate businesses engaging in consumer
price-fixing cartel
credit activities as per the National Consumer suppliers keeping prices a group of companies that
Protection Act 2009 (Cth), and ban any in the market at a certain work together to control
level by agreeing among prices and markets; their
businesses from such activities, if necessary themselves not to lower or behaviour is unlawful
• as a market regulator, ensure financial markets raise their prices if it is found to be anti-
are compliant in being fair and transparent. competitive
Australian Competition and Consumer
Commission (ACCC) Consumer Affairs Forum (CAF)
The ACCC is the independent statutory authority The CAF (formerly the Ministerial Council on
that administers the ACL. Its role is to promote Consumer Affairs) consists of the Commonwealth,
competition and fair trade in the marketplace. state and territory ministers responsible for fair
Market competition, or rivalry among producers and trading, consumer protection and credit laws, along
suppliers of goods and services, uses the economic with the New Zealand ministers with those portfolios.
principles of supply and demand to discover the Its role is to assess consumer policy issues of national
kinds of goods and services that consumers want. significance and develop a consistent approach to
Market competition, by contrast with a market those issues, and it facilitates communication and
where there is a monopoly, is believed to benefit cooperation between Australia and New Zealand in
consumers, businesses and the community in those areas.
general. An unregulated competitive market,
however, has a greater likelihood of leading to Review 10.9
unscrupulous or unfair conduct on the part of some
suppliers, and thus risks harm or disadvantage not 1 Briefly explain the role of the NSW
only to the people providing labour to businesses, Ombudsman regarding the delivery of
but also to consumers. government services to consumers.
2 Outline the assistance that Legal Aid
monopoly NSW can provide to consumers.
exclusive control of a market by one company, which
generally results in increased prices because there are no 3 What is the role and significance of the
alternative suppliers ACCC in the Australian context?
The ACCC thus has an important responsibility:
ensuring that businesses and individuals comply
with laws on fair trading and consumer protection. Industry organisations
The ACCC complements state consumer affairs A number of industry organisations deal with
agencies, provides education to consumers and consumer complaints and assist with remedies.
businesses about the relevant laws, and regulates They may be classified as follows.
national infrastructure industries, which include
communications, energy, water, post and transport. Industry-based dispute resolution
An example of a high-profile prosecution initiated Some industry groups have developed complaint
by the ACCC involved the packaging and recycling handling and dispute resolution schemes designed
group Visy Industries Pty Ltd. The company received to provide consumer remedies, enhance business
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CHAPTER 10 OPTION 1: CONSUMERS
reputation, and support claims that these industries The role of tribunals and courts
are self-regulating. For example, Master Builders A tribunal is an adjudicative body that is chosen,
Australia is an employers’ group that represents and often by the government, to decide on legal questions
protects businesses in the building and construction based on a particular area of law. Consumer redress
industry. It has a national code of practice setting out and remedies can be obtained through the following
acceptable standards for commercial behaviour and bodies.
ethics, by which its members are bound. Consumers
can make a complaint to the master builders’ NSW Civil and Administrative
association in their state, but the association’s Tribunal (NCAT)
primary duty is to its members. The Civil and Administrative Tribunal Act 2013 (NSW)
governs the operation, functions and powers of this
Customer-focused corporate tribunal. NCAT is a ‘super tribunal’ that replaced
compliance programs 22 tribunals and bodies, including the Consumer,
These are internal self-regulatory programs that aim Trader and Tenancy Tribunal (CTTT). It deals with
to ensure that a business meets its legal obligations a broad range of matters, including appeals from
to consumers, and to remedy any breach. Industries various government agencies. Its Consumer and
that adopt this approach embrace measures Commercial Division is responsible for resolving
that improve relations with their customers. As disputes between tenants, landlords, traders and
different industries and businesses have different consumers in a timely and effective way. Its website
characteristics and circumstances, compliance provides forms and YouTube videos that aim to make
programs will also vary. Some companies adopt the NCAT a process that consumers and traders can
simple programs with a complaints handling system use without needing legal representation. It conducts
and training for all staff members, while others hearings across 70 locations in New South Wales.
have a team dedicated to compliance, regular risk The Consumer and Commercial Division deals with
assessments and reviews, detailed guidelines, and the following matters:
staff education programs. Compliance programs are • agent commissions and fees
often linked to companies’ strategic goals. • agricultural tenancy
• boarding houses
Industry-based ombudsman • consumer claims
An industry-based ombudsman takes complaints • conveyancing costs
from citizens or consumers about companies, • dividing fences
workplaces or providers and investigates those
complaints in order to reach a resolution that is fair
to both sides. These schemes provide affordable
dispute resolution for consumers who would face
considerable cost and complexity if they had to take
matters to court.
Some independent dispute resolution schemes
are voluntary, but the main ones are part of
licensing requirements for providers in a particular
industry (for example, telecommunications, energy
and water, financial and credit services, and
insurance). The industry then sets up and funds
an ombudsman scheme. For example, the Energy
and Water Ombudsman NSW (EWON) investigates
and resolves complaints from customers of gas and
electricity providers in New South Wales. These
schemes have consumer representatives on their
councils to ensure that they act fairly and are not
Figure 10.13 A tribunal is an alternative to a court.
‘captured’ by the industry.
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CAMBRIDGE LEGAL STUDIES HSC
• holiday parks Other avenues for redress
• home building The role of non-government
• motor vehicles organisations
• pawnbrokers and second-hand dealers
A variety of non-government organisations
• residential parks
represent the interests of consumers. Many of
• retail leases
these are advocacy groups that attempt to influence
• retirement villages
the legislative programs of political parties in
• social housing
government. While they do not generally take on
• strata and community schemes
and pursue individual complaints, they have links
• tenancy
to resources that do. Some of these groups are:
• travel compensation fund appeals.
• Financial Rights Legal Centre (NSW) Inc.
The parties to a dispute will have had an
and Redfern Legal Centre – community legal
opportunity to resolve their differences, but if an
centres that specialise in issues related to
agreement is not reached an application will be
financial services, such as consumer credit,
heard by the tribunal.
banking and debt recovery. They have a
The hearing is presided over by a tribunal
particular focus on issues affecting economic
member. Both parties are given an opportunity to
and socially disadvantaged consumers.
present their evidence and question each other. The
• CHOICE, formerly known as the Australian
tribunal member may also require that the parties
Consumers Association – a non-profit
swear to or affirm the evidence. Once all evidence
organisation that researches and campaigns
has been presented, the tribunal member will make
on behalf of consumers and publishes CHOICE
a decision and explain the reasoning behind it. Both
magazine. CHOICE provides consumers with
parties to the dispute usually receive a typed copy
independent advice on product quality.
of the order within seven days of the completion of
• Consumers’ Health Forum of Australia – the
the hearing. Appeals against a NCAT order can be
national peak body for Australian health care
made only on certain grounds, and are made to the
consumers.
courts.
• Consumers’ Federation of Australia – the
national peak body for Australian consumer
Courts
groups. Its members include legal centres,
If consumers are unable to obtain a remedy through local organisations and public interest bodies.
independent avenues (self-help), ADR or the • Not Good Enough (http://cambridge.edu.au/
relevant tribunal, another option is litigation. The redirect/?id=6313) – a website created to help
courts resolve disputes by: consumers resolve disputes with suppliers of
• considering the evidence and arguments put goods and services. It publishes individuals’
forward by each party input about products and services, and
• interpreting the relevant statute law facilitates responses from companies.
• interpreting and applying common law
principles The role of the media
• following precedent when seen as appropriate
The print and electronic media provide consumers
• determining the lawfulness of legislation.
with information regarding the release, quality
and safety of new products. Various lifestyle and
litigation
civil legal proceedings in which disputing parties seek a current affairs programs feature segments that
binding remedy from a court address consumer complaints and interests. While
broadcasters and print media can be biased in
In recent times, court actions have become very favour of their sponsors, there can be little doubt that
costly. In some instances consumers can reduce they generally provide consumers with another layer
these costs by joining or initiating class actions, of information and publicise the shoddy practices of
which allow aggrieved consumers with similar unscrupulous suppliers and manufacturers.
complaints to pursue their legal action collectively.
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CHAPTER 10 OPTION 1: CONSUMERS
• rescission and modification of contract – where
Review 10.10 the court will set aside a contract and restore
the parties to their original pre-contractual
1 Differentiate between industry-based position
dispute resolution and customer-focused • special order – such as for rectification of the
compliance programs. wrong (for example, the repair of defective
2 Outline the level of consumer redress goods)
available through tribunals and courts in • injunction – an order forbidding or
the Australian context. commanding the performance of an act
3 What roles do non-government • specific performance – an order requiring a party
organisations play in the preservation of to a contract to perform their obligations under
consumer rights in our society? a contract.
injunction
a court order directing someone to do something or
prohibiting someone from doing something
Specific remedies
Court-based remedies
A court may award any of a number of remedies to a Alternative dispute resolution (ADR)
successful complainant. These include: Mediation and conciliation are commonly referred
• damages – monetary compensation awarded by to as ADR mechanisms because they provide an
the court and paid by the defendant to someone alternative to court-based litigation. If a consumer
who proves that loss was suffered as a result of dispute cannot be resolved after the initial complaint
the defendant’s actions is made, it may be necessary to use mediation or
Table 10.3 Individual consumer rights against suppliers
Statutory rights Relevant legislation
Unfair contracts may be rescinded Minors (Property and Contracts) Act 1970 (NSW)
(unconscionable conduct). Contracts Review Act 1980 (NSW)
Goods offered for sale must be of merchantable Sale of Goods Act 1923 (NSW)
quality and fit for purpose.
Terms of the contract regarding guarantees and Minors (Property and Contracts) Act 1970 (NSW)
product warranties must be honoured. Contracts Review Act 1923 (NSW)
Deliberately misleading or deceiving consumers is Competition and Consumer Act 2010 (Cth)
prohibited. Fair Trading Act 1987 (NSW)
Goods must fit the description given to consumers Competition and Consumer Act 2010 (Cth)
by the supplier. Fair Trading Act 1987 (NSW)
Product information standards must be provided Competition and Consumer Act 2010 (Cth)
to consumers (for example, labels relating to Fair Trading Act 1987 (NSW)
contents, ingredients and design standards).
product warranty mediation conciliation
a manufacturer’s promise or a form of alternative dispute a form of alternative dispute
assurance that it will repair or resolution in which a neutral third resolution in which the disputing
replace or otherwise compensate for party assists the disputing parties in parties use the services of a
defective goods; breach of a warranty reaching an agreement conciliator, who takes a more active
entitles the aggrieved party to sue for role than in mediation, advising the
damages, but not to end the contract parties, suggesting alternatives and
encouraging the parties to reach
agreement; the conciliator does not
make the decision for them
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CAMBRIDGE LEGAL STUDIES HSC
Table 10.4 Individual consumer rights against manufacturers
Statutory rights Relevant legislation
A manufacturer must honour its contractual Minors (Property and Contracts) Act 1970 (NSW)
warranties or guarantees. Contracts Review Act 1980 (NSW)
Manufacturers must supply reasonable repair and Minors (Property and Contracts) Act 1970 (NSW)
spare parts facilities. Contracts Review Act 1980 (NSW)
Competition and Consumer Act 2010 (Cth)
Manufacturers/importers must supply goods that Competition and Consumer Act 2010 (Cth)
are safe. Fair Trading Act 1987 (NSW)
Manufactured goods must be fit for purpose and of Competition and Consumer Act 2010 (Cth)
merchantable quality. Fair Trading Act 1987 (NSW)
conciliation. In mediation, a neutral umpire helps an
aggrieved consumer and a supplier/manufacturer Review 10.11
resolve their dispute in a manner that is agreed to
by both parties. Conciliation, on the other hand, 1 Outline and explain the range of court-
allows the neutral third party to actively facilitate based remedies available to consumers.
communication between the disputing parties, with 2 Differentiate between mediation and
a view to resolution. conciliation in the alternate dispute
The Community Justice Centres Act 1983 (NSW) resolution process.
has enabled the establishment of Community Justice 3 What are the most significant benefits
Centres (CJCs) across the state. CJCs are places that accrue to society as a consequence
where mediation and conciliation can occur. More of having a predictable mechanism
often than not, the courts have advised the parties guaranteeing consumer redress in the
in dispute to use these centres in the first instance marketplace?
rather than pursuing costly court procedures.
Benefits to the individual and society
Legal Links
In addition to an individual consumer who succeeds
in obtaining redress from a supplier or manufacturer, The Consumer Action Law Centre has
society benefits from the legal protections in place. information about consumer issues, and a full
The societal benefits of consumer redress include: list of consumer advocacy groups. See http://
• promotion of social equality – consumers are cambridge.edu.au/redirect/?id=6314.
treated alike regardless of their educational
levels and bargaining power
• safety – dangerous products are not allowed
into our markets
• ethical conduct – by requiring suppliers
10.5 C
ontemporary issue: Credit
and manufacturers to fulfil obligations to
consumers, expectations of responsible Why this is an issue
behaviour are reinforced Many individuals in our consumer-driven society
• international cooperation – in a globalised obtain goods and services via the use of a credit
marketplace, a national commitment to card or loans. In a sense, the 21st century is rapidly
consumer protection may have consequences becoming a ‘cashless society’ in which credit
for other countries as well, at least in theory providers issue loans almost too readily. The RBA
• greater choice and quality – market conditions recently announced that card payments overtook
become more consumer-friendly. cash for the first time in 2016, accounting for 52% of
all payments.
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10
CHAPTER 10 OPTION 1: CONSUMERS
Legal responses
A meeting of the Council of Australian Governments
in 2008 determined that there should be a transfer of
consumer credit regulation powers from the states
and territories to the Commonwealth. This resulted
in the evolution of the ACL, amendments to the
Australian Securities and Investments Commission
Act 2001 (Cth), and to the National Consumer Credit
Protection Act 2009 (Cth) and its schedule, the
National Credit Code. Australia now has a single
uniform law for the regulation of consumer credit,
providing both better protection for consumers and
stability for the consumer credit sector.
One of the main aims of this legislation is to
Figure 10.14 Credit is the purchase of goods and ensure that consumer protections for financial
services in advance of future payment. services are consistent with general consumer
protections.
In fact, many consumers live well beyond their Substantial benefits arise from this legislation:
means, and as a consequence can risk exploitation • Consumers and industry benefit from a robust
by unscrupulous lenders. licensing regime that excludes unscrupulous
They may have trouble meeting their repayments, and incompetent credit providers.
and cars, household goods or even homes can be • The credit market in Australia has greater
repossessed. In addition, consumers face other integrity and consumers can be confident that
credit issues, such as: credit providers are being monitored by the
• unfair contract terms government.
• credit providers with inadequate procedures for • Rigorous entry conditions must be met before
handling complaints an Australian credit licence is granted.
• time delays in the handling of complaints by • Credit providers must meet responsible lending
credit providers standards when providing credit or credit
• so many steps involved in the process of assistance.
seeking legal redress that only the most • The credit market benefits from an assurance
sophisticated consumers will persevere. that consumers are well protected.
In recent times credit card providers in Australia All Australian jurisdictions are now, in accordance
have been criticised by the media, CHOICE and the with the National Partnership Agreement to Deliver
Reserve Bank of Australia (RBA) for the exorbitantly a Seamless National Economy, applying the full ACL.
high interest rates they are charging their customers.
As a result, some consumers have accrued National Credit Code (and Credit Law
thousands of dollars of debt across numerous credit Toolkit)
cards. Indeed, credit card interest accrued in 2017 The objective of the code, which is a schedule to
totalled $32.3 billion dollars despite mortgage and the National Consumer Credit Protection Act 2009
general interest rates being relatively low. (Cth), is to provide laws which apply with equal
Banks and other credit card providers are force to all forms of consumer lending and to all
therefore finding it increasingly more difficult to credit providers, and which are consistent across
justify credit card interest rates of around 20% in a all jurisdictions in Australia. The National Credit
financial setting where the RBA reduced the nation’s Code replaces previous state-based consumer credit
cash rate to 1.5% in August 2016 and it has remained codes and the Uniform Consumer Credit Code and
at that level for more than a year! Clearly, people from is administered by ASIC. All information regarding
low socioeconomic backgrounds suffer significant using credit and managing debt is provided on
financial hardship in such situations. ASIC’s MoneySmart website.
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CAMBRIDGE LEGAL STUDIES HSC
The code not only guarantees standardisation loan repayments, default notices and car
but it also requires credit information to be provided repossession).
in a format that is clear and understandable. Banks, • Community Justice Centres (CJCs) (http://
building societies, credit unions, finance companies, cambridge.edu.au/redirect/?id=6316) – provide
businesses and other credit providers are required to: free conflict management and mediation
• inform consumers of their rights and services throughout New South Wales to help
obligations in any credit arrangement people resolve disputes. They are funded by
• provide a written contract that truthfully the NSW Attorney-General’s Department.
discloses all relevant information about the • Financial Ombudsman Service Australia (FOS)
arrangement, including interest rates, fees, (http://cambridge.edu.au/redirect/?id=6317) –
commissions and other information. provides a free mediation service specifically for
Further, credit providers must not enter into resolving credit disputes between consumers
contractual agreements with consumers who may and member financial institutions. It employs
find it difficult to make repayments. Courts will independent dispute resolution processes and
order changes to, or rescind, contracts deemed to addresses complaints about financial services
be unconscionable. relating to banking, loans, credit, financial
A national uniform consumer credit code has planning, investments, managed funds, pooled
many advantages: superannuation trusts, stockbroking, general
• Credit obligations and liabilities are transparent insurance and life insurance.
to all parties. Clearly spelt-out obligations • Financial Rights Legal Centre (http://
increase consumer confidence. Debtors know cambridge.edu.au/redirect/?id=6318) –
their contract is supported by national legislation. provides free telephone and financial
• It gives credit providers more freedom to decide counselling advice, particularly for low-income
their fees and charges as long as they are consumers. The centre is a community legal
explicitly disclosed. centre specialising in financial services, with
• Non-compliance may result in civil penalties up a particular focus on matters and policy issues
to $500 000 and/or criminal charges. related to consumer banking and credit.
• It provides for variations of repayments when • Redfern Legal Centre (http://cambridge.edu.
consumers experience temporary hardship. au/redirect/?id=6319) – offers free legal advice,
• A Credit Law Toolkit provides business owners referral and case work to disadvantaged
with a ‘plain English’ guide to setting out a people and groups in the Botany, Leichhardt
credit contract.
• Credit agreements between businesses and
consumers must be in the form of a written
contract.
• Credit providers must ensure that the
consumer is given both a pre-contractual
statement containing required details about
fees and charges and a statement describing
the consumer’s rights and their obligations.
Non-legal responses
There are a number of useful non-legal avenues
which are free, and thus accessible to all consumers
experiencing credit concerns. Some are:
• NSW Fair Trading (http://cambridge.edu.
au/redirect/?id=6315) – provides free advice
(via phone, in person or online) regarding the Figure 10.15 Redfern Legal Centre is located in the
National Credit Code (for example, regarding old Redfern Town Hall.
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10
CHAPTER 10 OPTION 1: CONSUMERS
and City of Sydney municipal areas. It is an wonder whether the civil and criminal penalties
independent, non-profit community legal will be sufficient to deter some corporations from
centre that provides face-to-face and telephone licensee misconduct. Historically, courts appear to
advice about credit and debt. have been reluctant to impose criminal sanctions on
the board members of corporations, and have relied
Responsiveness of the legal instead on fines that hardly put a dent in annual
system profit figures.
The uniform laws outlined above are designed to
protect consumers entering credit agreements, and
to regulate credit providers. A national response 10.6 C
ontemporary issue:
to this issue is appropriate, so that all Australian Product certification
consumers are protected from unconscionable
credit contracts to the same extent and with the Why this is an issue
same consequences for breach. These include: Consumer goods must pass performance and
• criminal penalties for licensee misconduct – quality assurance tests according to an industry
those who do not follow responsible lending code and/or nationally accredited test standards. If
protocols may be imprisoned for up to two years a product gains certification, it has complied with a
• civil penalties for licensee misconduct – ASIC set of regulations governing quality and minimum
can levy fines of up to $220 000 for individuals performance standards.
and $1.1 million for corporations In a globalised world, trade knows no boundaries.
• infringement notices which let ASIC respond Products made in Australia can be sold anywhere in
swiftly in penalising breaches of the law the world. The same is true of goods manufactured
• compensation or other remedies which can in countries that do not have the same level of quality
put aggrieved consumers back in their original assurance as Australia. Consequently, it is vital
position prior to the financial loss suffered. that all products meet certain minimum safety and
performance standards before they can be sold to
Conclusion Australian consumers.
The National Credit Code guarantees standardisation
of credit contracts across Australia and ensures Legal responses
that credit information is presented in a clear and The Australian Competition and Consumer Commission
easy-to-understand format. Further, credit providers (ACCC) enforces mandatory product safety and
are required to inform consumers of their rights information standards and bans unsafe goods under
and obligations in any credit arrangement, and to the Competition and Consumer Act 2010 (Cth). NSW Fair
honestly disclose, in a written contract, all details Trading, via the Fair Trading Act 1987 (NSW), also has an
that are relevant to the credit arrangement. It should important role in monitoring product safety.
include interest rates, fees and commissions.
In addition to civil remedies for consumers against Product safety
credit providers who breach the code, the state can Under Australian law, product suppliers and
initiate a criminal prosecution. However, you may manufacturers are obliged to ensure that they only
sell safe products. This is done by:
• providing clear instructions for use, including
Review 10.12 warnings against possible misuse
• keeping to industry and mandatory standards
1 Outline the major credit issues that exist • establishing plans and procedures for product
in the 21st century. recalls, including strategies for public
2 Explain the benefits associated with communication
Australia having a single uniform law for • incorporating safety into product design
the regulation of credit. • improving products to raise the level of safety
standards
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CAMBRIDGE LEGAL STUDIES HSC
• establishing a quality assurance program, • Information standards – this is information
incorporating consumer feedback which must be given to consumers when they
• reacting quickly when safety concerns arise. buy specified goods, such as label information
as to contents and risks for cosmetics and
Mandatory product standards tobacco products, and label information as to
There are two ways a standard can be made care for clothing and textile products.
mandatory: statutory regulation or publication
of a notice in the Commonwealth Gazette. The Product certification
notice normally references a published Australian Certification of products indicates their established
Standard but there may be variations. Suppliers are suitability for specified purposes. For example,
legally required to reference both the gazette notice computers and relevant software may have to be
and its ‘Standards Australia’ benchmark. certified as being compatible with one another prior
There are two types of mandatory product to marketing. Further, the certification process has
standards in our country: varying levels of stringency. The greater the risk
• Safety standards – these are legal requirements of injury to consumers, the more demanding the
and contain safety, labelling and design certification process will be.
requirements. They are established when there Once a product is certified, it may be endorsed
is a clear risk to consumers (for example, for with a certification mark or logo. In Australia,
children’s nightwear and flotation toys). If these consumer goods (both domestic and imported)
standards are not met, the product cannot be sold. must meet safety benchmarks prior to sale.
Table 10.5 Common Australian and international certification marks
Products bearing the S-mark demonstrate compliance with legal
European electrical safety requirements via third-party testing by
Intertek Semko AB. Intertek is an internationally renowned organisation
specialising in electrical product safety and benchmark performance
testing. It operates more than 1000 offices and laboratories in 110
countries.
The CE mark indicates that a product can be legally sold within the
European Union. It means the manufacturer has prepared a ‘Technical
File’ to demonstrate the product’s compliance with applicable essential
requirements and obtained a ‘product-specific’ CE marking certificate
from a body specified by the European Union.
The British Standards Institution (BSI) is a non-profit distribution
organisation incorporated under a royal charter, and is formally
designated as the National Standards Body for the United Kingdom. It
certifies products and services as having met the requirements of specific
standards within designated schemes.
Japanese Industrial Standards (JIS) specify the standards used for
industrial activities in Japan.
The ‘Five Ticks’ standards mark is a well-known product certification
symbol from SIA Global, used in Australia and internationally. It indicates
that the product and its production processes meet recognised national or
international standards. The standards mark is not just a manufacturer’s
claim – consumers can have additional confidence in the safety and
performance of the product they are purchasing.
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CHAPTER 10 OPTION 1: CONSUMERS
unannounced factory audits each year to
ensure that the product being made is still
identical to the one that was tested
• the manufacturer’s marketing information,
literature and packaging are authorised to use
the certification mark
• listing is a matter of public record and can be
checked for validity.
In Australia, consumers are protected from
unsafe or substandard goods and services by a
number of legal mechanisms:
• Part 3-3 of the ACL – this contains provisions
Figure 10.16 A camera displaying the CE product specifically addressing unsafe products,
certification symbol through mandatory safety standards and
information standards, banning of unsafe
Certification or quality marks are also regarded goods, compulsory product recalls, and warning
as powerful marketing tools that build consumer notices to the public. This statute is policed by
confidence. the ACCC, which is responsible for all areas of
Certification marks on goods provide the consumer protection and safety apart from
consumer with legal assurance that: financial products and services. It has the power
• there is a product certification agreement to conduct random national surveys of retail outlets
between the manufacturer of a product and to look for non-complying products, to investigate
an organisation with national accreditation for allegations by consumers and suppliers about
both testing and certification non-complying goods, and to investigate goods
• the product was successfully tested against a sold by direct marketing (internet and television).
nationally accredited standard It can conduct recalls, obtain court-enforceable
• the accredited certifying organisation undertakings, and/or initiate prosecutions. It can
guarantees that the item offered for sale is seek proof of compliance from suppliers and
identical to the one tested arrange for goods to be tested; for example, bicycle
• the successful test has resulted in a helmets may be tested for impact resistance.
‘certification listing’, which sets out the The ACCC also has an educational role and
conditions of use for the certified product and provides information and advice to consumers and
its compliance with the law (de-listing occurs in suppliers about the requirements of the mandatory
the case of non-compliance) product standards.
• the manufacturer is regularly audited by • The Australian Securities and Investments
the certification organisation to ensure the Commission Act 2001 (Cth) – this legislation,
maintenance of the original quality standard enforced by ASIC, protects consumers by ensuring
that was employed in the manufacture of the that market participants act with integrity with
test specimen regard to contracts for loans, superannuation and
• if the manufacturer fails an audit, all goods other financial products and services.
certified will be immediately removed from • Various state/territory fair trading statutes
the market with the consumer compensated whose powers have been absorbed into and/
accordingly. or ‘mirror’ the provisions of the Competition and
A certification listing indicates to the consumer Consumer Act 2010 (Cth) – in New South Wales
that: this is the Fair Trading Act 1987 (NSW).
• the product is manufactured under a • The Federal Treasury also provides advice to the
certification that exists between the government on the consumer law provisions of
manufacturer and the certification organisation; the Competition and Consumer Act 2010 (Cth) in
this means that the certifier will conduct order to promote a safer market for consumers.
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CAMBRIDGE LEGAL STUDIES HSC
Frozen berries: Australian producers angry about ‘quality’ statement
Esther Han, Consumer Affairs Reporter
Sydney Morning Herald, 19 February 2015
The frozen berries maker embroiled in the national hepatitis A outbreak has been telling customers
it does not always use Australian fruit because of ‘quality’ concerns, outraging local growers.
The revelation comes as five more people were diagnosed with hepatitis A after eating frozen
berries on Wednesday, bumping the national tally to 14 and intensifying consumer anger.
Schools and childcare centres across the country have also been caught up in the health scare, with
some issuing parents with letters about their use of the potentially contaminated fruit.
In an email reply to a customer concerned about source countries two years ago, Patties Foods said:
‘Australian growers cannot always provide either the quantity or the quality that we require on an
ongoing basis.’
Local berry growers are outraged by the comment, saying it is a poor excuse from a company buying
cheap produce.
‘I certainly dispute that. We have premium, excellent quality berries that are now available 12 months
of the year,’ said Jonathan Eccles, executive officer of Raspberries and Blackberries Australia. ‘It
comes down to quantity and the price they’re willing to pay. Not quality.’
The email also revealed Patties’ ‘policy was to acquire Australian fruit wherever possible,’ despite
the fact in the past two years it sourced berries from China, New Zealand, Canada, Chile, United
States, Greece, Turkey and Serbia.
The four recalled products – one-kilogram packs of Nanna’s Raspberries and Frozen Mixed Berries,
as well as 300 gram and 500 gram packs of Creative Gourmet Mixed Berries – were largely sourced
and packed in China.
About 90 per cent of China’s groundwater is polluted, 65 per cent severely so, with contaminates
such as pesticides, fertilisers and petrochemicals, a report from the Centre of International Security
Studies at Sydney University showed.
Pressure is mounting on politicians to toughen country-of-origin labelling laws, with consumer group
Choice launching a petition to end the ‘labelling farce’ aimed at federal Agriculture Minister Barnaby
Joyce.
Patties Foods chief executive Steven Chaur told Fairfax Media that labelling laws were ‘stringent’
and adequate.
But Choice spokesman Tom Godfrey said: ‘We’ve had inquiry after inquiry on this issue. Year after
year it rates as a top concern of Australian consumers. It’s time for action.
‘Confused claims such as “Packed in Australia using imported fruit” or “Made in Australia using
local and imported ingredients” offer very little information about a product’s origin and are largely
meaningless to consumers.’
As of Wednesday evening, there were 14 victims of the outbreak: five in New South Wales, five in
Queensland, three in Victoria, and one in Western Australia.
Frozen berry products have been shooting up grocery sales charts, jumping to 10th place in the ‘all
frozen’ category in the past year, according to Nielsen research.
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CHAPTER 10 OPTION 1: CONSUMERS
The federal health department, federal agriculture
department and Food Standards Australia and New
Zealand are working with state and territory health
authorities and the food industry to resolve this public
health issue, a spokesman said.
The first recall was issued nationally on Friday, February
13. On Tuesday, Mr Chaur said the raspberries were the
common link and may be the culprit.
Symptoms of hepatitis A can include abdominal pain,
loss of appetite, yellow skin and eyes, dark urine and
pale faeces, tiredness and a mild headache. …
The Federal Health Department is in the midst of co-
ordinating a national health response across all states
with hepatitis A patients.
‘Anyone who has eaten the recalled frozen berries and
feels unwell should consult their GP,’ a spokesman said.
Figure 10.17 A brand of frozen mixed
berries led to a hepatitis A outbreak.
Non-legal responses
Research 10.7
Individuals may take action through one of the
independent consumer groups which advocate on
Access the ACL product safety guide via
behalf of consumers, lobby parliament to influence
http://cambridge/edu.au/redirect/?id=6442
legislation, and act as consumer ‘watchdogs’ to
and answer the following questions.
highlight unsafe products in the Australian market.
1 How does the ACL regulate consumer
The media can also be a powerful tool for
goods and product-related services? Is
highlighting and publicising consumer safety issues.
this an effective level of regulation? Why?
2 Briefly outline the legal responsibilities
Responsiveness of the legal system
of suppliers.
Federal and state governments enforce mandatory
3 What is a safety warning notice? Outline
product safety and information standards via the
what can be included in such notices.
ACCC and NSW Fair Trading. Both organisations
4 Under what conditions can a minister
play a central role in educating consumers and
impose a ban on a consumer good or
businesses about product safety, and produce
product-related service?
publications on safety and standards. They also
conduct ongoing market surveys to be sure that
products continue to meet acceptable standards.
Both organisations can prosecute suppliers who
ignore their statutory obligations.
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CAMBRIDGE LEGAL STUDIES HSC
Where problems do occur with a product, both more sophisticated – especially with the advent of
the ACCC and NSW Fair Trading are able to remove e-commerce. Therefore, recent innovations in global
unsafe goods from sale. They can issue public marketing technologies are of particular interest to
warnings about particular defects, or even recall law-makers.
dangerous products. For example, in September 2017 As soon as a business website becomes
the ACCC published a list of all vehicles affected by operational, it is marketing to the world. When this
the recall of Takata airbags on its Product Safety is combined with Australian consumers’ increasing
website. reliance on their credit cards and online purchasing,
consumer protection becomes problematic.
Conclusion Governments have a vital role to play in developing
As we have seen, the Australian legal system seeks to appropriate legislative responses that will facilitate
ensure that all products consumers buy are safe and a fair marketplace.
meet internationally recognised quality standards.
This is achieved via product certification, which Legal responses
demonstrates that a product, process or service Marketing innovation can be utilised for bogus
satisfies specified requirements. purposes, posing new challenges to Australian law.
Clearly, without a product certification process For example:
in operation, there would be a very real risk to the • Many Australian consumers routinely receive
health and safety of Australian consumers, as a fraudulent overseas offers via the internet.
consequence of inadequate quality assurance and • Scammers have the ability to obtain email
safety measures. Despite this, however, Australia addresses and contact millions of internet
is one of the most open markets in the world. With users very quickly.
thousands of importers across our country, it is very • Overseas pyramid selling schemes proliferate.
difficult to ensure that unsafe products will not enter • Householders receive overseas phone calls
our market. While we have the requisite laws in place from dubious investment advisers promoting
to protect consumers, we have to rely upon consumer suspicious share deals.
watchdogs such as the ACCC, the media and various • ‘Phishing’ attacks are becoming quite common.
industry self-regulatory bodies to bring unsafe goods This is a type of internet fraud that tries to
to the attention of the public. Sadly, this sometimes steal credit card numbers, user IDs, passwords
happens only after a consumer is injured. and other valuable information. It is often
undertaken through the creation of forged
websites that request consumer information.
Review 10.13 Phishing scams frequently involve placing links
on websites, or in email or instant messages
1 Why is product certification important in
that seem to come from a trusted service
a global society?
such as a bank, credit card company or social
2 Outline the essential obligations product
networking site. In the first six months of 2017,
suppliers and manufacturers have under
the ACCC’s Scamwatch received more than
Australian law to ensure product safety.
11 000 reports of phishing where consumers had
Briefly evaluate each requirement.
lost nearly $260 000.
• Spam is also becoming commonplace. Spam
is unsolicited commercial messages, sent via
10.7 C
ontemporary issue: email, SMS, MMS, instant messaging or any
Marketing innovations other form of electronic communication. The
Spam Act 2003 (Cth) made it a civil offence
Why this is an issue to use address-harvesting software to build
Marketing is a process by which a business creates distribution lists of recipients. The Act also
a ‘consumer interest’ in its products. Over time, gives powers to Australian Communications
the marketing process has become increasingly and Media Authority (ACMA) to search and
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CHAPTER 10 OPTION 1: CONSUMERS
Figure 10.18 Phishing scams are becoming more prevalent.
seize equipment and impose penalties of $1.7 • Section 29 states that it is illegal for suppliers to
million per day for breaches to the Act. In 2006, make false or misleading representations when
ACMA’s first case was ACMA v Clarity1 in marketing/advertising their goods or services.
which Clarity1 were ordered to pay a pecuniary • Section 32 makes it illegal for suppliers or
penalty of $4.5 million for breach of the Spam merchants to offer gifts and prizes if they do not
Act 2003 (Cth). Despite this, its use is on the intend to provide the advertised gift.
rise by e-marketing companies. For example, • Section 35 makes it illegal to use bait advertising.
in 2015, Vadkho (owner of retail website Go • Section 49 outlaws referral selling: offering
Deals) received a formal warning for sending discounts or benefits to consumers in return
marketing emails in breach of the Spam Act for their introducing other customers to the
2003 (Cth). Recipients were unable to opt out of supplier.
their marketing emails. Since the warning, Go • Section 50 makes it illegal to coerce consumers
Deals improved its opt out processing requests. via aggressive marketing practices.
As a consequence of these developments,
consumer protection agencies such as the ACCC Research 10.8
and NSW Fair Trading regularly scan the internet,
radio and TV for illegal offers designed to exploit Visit the Australian Consumer and
consumers. They also rely on consumers reporting Competition Commission Scamwatch website
deceptive marketing schemes. at http://cambridge.edu.au/redirect/?id=6320
As discussed above, deceptive advertising and and then complete the following tasks.
marketing practices are addressed in both the 1 What is phishing?
Competition and Consumer Act 2010 (Cth) and the Fair 2 How can you detect the ‘warning
Trading Act 1987 (NSW). The ACL strictly prohibits signs’ that a phishing scam might be in
such practices. The key provisions that relate to operation?
marketing can be summarised as follows: 3 Outline the steps you can take to protect
• Section 18 outlaws deliberate misleading or yourself from phishing scams.
deception of consumers.
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CAMBRIDGE LEGAL STUDIES HSC
Figure 10.19 Scamwatch provides information about scams.
• Section 44 prohibits pyramid selling: it is illegal • the print and electronic media, which report
to sell the right to ‘distribute’ as opposed to the questionable marketing activity to provide
actual product. the consumer with a greater awareness of the
• Section 39 makes it illegal for suppliers to send nature and prevalence of scams.
unsolicited credit cards through the mail.
• Section 40 prohibits the act of sending unsolicited Responsiveness of the legal
goods to a person and then demanding payment. system
The legal system responds very well to domestic
Non-legal responses marketing issues. Australian consumers buying
There are a number of ‘consumer watchdogs’ products in Australia have a high level of protection.
whose objective is to identify fraudulent marketing The emerging problem, however, relates to
practices and scams. These groups include: marketing that originates from foreign countries and
• CHOICE, which publishes a magazine for is accessed via the internet.
consumers and reports on a variety of issues Advances in electronic marketing make it easier
including deceptive marketing practice. for fraudulent marketers to communicate with their
• Scamwatch, a website operated by the ACCC victims and to transfer money across borders. The
(http://cambridge.edu.au/redirect/?id=6320). transnational nature of scams makes it very difficult
It provides information to consumers and for Australian authorities to catch the perpetrators.
small businesses regarding the recognition, Further, there are complicated and difficult
avoidance and reporting of scams. One of the questions of jurisdiction and foreign law.
biggest scams is online dating. According For example, if marketers in country X use a
to a 2015 ACCC report, romance scams were service provider in country Y to establish a home
the biggest financial fraud in 2014, costing page upon which false claims are made about the
Australians almost $82 million that year. safety of their goods, where does the act of false
• the Australian Communications and Media representation take place? Millions of consumers
Authority (ACMA), the government agency globally can access that page and purchase online.
responsible for regulating telecommunications, How do Australian authorities prosecute violations
radio communications, broadcasting and the in that instance? This will be an ongoing challenge
internet. Consumers can make complaints to for our domestic law.
ACMA regarding deceptive marketing and
advertising practices. According to a media Conclusion
release in 2016, ACMA issued a formal warning There will continue to be consumer protection issues
to Web 1000, an online marketing business. For raised by marketing in the information society.
more information visit the ACMA website via Domestic law may prove to be powerless when it
http://cambridge.edu.au/redirect/?id=6321. comes to online purchases from foreign marketers.
Review 10.14
1 Explain why marketing innovation poses new challenges to the Australian legal system.
2 Briefly outline the provisions contained in the ACL that directly relate to marketing.
3 How effective is Australian law in dealing with transnational marketing? Why?
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CHAPTER 10 OPTION 1: CONSUMERS
Australia does not exist in a vacuum – we are part of and telephony have facilitated electronic services
a global marketplace that employs rapidly changing such as:
technologies. Countries cannot close their borders • internet marketing
to keep out an incoming cyber threat. Attempts to • electronic service delivery
solve these challenges at the national or regional • electronic lodgement services for submissions
levels are simply not sufficient. Cyber criminals such as tax returns
are not bound to geographical locations, so laws • branchless banking from home
and technological measures can no longer operate • teleshopping in ‘virtual malls’ anywhere in the
purely within national or regional boundaries. world
• online reservation schemes for entertainment,
travel and accommodation
10.8 C
ontemporary issue: • online ordering of and payment for goods
Technology • telemarketing via telephone
• interactive voice response (IVR), used by
Why this is an issue suppliers via an answering machine, which
The use of new technology in the areas of computing provides automated prompts for simple
and global communication is constantly changing transactions
the level and complexity of interaction between • electronic service delivery (ESD) programs
consumers and sellers. Technology has infiltrated based on customer convenience; for example,
all levels of consumer transaction services, from websites, such as that of the ACCC, provide
Automated Teller Machines (ATMs) to Electronic consumer protection advice and service 24
Funds Transfer at Point of Sale (EFTPOS) and hours a day, seven days a week.
electronic home and office banking services. As global marketing and virtual shopping become
The problem facing consumer law is that the the norm, Australian and international law will
various services now available over the internet have to work hard to protect consumers regardless
operate in a less regulated environment. The web of whether a product is purchased domestically
Figure 10.20 Online purchasing is becoming more popular.
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CAMBRIDGE LEGAL STUDIES HSC
or internationally. Many areas of technology were
discussed earlier in the chapter – for example,
scams, spam, telemarketing, phishing, online fraud
and credit.
Legal responses
The use of technology in the global marketplace
makes it very difficult for Australian law because
it has no international jurisdiction, and legislative
strategies for meeting these challenges are still
developing. However, some effective legal responses
can be used to achieve justice for consumers:
• The assets of a foreign online marketer can
be frozen if the Australian legal system has
information about the location of the marketer’s
assets. However, the absence of international
treaties, plus foreign bank privacy laws, may
make it difficult to recover a consumer’s money.
• When an online marketer’s assets are within Figure 10.21 New technologies will continue
Australia and their location is known, a to challenge law enforcers by creating new
court can impose an order freezing them for opportunities for fraud.
compensation purposes.
• Arrest warrants can be issued in Australia,
and if there is an extradition treaty with the Where once consumers could speak with
foreign country, individuals in that country who someone over a counter to obtain product
breach our consumer laws can be extradited to information, people are increasingly forced
Australia for trial. to interact via telephone and the internet. Not
• It is technologically possible for ‘government all consumers have the requisite information
monitors’ to seek out and remove fraudulent technology (IT) skills or functional literacy, and
telemarketing sites from the internet, although this could lead to exploitation.
governments are often reluctant to do this. • Low-income people who cannot afford the
• Part 20 of the Telecommunications Act 1997 (Cth) technology or the connection fees become
gives the ACCC the authority to administer disadvantaged in both obtaining access to
the Rules of Conduct (contained in that Act) products and resolving complaints.
governing dealings with international • Already we see people on hold for long periods
telecommunications operators. While this power on telephone complaint lines, only to speak with
has limitations, its inclusion in the legislation someone who has a script and little ability to
demonstrates a recognition of the scope of the deal with the particular problem. Independent
adaptations that the law must continue to make. dispute resolution schemes that are billed back
Problems associated with the use of technology to industry have proved useful in getting past
are not related just to international transactions. these roadblocks.
Consumers making domestic online purchases can • Computer-generated responses to consumer
also be victims of unscrupulous behaviour. Issues complaints (for example, using IVR) act as
that arise in respect of online transactions, whether barriers to self-help strategies.
local or across international borders, include the • The increasing trend towards ‘remote
following: purchasing’ can compromise such things as
• There remains a need to ensure fair dealings product quality, correct installation, adequate
between suppliers and consumers regarding demonstration of operation, provision of advice
terms and conditions of the sales contract. and ‘after-sales service’.
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CHAPTER 10 OPTION 1: CONSUMERS
• There is a need to ensure that the identity data online and wireless applications, with the aim
gathered about consumers via their online of reducing the volume of spam.
transactions is protected and people’s privacy • the Internet Industry Association (IIA), a
is maintained. similar organisation for internet service
• Information gathered about consumers can be providers. It has developed several codes of
used inappropriately by suppliers for ‘consumer practice, notably the IIA Spam Code of Practice
profiling’ (for example, collecting consumer (registered in 2006) to supplement the Spam Act
purchase data for the marketing of ‘like 2003 (Cth), explaining its requirements and how
products’ via telephone, internet or direct mail). to comply with it.
• It is important to ensure that biometric data • the Australian Securities and Investments
collected for consumer identification purposes Commission (ASIC), which has the mission
(for example, fingerprints, retina scans and of regulating and enforcing laws relating to
voice recognition) is not transmitted digitally fairness and honesty in financial services,
to other organisations without the person’s markets and companies. In this context, it
consent. oversees the regulatory issues posed by
The Competition and Consumer Act empowers the developments in electronic communication.
ACCC to enforce the prohibitions contained in that ASIC is also responsible for approving codes
Act, and, as noted above, it also has enforcement of practice in the financial services industries.
powers under Part 20 of the Telecommunications Act One of these is the Electronic Funds Transfer
1997 (Cth). The extension of trade and commerce Code of Conduct, which applies to banks and
into the online environment poses interesting other financial institutions that offer electronic
challenges for the law. The Do Not Call Register Act funds transfer services to their customers.
2006 (Cth) is regulated by ACMA, and offers the ‘do
not call register’, a secure database for consumers
to register their telephone numbers to opt out of Review 10.15
receiving telemarketing calls.
1 Outline the electronic consumer services
Non-legal responses that have evolved as a consequence of
A number of organisations have a role in ensuring the World Wide Web.
that technology is not misused. These include: 2 Evaluate the effectiveness of Australian
• the Australian Communications and Media law as it relates to the use of technology
Authority (ACMA), a statutory authority in the global marketplace.
within the federal Department of Broadband,
Communications and the Digital Economy. It is
responsible for the regulation of broadcasting, Research 10.9
radio and television communications, and the
internet. Learn about the work of Associate Professor
• the Australian Direct Marketing Association Marios Savvides at Carnegie Mellon
(ADMA), an industry body for direct marketing University at http://cambridge.edu.au/
companies. It is strongly committed to self- redirect/?id=6322, particularly his work on
regulation. With other industry and consumer iris and face recognition. Then complete the
representatives, it formulated the eMarketing following tasks.
Code of Practice (registered in 2005) to 1 Explain how iris and face recognition
supplement the Spam Act 2003 (Cth), which technology may affect consumers.
regulates commercial electronic messages 2 Suggest some potential legal issues
and outlaws spam. This code stipulates how for consumers if this technology is
direct marketers can and cannot use electronic introduced into the marketplace of the
messages, including email, SMS and other future.
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CAMBRIDGE LEGAL STUDIES HSC
Figure 10.22 Laws may have to be updated to cover the increased commercial and domestic use of drone
technology.
Responsiveness of the legal Conclusion
system The legal system will always trail behind
Generally, the Australian legal system affords technological innovation. It is clear that law-makers
consumers some protection against the misuse of will continue to encounter significant problems as
technology provided that e-marketers are located they attempt to ensure that the use of technology for
within Australian borders. The Competition and sales, advertising and marketing does not weaken
Consumer Act 2010 (Cth) and the Telecommunications consumer protection in the domestic and global
Act 1997 (Cth) allow the ACCC to police the consumer marketplace.
law domestically, with an arsenal of criminal and Both government enforcement and industry
civil sanctions at its disposal. However, cross- initiatives for self-regulation are required for
border e-marketing raises complex jurisdictional effective consumer protection. The combined work
questions, and the law’s evolution in order to of government, business and consumer groups
adapt is ongoing. Future consumer remedies may is needed to provide consumers with the tools to
be dependent upon the existence of multilateral protect themselves.
international treaties.
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CHAPTER 10 OPTION 1: CONSUMERS
Chapter summary
• The need for consumer protection grew • Occupational licensing and practising
from the operation of caveat emptor in the standards may come from either industry self-
marketplace. regulation or from state regulation.
• Contract law attempts to define the • Consumer remedies are available through
circumstances under which parties who make tribunals, courts, self-help, government
promises to each other are legally bound. agencies and industry organisations.
• The essential elements of a contract are • The National Credit Code standardises credit
intention to be legally bound, offer, acceptance transactions throughout Australia.
and consideration. • Product certification guarantees that goods
• Implied terms can provide protection to have passed performance and quality
consumers from unjust contracts. assurance tests.
• The Competition and Consumer Act 2010 (Cth) • Advances in electronic marketing have allowed
(formerly the Trade Practices Act 1974 (Cth)) fraudulent marketers to exploit consumers via
and the Fair Trading Act 1987 (NSW) apply internet scams.
the ACL in New South Wales by prohibiting • The use of technology in the global marketplace
sellers from knowingly deceiving or misleading makes it problematic for Australian law due to
consumers. jurisdictional questions.
Questions
Multiple-choice questions D certifying that a product has undergone
1 Acceptable quality has been achieved if goods: government inspection
A are fit for purpose
B fit the description of the manufacturer 5 Phishing scams rely on:
C fit the description in the advertisement A placing links in electronic communication
D fit the description of the seller to induce individuals to reveal personal
information
2 Caveat emptor means let the: B downloading advertisements that seem to
A seller beware come from a trusted source
B manufacturer beware C sending instant messages that seem to
C buyer beware come from a trusted service
D producer beware D inserting links in instant messages
3 Compliance with consumer law is guaranteed Chapter summary questions
by: 1 Outline the essential elements of a contract.
A statutory controls 2 List three ways a consumer can seek a remedy
B the cost of goods and services for injury or loss suffered as a result of defective
C the goodwill of the supplier goods.
D the honesty of the supplier 3 List the major statutory provisions that govern
marketing and advertising.
4 Product certification is the process of: 4 Briefly outline the main avenues available to
A ensuring that all goods sold in Australia consumers seeking redress.
have been certified 5 Explain why both marketing innovations and
B certifying that a product has passed technology pose challenges for consumer
performance and quality assurance tests protection law.
C ensuring that all goods are labelled correctly
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CAMBRIDGE LEGAL STUDIES HSC
Extended-response questions 3 Evaluate the effectiveness of industry self-
1 How effective is state and federal legislation in regulation in protecting consumers, compared
preventing manufacturers from making false with government regulation.
claims about a product? 4 Discuss the role of competition in the
2 Discuss the types of assistance offered Australian and global economies. In your
by the various non-government consumer answer, consider the relationship between
organisations. In your answer, consider issues a competitive marketplace and consumer
of access, awareness, resources available to the protection.
organisation, and effectiveness of the solutions
offered.
In Section III of the HSC Legal Studies in length (approximately eight examination
examination you will be expected to complete writing booklet pages). Marking criteria for
an extended-response question for two options extended-response questions can be found at
you have studied. There will be a choice of htpp://www.cambridge.edu.au/education. Refer
two questions for each option. It is expected to these criteria when planning and writing your
that your response will be around 1000 words response.
Themes and challenges
The role of consumer law in in less conflict between buyers and sellers.
encouraging cooperation and Despite this, however, the global nature of the
resolving conflict marketplace makes it increasingly difficult to
• To ensure that consumers and suppliers resolve such conflict.
operated on an equal footing, the laissez-faire
approach to the marketplace, along with the Compliance and non-compliance
principle of caveat emptor, had to be modified in consumer law
or superseded by a greater emphasis on state • A wide range of federal and state legislation
regulation. operates to ensure that buyers and sellers
• Contract law ensures that promises made by comply with the law. Sanctions are imposed on
consumers, manufacturers and suppliers are parties who fail to do so.
kept. • Express and implied terms of contracts
• To constitute a legally binding contract, an guarantee that all goods sold are of acceptable
agreement must have the essential elements of quality, match their description and are fit for
intention, offer, acceptance and consideration. purpose.
• Self-help remedies can be a means of achieving • The ACL makes it an offence for a supplier or
redress without costly litigation, and is more manufacturer to deliberately mislead or deceive
likely to encourage cooperative communication a consumer.
between the consumer and the supplier or • Any action by unscrupulous suppliers is
manufacturer, rather than conflict. punishable by law. The statutes seek to protect
• Cooling-off periods inserted into contracts vulnerable consumers, especially with regard to
allow consumers to rethink their position and unconscionable contracts.
withdraw without penalty. • Non-statutory mechanisms such as industry
• In an economy increasingly dominated by self-regulation and media scrutiny will
e-commerce, Australian direct marketers have continue to have a significant role in ensuring
established a code of conduct, which results compliance with consumer law.
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10
CHAPTER 10 OPTION 1: CONSUMERS
Laws relating to consumers as a delivery 24 hours a day, seven days a week.
reflection of changing values and Further, it advises the government in areas of
ethical standards consumer law such as telemarketing.
• The fact that caveat emptor (‘let the buyer • The Spam Act 2003 (Cth) outlaws the sending of
beware’) no longer governs consumer contracts unsolicited commercial electronic messages by
of sale demonstrates a recognition of the email, instant messaging, SMS and MMS.
unequal bargaining power and knowledge
in the marketplace and that social outcomes The effectiveness of legal and
of that market failure are too costly to both non-legal responses in achieving
individuals and the economy. Also you might justice for consumers
consider that societal values and ethical • Three federal acts governing consumer
standards have changed. protection are the Competition and Consumer
• Consumer law reflects community awareness Act 2010 (Cth) (formerly known as the Trade
that modern markets are extremely complex Practices Act 1974 (Cth)), the Australian
and consumers need to be protected by a raft of Securities and Investments Commission Act
legal regulations. 2001 (Cth) and the National Consumer Credit
• NSW Fair Trading, ASIC (Commonwealth) Protection Act 2009 (Cth). At state level, there
and the ACCC (Commonwealth) are consumer is the Fair Trading Act 1987 (NSW), Contracts
watchdogs whose activities implicitly promote Review Act 1980 and the Sale of Goods Act 1923
ethical standards in all consumer dealings. (NSW).
• The Australian legal system endeavours to • Occupational licensing protects consumers
balance the rights and values of individuals by ensuring that only licensed individuals
against those of the community at large. can provide services. It is a state and territory
• Ethical standards are reflected in occupational responsibility. Self-regulating professional
licensing schemes, which ensure that bodies such as the Australian Medical
unqualified and unscrupulous individuals Association and the Law Society of NSW
cannot legally provide services to consumers. perform much the same role.
• The rise of the global marketplace and
The role of law reform in e-commerce will continue to be problematic as
recognising the rights of the state seeks to remedy consumer injustice.
consumers As more Australians purchase goods and
• Consumer laws are constantly undergoing services online from foreign suppliers, the
reform so that consumers are provided with jurisdictions of the above statutes will be keenly
uniform protection. tested, especially with respect to fraud and the
• The Consumer and Competition Act 2010 (Cth) provision of after-sales service, guarantees and
and the National Consumer Credit Protection warranties.
Act 2009 (Cth) standardise the regulation of • Effective consumer protection requires not
consumer credit across the entire nation. only legislation against fraud and deception,
The National Credit Code guarantees that but also initiatives resulting from the combined
consumers have the same rights to redress no work of government, business and consumer
matter where they live in Australia. groups.
• The ACCC monitors e-marketing and provides
consumer protection advice and service
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Chapter 11
Option 2: Global
environmental protection
25% of course time
Principal focus
Students will be investigating environmental issues while exploring the way in which both legal and non-legal
processes attempt to effectively promote and achieve environmental protection.
Themes and challenges
Themes and challenges to be incorporated throughout this option include:
• how state sovereignty influences international cooperation and the conflict resolution which then
affects environmental protection
• dealing with compliance and non-compliance
• how changes in ethical standards and values standards have impacts on protecting the environment
• protecting the global environment through law reform
• how effective legal and non-legal responses are in the protection of the environment.
At the end of this chapter, you will find a summary of the themes and challenges relating to global
environmental protection. The summary draws on key points from the text and links them to each of the
themes and challenges. This summary is designed to help you revise for the external examination.
Chapter objectives
In this chapter, students will:
• identify the key legal concepts and terminology that relate to global environmental protection,
especially the need to protect the global environment
• describe the key features of the relationship between domestic and international law and understand
the effect of international law on sovereign states
• discuss the effectiveness of the legal system in addressing global environmental issues
• explain the role of the law in encouraging cooperation and resolving conflict, as well as its ability to
respond to the dynamic nature of global issues
• describe the interrelationship between the legal system and society in relation to global environmental
issues and the subsequent responses to global environmental protection
• impart legal information using arguments that are logical and well structured
• assess the effectiveness of legal and non-legal responses with respect to the global environment
• analyse different perspectives on contemporary issues concerning global environmental protection.
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Key terms/vocabulary
ad hoc free trade observer status
biodiversity globalisation pollution
built environment hard law precautionary principle
convention holistic profit
declaration instrument protocol
ecological footprint intergenerational equity ratify (ratification)
ecologically sustainable intragenerational equity reactionary
development (ESD) locus standi residual power
enumerated power multilateral treaty soft law
envirostunt natural environment state
ex aequo et bono non-government organisation state sovereignty
external costs (externalities) (NGO)
Relevant law
IMPORTANT LEGISLATION
Environmental Planning and Assessment Act 1979 Environment Protection and Biodiversity
(NSW) Conservation Act 1999 (Cth)
Protection of the Environment Operations Act 1997
(NSW)
INTERNATIONAL TREATIES AND PROTOCOLS
UN Convention Relating to the Status of Refugees Convention on the Conservation of Migratory
(1951) Species of Wild Animals (1983) (CMS)
Convention on Wetlands of International Importance Vienna Convention for the Protection of the Ozone
(1971) (Ramsar Convention) Layer (1985) and Montreal Protocol
UN Convention on International Trade in UN Convention on Biological Diversity (1993) and
Endangered Species of Wild Fauna and Flora Cartagena Protocol on Biosafety
(1975) (CITES) UN Framework Convention on Climate Change
UN Convention on the Law of the Sea (1982) (1994) and Kyoto Protocol
(UNCLOS)
SIGNIFICANT CASES
Bury v Pope, Cro. Eliz. 118 [78 Eng. Rep. 375] (1587) Case Concerning the Gabčíkovo-Nagymoros Project
Bradford Corporation v Pickles [1895] AC 587 (Hungary/Slovakia) [1997] ICJ 1 (25 September
Trail Smelter Case (United States v Canada) 3 RIAA 1997)
1905 (1941) EPA v Gardner LEC [1997] NSWLEC 169
Bradley v The Commonwealth (1973) 128 CLR 557 Southern Bluefin Tuna Cases (New Zealand v Japan;
Nuclear Tests (Australia v France) [1974] ICJ 4 (20 Australia v Japan), Provisional Measures ITLOS
December 1974) Nos. 3 and 4 (1999)
Nuclear Tests (New Zealand v France) [1974] ICJ 3 Booth v Bosworth & Anor [2001] FCA 1453
(20 December 1974) Wildlife Preservation Society of Queensland
Murphyores v The Commonwealth (1976) 136 CLR 1 Proserpine/Whitsunday Branch v Minister for the
Australian Conservation Foundation v The Environment and Heritage and Ors [2006] FCA
Commonwealth (1980) 28 ALR 257 736
Commonwealth v Tasmania (1983) 158 CLR 1 Aerial herbicide spraying case (Ecuador v
Tasmania v The Commonwealth (1983) 158 CLR 1 Colombia) [2008] ICJ
Certain Phosphate Lands in Nauru (Nauru v
Australia) [1992] ICJ 2 (26 June 1992)
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Legal oddity
The Sea Shepherd Conservation Society uses direct action to protect the marine environment. In April 2015,
Sea Shepherd vessel Bob Barker received a distress call from the ship Thunder off the coast of West Africa.
Ironically, Thunder was the vessel it had been following and investigating for illegal fishing in the southern
oceans as part of its ‘Operation Icefish’ over the previous four months. As the Captain of the Sea Shepherd
ship noted: ‘I don’t think we were their preferred rescuer.’
In an attempt to destroy any evidence of their illegal fishing and to avoid lengthy prison sentences, the crew
of Thunder deliberately opened hatches to sink the ship before jumping into life rafts to be rescued. Despite
their efforts the crew of the Bob Barker did collect significant physical evidence to be used to prosecute the
crew for illegal fishing and, possibly, human trafficking.
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
11.1 T
he nature of global translates as: ‘Whoever owns the land, it is theirs all
environmental protection the way up to Heaven and down to Hell.’
Such common law decisions meant that the
The concept and scope of effects of the use to which the land was put only
environmental protection became an issue after damage had occurred. A
party who suffered harm as a result could bring a
The Industrial Revolution saw increased food
tort action (for example, nuisance, negligence or
production, improved medical services and
trespassing) to seek compensation. In other words,
increased urbanisation. These factors led to an
the law was reactive and not proactive in regard
explosion in population and while industry and
to environmental damage. The law could act only
economies flourished, the environment paid a
after the damage was done, and applied only to an
price. For generations, farmers, industrialists and
individual’s welfare and interests. In simple terms,
developers were able to use the land, the waterways
environmental impacts were of no significance and
and the living organisms and non-living materials
were certainly not comprehended in terms of local
in any way they saw fit. Decisions as to the use of
and global consequences.
these resources were driven by profit, with little
Over time, however, communities began to feel
or no regard for the environmental consequences.
the consequences of things like acid rain, ocean
Neither businesses nor governments gave much
acidification, species extinction, depletion of natural
thought to the external costs (externalities) of
resources, climate change, pollution, toxic waste
economic activity.
and soil salinity, and the legal system was forced
profit external costs to respond. When English citizens began to fall ill
financial gain; money (externalities)
remaining after the effects of an activity as a result of hydrochloric acid in gas form from
expenditure has been (such as the production, local factories, the government introduced the 1863
subtracted from total transport and sale of Alkali Act. The Act set dilution standards for what
income goods) on people who are
not directly involved in was emitted and appointed inspectors to enforce
the activity, and that are the law. This was one of the first of a vast array of
not paid for by those who
are involved (such as the environmental laws which have since spread across
producer) the globe.
Initially, environmental laws were local or regional
Early legal decisions reinforced the capacity of and targeted specific issues. During the second half
individual landowners to do with the land whatever of the 20th century, when environmental issues like
was in their best interests. In Bradford Corporation acid rain, the hole in the ozone layer, the depletion
v Pickles [1895] AC 587, Edward Pickles owned the of fish stocks, transboundary pollution and climate
land through which the Bradford town’s water change emerged, the global community recognised
supply ran. He wanted to sell his land to the council the need for a more coordinated approach.
at an inflated price. To ‘encourage’ this sale Pickles Globalisation of business saw the globalisation of
diverted the water flowing through his land away environmental problems.
from the town by sinking shafts into the water supply
and draining the water away. The House of Lords Interests with respect to
ruled under the ‘nuisance’ common law that, since environmental protection
nobody has a right to uninterrupted supplies of Definitions of ‘environment’
water percolating through from adjoining property, How the law defines and perceives the environment
Pickles was not committing a legal wrong. will shape the attitude of legislative and judicial
In Bury v Pope, Cro. Eliz. 118 (1587) 78 Eng. Rep. decision-makers towards environmental protection
375 it was stated: ‘And lastly, the earth hath in law a at all levels. In a legal sense, the environment can
great extent upwards, not only of water ..., but of aire, be considered in terms of the natural environment
and all other things even up to heaven, for cujus est and/or the built environment. In some ways, these
solum ejus est usque ad coelum.’ The Latin roughly two elements of environmental law represent
competing interests.
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CAMBRIDGE LEGAL STUDIES HSC
natural environment built environment (b) natural and physical resources; and
all the elements that all of the buildings, (c) the qualities and characteristics of locations,
surround and influence transport routes and
life on Earth, including infrastructure, parks and places and areas; and
atmospheric conditions, other surroundings that (d) the heritage values of places; and
soil, plants, animals, have been made by people
micro-organisms, the and constitute the setting (e) the social, economic and cultural aspects of a
water cycle and the for human activities thing mentioned in paragraph (a), (b), (c) or (d).
systems in which these
elements interact
Standing and interests
Since the decision in Australian Conservation
Current legal interpretations of what constitutes
Foundation v The Commonwealth, discussed in the ‘In
the environment reflect a gradual change in social
Court’ box, a more liberal approach to standing has
attitudes. This is evident in both Australian and
been taken by the legal system. This shift very much
international law. No longer does the law focus on
reflects changing values and ethical standards and,
the rights of landowners, as was the case under
interestingly, only 20 years later the same court noted
common law. Laws are now designed to take a more
that ‘public perception of the need for the protection
holistic view of components, causes and effects.
and conservation of the natural environment and
The definition of ‘environment’ in s 528 of the
for the need of bodies such as the ACF to act in the
Environment Protection and Biodiversity Conservation
public interest has noticeably increased’.
Act 1999 (Cth) clearly illustrates this evolution. In
At state level, the Environmental Planning and
addition, this definition encompasses what decision-
Assessment Act 1979 (NSW) grants ‘open standing’
makers need to take into account when deciding on
to anyone. Section 123 states:
matters that have environmental implications.
holistic
taking into account all aspects; looking at the whole Any person may bring proceedings in the
system rather than just specific components
Court for an order to remedy or restrain a
breach of this Act, whether or not any right of
The definition of the environment in the Act
that person has been or may be infringed by
considers:
or as a consequence of that breach.
(a) ecosystems and their constituent parts, including
people and communities; and
In Court
Australian Conservation Foundation v The Commonwealth (1980) 28 ALR 257
The Australian Conservation Foundation (ACF) is an organisation which aims to protect the
environment. The federal government had granted approval for a tourist resort near Rockhampton
and this was challenged by the ACF. It sought declarations from the Federal Court that the decisions
did not comply with the requirements of the relevant Act of the time, which was the Environment
Protection (Impact of Proposals) Act 1974 (Cth).
The ACF was denied locus standi because it was held to lack a ‘special interest’ in the subject
matter. In other words, the case was not even analysed on its merits because the court ruled that the
ACF had no right to bring the case to court as it had only ‘a mere intellectual or emotional concern’.
locus standi
a Latin term meaning ‘a place for standing’, also ‘standing’; a requirement that a person or group have a
sufficient interest in the subject matter in order to be permitted to bring an action
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
In Court
Booth v Bosworth & Anor [2001] FCA 1453
To protect their lychee farm, the Bosworths constructed
an electric grid to electrocute flying foxes. Conservationist
Carol Booth visited the farm in 2000 and found evidence
of extensive killing of spectacled flying foxes. Under
the common law she would have had no ‘standing’ to
initiate legal action, but even though this species was
not threatened it was endemic to the Wet Tropics World
Heritage Area and thus came under the Environment
Protection and Biodiversity Conservation Act 1999 (Cth).
Booth was able to take action as she had been involved
in ‘conservation activities for the past two or more years’
(see below).
The Federal Court found that in 2000 around 18 000
flying foxes were killed by the grid and if it was allowed to
continue to operate the spectacled flying foxes may have
been endangered within five years. The court ruled that
the Bosworths had to stop using the grid as the loss of
the species could have a significant impact on a World Figure 11.1 Thousands of spectacled
flying foxes were killed by an electric grid.
Heritage Area.
Although there are still restrictions on standing energy costs and indigenous communities losing
at federal level, the Environment Protection and their traditional ways of life because of expanding
Biodiversity Conservation Act 1999 (Cth) extends urbanisation will all have different views on how
standing to people who have been involved in environmental issues should be managed and
conservation activities for the past two years or more, prioritised.
and to organisations established with the purpose
of protecting the environment which have been
similarly involved for the past two years or more (s
475(6) and (7); s 528).
While environmental issues affect everyone,
the role of state, federal and international law in
protecting a multitude of interests is not clear-cut.
The different perspectives of people, shaped by
their individual values and ethics, and the events
that confront them on a daily basis, ensure that
conflict and heated debates inevitably arise when
discussions turn to prioritising environmental issues.
Citizens from Pacific nations under threat from
rising sea levels, those people suffering from more Figure 11.2 Made up of 16 self-governing states,
including Australia, Fiji, New Zealand and Papua
extreme weather patterns, loggers losing their family
New Guinea, the Pacific Islands Forum has
livelihoods due to forest conservation, individuals continuously reaffirmed that climate change remains
involved in the fierce debates about the merits of the single greatest threat to the livelihoods, security
coal seam gas mining, people paying increasing and wellbeing of the peoples of the Pacific.
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Global environmental protection requires an process was highlighted by the ABC’s War on Waste
interdisciplinary approach involving science, (http://cambridge.edu.au/redirect/8287)
international politics and diplomacy, social justice, As a result of growing awareness of environmental
economic reforms and changes in national and issues, individuals have joined forces to form lobby
international priorities. Ensuring that the planet’s or pressure groups to educate others and to push
capacity to support its inhabitants can be maintained governments into taking action. Concern about
indefinitely will require a global, coordinated and pollution placed environmental issues firmly in the
holistic approach. public arena.
pollution
environmental damage caused by the discharge or
emission of solid, liquid or gaseous materials into the
Review 11.1 environment
1 With reference to Bradford Corporation
In response to the public concerns, domestic
v Pickles and Bury v Pope, explain why
legislation emerged in the 1970s, including in
environmental protection was not initially
Australia, to focus on pollution prevention and
a major concern for the law.
control. Much of Australian state and federal
2 Define the term ‘environment’ and
legislation relating to the environment falls into two
distinguish between the two ways it can
general categories:
be understood.
• Environmental impact assessment – a process
3 Explain why global environmental
for looking at and evaluating the environmental
protection requires a holistic approach.
effects of proposed activities that are likely
4 Outline the significance of the change in
to affect the environment in significant ways.
locus standi (standing) for people wishing
Most of the procedural requirements for
to take legal action over environmental
environmental impact assessment at both state
matters. Distinguish the decisions in
and federal level are contained in legislation
ACF v The Commonwealth and Booth v
regulating the use of land (planning laws), such
Bosworthy.
as the Environmental Planning and Assessment
5 Divide the class into pairs or groups
Act 1979 (NSW), or in legislation regulating
and research one of the cases at http://
protection of the environment generally, such
cambridge.edu.au/redirect/?id=6324.
as the Environment Protection and Biodiversity
When presenting your information to the
Conservation Act 1999 (Cth).
rest of the class describe the perspective
of the ‘competing parties’ over the issue
and the court’s final decision.
11.2 T
he development of global
environmental law
Local activism and domestic
legislation
Localised issues generally form the basis for
community reaction and pressure. The phrase
‘Think globally, act locally’ has been used frequently
in the context of environmental activism; it suggests
the power of grassroots initiatives undertaken with Figure 11.3 Concern about pollution placed
a view to the health of the whole planet. In 2017 this environmental issues firmly in the public arena.
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
Legal Links
A list of Commonwealth Acts pertaining to the natural and built environments is available at
http://cambridge.edu.au/redirect/?id=6235.
• Pollution control – legislation setting standards been an attempt to hold a conference with a global
for the quality of air, water and soil, identifying environmental focus:
activities that can potentially cause pollution, • 1982 – Nairobi
and restricting these activities (for example, by • 1992 – the ‘Rio’ Earth Summit
imposing conditions and/or requiring a permit • 2002 – the Johannesburg Summit
or approval before they can be carried out). • 2012 – the Rio+20 Earth Summit.
Significant changes involving major shifts in Later in this chapter we will look at these
values and ethics during the 1960s and 1970s also conferences in greater detail.
contributed to a rise in alternative views about the In some countries, a treaty that the nation has
traditional profit-driven economy. ‘Green’ politics signed and ratified automatically becomes part of
emerged in the 1970s and suddenly conservation, the domestic law of that country, and its citizens
ecosystems, environmentalism and social justice are bound by it; these are called ‘monist’ nations. In
became major issues that governments were forced many other countries, including Australia, a treaty
to address. It was not long before this became a
global phenomenon. multilateral treaty convention
an international agreement another term for a treaty:
involving three or more an international agreement
International conferences and parties between parties who are
subject to international law
treaties (states and international
ratify (ratification)
These social changes, plus high-profile pollution the process of a state organisations such as the
UN and its bodies)
and ecosystem disasters (see later in this chapter), formally approving a
treaty, making it legally
created a push for change which led to the
binding
emergence of a number of international conferences
and multilateral treaties. For example, the UN
Convention on the Law of the Sea was the result of Research 11.1
the third UN Conference on the Law of the Sea
(UNCLOS), which took place from 1973 to 1982. It Construct a table that illustrates the ‘Think
was a unique treaty in that it dealt comprehensively globally, act locally’ concept. In the left-hand
with a wide range of issues regarding the sea, column describe ‘local’ initiatives that aim
unlike previous conventions, and was global in its to protect the environment and in the right-
reach. Part IV of UNCLOS deals specifically with hand column describe the corresponding
environmental protection, which had not previously ‘global’ initiatives relating to that issue. Some
been a central element of international law with relevant issues include:
respect to the seas. In fact, art 192 of UNCLOS reads: • fishing regulations
‘States have the obligation to protect and preserve • littering (plastic)
the marine environment’. • coal seam gas mining.
The UN Conference on the Human Environment,
which was held in 1972 in Stockholm, Sweden, Class discussion
was the first major conference to address broadly Are these issues dealt with differently at local
defined environmental issues. It was motivated compared to global levels?
primarily by concern about regional pollution that (Note: These differences will become clearer
crossed national boundaries, particularly acid rain later when we look at the role of ‘sovereignty’.)
in northern Europe. Every 10 years since there has
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CAMBRIDGE LEGAL STUDIES HSC
does not have a direct effect unless and until it is globalisation
the ongoing integration of regional economies, societies
incorporated into domestic law by the enactment of
and cultures brought about by the removal of restrictions
a statute; these are called ‘dualist’ nations. There on international trade, and advances in travel and mass
are many domestic statutes that implement and communication
reflect Australia’s international treaty obligations:
see http://cambridge.edu.au/redirect/8288. The UN Environment Programme estimates that
50 million tonnes of electronic waste containing lead,
cadmium, mercury and other hazardous substances
11.3 T
he need for global are discarded each year, and that much of this waste
environmental protection is being dumped in Asia and Africa. Ghana, Nigeria
and India have electronic waste processing areas
Environmental impact of that have significant environmental concerns.
consumption and development The reasons for the links between development
Human activities have global dimensions. As and environmental degradation are complex.
mentioned earlier it is the delicate balancing act Globalisation and free trade have been accompanied,
between environmental and economic interests that in many countries, by policies encouraging economic
has become the critical issue in global environmental growth. Without regulation, production of goods
protection. Poorer nations are very reluctant to impose is usually highly energy intensive, uses enormous
restrictions on industries that provide income and amounts of natural resources, and produces vast
employment even though it may be beneficial to the quantities of waste. Many of these resources are non-
environment – quite simply, the needs of the current renewable or are used in an unsustainable manner.
population are the priority. For example, one million
free trade
hectares of forest are cleared per year in Indonesia –
trade between countries that is subject to few or no
the highest rate of deforestation on the planet – for government restrictions
illegal logging and to convert the land for use as
palm oil plantations. Palm oil is found in 40% of A globalised economy also has indirect effects.
the products on supermarket shelves in Australia For example, countries with less stringent regulation
and other industrialised countries. The effects of of environmental and safety standards enjoy a
deforestation include the removal of a major means competitive advantage over countries with more
by which carbon dioxide build-up in the atmosphere regulation. These countries can produce the same
is minimised, as well as the addition of even more item at a lower cost, giving companies an incentive
greenhouse gases when the trees are burned. to relocate their factories to those countries.
Globalisation not only gives markets worldwide Businesses’ reluctance to accept measures
operation, providing consumers with the goods they designed to mitigate the negative effects of industry on
desire from other countries, but it also multiplies the the environment, and in turn governments’ reluctance
problems associated with the production of those to introduce those measures, can therefore be traced
goods. For example, over one billion smartphones to economic growth pressures. A constant issue in
were sold in 2013. On average people upgrade democratic societies is the need for political leaders
their phones every two years, so this means that 3.5 to respond to voter demands – as elections approach
million phones were purchased in Australia in 2014. the political will of leaders to tackle environmental
It is estimated that Australians have 10 million ‘old’ concerns can often be compromised. Politicians
phones lying around their homes. The key problem face a dilemma when they wish to implement
occurs when they are thrown out, as they contain environmental protection measures that can be seen
concentrations of toxic heavy metals, including to increase unemployment, close some industries or
cadmium, lead, nickel, mercury, manganese, lithium, lead to the relocation of industries to nations without
zinc, arsenic, antimony, beryllium and copper. The strong environmental controls.
accumulation of such toxins in landfill could have This relocation of industry to avoid environmental
major ramifications on the environment. regulation is sometimes called the ‘pollution haven
hypothesis’. It is apparent in the United States where
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Case Studies
A range of environmental disasters also contributed to the need for global environmental protection.
Many such disasters came from corporations trying to limit costs to improve their profit margins at
the expense of environmental protection.
1952 London smog disaster, London, England
In the winter of 1952–53, it was unusually cold in London so large numbers of people travelled by car
rather than walking, and required additional coal combustion for heating of homes. The copious
emissions of black soot, gaseous sulphur dioxide and sticky particles of tar led to the heaviest winter
smog ever recorded. Approximately 12 000 people were killed: mostly children, the elderly and sufferers
of chronic respiratory or cardiac disease.
1984 Bhopal disaster, Bhopal, India
A gas leak caused the Union Carbide Company’s pesticide plant to discharge methyl isocyanate,
exposing half a million people to the poisonous gas. Estimates of the death toll vary, but 2000–3800
people died immediately, with another 15 000–20 000 premature deaths occurring in the subsequent 20
years. Over 30 years later, the site was still contaminated, and the city has an unusually high incidence
of birth defects and diseases, including cancers and diabetes.
1986 Chernobyl disaster, Chernobyl, Ukraine
A nuclear reactor exploded at the Chernobyl Nuclear Power Plant, killing 31 people immediately.
Over 5000 square kilometres were evacuated and a radioactive cloud was detected all across Europe.
Despite high rates of cancers, mutations and blood diseases in the years following the accident,
the total death toll and sickness rates are disputed, because there have been no comprehensive,
coordinated studies. Hundreds of thousands of people were evacuated, and records were lost after
the break-up of the Soviet Union.
1989 Exxon Valdez oil spill, Alaska, USA
The Exxon Valdez oil tanker hit a reef in Prince William Sound, spilling approximately 40 million litres of
crude oil. This killed as many as 500 000 seabirds, and devastated fish and otter populations in the area.
2000 Baia Mare cyanide spill, Romania
Cyanide solution, used to extract gold from waste,
is carried by pipes from the mine at Baia Mare to
two storage reservoirs. One of these burst a wall,
releasing 130 million litres of water contaminated
with cyanide and heavy metals into the Somes
River and subsequently into the Tisza River.
Fish populations were drastically affected, with
all aquatic life killed on one stretch of the Tisza.
2010 The Deepwater Horizon rig explosion
and fire, which started on 20 April 2010
The rig was drilling for oil 60 km off the Louisiana
coast when it exploded and killed 11 workers. The
rig was finally sealed after 85 days, but by then
had caused a major offshore oil spill into the Gulf
Figure 11.4 The Deepwater Horizon oil rig
of Mexico contaminating over 1500 kilometres of
explosion in 2010
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CAMBRIDGE LEGAL STUDIES HSC
Case Studies
shoreline. In July 2015, BP agreed to pay over A$24 billion to settle all legal claims against the company,
on top of over A$40 billion it had already paid in clean-up costs.
2011 Fukushima nuclear disaster
The Fukushima nuclear power plant had three of its six reactors suffer a meltdown after a tsunami
hit the plant following a magnitude 9.0 earthquake in the area. Three hundred thousand people were
evacuated and it is estimated that it will take decades to clean up the radioactive waste.
stricter laws concerning lead pollution resulted in severe austerity measures simply cannot afford to
companies sending their spent batteries to Mexico so implement environmental controls that could mean
they did not have to pay for more expensive (but safer) further hardships for their community.
recycling processes. It was estimated that in 2007 6% of Both international and domestic laws need to
America’s used vehicle and industrial batteries crossed be dynamic, and to some extent holistic, in order
the border into Mexico; by 2015 it was up to 20%. to take account of political and economic changes,
Like today’s markets and economies, detrimental and new issues in human rights. For example, the
environmental effects are also global. Pollution, Intergovernmental Panel on Climate Change (IPCC)
ocean acidification, global warming and ecological has estimated that by 2050 there could be 150 million
catastrophes causing massive damage to an environmental refugees – people forced to relocate
ecosystem or the broader environment are not because of environmental disasters – yet there
confined by national boundaries. Hence, there is a is no recognition for such people under the UN
need for international environmental law. Convention Relating to the Status of Refugees of 1951,
Challenges for international law include as they are not ‘fleeing persecution’.
the rapidity of technological change, as well
as the difficulty of integrating and reconciling ecological footprint
a measure of human demand on Earth’s ecosystems,
environmental protection with measures that could comparing human demand with the planet’s ecological
hinder economic growth. The 2008 Global Financial capacity to regenerate; a person’s impact on the planet
as a result of their lifestyle
Crisis and the ‘Eurozone Economic Crisis’ in 2013–
15 have exacerbated this challenge. Nations facing
Research 11.2
Review 11.2
1 Research the term ‘ecological
1 Explain why there is a need for global footprint’. Calculate your own footprint
environmental protection. and work out how many planets are
2 Use examples to illustrate the conflict needed if everyone on Earth lived
between economic growth and a lifestyle like yours. Go to http://
environmental protection. cambridge.edu.au/redirect/?id=6326.
3 List the benefits and drawbacks of 2 The ‘Story of Stuff’ is an online
industrial development and economic resource that clearly describes how the
growth. Discuss. planet’s resources are being used in an
4 Explain how globalisation contributes to unsustainable manner. Over the last
environmental degradation. Give examples. couple of years this project targeted
5 Explain why the ‘pollution haven hypothesis’ bottled water. Watch the clip at http://
typifies the problem of balancing cambridge.edu.au/redirect/?id=6327. Do
environmental and economic interests. you buy bottled water? If so, why?
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
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Will you teach your children what we have taught
Legal Links our children? That the Earth is our mother? What
befalls the Earth befalls all the sons of the Earth. This
For an insight into the specifics of many
we know – the Earth does not belong to man, man
global environmental problems, visit http://
belongs to the Earth ... Man did not weave the web of
cambridge.edu.au/redirect/?id=6328.
life, he is merely a strand in it. Whatever he does to
the web, he does to himself.
There are numerous case studies that illustrate
Interdependence and cooperation the need for cooperative approaches. The actions
Nations must cooperate if there is to be a of one sovereign nation can severely affect other
comprehensive response to the need for global nations – for global environmental protection there
environmental protection. As we know, pollution does is a need for ‘mutual dependence’. The situation
not stop at geographical or political boundaries (for concerning the overexploitation of the world’s
example, the Great Pacific Garbage Dump and global fishing stocks typifies this. The oceans are part
warming), resources are dwindling (for example, oil), of the ‘global commons’; like the atmosphere and
more species are becoming endangered (according outer space they are considered part of the Earth’s
to the International Union for the Conservation of shared natural resources. By the early 1990s, 13
Nature, Australia has 86 animals that are critically of the world’s 17 global fisheries were in serious
endangered) and ecosystems are being destroyed decline. A decision by a group of countries to limit
at alarming rates. fishing in a certain fish breeding ground would have
While the international community has only a negligible effect if even one country continued to
taken this on over the last 40 years, it was noted in exploit that area. According to the Marine Nation
1854 by Chief Seattle in his famous speech: 2025: Marine Sciences to Support Australia’s Blue
Economy report, the oceans contributed $44 billion
to Australia’s GDP in 2013. When you consider this
vast amount for just one country, you can imagine
the economic pressure to continue to exploit the
oceans across the globe – the best intentions for
global cooperation often evaporate in the face of
such opportunity for profit.
At the 2002 Earth Summit in Johannesburg, 189
countries made a commitment to create a group
of protected marine areas by 2012, which would
allow breeding by cod, herring and tuna, and other
species. They also agreed to restrict fishing until
populations had recovered, setting a deadline of
2015. Once again the lack of will to enforce and
comply with these commitments has seen fisheries
continue to be degraded; this has been exacerbated
by the expansion of the world’s long-distance fishing
fleets.
Another means of halting the commercial trade
in certain fish is to have them listed as endangered
Figure 11.5 The orange bellied parrot is one of under the UN Convention on International Trade in
the world’s few migratory parrots (travelling from Endangered Species of Wild Fauna and Flora (1975)
Tasmania in winter to Victoria and South Australia). It
(CITES). It may be the case that measures such as
is considered the seventh most critically endangered
animal in Australia according to the Australian ‘plans of implementation’ need to be supplemented
Geographic Society. by additional agreements, and by binding,
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CAMBRIDGE LEGAL STUDIES HSC
goals can be met, but to achieve ecologically
sustainable development (ESD), both individuals’
lifestyles and governments’ policies regarding
humans’ environmental impact would have to
change.
ecologically sustainable development (ESD)
development which aims to meet the needs of today’s
society, while maintaining and conserving ecological
processes for the benefit of future generations
The Brundtland Report defines sustainable
development as ‘development that meets the needs
of the present without compromising the ability
of future generations to meet their own needs’. It
aims to meet the needs of society today, including
the alleviation of poverty, while managing natural
resources, energy and waste in ways that can
continue into the future without destroying the
Figure 11.6 The Albatun Tres is the world’s largest environment or endangering human health.
tuna fishing vessel – according to Greenpeace its The 1992 Rio Conference generated five separate
3000-tonnes catch from one trip is double that of some
agreements which elaborate on the principles
South Pacific countries’ annual catches.
of ESD and commit the parties to taking steps to
achieve it. These are:
enforceable prohibitions. Whether it be overfishing, • the Rio Declaration – 27 principles to guide
genetically modified crops, logging of rainforests, states in environmental behaviour
harmful mining practices or waste disposal, all the • Agenda 21 – a ‘blueprint’ setting out actions
global goodwill to cooperate can vanish when the that can be taken at local, national and
‘economic imperative’ comes into play. international level to achieve ESD
• the UN Framework Convention on Climate
Change
11.4 T
he importance of • the UN Convention on Biological Diversity
ecologically sustainable • the Principles of Forest Management.
development
Central principles of ESD
Origins Four central principles of ESD are found in the
In 1983, the UN asked a commission to study the agreements produced by the Rio Conference.
consequences of environmental degradation on Although they are not listed as ‘four central
economic and social development. Chaired by principles’ in a single document, they have been
the then Prime Minister of Norway, Gro Harlem embraced by many groups seeking to promote
Brundtland, the World Commission on Environment the goals of ESD. Bodies that have elaborated and
and Development (WCED) produced an influential built on them include the Australian Government
report in 1987 titled Our Common Future, also known (Department of the Environment), state governments;
as the Brundtland Report. The commission was local councils, and organisations such as state and
concerned with economic and social equity – how territory Environmental Defender’s Offices. Each of
resources could be afforded to poorer nations and these components of ESD is set out below.
those nations’ economic growth encouraged –
while tackling the problems of environmental
degradation and resource depletion that accompany
development. It concluded that both of these urgent
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Biodiversity intergenerational equity
fair and just behaviour of one generation towards
Biological diversity, or biodiversity, is the variety of subsequent generations; in terms of environmental
life forms within an ecosystem, a biome or the planet. issues, a concept that centres on preserving Earth’s
resources for future generations
(An ecosystem is the set of relationships among the
plants, animals, micro-organisms and habitats in a
small area, and a biome is a regional, much larger
Intragenerational equity
group of ecosystems in a wide geographic area.)
Intragenerational equity , in contrast to
There are different types of biodiversity as well:
diversity among species, diversity of habitats on intergenerational, refers to fair and just treatment
Earth (for example, deserts, forests, wetlands and of groups of people within a generation. It is
rivers) and genetic differences within each species accomplished through policies that endeavour to
(for example, different breeds of cattle or wheat). raise the standard of living of disadvantaged peoples
and nations, and to ensure that the management
biodiversity and use of the environment does not exploit them.
the variety of life forms on Earth; the complete range of Principle 5 of the Rio Declaration enjoins states and
types that are possible within an ecosystem, biome or
species individuals to cooperate in eradicating poverty as
a necessary condition of sustainable development,
Biodiversity is important for many reasons. and Principle 8 articulates their duty to reduce
Diverse ecosystems are more productive, which and eliminate wasteful patterns of production and
is a significant issue for agriculture. They can consumption.
better withstand and recover from disasters.
intragenerational equity
Diverse ecosystems, species and habitats are fair and just treatment of people and groups within a
more sustainable over the long term, and species’ generation; in terms of environmental issues, a concept
that focuses on fair management and use of Earth’s
interdependence within an ecosystem contributes
resources among different groups of the same generation
to the health of both the ecosystem itself and the life
forms within it. A variety of genes in a population is
Principle 6 states that international actions
important to health (for example, in decreasing the
involving development and the environment should
incidence of harmful mutations).
address the interests and needs of all countries,
The UN Convention on Biological Diversity
and refers to the special situations and needs of
(‘Biodiversity Convention’) sets out three main
developing countries. Principle 22 deals specifically
goals – the conservation of biological diversity,
with indigenous peoples and communities, whose
the sustainable use of resources, and the fair and
cultural knowledge and traditional practices give
equitable sharing of the benefits from the use of
them an important role in sustainable environmental
genetic resources – and commits the parties to the
management. States are to recognise and support
convention to maintaining biological diversity.
their participation in ESD, and their unique
contributions.
Intergenerational equity
Intergenerational equity , or equity between The precautionary principle
generations, is the idea that ecosystems and the
Principle 15 of the Rio Declaration states that ‘where
environment in general should not be passed on
there are threats of serious or irreversible damage [to
in any worse condition from one generation to the
the environment], lack of full scientific certainty shall
next. Principle 3 of the Rio Declaration refers to
not be used as a reason for postponing ... measures to
development that meets the needs of both present
prevent environmental degradation’. In other words,
and future generations, reflecting the idea that
when an activity raises the risk of serious harm, but
the decision-makers at a particular time – as well
there is uncertainty about how likely the risk and
as the individual consumers and citizens at that
how serious the harm, a cautious approach is the
time – have a responsibility to those who will be
best way to avoid that harm. This entails taking steps
living in the future.
to halt or modify the activity, even though the decision-
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CAMBRIDGE LEGAL STUDIES HSC
Legal Links
Coal seam gas extraction
The coal seam gas industry has the potential to
be a multibillion-dollar industry for Australia,
as part of this booming export industry, but
faces criticism for a perceived lack of certainty
about the long-term environmental impacts
of the processes involved. This example is
typical of the issues confronting decision-
makers when the precautionary principle is
applied to a proposed activity.
Look at Lock the Gate (http://cambridge.
edu.au/redirect/?id=6329) and Natural
Figure 11.7 Wind farms are a step towards protecting Coal Seam Gas (http://cambridge.edu.au/
our environment. redirect/?id=6330) and outline the views
of these two opposing lobby groups on the
maker does not know, and may never know, whether merits of coal seam gas mining.
it was necessary to stop or change the activity. The
precautionary principle arose as a response to
effects on the environment and human health caused all four elements need to be considered and not in
by rapid industrial growth after World War II, and the isolation.
lack of strong environmental legislation. In 1997, the Council of Australia’s Governments
(COAG) produced an agreement on the
precautionary principle
the principle that if an action or policy may cause serious ‘Commonwealth – State Roles and Responsibilities
harm to people or to the environment, the best course is for the Environment’, which led to the enactment
to halt or modify that activity or policy, even when there is
no proof of the probability of the risk or the seriousness of of the Environmental Protection and Biodiversity
the harm Conservation Act 1999 (Cth). This legislation
overarched much of the state and local government
An interesting view on the precautionary laws and regulations regarding environmental
principle is that it applies to ‘omissions’ as well – protection and aimed to overcome the fragmentation
that is, to failing to act. For example, if we do nothing of authority that was evident. This key piece of
about climate change because there may be some Australian legislation has as one of its key objectives
uncertainty in the science, there is a risk that we will to ‘promote ecologically sustainable development’.
cause significant environmental harm. Examples of references in domestic legislation
include s 136(2)(a) of the Environment Protection
ESD in domestic law and Biodiversity Conservation Act 1999 (Cth), which
As mentioned above, the principles of ESD are well states that the relevant minister must consider the
established in the domestic and international arena. principles of ESD before deciding whether or not
Numerous countries, including Australia, have to approve a project, development, undertaking or
incorporated it in their domestic legislation. The activity, or a change to any of these things. Section
importance of ESD at a national level in Australia is 391(1) requires the minister to take account of
probably best exemplified by the National Strategy the precautionary principle when making such a
for Ecologically Sustainable Development, which decision, and defines the precautionary principle
was adopted by all levels of government in 1992 in nearly identical terms to Principle 15 of the Rio
(see http://cambridge.edu.au/redirect/?id=6331). Declaration.
It is important to note that ESD is considered to be Various state laws include the principles of ESD:
a holistic package; that is, for effective application the Fisheries Management Act 1994 (NSW) and the
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
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Local Government Act 1993 (NSW), for instance. In with regard to living standards entails consideration
Leatch v National Parks and Wildlife Service (1993) 81 of distribution issues (including the provision of
LGERA 270, the precautionary principle was also goods and services as well as a healthy environment)
applied. As a result, a licence granted to ‘take or across communities, indigenous peoples and
kill’ endangered animals in the course of a road nations of the world. Addressing intergenerational
development project was reversed. Although the equity illustrates a shift from short-term thinking
Act under which the licence was granted did not to formulating policies and laws regarding global
explicitly refer to the precautionary principle, the environmental protection based on the wellbeing of
court held that the principle applied ‘as a matter of future generations.
common sense’ and was one of the factors that the The emergence of ESD as the cornerstone of
Act permitted the court to take into account. international laws aimed at global environmental
The case Wildlife Preservation Society of protection reflects values and ethical standards that
Queensland Proserpine/Whitsunday Branch v Minister have developed over the last 50 years.
for the Environment and Heritage and Ors [2006] FCA
736 centred on the development of two Queensland
Review 11.3
coal mines. The Preservation Society argued that
the impact of the sites on local communities and the 1 Explain why ESD is essential to global
greenhouse gases released from the coal mining environmental protection. In your
needed to be taken into account. Essentially, it response indicate how ESD emphasises
claimed that the decision-maker did not consider the need for global cooperation to
the precautionary principle when approving the address the issues raised by the
mines. The court ruled that the Preservation ‘interdependence’ of nations.
Society did not show conclusively how these two 2 Summarise the four central principles of
mines would cause serious irreversible damage to ESD in your own words.
national heritage and biodiversity, and the mines 3 Explain how the precautionary principle
were developed. Thus while the precautionary is applied under the Environment
principle is an element of Australian law, it is quite Protection and Biodiversity Conservation
difficult to enforce by virtue of its uncertain nature – Act 1999 (Cth).
it essentially involves some degree of ‘predicting 4 Outline how the development of ESD
uncertain impacts’ and this becomes very difficult reflects changing values (you may wish to
to prove in legal proceedings. refer to the decisions in Pickles v Bradford
Corporation and Bury v Pope and compare
Conclusion them with the key elements of ESD).
At the international level, ESD is referred to in
numerous treaties. The UN Educational, Scientific
and Cultural Organization (UNESCO) develops and
disseminates materials on ESD that can be used by 11.5 T
he role of the state
educators, professionals and organisations. ESD is and state sovereignty
also a primary consideration of the UN Environment in responses to global
Programme (UNEP). environmental protection
The development and application of ESD The terms ‘country’, ‘state’ (not a state of Australia)
correspond with an evolution in society’s values. In and ‘nation’ are often used interchangeably. They
particular, the precautionary principle is indicative all refer to a state, which has a defined border and
of a new consideration of the potential consequences population, is politically recognised and is able to
of proposed activities, apart from financial benefits. enter into international arrangements as a discrete
Recognition of the importance of biodiversity entity.
reflects an increasing acknowledgement of the
interrelationships between humans, other life forms state
a government and the people it governs; a country
and ecosystems. Seeking intragenerational equity
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CAMBRIDGE LEGAL STUDIES HSC
State sovereignty is the implicit recognition underpins life on Earth. We suffer from problems
under international law that a state has authority of planetary dimensions. They require global
over its citizens and territory, and can govern as it responses. Investing in sustainable development will
sees fit. The tension between a consistent global be investing in the future security of us all.
approach to environmental protection and national
sovereignty is clear. At times what is best for the Ironically, such a strong statement at the 2002
environment is not considered the best option for Summit was contradicted by various groups at
a country. Generally, states will consent to behave the conclusion of the 2012 Rio+20 Earth Summit.
in a particular way if it is in their best interests to While UN Secretary-General Ban Ki-moon stated
do so, and ‘best interests’ have often been equated that the The Future We Want document produced
with innovation, economic growth and corporate would provide a clear guide for global sustainable
profitability. Various nations’ approaches to development, Greenpeace International Executive
addressing climate change and Japan’s insistence Director Kumi Naidoo felt that the summit was an
on whaling for ‘scientific purposes’ illustrates epic failure:
national sovereignty in action.
We didn’t get the Future We Want in Rio, because
state sovereignty we do not have the leaders we need. The leaders of
the authority of an independent state to govern itself (for
example, to make and apply laws; impose and collect the most powerful countries supported business as
taxes; make war and peace; and enter treaties with usual, shamefully putting private profit before people
foreign states)
and the planet.
Some have argued that environmental health
In other words the ‘consensual theory’ and the
is crucial to long-term wellbeing or that economic
doctrine of sovereignty have together undermined a
prosperity without it is ephemeral. In other
global, holistic response to sustainable development.
words, there are many reasons why international
It is the implementation of various international
environmental protection is essential, apart from
agreements and how vigorously they are acted
considerations of equity and fairness. As Klaus
upon which will determine their effectiveness in
Toepfer, then executive director of UNEP, stated in
providing global environmental protection. Every
his address to the Johannesburg Summit in 2002:
sovereign state has the right to modify or even reject
international law even if it is a signatory to the treaty
Our world is characterised by divided and
in question.
dysfunctional cities, dwindling water supplies and
As stated earlier, in Australia treaties and
potential conflict over scarce resources and the
conventions are not part of domestic law until
accelerating loss of the environmental capital that
In Court
Bradley v The Commonwealth (1973) 128 CLR 557
Starting in 1965, the UN Security Council had passed resolutions condemning Rhodesia, whose white
minority party, the Rhodesian Front, had declared independence from Britain and formed a government
opposed to majority rule, complete with apartheid policies. Sanctions were imposed. Member states,
under the terms of the sanctions, were not to trade with Rhodesia. In Sydney, the Postmaster-General
issued a direction that all communication services with Rhodesia be withdrawn, in particular to the
‘Rhodesia Information Centre’, which purported to be an official body of the Government of Rhodesia.
Although Australia did not recognise the Rhodesian regime as legitimate, the High Court held that
the Postmaster-General’s direction was ultra vires (beyond executive power), as it was unauthorised
by domestic legislation. In other words, international law and resolutions have no effect in Australia
until enacted into domestic legislation.
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
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they have been incorporated or enacted into law • Secretariat – the body that handles the day-
by domestic legislation. Nor are international to-day work of the UN, carrying out tasks in all
resolutions, declarations or directives sufficient to areas dealt with by the UN
authorise the actions of Commonwealth agents or • Economic and Social Council – the body that
bodies. See the decision in The Commonwealth v coordinates the work undertaken by the UN and
Bradley in the ‘In Court’ box as the authority for this its specialised agencies in this large area
statement. • International Court of Justice (ICJ) – the judicial
State sovereignty therefore enables nations to organ, which settles disputes between states
implement international agreements, but also to and provides advisory opinions to the UN and
reject them if they so choose. its agencies.
The full UN organisation is much larger, however,
encompassing 15 specialised agencies and related
Research 11.3
bodies, secretariats of conventions (for example, the
For an interesting perspective on states, see UN Framework Convention on Climate Change and
http://cambridge.edu.au/redirect/?id=6332. the UN Convention to Combat Desertification) and
You can create your own nation state and many programs and funds. The programs and funds
investigate the way it operates in a simulated are subsidiary bodies of the General Assembly.
world. The specialised agencies are linked to the UN by
agreements; they report to the Economic and Social
Council and/or the General Assembly. The related
bodies (such as the International Atomic Energy
Review 11.4 Agency and the World Trade Organization) address
particular areas and have their own governing
1 Define ‘national sovereignty’ and explain
bodies and budgets.
how it operates alongside international
Several programs and specialised agencies
law.
have been established by the UN to deal with
2 Describe the relationship between
environmental issues. The main ones are discussed
international laws and Australian
below. Additionally, many UN bodies have other
domestic laws.
primary tasks but nonetheless include environmental
11.6 T
he role of the UN in
response to global
environmental protection
The UN was established in 1945 with international
peace and security as its main objective, along
with developing friendly relations among nations,
promoting human rights, and facilitating social
and economic progress. Over time, however, its
aims and functions have evolved to keep pace with
changing global conditions. In its early years, global
environmental protection was of little significance,
but now it is one of the dominant aspects of UN
affairs. The UN has five principal organs or bodies:
• General Assembly – the main organ, made up
of representatives of all 192 member states
• Security Council – the organ with responsibility Figure 11.8 International flags outside the UN
for international peace and security building
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CAMBRIDGE LEGAL STUDIES HSC
protection and sustainable development as • acting as an advocate and educator, both
objectives in their activities. Some of these are: within the UN and with international
• Food and Agriculture Organization (FAO) – a organisations, national governments, non-
specialised agency whose aim is defeating government organisations (NGOs), private
hunger and achieving sustainable agricultural, corporations and society at large, on behalf of
forestry and fishing practices. Current focus the environment
areas include the use of plant material for fuel • assisting the transfer of knowledge and
(‘bioenergy’) and the specific challenges that technology for sustainable development
climate change poses to agriculture, fishing • hosting several environmental convention
and forestry. secretariats, including CITES, the Biodiversity
• United Nations Development Programme Convention and the Convention on the
(UNDP) – established by the General Assembly, Conservation of Migratory Species of Wild
this program helps developing countries obtain Animals.
and use aid effectively in their efforts towards
instrument non-government
democratic governance, poverty reduction and a document by which organisation (NGO)
sustainable development. some legal objective an independent, non-
is achieved; it may be profit group that often
• International Maritime Organization – this binding (for example, plays an important role in
autonomous specialised agency works through statutes, treaties, advocating, analysing and
the Economic and Social Council. It develops conventions, protocols) or reporting on human rights
non-binding (for example, worldwide
international standards to regulate shipping, guidelines, declarations
especially safety standards, and is also and recommendations)
concerned with the prevention and control of
marine pollution from ships. Some of its areas of priority are environmental
aspects of disasters and wars, management
United Nations Environment of ecosystems, harmful substances, resource
Programme (UNEP) efficiency and climate change. In 1988, the UNEP
The UN General Assembly established the UNEP and the World Meteorological Organization
in 1972, following the UN Conference on the (another specialised agency of the UN) established
Human Environment (‘Stockholm Conference’). It the Intergovernmental Panel on Climate Change
is a ‘programme’ (that is, a subsidiary body of the (IPCC), the primary international source of scientific
General Assembly) and its stated mission is: information about climate change.
Since the 1992 Rio Conference and the new
to provide leadership and encourage partnership in focus on ESD, the scope of the UNEP’s activities
caring for the environment by inspiring, informing, has expanded.
and enabling nations and peoples to improve their
quality of life without compromising that of future
generations.
Research 11.4
More recently, the UNEP has promoted the
‘Post-2015’ sustainable development agenda. Class research
This ‘integrated approach’ aims to address the Visit the UNEP home page at http://
interlinkages between the economic, social and cambridge.edu.au/redirect/?id=6333 and
environmental dimensions to ensure a more divide the class into three groups. Each group
sustainable future. is to prepare a presentation on the key role of
The UNEP’s work encompasses: the UNEP in regard to:
• assessing global, regional and national 1 climate change
environmental conditions and trends 2 ecosystem management
• developing international and national 3 environmental governance.
instruments and guidelines
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
Intergovernmental Panel on While the IPCC reports are backed by the vast
Climate Change (IPCC) majority of scientific experts, there are some groups
As an intergovernmental body, the IPCC is open to all who believe that climate change is a hoax. Research
member states of the UN and of the World Maritime online will find a range of climate sceptics and in
Organization. Member states participate in the 2009 their views gained global exposure when leaked
government review stage of the process of preparing emails from the University of East Anglia purportedly
reports and assessments, and in the sessions where showed concealment of data and sloppy research
decisions about the work of the panel are made and methods that undermined evidence of human
reports are accepted, adopted and approved. induced climate change.
The work of the IPCC involves reviewing and
assessing the most recent scientific information Research 11.5
from around the world relating to climate change. It
does not itself conduct scientific research. Reviews Read the Sydney Morning Herald editorial
are conducted by scientists from every part of the from 22 June 2015 at http://cambridge.edu.
world, working on a voluntary basis. The IPCC au/redirect/?id=6334.
strives for a complete survey and assessment of 1 Suggest why attitudes towards climate
current information, and its reports reflect different change are now changing.
viewpoints within the scientific community. While 2 Create a timeline listing the events
it seeks to provide rigorous scientific information to related to political action on climate
governments for the purpose of formulating policy, change from 2009 and 2015.
the IPCC does not itself prescribe policy. The IPCC’s 3 Outline the emissions targets that
fifth authoritative assessment report was published Australia made at COP 21 – the 2015
in 2014 and includes statements like: Paris Climate Change Conference.
Human influence on the climate system is clear, and
recent anthropogenic emissions of greenhouse gases
are the highest in history. Recent climate changes United Nations Educational,
have had widespread impacts on human and natural Scientific and Cultural
systems. … Organisation (UNESCO)
Warming of the climate system is unequivocal, UNESCO was founded in 1945. Its primary function
and since the 1950s, many of the observed changes is to promote international dialogue and cooperation
are unprecedented over decades to millennia. The in the fields of science, communication, education
atmosphere and ocean have warmed, the amounts of and culture. Its two highest priorities are Africa and
snow and ice have diminished, and sea level has risen. gender equality, but it also focuses on promoting
Case Study
UNESCO’s work in preserving heritage
Human heritage is a part of our environment that needs protection. Sustainable management programs
are needed not only for natural resources but also for cultural heritage sites. There are hundreds of
these around the world that UNESCO and other IGOs and NGOs aim to preserve. Palmyra in eastern
Syria is one example: its remarkable history and potential as a major future tourist destination
prompted UNESCO, in conjunction with the European Union and the Syrian Government, to implement
a sustainable management plan for its preservation for future generations. The political and civil
unrest which began in 2011 has resulted in the suspension of this program. In May 2015, ISIS entered
Palmyra and destroyed significant historical features such as the Temple of Baal and the Arch of
Triumph. Palmyra’s heritage is at risk of being lost forever.
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CAMBRIDGE LEGAL STUDIES HSC
sustainable development and biodiversity along with penalties through international law. Table 11.1
overcoming poverty and preserving cultural heritage. shows a range of key hard law and soft law in the
Its Natural Sciences Sector has a particularly direct area of environmental protection. Each instrument
role in fostering ESD. has a different focus, but fundamentally, like all
international law, their role is to stipulate a body of
rules and principles which regulate states’ relations
Review 11.5
with one another.
1 How and why has the UN approach to soft law hard law
the environment changed over time? international statements, conventions and treaties
such as declarations, that under international
2 Describe the functions of UNEP and
that do not create legal law create legally binding
UNESCO. obligations for states but obligations
3 Explain the origin of the IPCC and do create pressure to act in
accordance with them
describe its functions.
Soft law
11.7 O
ther international Non-binding norms include resolutions and
responses to global declarations of the UN General Assembly, as well
environmental protection as statements, principles, codes of conduct, codes of
practice, action plans such as Agenda 21, and other
International instruments obligations that are not contained in a treaty. Soft
International instruments are documents setting out law instruments usually identify a problem and set
commitments or obligations of states and sometimes out in general terms how the problem will be dealt
other parties such as international organisations. with, but do not include specific commitments. They
They can generally be classified into two categories: have the potential to become hard law in the future,
soft law and hard law. Hard law instruments are
if their provisions are later codified in a treaty. Soft
those that have legally binding consequences. By law may influence the behaviour of states, especially
contrast, while instruments in the category of soft when the media or public opinion becomes a factor
law impose moral obligations on states, parties in decision-making.
that do not comply are not subject to enforcement A framework treaty is a multilateral treaty whose
provisions are not directly applicable to the domestic
law of the state parties that have signed it. It does
not contain specific commitments or enforcement
mechanisms. In that sense, it can be considered
legally non-binding. It sets out a general framework
or structure for commitments to be negotiated at a
later stage. These commitments are often contained
in a protocol, or in state parties’ domestic legislation.
An example is the UN Framework Convention on
Climate Change, which was followed by the Kyoto
Protocol, which set out binding commitments, and
later the 2016 Paris Agreement, which established a
set of binding procedural commitments.
Hard law
Hard law includes binding international agreements
(treaties) as well as customary international law.
Treaties are international agreements between
Figure 11.9 Sustainable development is covered by
soft law. states, in written form, that are governed by
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
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Table 11.1 A selection of international instruments
Year entered Number
International law into force Hard or soft? Mission or aim of parties*
Convention on 1975 Hard To ensure that international 183
International Trade in trade in wild animals and
Endangered Species of plants, and products made
Wild Fauna and Flora from them, do not threaten
(CITES) their survival
Convention on 1971 Hard Provides a framework for 169
Wetlands of national and international
International bodies to cooperate and take
Importance (the action on the conservation
Ramsar Convention) and wise use of wetlands and
their resources
Vienna Convention for 1988 No legally binding To protect human health and 197
the Protection of the targets for reduction the environment from adverse
Ozone Layer of substances that effects of human activities
deplete the ozone that alter the ozone layer
layer (notably
chlorofluorocarbons)
Montreal Protocol 1989 Hard Sets out a mandatory 197
on Substances That timetable for the phasing
Deplete the Ozone out of ozone-depleting
Layer substances
Biodiversity 1993 Hard To conserve biological 196
Convention diversity, to aim for its
components to be used
sustainably, and to ensure
that benefits from the use of
genetic resources are shared
fairly and equitably
Agenda 21 1992 Soft Sets out a plan to balance 178
the capacity of the Earth with
population and consumption,
in a sustainable manner
Rio Declaration on 1992 Soft Provides principles guiding 178
Environment and sustainable development:
Development defines humans’
responsibilities to safeguard
the common environment,
as well as the rights of
people to be involved in
the development of their
economies
* In the case of a treaty, ‘number of parties’ means the number of states for whom the agreement has entered into force.
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CAMBRIDGE LEGAL STUDIES HSC
Table 11.1 A selection of international instruments
Year entered Number
International law into force Hard or soft? Mission or aim of parties*
UN Framework 1994 No legally To stabilise atmospheric 197
Convention on binding targets concentrations of greenhouse
Climate Change or enforcement gases at a level that would
mechanisms prevent harm to the climate
system
Kyoto Protocol (linked 1997 Hard The protocol’s first 192
to the UNCCC) commitment period to reduce
greenhouse gas emissions
ended in 2012. In 2012, the
Doha amendment saw 37
countries commit to binding
targets (including Australia).
In June 2015, Australia was
singled out as a ‘climate
change free rider’ by the
Africa Progress Panel’s
report in the lead-up to the
IPPC Paris climate summit.
The Future We Want 2012 Soft The common vision was 192
– Rio+20 Summit to renew commitment to
outcome document sustainable development
at a global level, aiming for
a future that is sustainable
at economic, social and
environmental levels.
* In the case of a treaty, ‘number of parties’ means the number of states for whom the agreement has entered into force.
international law. They may be bilateral (between to make informed decisions as to the importation
two parties) or multilateral (more than two parties). of genetically modified organisms, and contains several
A protocol is a negotiated instrument that provisions referring to the precautionary principle.
supplements a treaty or agreement, containing specific Most international agreements, despite being
actions to be taken to fulfil the terms of the treaty, or termed ‘hard’, have relatively weak compliance
provisions that modify the original treaty. For example, mechanisms, CITES and the Montreal Protocol
the Montreal Protocol is an addition to the Vienna probably being the main exceptions (and both of
Convention for the Protection of the Ozone Layer (1985) these are considered ‘successful’). According to
and, as noted above, the Kyoto Protocol is an addition to Jutta Brunnee, nations will more likely abide by such
the UN Framework Convention on Climate Change. The international laws when there is:
Cartagena Protocol on Biosafety, which came into force
in 2002, is a supplement to the Biodiversity Convention. a sound treaty-making process, well-defined
That protocol seeks to protect biodiversity from obligations, transparent compliance mechanisms
potential risks posed by technological modifications with foreseeable consequences for Parties’ and
to living organisms, by governing their movement benefits of compliance that outweigh the costs of
from one country to another. It contains a procedure non-compliance.
for nations to obtain the information necessary
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
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protocol of neighbouring states for damage caused by
an instrument that supplements a treaty, containing
transboundary pollution. It is important to realise that
specific provisions that the parties have committed to in
order to fulfil the terms of the treaty the nations involved consented to the establishment
of the tribunal and it only had jurisdiction over this
It is important to realise that a treaty or protocol particular matter. With the establishment of the ICJ,
may contain enforcement mechanisms but their a forum for such disputes that did not rely on the
effectiveness is questionable. States’ ability to creation of an ad hoc tribunal for each and every
exercise their sovereignty will sometimes mean that environmental dispute came into existence.
a country will refuse to comply with its international
obligations. ad hoc
for a particular purpose, usually exclusive and often
temporary
Courts
Ad hoc tribunals and the International Only states can be parties to a case before the
Court of Justice ICJ. It has the power to decide a case only where the
Prior to the establishment of the UN (and thus also parties to a dispute have consented to its jurisdiction,
of the International Court of Justice), there was either by special agreement of the parties, where it
practically no court or tribunal in place to settle is specifically provided for in a treaty, or where the
environmental conflicts between states, since few state parties to the Statute of the International Court
issues had arisen. In 1928, and again in 1935, the of Justice recognise its jurisdiction as compulsory
United States and Canada referred a matter to the in relation to any other state. Where the parties
International Joint Commission (a tribunal that had have consented, it is rare for a decision of the court
jurisdiction to consider issues arising along their not to be implemented. However, a state can raise
common border) for resolution. It involved sulphur ‘preliminary objections’ to the court’s jurisdiction,
dioxide emissions from a zinc and lead smelter or refuse to appear before the court because it
located in the town of Trail, British Columbia, 15 totally rejects the court’s jurisdiction. This limits the
kilometres from the Washington state border. The effectiveness of this judicial body.
main problem was the damage being done to fertile Article 38 of the Statute of the International Court
farming and logging lands in the Columbia River of Justice lists the sources of international law that
Valley. the ICJ can apply in its rulings. These are:
In both instances the Canadian Government had
to pay damages to the state of Washington, and in • international conventions
the 1935 decision the two parties decided to enact a • customary international law
special agreement or ‘convention’ for the settlement • general principles of law recognised by civilised
of difficulties arising from the smelter operation. As nations
part of this agreement a tribunal was established • judicial decisions and the teachings of the most
to determine the extent of damages, whether highly qualified academic writers of the various
compensation should be paid, and whether the nations.
smelter should operate under restricted conditions.
The tribunal determined that: It can also make decisions ex aequo et bono if
• Canada had to pay $78 000 to the United States the parties agree. This means it can simply consider
as compensation for all damage what is fair and just in the circumstances, rather
• the smelter operators had to refrain from than basing its decision on one of the sources of
emitting harmful materials (instruments were international law.
put in place to record weather conditions and
emission levels, and if emissions exceeded the ex aequo et bono
a Latin term meaning ‘according to the right and
prescribed levels further compensation was the good’; on the basis of what is fair and just in the
payable). circumstances
The Trail Smelter Case (United States v Canada)
3 RIAA 1905 (1941) highlighted the responsibilities
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CAMBRIDGE LEGAL STUDIES HSC
Environmental disputes have never dominated depends on whether two or more nation states
the ICJ. The UN did recognise the importance of have consented to be bound by it. This seriously
global environmental issues in 1993, establishing constrains its jurisdiction, given that corporations are
the Chamber for Environmental Disputes (a discrete responsible for a vast number of the environmental
section of the ICJ) to provide a forum for settling problems today but cannot be held accountable by
disputes in this area. However, it has never been the ICJ.
used, and in 2006 the UN stopped holding annual Some NGOs and academics believe a more
elections for the chamber’s membership. effective solution lies in the formulation of an
One problem with the ICJ’s role in settling International Environmental Court that follows
global environmental disputes is that its jurisdiction the International Criminal Court model. It could
In Court
Aerial herbicide spraying case (Ecuador v Colombia)
The significance of this case is that this is the first time in a generation that the ICJ has been specifically
requested to resolve a case essentially centred on global environmental protection.
Ecuador is the eighth most biodiverse country on Earth, and the threat to its habitats and ecosystems
by the Colombian aerial spraying of illegal coca (the key raw ingredient for cocaine) and poppy
plantations highlights the role of sovereignty in both assisting and impeding global environmental
issues.
Colombia instituted aerial spraying to eradicate illegal drug plantations (in line with its responsibilities
under the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances).
At the same time, Ecuador claimed that Colombia violated its obligations under international law
by ‘causing or allowing the deposit on the territory of Ecuador of toxic herbicides that have caused
damage to human health, property and the environment’.
In its application before the ICJ, Ecuador requested that Colombia indemnify Ecuador for any loss or
damage caused by its ‘internationally unlawful acts’, and that it ‘respect the sovereignty and territorial
integrity of Ecuador’ by stopping any toxic herbicides being deposited on Ecuadorian territory.
Ecuador instituted proceedings against Colombia in April 2008 and in its application stated:
‘The spraying has already caused serious damage to people, to crops, to animals and to the natural
environment on the Ecuadorian side of the
frontier, and poses a grave risk of further
damage over time’. In addition, Ecuador claims
to have made ‘repeated and sustained efforts to
negotiate an end to the fumigations [but] these
negotiations have proved unsuccessful’.
In September 2013, the ICJ announced
that the Ecuador v Colombia case had been
consensually discontinued; in other words
the case was settled out of court. While such
peaceful resolution is always desirable, many
commentators believe that it would have been
useful to have a definitive ICJ case which covered
the issue of transboundary harm. The case does
highlight how the judicial processes (negotiation
Figure 11.10 Poppy spraying in Colombia to
and mediation before arbitration) of the ICJ did eradicate crops used to make illegal drugs. The
promote a resolution considered acceptable by toxic herbicides floated across the border to
both parties. disrupt Ecuador’s delicate ecosystems.
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
be permitted to settle disputes between private consistency by using experts in relevant fields to
and public parties, if the issues are global in their determine complex scientific issues. It could also
magnitude; to mediate and arbitrate; and to institute be compulsory, rather than requiring consent to its
investigations. Such a court could readily apply jurisdiction. However, the lack of global will to create
ESD principles, and could provide a high level of such an institution means its creation is unlikely.
Legal Info
Cases heard by the ICJ
Since the establishment of the ICJ in 1945, a range of environmental cases have been heard. These
include:
• the nuclear test cases (1974–75) involving Australia and New Zealand against France, which was
testing nuclear devices in French Polynesia. The cases (Nuclear Tests (Australia v France) [1974]
ICJ 4 (20 December 1974) and Nuclear Tests (New Zealand v France) [1974] ICJ 3 (20 December
1974)) did not proceed to the merits stage, as the ICJ decided that once France stated that it
was ceasing the atmospheric tests of its own accord, the cases no longer had any object. Later,
France commenced underground nuclear testing.
• Nauru’s case against Australia for failing to remedy the environmental damage caused by 90
years of phosphate mining (Certain Phosphate Lands in Nauru (Nauru v Australia) [1992] ICJ 2 (26
June 1992)). In 1992, a negotiated settlement was reached whereby Australia agreed to pay $107
million in compensation for the extensive damage caused to Nauru prior to its independence.
• the Danube Dam case of 1997 (Case Concerning the Gabčíkovo-Nagymoros Project (Hungary/
Slovakia) [1997] ICJ 1 (25 September 1997)), which concerned a dispute over water resources
between the neighbouring countries of Hungary and Slovakia and allegations of transboundary
environmental harm. After Hungary withdrew from the joint venture to build a dam to drive a
hydroelectric plant, Slovakia diverted the river to operate the dam on its own. The ICJ found both
Hungary’s withdrawal and Slovakia’s diversion of the river unlawful. It held that the 1977 treaty
between the countries was flexible enough to take account of new international environmental
norms, and that the Slovakian action was unjustifiable in light of shared water resources and
equitable use, and invoked the principle of ESD.
• Australia’s 2013 case against Japan, which concerned the International Convention for the
Regulation of Whaling (ICRW) – specifically the provision of zero catch for commercial whaling.
Japan had authorised and implemented the Japanese Whale Research Program under Special
Permit in the Antarctic Phase II (JARPA II) in the Southern Ocean, and Australia argued this
was in breach of the ICRW. As the Sydney Morning Herald on 17 July 2013 noted, ‘And after all
of the papers and speeches, the case boils down to one question: is Japan’s Antarctic whaling
allowed under the IWC’s scientific permit clause?’ Technically, this means that it is not an
environmental or ethical decision – it is purely a legal interpretation of the convention’s terms.
In April 2014, the ICJ ruled in favour of Australia and demanded Japan stopped whaling with
‘immediate effect’ in the Antarctic. This was the first attempt by any country to use the ICJ
to stop whaling; it voted 12 to four that Japan had indeed breached the whaling convention.
Ironically, the Japanese delegation stated after the case that the decision did not apply to
its Northern Pacific hunt as it was outside the scope of the proceedings before the court. In
December 2015, in defiance of the ICJ ruling, Japan announced that it would kill 33 minke whales
in the Southern Oceans as a ‘scientific imperative’ to research the impact of climate change on
the whales. The Economist described this as ‘Japan is killing to be kind’.
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CAMBRIDGE LEGAL STUDIES HSC
relate to a particular treaty or convention. ‘Meetings
Review 11.6 of the parties’ to a framework convention are
generally held at intervals to continue negotiations
1 Using examples, explain the difference for specific, legally binding commitments from the
between hard and soft international law. state parties. For example, the Conference of the
2 Explain the nature and function of a Parties to the UN Framework Convention on Climate
framework treaty. Give examples. Change of 1992 meets every year; and the 1997
3 Explain the nature and function of Conference of the Parties in Kyoto, Japan gave rise
a protocol. Discuss in regard to to the Kyoto Protocol. The 21st Conference of the
international law. Parties was held in Paris during December 2015.
4 ‘The ICJ is ineffective as a means of
resolving serious environmental issues.’ Stockholm Conference 1972
Discuss. According to the UN Environment Programme
5 Under the following headings, analyse (UNEP), formed as a result of the Stockholm
the Ecuador v Colombia case: Conference, the conference’s main aim was to
• the environmental issue consider ‘the need for a common outlook and for
• Colombia’s justification for aerial common principles to inspire and guide the peoples
spraying of the world in the preservation and enhancement
• the role of national sovereignty in the of the human environment’. Officially titled the ‘UN
case. Conference on the Human Environment’, this was
6 Re-read the whaling case notes. What the first international gathering to consider the
do Japan’s actions say about its attitude natural environment and material human needs –
towards the ICJ and the International economic development – together.
Whaling Commission? The conference produced the Stockholm
Declaration, which can be credited with providing
the impetus for sustainability becoming the focus
of global environmental protection. Declarations
Conferences
have no binding legal effect, but they do have an
Prior to 1972, international instruments promoting
undeniable moral force and provide practical
environmental protection were predominantly
guidance to states about how they should behave.
reactionary . They addressed discrete areas of
The Stockholm Declaration contains four key themes:
environmental protection as the need arose. Early
• States have a responsibility to manage their
international law in this area was ad hoc and
environment and they are accountable to their
generally regional in its approach (for example, the
neighbours.
Protocol Amending the Agreement on the Protection
• All people have a right to an adequate
of the Salmon in the Baltic Sea, adopted in 1972).
environment.
reactionary • There is a need for intergenerational equity.
responding to a situation after it has occurred • There is a need for international cooperation.
During the 1960s it was recognised that this sort declaration
a formal statement relating to a particular issue or set of
of piecemeal approach was insufficient to address issues, agreed to by a group of states but without binding
the global threats facing the environment. Under legal force
the guidance of the UN, the first international
conference to focus on the global environment While it can be argued that the Stockholm
was organised for Stockholm in 1972. Since then a Conference produced nothing concrete in
so-called ‘mega conference’ has been held every international law, it did result in the formation
decade to look at global environmental issues. of UNEP. Stockholm’s real success lay in the
In addition, a number of other conferences have foundations it provided for all subsequent
been held, focusing on specific issues. These often international environmental law. It produced
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
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non-binding guidelines that were open to wide Johannesburg 2002
interpretation, but it also introduced the concept Whereas the earlier conferences provided the
of ESD, and UNEP became the major forum for guidelines and the framework for sustainable
promoting global environmental protection. development, the aim of the 2002 Earth Summit
in Johannesburg, South Africa was to put these
Nairobi Conference 1982 concepts into practice. In particular, its focus
The main emphasis of the conference, held in Nairobi, was on establishing timelines and enforcement
Kenya, was to mark the 10th anniversary of the mechanisms. As usual, state sovereignty provided
Stockholm Conference and reaffirm the participants’ the biggest obstacle, as expressed in South Africa’s
and the world’s commitment to the Stockholm opening statement for the event: ‘Sadly we have not
Declaration and Action Plan. The conference did not made much progress in realising the grand vision
generate as much worldwide interest as Stockholm – contained in Agenda 21 ... it is no secret that the
possibly due to international political tensions at global community has, as yet, not demonstrated the
the time between the United States and the Soviet will to implement it.’
Union, and Kenya’s internal difficulties – and for that Johannesburg’s theme was ‘Building
reason it is not considered an official Earth Summit. Partnerships for Sustainable Development’, and its
The Nairobi Declaration urged ‘all governments and most notable achievements were:
people of the world ... to ensure that our small planet • setting a target to reduce the proportion of
is passed over to future generations in a condition people without access to safe drinking water by
which guarantees a life of human dignity for all’. half by 2015, and obtaining commitments from
governments such as those of the United States
Rio Conference: the 1992 Earth Summit and the European Union, as well as bodies
The Rio Earth Summit is more formally called the such as the Asian Development Bank, to fund
UN Conference on Environment and Development initiatives to achieve this
(UNCED), and was held in Rio de Janeiro, Brazil in • commitments and funding for sustainable
1992. It was hoped that Rio would produce a range of energy programs in developing countries
binding environmental agreements, but the different • increased ratification of environmental
perspectives of the 180 states and NGOs represented agreements including the Kyoto Protocol –
made it difficult to reach a consensus. Thailand, India, Canada and Russia all
While Stockholm provided the general guidelines announced their intention to ratify, or that they
for ecologically sustainable development, it was had ratified, Kyoto.
Rio that produced a framework for domestic and Despite the intentions of the conference, the
international law aimed at global environmental final result was disappointing, as not all of the
protection. Five key agreements came out of Rio, commitments were sufficiently firm. For example,
including the UN Framework Convention on Climate no specific aims were set for one of the key aims:
Change, the Rio Declaration and Agenda 21. The diversification of energy sources.
Rio Declaration contains 27 principles for using the
environment in a sustainable manner. Agenda 21 is Rio+20 Earth Summit 2012
a comprehensive, voluntary plan of action to help This summit had as its key theme ‘Vision,
all levels of government work towards sustainable Cooperation, Transformation’. The Rio+20 Earth
development. It covers using resources efficiently, Summit was never going to achieve as much as its
fostering an equitable world, protecting global 1992 version: 20 years later species extinction rates
resources, making the world habitable and increasing remain high, marine and land ecosystems are being
the input of disadvantaged groups (such as children, destroyed, carbon emissions are increasing and the
women and indigenous communities). It also unsustainable use of natural resources continues
recommended the strengthening of communication unabated. The Rio+20 outcomes document is, at
and partnerships between governments and NGOs. best, a declaration that provides only a superficial
The main achievement of Agenda 21 is that it placed statement about the need for action but lacks any
pressure on states to implement ESD. real commitment initiatives.
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CAMBRIDGE LEGAL STUDIES HSC
NGOs were almost unanimous in their for a new treaty to commence in 2020. Its aim is
condemnation of the conference outcomes. WWF to limit global warming to well below 2°C with an
International described Rio+20 as a ‘colossal failure aspirational target of 1.5°C. Formally adopted by
of leadership and vision’ while Care International 195 countries, the first universal climate deal aims
called it a ‘charade’. Even the director of the UN to see fossil fuels gradually phased out, the growth
Environment Programme, Achim Steiner, stated, of renewable energy globally and the creation of
‘We can’t legislate [for] sustainable development in new carbon markets to enable countries to trade
the current state of international relations’. emissions and protect forests.
The Future We Want outcomes document from The agreement does not mandate specific
the Rio+20 Summit included several key initiatives, measures or targets, but instead instigates a legally
such as: binding five-yearly global stocktake combined
• the establishment of set sustainable with a review mechanism to assess each country’s
development goals (SDGs) to be blended with performance. The agreement acknowledges that
Millennium Development Goals by 2015 developed and developing countries have different
• a more secure budget and stronger powers responsibilities with regard to reducing emissions.
for UNEP to initiate scientific research and This ‘differentiation of responsibilities’ is evident
coordinate global environmental strategies in the industrialised nations’ agreement to deliver
• identification of the ‘Green Economy’ as an a minimum of US$100 billion a year in public and
important tool for sustainable development private funding to help poorer nations cope with the
• vague commitments to phase out harmful fossil impacts of climate change and cut their emissions.
fuel subsidies. While there is no doubt about the historic nature
A plan to protect the high seas was blocked by of this accord, the real challenge for nations will be to
the United States, Nicaragua, Canada and Russia exercise their sovereignty to implement the required
and in its place a statement that nations will try to domestic changes to reduce emissions while at
prevent overfishing and ocean acidification, and the same time making energy affordable for their
reduce the amount of plastics entering the oceans,
was included. Clearly plummeting fish stocks have
indicated this has not occurred. Research 11.6
Global financial considerations have always
limited national and international responses to 1 What were the main outcomes of the
sustainable development measures. A state of Paris climate conference in December
financial paralysis allows no leeway to provide 2015?
funding for sustainable development measures as 2 Do you consider it a success? Explain
the state simply tries to cater for the current demands your reasoning.
of its citizens. One promising development from
Rio+20 was the push towards the green economy
involving a range of public–private partnerships
(there were over 1500 corporate leaders at the 2012
Rio Conference). However, while the promotion of a
green economy is commendable, the lack of will by
individual nations and even groups like the G20 to
take action limits its effectiveness.
Paris 2015
The Paris conference objective was to achieve
a legally binding and universal agreement on climate
change from all the nations of the world.
The UN Climate Change Conference held in
Paris (December 2015) adopted a historic accord Figure 11.11 The 2015 conference took place in Paris.
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
citizens. The key question is whether the immense In summary, the basic question still is: how
goodwill that ensured the accord was reached will can we continue to grow and overcome global
be reflected in action around the world. poverty, while doing relatively less damage to the
environment that sustains us and all our activities?
Review 11.7
The fact that even those institutions with a
1 Outline the key developments of the five dominant focus on economic matters recognise
‘mega conferences’. the need for environmental frameworks and review
2 Explain the purpose of a conference of strongly suggests that today’s world is a vastly
the parties to a framework convention. different place from the one that existed at the time
3 How does sovereignty influence the of the Stockholm Conference in 1972.
effectiveness of the conferences?
Non-government organisations
Governments are political in nature and often their
perspectives on an issue are influenced by factors
Intergovernmental organisations such as business and industrial interests. In response
Various international bodies not directly linked to growing environmental awareness over the last
to the UN also play a role in global environmental four decades, various NGOs have put pressure on
protection. The European Union (EU) has developed governments to take into account environmental
an Environment Section whose function is considerations. NGOs use a combination of action
implementing environmental policies for the 28 states and advocacy to advance their agendas. Some
now in the EU (although the United Kingdom is operate nationally (within a single state) and others
scheduled to leave in 2019); this also includes an EU are international.
Sustainable Development Strategy that took effect Significant examples of environmental NGOs are:
in 2006. • Greenpeace
The Organisation for Economic Cooperation and • World Wide Fund for Nature (WWF)
Development (OECD) has a primary focus on the • Friends of the Earth (FOE).
economic growth, employment and living standards NGOs are involved in researching and
of its member nations, but it too has recognised publicising environmental issues, and in educating
the need for the environment to be taken into
account. The OECD has introduced environment
performance reviews in conjunction with its usual
economic reviews of member countries. The OECD
Working Party on Environmental Performance has
been conducting peer reviews of the environmental
performance of OECD member countries since
1992. The review assesses the efforts of each state
in meeting domestic objectives and international
commitments.
In 2004, the Director of the OECD Environment
Directorate, Lorents Lorentsen, stated:
We have made progress towards several
environmental goals … But much more progress
is needed. Ecosystems continue to be degraded,
Figure 11.12 NGOs are involved in researching and
persistent and toxic chemicals are widespread in the
publicising environmental issues, and in educating
environment, many fish stocks are declining, and
the public. This stunt from Moscow, Russia resulted
greenhouse gas emissions – particularly from road from Nature Geoscience stating that the 20th century
transport and energy use – continue to grow. was the hottest century in the last 1400 years.
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CAMBRIDGE LEGAL STUDIES HSC
the public. They are not subject to international His full statement included the following:
law. However, they have been formally recognised
by governments, notably in Agenda 21. Some NGOs With regard to climate change, the advances have
have observer status at the UN and they are often been regrettably few. Reducing greenhouse gases
consulted for their views when international law on requires honesty, courage and responsibility, above
the environment is being drafted. all on the part of those countries which are more
The most famous (or infamous, depending powerful and pollute the most.
on your perspective) activities of some NGOs are
their envirostunts, which are used to pressure When one of the world’s most prominent religious
and sometimes embarrass governments and leaders makes definitive comments like these, it
corporations into changing their behaviour. An appears that the push for a holistic approach to
NGO’s best weapon is the media. global environmental protection is going beyond the
In June 2015 Pope Francis issued a strong traditional protagonists like NGOs and UN bodies.
statement on climate change and the state of the Despite this, the obstacle created by sovereignty
environment. He posted on Twitter: remains.
observer status envirostunt
in the UN General a publicity stunt to attract
Assembly (UNGA), the attention to a particular
position of an organisation environmental issue
or other entity that has
been granted the right to
speak at UNGA meetings,
participate in procedural
votes, and sponsor and
sign resolutions, but not
to vote on resolutions and
other important matters
Case Study
NGO action
• In 1995 Greenpeace occupied the Brent Spar
oil rig operated by Shell Oil in the North Sea
to stop it from being scuttled and dumped
in the sea. A global audience watched the
Greenpeace actions and a large section
of the public exerted its own pressure by
boycotting Shell service stations. Shell
then agreed to dismantle the Brent Spar
and recycle it on land. The action led to a
worldwide ban on this means of disposing of
such rigs.
• The Wilderness Society and the Australian
Conservation Foundation were instrumental
in stopping the construction of a dam in the
‘Wild Rivers’ region of Tasmania.
• People for the Ethical Treatment of Figure 11.13 A PETA campaign.
Animals (PETA) often use attention-
grabbing promotions to raise awareness of
environmental issues involving animals.
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
The media of corporations mean they have the potential to
The traditional media, and now also social media, influence public understanding and perspectives
are a powerful influence on the planet. They have on environmental issues, and the balance of such
the potential not merely to shape popular opinion reporting can be questionable.
but also to determine it. In Australia, the power of the media in
The nature of media ownership in industrialised environmental matters was highlighted in the
countries, especially where it is concentrated among Franklin Dam protest movements of the early 1980s,
just a few corporations, means that the line between which culminated in the case Commonwealth v
information (reporting the news) and persuasion Tasmania (1983) 158 CLR 1. The Wilderness Society
(influencing opinions about an issue) is not always and the Australian Conservation Foundation joined
clear. While promoting or protecting corporate forces to use the media to present their version of
interests may not be the sole or primary purpose the situation. They were spectacularly successful.
of the information transmitted via print, broadcast
media or the internet, a news agency whose
parent company is a multinational with a broad
11.8 E
ffects of Australia’s
range of financial interests may be to some degree
federal structure in
constrained. Economic imperatives, especially in a
responding to global
period of recession, may also influence the amounts
environmental protection
a newspaper or broadcaster can afford to spend on
investigative journalism: it can be less expensive to State powers and legislation
obtain stories from a wire service or syndicate than Under the Australian Constitution, the power to
to pay writers and researchers to produce a unique legislate on environmental issues can be considered
story or program on current events. a residual power. It is not one of the enumerated
Even where a media agency is publicly owned, powers of the federal parliament, and therefore
it is not immune from financial considerations. In it belongs to the states. Like the rest of the world,
some countries, public broadcasters are not as well Australia was unaware of the consequences of
funded as the ABC and SBS are in Australia, and exploiting the environment until relatively recently.
must appeal to listeners and viewers for financial New South Wales passed the Forestry Act in 1916,
support. Also, governments must take care not to but it was primarily concerned with the regulation of
exert too much influence on publicly owned media, the timber industry and made little reference to the
even by well-intentioned efforts to ensure ‘balance’. responsible management of this resource.
A recognition of the potential for political ‘spin’ or residual power enumerated power
'fake news' is important. The financial resources a government power that a legislative power that
is not listed in s 51 of the is specifically set out as
Australian Constitution belonging to a particular
as a legislative power parliament; in Australia,
of the Commonwealth the enumerated powers
Review 11.8
Parliament, and thus of the Commonwealth
belongs to the states Parliament are listed in
1 Describe the relationship between s 51 of the Constitution
intergovernmental organisations,
national governments and the global During the 1960s and 1970s, New South Wales
environment. passed a number of laws that were clearly aimed
2 Using examples, outline how NGOs can at the protection of the environment, including
promote global environmental protection. the Clean Air Act, Clean Waters Act and Pollution
3 Discuss the positive and negative roles Control Act (all since repealed by the Protection of
that the media may play with respect to the Environment Operations Act 1997 (NSW), which
environmental protection. (In the HSC consolidated these Acts and added some significant
you will need to be able to refer to specific new provisions); the Heritage Act 1977 (NSW), the
examples or cases to highlight this.) Pesticides Act (repealed and superseded by the
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CAMBRIDGE LEGAL STUDIES HSC
Pesticides Act 1999 (NSW)) and the National Parks The main federal environmental law is the
and Wildlife Act 1974 (NSW). Environment Protection and Biodiversity Conservation
Prior to 1979, environmental law and town Act 1999 (Cth) (EPBC Act). It provides the legal
planning law developed separately. The creation of framework for the protection and management of
the New South Wales Land and Environment Court nationally and internationally important animals,
in 1979 indicated a major shift in policy and direction. plants, ecosystems and places defined in the Act
It was instituted as a superior court of record, with as matters of national environmental significance.
exclusive jurisdiction in environmental and planning Under this Act, any activities involving matters
law. In that same year, the Environmental Planning regulated by the Act may require assessment and
and Assessment Act 1979 (NSW) was passed, approval from the Minister for the Environment. The
mandating that town planning decisions must take matters under Commonwealth jurisdiction include:
account of environmental considerations. • World Heritage sites
• national heritage
Federal powers and legislation • nationally protected wetlands (Ramsar
The Australian Constitution limited the role the wetlands)
Commonwealth could play in environmental • nationally listed threatened species and
affairs for much of the 20th century. However, as ecological communities
awareness of environmental degradation and the • listed migratory species
loss of species and habitats became increasingly • nuclear actions (including uranium mines)
obvious, the federal government began to take a • Commonwealth marine areas
more active role. The ‘In Court’ boxes illustrate how • land owned by the Commonwealth
this was accomplished through interpretations of • activities by Commonwealth agencies.
the Constitution by the High Court.
In Court
Murphyores v The Commonwealth (1976) 136 CLR 1
During the early 1970s, the Queensland Government granted a lease to a company called Murphyores
to extract certain minerals from sand on Fraser Island. Today such a proposal would seem preposterous,
but at the time Queensland saw it as an economic opportunity.
The federal government requested that the mining cease, but it did not have the constitutional
authority to order Murphyores to stop. The Commonwealth did, however, have power over exports
and imports under s 51(i) of the Constitution: the
trade and commerce power. The Commonwealth
refused to issue Murphyores with an export
permit, effectively denying it a market.
The case went to the High Court, which
held that the federal government’s denial of the
permit was a valid use of its constitutional power.
Technically, the Commonwealth did not stop the
mining; it stopped access to the markets.
The significance of this case was that it
highlighted the increasing importance placed on
the environment by the Commonwealth, and its
indication that it would be prepared to intervene
in affairs traditionally handled by the states if Figure 11.14 By denying a permit, the
necessary. Commonwealth was able to protect Fraser Island.
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
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In Court
Tasmania v The Commonwealth (1983) 158 CLR 1
In the 1980s, the Tasmanian Government wanted to build a hydroelectric dam on the Franklin and
Gordon River system. A group of environmentalists began a protest campaign against this proposal,
and the Wilderness Society and the Australian Conservation Foundation became actively involved.
Nationwide protests were organised under the ‘No Dams’ slogan and a range of high-profile
personalities took up the cause.
The Tasmanian Government argued that the building of the dam was a residual power and the
protesters, while entitled to their view, were not going to change the government’s decision. In the
lead-up to the 1983 federal election, the leader of the Australian Labor Party promised to stop the dam
if elected. Labor won the election, but the Tasmanian Government continued to build the dam.
The federal government recognised Tasmania’s Wild Rivers area as a region of special significance
and it was listed under the World Heritage Convention. Since international law is not binding until
implemented by domestic legislation, the federal government passed the World Heritage Properties
Conservation Act 1983 (Cth), which specified that areas of special significance should be protected.
The Franklin was included as one such area. This created a conflict, however, as now there was a
state law allowing the construction of the dam and a federal law demanding that it be stopped. The
case then went to the High Court.
In a four to three decision the High Court ruled that the federal government was making valid
use of the external affairs power (s 51(xxix)), which gives it the authority to legislate on any matter of
‘international concern’. Under s 109 of the Constitution, when a law of a state is inconsistent with a law
of the Commonwealth, the Commonwealth law prevails. The construction of the dam was stopped.
The significance of this case was enormous. For example:
• The Commonwealth could now make environmental laws using the external affairs power if this
was necessary in order to fulfil its obligations under international law.
• It ensured that Australia could implement its international obligations to override unwilling states.
• It is the leading example of how NGOs (in this case, the Australian Conservation Foundation
and the Wilderness Society) can shape community values and standards and thus promote law
reform.
• It highlighted how the democratic process (in this case, the 1983 federal election) can place
pressure on governments to assume responsibility for the environment. Since then, the
environment has become a central policy of all political parties.
Relationship between federal and of responsibility between the Commonwealth and
state environmental law all state and territory governments. The National
Australia’s three-tiered system of government Environment Protection Council (NEPC) was set up
(federal, state and local) has resulted in a degree under the National Environment Protection Council
of fragmentation of environmental authority. An Act 1994 (Cth) (NEPC Act), updated in July 2016,
important initiative to define state and federal roles to oversee the implementation of the IGAE. As
more clearly, reduce jurisdictional disputes, foster stated in s 3 of the NEPC Act, the objects of the
a cooperative approach, and ultimately provide legislation are to ensure that people enjoy equivalent
better environmental protection was the 1992 protection from air, water or soil pollution and from
Intergovernmental Agreement on the Environment noise wherever they live in Australia, and to protect
(IGAE), which reflected some elements of the Rio businesses and markets from inconvenient effects
Declaration as well as setting out the agreed areas of jurisdictional variations.
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CAMBRIDGE LEGAL STUDIES HSC
In Court
EPA v Gardner LEC [1997] NSWLEC 169
From October 1993 to April 1996 Charles Gardner, while operating a caravan park in Karuah, pumped
over 120 000 litres of raw sewage into the Karuah River. Gardner had installed a system of underground
pipes and valves to pump the raw effluent directly into the river to avoid $850 a week in sewage removal
fees. Not only did this material create offensive smells in Karuah but it also posed an enormous threat
to the health and safety of users of the river and the nearby oyster farms.
The Hon. Justice David H. Lloyd made history in this case by sending Gardner to prison for his
activities. Gardner was sentenced to 12 months in prison and was also ordered to pay $420 000 in fines
and costs. Brian Gilligan, the director of the Environment Protection Authority (EPA), stated that the
decision sent a powerful message to polluters. The Land and Environment Court had held the power
to imprison people since 1989, but had never used that power until this case. Ian Lloyd QC was the
prosecutor for the EPA in the case and he noted after the decision: ‘I see the function of prosecuting
environmental criminals as equally if not more important than prosecuting murderers.’
Another means of streamlining federal and state ministers from New South Wales, Victoria, South
responsibilities is the use of bilateral agreements Australia, Queensland and the Commonwealth.
between the Commonwealth and each of the states The council was established by the Murray–
and territories. In 2007, the federal and New South Darling Basin Agreement in the Water Act 2007
Wales governments signed a bilateral agreement (Cth), and it has a decision-making role in federal–
which allows the Commonwealth to accept an state plans for sustainable use of the resources of
environmental assessment done by the state if the Murray–Darling Basin, which are used by all of
it fulfils certain conditions. In other words, some these states.
assessment procedures under the Environmental
Planning and Assessment Act 1979 (NSW) can
replace the need for assessment under the EPBC 11.9 C
ontemporary issue:
Act, although they still require approval from the The law’s role in relation
Commonwealth Environment Minister. to global environmental
Often the various levels of government attempt to threats
operate collaboratively, as with the Murray–Darling The law and the legal system not only set out the rules
Basin Ministerial Council, made up of the relevant that all parties in a jurisdiction are expected to follow
but they also provide for when and how breaches
should be punished. In the area of the environment,
laws have the aim of preventing, mitigating and/
Review 11.9 or remedying damage that human activities have
caused to the environment. To achieve these aims,
1 Explain the difference between the law must also encourage cooperation and resolve
enumerated and residual powers. conflicts between parties whose interests are affected.
2 Describe the development of This is reflected in the HSC ‘Themes and challenges’
environmental law in New South Wales. relating to compliance and non-compliance.
3 List some ways in which federal and state At an international level, treaties and protocols
governments cooperate with respect to set out the rules with respect to environmental
environmental protection law. protection. The ICJ is the pre-eminent body for
4 Outline the significance of the Tasmanian resolving disputes between nation states. As we have
Dam case. seen, soft law such as declarations and action
plans can also play a role in prompting national
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
government action and influencing the behaviour of in national law. And in Australia there can be heavy
corporations and other agents. The primary actors at penalties for individuals and organisations that
international level, however, are states, and national breach domestic environmental law.
sovereignty is enshrined in the UN Charter (art 2). When the world’s states do work collaboratively,
While the conventions, protocols and declarations may the results can be spectacular.
outline brilliant strategies for promoting ecologically The Vienna Convention for the Protection of the
sustainable development, they accomplish very little Ozone Layer was negotiated in 1985 and came into
unless states comply. And unless a nation considers force in 1988. The accompanying Montreal Protocol
that it is in its best interests to comply with an came into force in 1989 and set out legally binding
external obligation, it is unlikely to do so. The July reduction targets for states. A management plan for
2015 settlement by BP over the Deepwater Horizon oil phasing out CFCs (chlorofluorocarbons – used in
rig explosion (over A$24 billion plus A$40 billion in aerosols, refrigerants and packaging) was introduced
clean-up costs for the nearly five million barrels of oil and states have complied by banning their use and
spill) highlights the contrast between domestic and introducing alternative products.
international enforcement mechanisms. In September 2006, the ozone hole reached its
However, when states do implement their largest size – 27.4 million square kilometres – but by
obligations, they can be characterised as ‘thinking September 2009 it had contracted to 25 million square
globally and acting locally’. To have domestic effect in kilometres. Roger Dargaville, a research fellow in
Australia, an international treaty must be implemented climate change at the University of Melbourne, noted
Case Study
Ozone layer destruction
The hole in the ozone layer was first recognised as a global issue in 1978, when satellite technology
enabled its size – and over the next few years, its growth rate – to be measured. Chlorofluorocarbons
(CFCs), a class of chemical compounds that are able to break the bonds between ozone molecules,
were identified as the main culprit. CFCs are stable and non-toxic and have been used in refrigerators
and air-conditioning units, and as propellants in aerosol products. It soon became apparent that
the only long-term solution to ozone depletion was to phase out the use of CFCs. Ozone prevents
the most harmful UVB light (ultraviolet radiation of relatively short wavelengths) from reaching the
Earth’s surface, and its continued depletion could have dire consequences, including accelerated
global warming, harm to marine life and increased
rates of skin cancers. As explained above, the
implementation of the Montreal Protocol has seen
the reversal in the hole in the ozone layer. As noted
by World Meteorological Organization Secretary-
General , Michel Jarraud:
International action on the ozone layer is a major
environmental success story ... This should
encourage us to display the same level of urgency
and unity to tackle the even greater challenge of
tackling climate change.
For an insight into the latest research relating to
the ozone hole, go to the Ozone Hole Tour website Figure 11.15 A graphical depiction of the hole in
at http://cambridge.edu.au/redirect/?id=6336. the ozone layer
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CAMBRIDGE LEGAL STUDIES HSC
in a 2009 interview in the Sydney Morning Herald: ‘The The Montreal Protocol is the classic example of
Montreal Protocol was absolutely critical. It is ... the what can be achieved through global cooperation. At
world’s most successful treaty, with every country on current rates, the hole in the ozone layer is expected to
Earth signing on.’ Kofi Annan, a former Secretary- be repaired within 50 years. Conversely, when states
General of the UN, once referred to it as ‘perhaps do not work together in accordance with international
the single most successful international agreement law, the results can be disappointing. The reluctance
to date’. At current rates, the hole in the ozone layer of many countries to commit to binding targets on
is expected to be repaired within 50 years. greenhouse gas emissions is an example of this.
Case Study
Southern bluefin tuna
The southern bluefin tuna is one of the world’s most prized delicacies. It is listed as critically
endangered by the World Conservation Union and one-third of the catch takes place in Australian
waters, primarily off the coast of South Australia. Some estimates have only 3% of its breeding stock
remaining. Moves were made by Sweden in 1991 and Kenya in 1994 to have the bluefin tuna included
in CITES Appendix I (which prohibits trade) or Appendix II (which provides for enhanced monitoring
of the species but allows limited trade under certain conditions). Both attempts failed due to intense
pressure from Japan. In fact, the Australian Government also refused to list the fish as endangered
under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) because doing so ‘would
be detrimental to the survival of the species, as it may weaken Australia’s ability to influence the global
conservation of the species, and by implication, its conservation in Australian waters’.
However, in May 1993, Australia, Japan and New Zealand signed the Convention for the Conservation
of Southern Bluefin Tuna. This voluntary management arrangement, including quotas, came into force
in 1994. Like its whaling program, Japan had insisted on scientific experimental fishing of bluefin tuna.
The convention created the Commission for the Conservation of Southern Bluefin Tuna (CCSBT).
In 1999, the case Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional
Measures ITLOS Nos. 3 and 4 (heard by the International Tribunal for the Law of the Sea) determined that
Japan’s ‘program of scientific fishing’ was in breach of the CCSBT. ITLOS ordered that Japan cease
its ‘experimental fishing’, adhere to the agreed quotas and act in accordance with the ‘precautionary
principle’. It was noted that Japan’s ‘experimental quota’ was five times New Zealand’s actual quota.
In the 20 years up to 2007 it has been estimated that Japan had illegally taken over $6 billion worth
of bluefin tuna. These illegal catches have been so significant that the breeding stock of southern
bluefin tuna has been drastically reduced. ‘Illegal, Unreported and Unregulated’ (IUU) fishing has
become one of the most significant issues regarding the protection of marine fishing stocks.
As a result, the Australian Government now requires Japanese boats to have an independent
observer on board to monitor catches. (Many countries, including Australia, have programs that
place observers on boats fishing within the Australian Fishing Zone and some adjacent areas, under
international arrangements.)
According to Australian Fisheries Management Authority’s former managing director, Richard
McLoughlin, Japan had a national quota of 6000 tonnes but was catching up to 20 000 tonnes a year.
McLoughlin described it as an ‘enormous international fraud’ that has been allowed to occur because
‘the Japanese only ever allowed Japanese observers on Japanese boats’. If Japan had kept within its
quota, fish stock would be five times larger than current levels. Japan’s quota has now been reduced
by half, to 3000 tonnes a year.
A full explanation of the decision by Australian authorities not to list southern bluefin tuna as
endangered under the EPBC Act can be seen at the Department of the Environment website (http://
cambridge.edu.au/redirect/?id=6337).
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
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The UN Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) Review 11.10
has 183 parties and applies to more than 30 000
species. Yet it is common knowledge that the black 1 Outline the role of international and
market trade in endangered species continues. domestic law in relation to global threats
The difficulties of enforcing treaty provisions to the environment.
are exacerbated by the fact that many of the individuals 2 Write a report explaining the success of
engaged in the trade are from developing countries. the Montreal Protocol.
Such countries may find that the costs of maintaining
an office for administration of treaty obligations and
participating in the parties’ meetings are prohibitive.
In addition, fees for hunting licences and permits may 11.10 C
ontemporary issue:
be a major source of revenue for the countries. The demand for resources
In response to these difficulties, NGOs have arisen and global environmental
to try to fill the gaps. Traffic, formed as a specialist protection
agency of the International Union for the Conservation A non-renewable resource is a naturally occurring
of Nature and also affiliated with the World Wide resource that cannot be produced, regrown,
Fund for Nature (both of which have a wider scope), regenerated or reused on a scale comparable with
actively monitors wildlife trade to ensure that it does its rate of consumption. Non-renewable resources
not pose a threat to the conservation of species are generally considered finite because their
and their habitats (see the Traffic website at http:// consumption rate far exceeds the rate at which nature
cambridge.edu.au/redirect/?id=6335). Highlighting can replenish them; examples include coal, uranium,
the effectiveness, or otherwise, of international law petroleum and natural gas. Renewable resources are
with respect to global environmental protection is those that can regenerate themselves via natural or
often a focal point for NGOs. As they are independent human management processes, meaning they can
of governments as well as of corporations, NGOs be replenished for future generations (for example,
are able to publish inconsistencies, problems and timber, fish, solar energy and wind power). If a
breaches of international obligations without a resource such as fish or timber is overharvested, it
conflict of interest. Nationally based NGOs perform will not have the opportunity to reproduce at a rate
a similar function within domestic jurisdictions. The that is sufficient to ensure that it can last indefinitely.
Tasmanian Dam and Brent Spar cases illustrate the There is obviously a strong link between
effectiveness of NGOs. The impact of NGOs was resource use and sustainability. Resources are the
evident in the New South Wales state election of 2015 fundamental components of the economic system in
when the Northern Rivers seat of Ballina went to the both industry and agriculture. The legal system has
Greens, who benefited from a massive campaign by in recent times intervened in the resource markets
the ‘Lock the Gate’ anti-CSG movement (research the to provide more equitable outcomes. The paradox is
‘Bentley Blockade’ for more on this issue). that the use of resources generates revenue, which
provides wealth and raises living standards, but if
Conclusion the resources are non-renewable, they will not be
International law works most effectively when it is available to future generations. The problems for
universally accepted that there is not only a need future generations will be compounded by the ‘side
for the reform, but that it is also in the nation’s best effects’ of resource use, such as global warming,
interests to comply. Countries are then more willing to species extinction and pollution.
introduce the corresponding domestic law and comply The ‘ecological footprint’ model (see the Global
with their international obligations. The regular failure Footprint Network website at http://cambridge.
of conferences to produce any hard law commitments edu.au/redirect/?id=6338) and the ‘Story of Stuff’
(for example, the Rio+20 Earth Summit) highlights the (see http://cambridge.edu.au/redirect/?id=6327)
roles of sovereignty and the ‘consensus theory’ in the highlight the global use of resources and clearly
formulation of global, holistic international initiatives illustrated the inequities in resource consumption
aimed at addressing global environmental threats. between nations. Redressing this imbalance
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CAMBRIDGE LEGAL STUDIES HSC
to provide justice for states and society creates
numerous dilemmas. States have their own ideas Research 11.7
about what they hope to achieve and are averse
to external standards being imposed by the As a class, undertake online research about
international community. the outcomes of the 2015 Paris Climate
The international legal system is engaged in Change Conference. Conclude the research
an ongoing effort to implement a framework to with a class discussion on whether the
monitor climate change and limit greenhouse gas conference could be considered a success.
emissions. The UN Framework Convention on Climate
Change formulated at Rio was the first step, but later
conferences of the parties regularly highlighted
the conflict between resource use and global Climate Change Conference in November 2011. It
environmental protection. has generally been accepted that Copenhagen was a
The Kyoto Protocol recognised that developed great disappointment, as only a weak political accord
countries were primarily responsible for greenhouse was reached – it involved no numerical targets.
gas emissions and thus placed a heavier burden on Durban did reach an agreement: that developed
them than on developing nations, on the basis of and developing countries will work together on an
‘common but differentiated responsibilities’. While agreement that should be legally binding on all
Kyoto did set binding targets, this was not possible parties. The Guardian (UK) described it as a ‘deal to
in Copenhagen in 2009 when the nations could not agree to a deal’. See page 310 for an overview of the
agree on targets and could only produce a non- Paris Climate Change Conference.
binding agreement. However, as indicated, the Paris Undermining the success of such conferences are
Agreement did achieve a (nearly) global consensus. the usual key stumbling blocks (for HSC purposes,
This has proved to be quite a stumbling block for these are the issues which make international law
nations trying to decide whether or not to ratify less effective and make nations reluctant to comply):
and comply with the Kyoto Protocol. The concept 1 Equity: states must agree on targets
of ‘differentiated responsibilities’ was another key for emissions cuts. This would involve
stumbling block in the 2015 Paris Climate Conference considerations including past emissions, prior
debates. attempts to limit emissions, their populations
The Kyoto Protocol contained some novel and how they can continue to develop. There
incentives for industrialised countries, including: may be considerable antagonism between
• emissions trading (the carbon market) – this states on ‘agreed’ emission cuts.
allows nations to sell unused emission units to 2 Funding: developing countries are demanding
countries that have exceeded their targets financial support if they are to cut emissions, as
• clean development mechanisms – these enable this will affect living standards domestically.
industrialised countries to invest in emissions 3 Sovereignty: political leaders have different
reduction projects in developing countries philosophies, and states change leaders,
(where costs are lower), as an alternative to so there is no certainty that new leaders
more expensive reduction projects in their own will comply with the ‘deal’. Global financial
territory. concerns already have seen environmental
These mechanisms were designed to stimulate issues regularly pushed aside.
‘green investment’ and help countries meet their 4 Legal enforcement: the final outcome is ‘an
targets in a more cost-efficient manner. The Kyoto agreed outcome with legal force’, but the
Protocol also required countries to accurately ‘toothless’ nature of international law and the
monitor and report on emissions and any carbon ability of nations to ignore even ICJ decisions
trades. have the potential to weaken any global
The need for a more comprehensive global response. After all, many nations only comply
response after Kyoto led to the Copenhagen with international law when it is in their best
Conference in December 2009 and the Durban interests to do so.
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
Case Study
Fossil fuels and greenhouse gas emissions
Fossil fuels (oil, gas and coal) have long been major contributors to greenhouse gas emissions and thus
are often held to be the major ‘culprit’ in climate change. Essentially, sunlight enters the atmosphere
and the Earth warms up as it absorbs the infrared radiation; greenhouse gases limit the re-radiation
of the sunlight back into space. According to the US Energy Information Administration, about 75% of
anthropogenic (human-caused) greenhouse gas
emissions have come from the burning of fossil
fuels over the last 20 years.
In addition to the excesses of the affluent,
demand for resources in developing nations has
surged over the past decade. According to the
World Watch Institute, fossil fuel consumption
in developing countries has exceeded that of
the developed nations. Developing countries
have over four times the population of the
industrialised world and there is a huge demand
for more energy resources to ‘fuel’ economic
development and thus improve living standards.
International attempts to curb consumption
will inevitably come up against resistance from
countries that have only recently begun to enjoy
the material living standards of the industrialised Figure 11.16 Fossil fuels have long been the major
world. contributors to greenhouse gas emissions.
Case Study
Uranium and nuclear energy
Australia has about 40% of the world’s uranium. One tonne of uranium can generate the same amount
of energy as 13 000 tonnes of coal. The burning of coal produces nine billion tonnes of greenhouse
gases each year. Australia would reap enormous
economic benefits from embracing nuclear
energy and selling uranium on the global
markets, and our output of greenhouse gases
would fall markedly. So why hasn’t Australia
embraced nuclear energy?
Australia does sell uranium to 36 nations who
are signatories to the Nuclear Non-Proliferation
Treaty (1970). The fears relate to plutonium,
which is produced in the nuclear process and
is the building block for devastating nuclear
weapons. Any nuclear accidents could have dire
Figure 11.17 The moment of impact when the
consequences, as occurred in Chernobyl in 1986 tsunami hit the Fukushima nuclear plant, causing
and in Japan in 2011 at the Fukushima plant. a nuclear disaster in March 2011
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CAMBRIDGE LEGAL STUDIES HSC
11.11 C
ontemporary issue:
Legal Links
Australia’s responses to
As in criminal law, the purpose of punishment
international initiatives
is to deter, but in some environmental cases Australia has traditionally been proactive in its
some people consider fines disproportionately responses to international initiatives for global
low and of minimal impact on polluters whose environmental protection. The states have the bulk of
profits increase by disregarding the law. the power to legislate regarding the environment, as
Another factor is the relatively low conviction it is considered a residual power, but the Tasmanian
rate for environmental crimes. Dam case established that the federal government
The Australian Crime Commission (now can use its external affairs power (s 51(xxix) of the
known as the Australian Criminal Intelligence Constitution) to implement international obligations.
Commission) published a report on this issue Furthermore, no international law has effect in
in 2014, which can be accessed at http:// Australia until it is enacted into domestic legislation.
cambridge.edu.au/redirect/?id=6339. Responses to international initiatives must therefore
comply not only with the Constitution but also with
the limitations set by relevant legislation.
Conclusion It is not only the creation of international laws
The need to resolve the conflict between resource (both hard and soft) that influences the direction of
use and global environmental protection is at the core Australia’s responses to international environmental
of sustainable development. The legal system must initiatives; the outcomes of the various conferences
take into account an enormous range of competing and findings of intergovernmental organisations
interests (including developers, financial institutions, also play a critical role.
NGOs, governments, corporations and future NGOs play a pivotal role by placing pressure
generations in both rich and poor countries) and on governments. Any environmental event or
somehow balance their competing rights. The case issue that has a direct impact on Australian
studies on page 321 illustrate some of the dilemmas citizens will inevitably lead to pressure from parts
faced by states, but underpinning every decision is of the community on elected representatives.
the doctrine of sovereignty. The extreme scenario Governments respond to community demands
faced by a state is exemplified by what is confronting because of the power of elections. If a policy or law is
the Maldives, one of the lowest-lying nations in the not aligned with community views and expectations,
world. Maldives President Nasheed has announced a government’s election chances are in peril.
that a fund is being established to purchase land to Former Prime Minister Kevin Rudd once called
relocate its population in the event that rising sea climate change ‘the greatest moral, economic and
levels make occupation of the Maldives untenable. social challenge of our time’, but during his term he
did not introduce any key legislation. The Australian
response to this issue over the last decade has largely
Review 11.11 reflected the political views of the government of the
day and often comes into conflict with international
1 Explain the difference between renewable perspectives. The Gillard government introduced the
and non-renewable resources. Clean Energy Act 2011 (Cth), which placed a pricing
2 Explain the link between resource usage mechanism on carbon emissions (polluters paid a
and sustainability. ‘carbon tax’). Tony Abbott repealed this legislation
3 Discuss why developed countries are in 2014, making Australia the first nation to introduce
responsible for the most greenhouse gas a carbon tax and then repeal it. It has been replaced
emissions. with the Direct Action Plan, which has the Emissions
4 Did any of the four ‘stumbling blocks’ Reduction Fund as its centrepiece and involves
listed become a major issue at the 2015 providing financial incentives for polluters to reduce
Paris Climate Change Conference? emissions.
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
Research 11.8 Legal Links
Research a significant Australian According to the NGO Global Financial
environmental law case. Identify whether or Integrity, the illegal trade in wildlife is third
not international initiatives played a part in behind drugs and human trafficking in scope
this case and provide a summary of the events and value internationally. In 2014, it was
that unfolded. valued at US$22 billion.
The Department of the Environment
covers the situation in Australia at http://
cambridge.edu.au/redirect/?id=6340.
Enforcement of environmental
laws
The enforcement of laws aimed at global Conclusion
environmental protection is another way in Australia has been proactive in enacting environmental
which Australia (at both federal and state levels) legislation, including responses to global problems,
has responded to global initiatives. The case of when it identifies an issue as one that directly affects
EPA v Gardner (see the ‘In Court’ box on page its own territory and citizens. Resolving the tension
316) highlighted the growing recognition of between national sovereignty and international
‘environmental crimes’ relating to pollution and toxic environmental protection may require individuals
waste in domestic jurisdictions. and governments to see their own interests either as
inextricably bound up with those of other peoples and
Ratification of international laws countries, or as being directly affected by a particular
As discussed, there is a vast array of international environmental threat. As Australia’s population is
laws relating to global environmental protection. located primarily around the coast, it may see global
The key international laws that Australia has ratified warming and rising sea levels as urgent and immediate
are shown in Table 11.2 on page 324. threats, but, as we have seen with the climate change
debate, pressure from the international arena has little
impact if it is not Australia’s best interests.
Case Study
Illegal wildlife imports and exports
The stealing (and destruction) of biodiversity
has been another activity that has been
routinely monitored – and where the law has
been enforced. For example, in November 2004
a Sydney man was caught at the airport with
23 parrot eggs hidden in his clothing. He was
charged with attempting to export regulated
native specimens. The Environment Protection
and Biodiversity Conservation Act 1999 (Cth) sets
the maximum penalty for wildlife smuggling as
10 years’ jail and/or a $110 000 fine. This is an
example of domestic enforcement of CITES.
Over 17 000 illegal wildlife imports and exports Figure 11.18 Parrot eggs contained in a specially
designed vest
were captured in Australia between 1999 and
2007: 43% were reptiles, 26% were birds and 11%
were native plants.
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CAMBRIDGE LEGAL STUDIES HSC
Table 11.2 Key international laws relating to global environmental protection ratified
by Australia
Date of
International Australian
law ratification Australian law reflecting international obligations
Ramsar 1975 Environment Protection and Biodiversity Conservation Act 1999 (Cth), in
Convention conjunction with the National Framework and Guidance for Describing
the Ecological Character of Australia’s Ramsar Wetlands
CITES 1976 Initially by the Wildlife Protection (Regulation of Imports and Exports) Act
1982 (Cth), but since 2002 by Part 13A of the Environment Protection and
Biodiversity Conservation Act 1999 (Cth)
Montreal 1989 Ozone Protection and Synthetic Greenhouse Gas Management Act 1989
Protocol (Cth)
Biodiversity 1993 Environment Protection and Biodiversity Conservation Act 1999 (Cth).
Convention Australia’s first national report was produced in June 2009 and can be
viewed via http://cambridge.edu.au/redirect/?id=6341.
UN Climate UNCCC in Following ratification of the Kyoto Protocol the Australian Government
Change 1994, Kyoto has attempted to introduce measures to reduce national greenhouse
Convention and in 2007 and gas emissions. The Gillard government’s carbon tax was repealed in
Kyoto Protocol the Paris 2014 and replaced by the Direct Action Plan. Australia ratified the Paris
Agreement Agreement in 2016; details are outlined at http://cambridge.edu.au/
in 2016 redirect/8289
In November 2016 Australia ratified the Paris
Agreement, and then Prime Minister Turnball stated: Review 11.12
The Australian Government today reaffirmed 1 Describe the changes in Australian
Australia's strong commitment to effective global Government policy towards climate
action on climate change ... Ratification of the change since the 1990s.
Agreement confirms Australia's ambitious and 2 Refer to Table 11.2 and explain, using
responsible target to reduce emissions by 26 to 28 per examples, why international law is of
cent below 2005 levels by 2030. no effect until enacted into domestic
legislation.
In such dynamic times it is important for the HSC 3 Explain why the stealing and/or destruction
students to be aware of contemporary Australian and of biodiversity needs to be monitored.
international responses regarding climate change.
attainable is a different matter. A number of barriers
11.12 C
ontemporary issue: limit a coordinated international response and the
Barriers to achieving an most obvious one is sovereignty. A state’s own unique
international response circumstances can make it very reluctant to comply
to global environmental with international initiatives. The UN is in the difficult
protection position of having to respect state sovereignty – as
A cohesive, coordinated, global and holistic approach mandated by its charter – while serving as the means
based on ESD is the most effective way to achieve of achieving international cooperation.
global environmental protection. Such a large- When states work collaboratively the results can be
scale international response is the ideal, but what is extremely positive, as evidenced by the results of the
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
International agreements are often geared to
specific issues considered in relative isolation. When
they are not, as in the framework conventions arising
out of international conferences, there is a greater
potential for fragmentation and disagreement about
the various issues, resulting only in soft law.
The treaty-making process is time-consuming.
Ratification by the parties requires persuasion at the
domestic level, as governments attempt to create
support for the treaty and consensus among their
citizens.
Other challenges for international environmental
protection stem from the fact that the world is
much more complex than it was when the UN was
Figure 11.19 Countries do not always agree on what formed. Development, consumers’ expectations
is fair; this can create difficulty in creating a globally and population growth all contribute to increased
accepted approach to issues.
competition for natural resources. In addition,
corporations exert a much greater influence on
Montreal Protocol on ozone depletion. The reluctance domestic economic and social policies today, and
of states to take decisive action on climate change over governments must find ways of making sustainability
the past two decades suggests that they have found attractive to entities whose chief objective is profit or
the short-term costs too high, and have had insufficient political survival.
incentives to work together for long-term goals. States
were generally more than willing to sign and ratify Conclusion
the UN Climate Change Convention in 1992, but once The key barrier to achieving international environmental
legally binding targets were proposed, many refused to protection is resolving the tension between the need
undertake the ratification process. This situation was for coordinated action and states’ wishes to protect
further exacerbated by the emergence of so-called their own interests. It is universally recognised that
climate change sceptics and the pressure of the Global deep cuts in greenhouse gas emissions must be made,
Financial Crisis. The support for the Paris Agreement but who should shoulder the burden? Developing and
signifies a major shift in global priorities and, possibly, industrialised countries have different views on what is
a move towards a holistic approach to climate change. fair. Frequently, in order to simply get a global response,
Environmental processes and natural phenomena conditions and enforcement mechanisms are watered
are different from political and other social events; they down. Is a soft law better than no agreement at all? As
are arguably more difficult to deal with in the process former UN Secretary-General Ban Ki-moon stated at
of negotiation and compromise that constitutes policy- the end of the Copenhagen Conference: ‘Nature does
making. Environmental policy-makers must have at not negotiate.’
least some understanding of the science supporting
the instruments they propose to enact, and must be
Review 11.13
able to resolve various tensions between the ethical and
political implications of the precautionary principle. 1 Outline the barriers that limit a
The UN is large and labyrinthine, and there is some coordinated international response to
lack of coordination between the General Assembly global environmental protection.
and the other organs and agencies and between the 2 Explain how collaboration between
various development funds and programs. These all states can positively influence global
may be factors in international bodies’ difficulties in environmental protection.
influencing national laws and policies. 3 Suggest why international bodies have
There is also the inherent difficulty of enforcing difficulty influencing national laws and
international law. policies.
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CAMBRIDGE LEGAL STUDIES HSC
Chapter summary
• Environmental problems, like economic • Other international conferences focus primarily
development, have become globalised. on a single treaty and elaborate its provisions or
• Current laws and policies recognise that negotiate binding commitments, formulated in
ecologically sustainable development (ESD) a protocol.
should be the basis of all efforts aimed at global • In addition to ad hoc tribunals, the ICJ is
environmental protection. the main forum for resolving environmental
• The four key elements of ESD are biodiversity, disputes between states.
intergenerational equity, intragenerational • Intergovernmental and non-government
equity and the precautionary principle. organisations (IGOs and NGOs) play a pivotal
• The UN and its various agencies (UNEP and role in publicising, educating and promoting
UNESCO) have a major role in promoting ESD global environmental issues.
internationally. • Australia’s federal structure and power over
• A vast array of international instruments (both environmental issues are determined by the
hard and soft law) have focused on global Constitution. The environment is a residual power
environmental protection. and thus the states have the bulk of environmental
• The two major international conferences on law-making power, but the precedent set
the environment have been Stockholm (1972) in the Tasmanian Dam case has given the
and Rio (1992). The Rio Conference resulted in federal government the authority to introduce
several influential instruments, including the environmental laws of international importance.
Rio Declaration, Agenda 21, the UN Framework • State sovereignty is a key factor in the success
Convention on Climate Change and the UN of international initiatives. States will act in
Convention on Biological Diversity. their own best interests and this can both assist
and impede international law.
Questions
Multiple-choice questions 3 Which court has the jurisdiction to resolve
1 What element of ESD refers to looking after the disputes between states concerning
needs of future generations? environmental matters?
A The precautionary principle A Land and Environment Court
B Biodiversity B International Court of Justice
C Intergenerational equity C High Court of Australia
D Intragenerational equity D Intergovernmental Panel on Climate Change
2 The Stockholm Declaration, the Rio Declaration, 4 Which of the following statements is true?
the Copenhagen Accord, Agenda 21 and A In Australia, the environment is considered
the outcomes document from Rio+20 are all a residual power and thus the federal
considered: parliament has jurisdiction.
A hard law because they contain enforcement B In Australia, the environment is considered
mechanisms a residual power and thus the states have
B hard law because they were all formulated jurisdiction but the federal government
at UN ‘mega conferences’ can use its legislative powers from s 51 of
C soft law because they do not contain the Constitution to override the states in
enforcement mechanisms appropriate circumstances.
D soft law because they only come into effect
after they have been ratified by states
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
C In Australia, the environment is an exclusive 3 Explain the conflict between increasing
power of the federal government but the standards of living and environmental
federal government has delegated this protection. Suggest strategies for resolving this
authority to the states. conflict. What agencies should take an active
D In Australia, the environment is a legislative role? Would the UN (or its agencies), national
power of the federal government through governments, intergovernmental organisations
s 51 of the Constitution. or some other body be most effective?
4 Discuss the relationship between domestic
5 If the UN General Assembly passed a resolution law and international law. What changes
that all nations must reduce greenhouse gas could feasibly be made at either national
emissions by 25% over the next decade, what or international levels to strengthen global
would its impact be in Australia? environmental protection?
A It would bind the Commonwealth 5 Assess the role of law reform in protecting the
Government immediately. global environment.
B It would have no effect until enacted into 6 Choose one global environmental issue
domestic legislation. (such as climate change, exploitation of
C It would require Australia to ratify the fishing or whaling stocks, loss of biodiversity,
relevant treaty to take effect. transboundary pollution and depletion of non-
D It would have no effect until ratified by all renewable resources) and:
nations. a Describe the issue and why it is a concern.
b Outline any international law/s aimed at
Chapter summary questions resolving this issue.
1 Use examples to explain the operation of c Assess the effectiveness of these
international law in Australia. international responses.
2 Outline how state sovereignty can limit the d Explain the significance of any ICJ cases
effectiveness of international instruments that addressed this issue.
aimed at global environmental protection. e Describe how Australia has responded to
3 Use examples to illustrate how soft law can this issue (indicate any domestic legislation
protect the global environment. that applies to this issue).
4 With reference to specific cases, outline f Explain the impact of any NGOs that have
the effectiveness of the ICJ in resolving taken action over this issue.
environmental disputes.
5 Explain how the world’s demand for resources
conflicts with the need for global environmental In Section III of the HSC Legal Studies
protection. examination you will be expected to
complete an extended response question
Extended-response questions for two different options you have studied.
1 Choose a global environmental issue (for There will be a choice of two questions
example, depletion of food resources, climate for each option. It is expected that your
change or industrial pollution) and discuss past response will be around 1000 words in
and current attempts to remedy it. Evaluate the length (approximately eight examination
effectiveness of these attempts. writing booklet pages). Marking criteria
2 Discuss the elements of ecologically for extended response questions can
sustainable development. Explain why be found at http://cambridge.edu.au/
it is considered the best path for global redirect/?id=6342. Refer to these criteria
environmental protection and outline the when planning and writing your response.
factors that form a barrier to its implementation.
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CAMBRIDGE LEGAL STUDIES HSC
Themes and challenges
The effect of state sovereignty on • Differences in the circumstances of developed
international cooperation and the and developing nations means that they have
resolution of conflict regarding different perceptions of a just and fair
environmental protection agreement that will limit industrial development
• Sovereignty plays a crucial role in determining to protect the environment.
nation states’ cooperation with international
initiatives. The effect of changing values on
• Sovereignty is a fundamental right of nation environmental protection
states, as is clearly stated in art 2 of the charter • People’s attitudes towards environmental
of the UN. protection have changed radically over the
• Nation states may sign and ratify international past 50 years, but these changes have not
agreements, but in Australia they are of no been uniform across the planet. Cultural
effect until enacted into domestic law. characteristics as well as material and
• Consequently, international law aimed at economic circumstances are different. The
environmental protection relies heavily on the ‘mega conferences’ have played a role in
willingness of nation states to act in accordance highlighting global concerns and these have
with global needs, or their perception that it is had an impact on peoples’ values and ethical
in their own best interests to do so. viewpoints.
• Information about the environment has
Issues of compliance and non- influenced these changes in values and
compliance attitudes. Environmental catastrophes, species
• The means of enforcing compliance with extinction, dwindling resource supplies and
international agreements are limited. Without pollution have a strong effect on people’s
the enforcement mechanisms that exist at a wellbeing. Communication technology and the
domestic level (see EPA v Gardner), compliance media allow people to view events in distant
at an international level often involves intense locations, and can strongly influence the way
negotiations and compromise (as occurred in they view such issues.
the ICJ case of Ecuador v Colombia). • Social attitudes give rise to pressure placed
• The means of enforcing compliance on governments and businesses by voters
(for example, by the ICJ) are limited, yet and consumers to implement change – for
enforcement is the cornerstone of the law’s example, see the Brent Spar and the Tasmanian
effectiveness. Dam protests. NGOs play a pivotal role here
• Both individuals and nations decide to comply in shaping opinions on global environmental
or not with the law depending on a range protection.
of factors, such as ethical considerations, • A major example of changing values is
fear of consequences and what is in their the emergence of ESD as the basis for
best interests. Japan’s introduction of new environmental protection, particularly the idea
‘justifications’ to continue whaling despite a of considering future generations when making
clear ICJ ruling against it highlights this. decisions involving the environment. Since
• Overcoming the effects of climate change by the Global Financial Crisis of 2008, there has
reducing greenhouse gas emissions is been a shift in the priorities placed on global
clearly in everyone’s best interests, but environmental protection as people feel that
international compliance is limited by economic economic concerns override the need to make
considerations. allowances for future contingencies.
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CHAPTER 11 OPTION 2: GLOBAL ENVIRONMENTAL PROTECTION
11
The role of law reform in The effectiveness of legal and
protecting the global environment non-legal responses in protecting
• Scientific data indicates that there are the environment
significant reasons to change current practice, • The general objective of non-legal efforts
but the law reform process often reflects towards global environmental protection is
priorities that are inconsistent with such to influence the legal system. Non-legal
data. efforts such as the campaigns of NGOs are
• With respect to the environment, the process generally more effective when they gain
of law reform means that both domestic and widespread community support so that
international law must be continually updated genuine pressure can be placed on decision-
to take into account factors such as: makers (governments and corporations) to
– changing values that will influence introduce measures aimed at protecting the
government actions environment.
– resource depletion and corresponding • Agenda 21 is credited with being the blueprint
changes in the prices and markets for non- for the 21st century, but it is only soft law. Some
renewable resources people consider it to be of immense importance
– the failure of existing law as a guide, while others claim that it is impotent
– new technology. because it lacks any form of enforcement
• There has been a plethora of international process. The effectiveness of international legal
laws relating to the environment. Even the UN measures must be assessed according to their
Environment Programme has acknowledged stated aims (for example, whether they contain
that there is 'treaty congestion'. achievable targets).
• An example of attempted international law • The Montreal Protocol and CITES are
reform is evident with the annual Conference considered the most successful international
of the Parties (COP) for the Climate Change legal responses aimed at global environmental
Convention. Paris 2015 was the 21st meeting, protection.
which originated with the Climate Change
Convention created in Rio in 1992.
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Chapter 12
Option 3: Family
25% of course time
Principal focus
While examining current issues and examples, students will be investigating the role of the legal system in
regard to family relationships and how effective the law is in achieving justice in this area.
Themes and challenges
Themes and challenges to be incorporated throughout this option include:
• using the law to encourage cooperation and resolve conflict in the family context
• dealing with compliance and non-compliance
• changing values in the community resulting in changes to family law
• how family law reform attempts to achieve just outcomes for both family members and society
• effectively achieving just outcomes for families through legal and non-legal means.
At the end of this chapter, you will find a summary of the themes and challenges relating to family.
The summary draws on key points from the text and links them to each of the themes and challenges. This
summary is designed to help you revise for the external examination.
Chapter objectives
In this chapter, students will:
• identify and apply legal concepts and terminology
• communicate legal information using well-structured and logical arguments
• discuss the problems associated with defining ‘family’ and how the concept of family is changing
• discuss how federal and state family law jurisdiction differs
• explain the requirements of a valid marriage and the changing nature of ‘marriage’
• discuss the legal rights and obligations of family members, including rights derived from
international law
• understand and outline the legal processes required in dealing with family relationship problems
• evaluate how effective the law is in protecting victims of domestic violence
• discuss the role of media and other non-government organisations
• evaluate the effectiveness of the law in achieving just outcomes for family members
• identify and investigate contemporary issues that relate to family law and evaluate the effectiveness of
legal and non-legal responses to these issues.
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Key terms/vocabulary
adoption breach extended family
ancestor celebrant injunction
annulment compensation marriage
Apprehended Domestic decree absolute neglect
Violence Order (ADVO) decree nisi nullify
Apprehended Violence Order de facto relationship nuptial
(AVO) descendant polygamous
assault divorce referral of powers
autonomy domestic violence relinquishing parent
blended family ex-nuptial testator
Relevant law
IMPORTANT LEGISLATION
Crimes Act 1900 (NSW) Children and Young Persons (Care and Protection)
Marriage Act 1961 (Cth) Act 1998 (NSW)
Family Law Act 1975 (Cth) Adoption Act 2000 (NSW)
Anti-Discrimination Act 1977 (NSW) Succession Act 2006 (NSW)
Property (Relationships) Act 1984 (NSW) Crimes (Domestic and Personal Violence) Act 2007
Children (Criminal Proceedings) Act 1987 (NSW) (NSW)
Children’s Court Act 1987 (NSW) Surrogacy Act 2010 (NSW)
Child Support (Registration and Collection) Act 1988 Bail Act 2013 (NSW)
(Cth) Surveillance Devices Amendment (Police Body-Worn
Status of Children Act 1996 (NSW) Video) Act 2014 (NSW)
Children (Protection and Parental Responsibility) Act Convention on Protection of Children and
1997 (NSW) Cooperation in Respect of Intercountry Adoption
Young Offenders Act 1997 (NSW)
SOME AMENDING ACTS
Family Law Reform Act 1995 (Cth) Succession Amendment (Family Provision) Act 2008
Marriage Amendment Act 2004 (Cth) (NSW)
Family Law Amendment (Shared Parental Children and Young Persons (Care and Protection)
Responsibility) Act 2006 (Cth) Act Amendment 2009 (NSW)
Adoption Amendment Act 2008 (NSW) Succession Amendment (Intestacy) Act 2009 (NSW)
Family Law Amendment (De Facto Financial Matters Adoption Amendment (Same Sex Couples) Act 2010
and Other Measures) Act 2008 (Cth) (NSW)
Miscellaneous Acts Amendment (Same Sex Family Law Legislation Amendment (Family Violence
Relationships) Act 2008 (NSW) and Other Measures) Act 2011 (Cth)
Same-Sex Relationships (Equal Treatment in Child Protection Legislation Amendment Act 2014
Commonwealth Laws – General Law Reform) Act (NSW)
2008 (Cth)
SIGNIFICANT CASES
Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130 C and M [2006] FamCA 212
Di Mento v Visalli (1973) 1 ALR 352 Re Michael: Surrogacy Arrangements [2009] FamCA
B v J (1996) 21 FamLR 212 691
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Legal oddity
A couple was divorced in July 1964, but the wife passed away in November of the same year, before the
decree had been made final. The following August, a judge ordered the man to present his late wife’s entire
estate … including the jewellery that had been buried with her. This meant that he had to either exhume her
body to get the jewellery, or make up the thousands of dollars out of his own pocket.
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CHAPTER 12 OPTION 3: FAMILY
12.1 T
he nature of family law the Family Law Act 1975 (Cth) sets out the legal
duties and obligations that a marriage creates. The 12
principal aim of the Family Law Act was to reform the
The concept of family law
law governing the dissolution (end) of a marriage.
Family law is a wide-ranging area of law governing
In the past, only state parliaments could pass
behaviour in the context of the family, including
legislation about de facto relationships. However, most
rights and responsibilities regarding children and
state governments have now referred their powers
the disposition of property when a marriage breaks
to the Commonwealth with respect to both parenting
down.
disputes and property disputes, in the contexts of a
The main function of the family is the care and
marriage and a de facto relationship. After the passage
protection of its members. Law governs family
of the Family Law Amendment (De Facto Financial Matters
relationships to ensure that people in family
and Other Measures) Act 2008 (Cth), questions regarding
relationships are financially secure and that any
property division and de facto spousal maintenance are
children of that relationship are cared for. The
now determined under the Family Law Act 1975 (Cth).
more traditional and easily recognisable family
This amendment removed a form of ‘institutionalised
relationship is one based on marriage. However,
discrimination’ faced by family members as both
as our society has changed, so too has the
matters could now be settled in the Family Court.
structure of families, reflecting a great diversity
in domestic relationships. The many different referral of powers
family arrangements in Australian society include the giving up of a state’s legislative powers in a certain
Aboriginal and Torres Strait Islander customary area to the Commonwealth by passing an Act, pursuant
to s 51(xxxvii) of the Australian Constitution
marriages, de facto relationships , same-sex
relationships, single-parent families, blended
As of July 2010, de facto couples who usually
families and extended families. Family law has
reside in South Australia are able to apply to the
continued to change in order to extend protection to
Family Court to determine property settlements.
all members of these alternative family relationships.
Western Australia has continued to have a separate
marriage de facto relationship Family Court of Western Australia, which deals with
the Marriage Amendment a relationship where the both state and federal family law issues.
Act 2004 (Cth) defined partners act as a married
marriage as ‘the union of couple but are not legally Although family law is concerned with ensuring
a man and a woman to married that the best interests of the child are secured and
the exclusion of all others,
voluntarily entered into that individuals meet their family obligations, it is also
for life’. The Marriage about family relationships. For this reason, family law
Amendment (Definition and blended family
a family that is created focuses more on conciliation and on encouraging
Religious Freedoms) Act
2017 (Cth) changed this when a parent remarries; compliance than on the use of sanctions or coercion
to ‘two people’ – see the it includes the stepmother to enforce compliance.
digital update materials or stepfather and
for a full explanation of stepchildren
the background to, and Legal requirements of marriage
significance of, this change.
Marriage is a legal institution, and individuals who
intend to marry must take into consideration the
extended family legal consequences of this union. When two people
a family that includes individuals related through marry, they make a promise, in front of witnesses,
marriage or parentage and not limited to one couple and
their children; in some cultures, close family friends are to provide and care for one another. The law has
regarded as members of the extended family evolved to enforce this promise, and to protect the
rights of both parties and the rights of any children
Under s 51(xxi) and (xxii) of the Australian born during the relationship.
Constitution, the federal government has the power
and authority to make laws governing marriage and The legal definition of marriage
divorce. The Marriage Act 1961 (Cth) established The descriptions of marriage in Australian
the legal requirements of a valid marriage, and legislation are based on the definition in the English
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CAMBRIDGE LEGAL STUDIES HSC
case of Hyde v Hyde and Woodmansee (1866) LR 1 Requirements for a valid marriage
P&D 130. Lord Penzance, in his decision, stated that Certain requirements must be met if a marriage is
a marriage is the ‘voluntary union for life of one man to be legally valid. These requirements, found in the
and one woman, to the exclusion of all others’ (that Marriage Act 1961 (Cth), are discussed next.
is, a formal, monogamous and heterosexual union).
These elements can be explained as follows: Gender
• Marriage must be voluntarily entered into. The In 2004, the Commonwealth Government passed the
marriage is not legally binding if one of the Marriage Amendment Act 2004 (Cth) to add the above
parties was forced or tricked into the marriage. definition of marriage to the Marriage Act 1961 (Cth),
• Marriage, by definition, is for life. However, a which had not previously contained one. Section 5(1)
married couple do have the right to divorce, of the Act defines marriage as ‘the union of a man
thereby ending the marriage legally, before the and a woman to the exclusion of all others, voluntarily
death of either party. entered into for life’, and s 88EA explicitly states that
• The specification of one man and one woman a same-sex marriage performed in another country
indicates that the parties to the marriage must will not be recognised in Australia.
be of different sexes.
• ‘To the exclusion of all others’ means that Marriageable age
marriage is the union of two people only. Some A person may marry at the age of 18 years (s 11). If either
cultures and societies do allow individuals to have of the parties wanting to marry is between the ages
more than one spouse – to have polygamous of 16 and 18, they must apply to a judge or magistrate
relationships. However, polygamous marriages for an order authorising the marriage (s 12). Such an
are not recognised in Australia and are void if order will only be granted in circumstances that are
entered into within Australia. sufficiently ‘exceptional and unusual’ (for example,
if the couple’s parents consent and/or if the couple
polygamous
having more than one wife or husband at the same time are shown to be mature and financially independent).
Pregnancy alone will not guarantee an order.
Prohibited relationships
A person cannot marry if they are married to
someone else. They cannot marry anyone who is
closely related either by ‘blood’ (consanguinity) or
by marriage (affinity). This means that a person
cannot marry their descendant, ancestor, brother
or sister. This also applies to half-siblings and to
adopted siblings, including adopted descendants
and ancestors who are related to the person by
marriage. However, a person can marry her uncle
or his aunt, his niece or her nephew, or a first cousin.
descendant ancestor
a person who by genetics a person from whom
or adoption follows the someone is descended, on
family line of another, such either parent’s side, such
as a child, grandchild or as a parent, grandparent
great-grandchild or great-grandparent
Figure 12.1 According to the Marriage Act 1961 (Cth),
marriage is ‘the union of a man and a woman to the Notice of marriage
exclusion of all others, voluntarily entered into for life’.
A couple intending to be married must complete a
The Marriage Amendment (Definition and Religious
Notice of Intended Marriage form and give it to the
Freedoms) Act 2017 (Cth) changed this to ‘two people’.
authorised marriage celebrant who will conduct
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CHAPTER 12 OPTION 3: FAMILY
the ceremony, no earlier than 18 months before Void marriages
the marriage and no later than one month and one A marriage can be declared void, or invalid, if it fails 12
day before it. The notice must be in writing and be to meet the definition of marriage – if, for example:
signed by both parties in the presence of a witness. • the parties were of the same sex
Parties who intend to marry must provide proof of • consent was not freely given by one of the
age, usually their birth certificates. If either party parties
has been married previously, they must provide • one or both parties at the time of the marriage
evidence that that marriage has been dissolved by were married to someone else.
death of the spouse or divorce. A marriage may also become void if the marriage
fails to meet the criteria for a valid marriage – if, for
celebrant
a person who is authorised to perform a civil or religious instance:
marriage ceremony • one or both parties were too young
• the parties are too closely related, by blood or
marriage
Requirements for a valid marriage • the marriage did not meet the requirements set
ceremony out in the Marriage Act 1961 (Cth).
The marriage ceremony must meet set criteria. An Any form of forced marriage was formally
authorised marriage celebrant must perform the criminalised under the Crimes Legislation
ceremony and there must be two witnesses, both Amendment (Slavery, Slavery-like Conditions
aged over 18. There are no formal requirements and People Trafficking) Act 2013 (Cth). This law
concerning the attire, the structure of the ceremony was successfully applied for the first time in
or the words of the ceremony. If the marriage September 2017, when a Victorian judge sentenced
ceremony satisfies the conditions in Parts IV and V a 35-year-old male to 18 months in jail for marrying a
of the Marriage Act, then it is valid. 14-year-old girl, describing his behaviour as ‘morally
The celebrant issues a marriage certificate after indefensible’.
the ceremony is completed. This document is legal If a marriage is found to be invalid, the court can
proof that the ceremony took place according to nullify the marriage. This annulment means that
law. The marriage celebrant usually provides three the marriage, in the eyes of the law, is deemed to
copies of the certificate. The celebrant, the married have never taken place because it was illegal.
couple and two witnesses must each sign all copies
nullify annulment
of the marriage certificate. One copy must be lodged to declare legally void or a declaration by a court
at the state Registry of Births, Deaths and Marriages invalid that a supposed marriage
is in fact void
within 14 days of the date of the marriage.
In Court
Di Mento v Visalli (1973) 1 ALR 352
Mattia Di Mento, who was 14 years old at the time, was living in Sicily with her parents when she was
kidnapped by Visalli, a 20-year-old man. Visalli repeatedly asked her to marry him, but she refused.
Di Mento was eventually released; however, her father told her that he would shoot her if she did not
marry Visalli.
The father argued that if she did not marry him the family’s reputation would be ruined. Di Mento
agreed and married Visalli. Two years later, she gave birth to a child, and when the child was a month
old Visalli left her, never to return.
Di Mento emigrated to Australia and sought to have the marriage annulled on the grounds that
she did not voluntarily give her consent. The court held that the marriage was void because it was
obtained by duress, and noted that the Act does not require that the duress exerted be that of the
spouse; in this case, it was exerted by Di Mento’s father.
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CAMBRIDGE LEGAL STUDIES HSC
• ensure that any child of those relationships
Review 12.1 will be given the same protection as children
of married couples under adoption and welfare
1 Define ‘family’ and explain why the laws
family is considered both a legal and • protect the right of inheritance of the surviving
social institution. spouse if their partner dies without a will (intestate)
2 Explain how families have changed. • allow a surviving spouse to claim any
Provide examples to illustrate your compensation payments owing to their
answer. partner, including workers’ compensation
3 Explain the meaning of each part of Lord • allow the couple to claim the same tax benefits
Penzance’s definition of ‘marriage’ and as those that are currently available to de facto
use examples to illustrate each part. or married couples.
4 Define ‘prohibited relationship’, and
provide examples of who a person is and compensation
a monetary payment made to a person to make amends
is not permitted to marry. for any loss, injury or damage to property they have
5 Outline the reasons why a marriage may suffered
be declared invalid.
The federal government’s response to the report,
in 1995, suggested that most of the recommendations
were more appropriate for implementation in state
However, any children born during the marriage and territory law. However, the circumstances of
are considered to be the legitimate children of the Indigenous children are specifically provided for in
marriage. legislation such as the Family Law Act 1975 (Cth); for
example, s 61F states that a court making decisions
Alternative family relationships about parental responsibility must take into account
Aboriginal and Torres Strait Islander kinship and the Aboriginal or Torres Strait Islander
peoples’ customary law marriages culture of the child.
Relationships within Aboriginal and Torres Strait The state parliaments have addressed some of the
Islander communities are bound by traditions and recommendations since then, including recognition
enforced through customary law. Children may of traditional marriages for limited purposes.
be betrothed at an early age and parents or elders Children, ex-nuptial or nuptial, are protected
generally arrange marriages. Typically, such under the Family Law Act 1975 (Cth) and the Status
customary law marriages do not conform to the of Children Act 1996 (NSW). If a Aboriginal or Torres
requirements of a valid marriage under the Marriage Strait Islander customary marriage does break down,
Act 1961 (Cth). These marriages are generally not the Family Court has the power to determine an
legally recorded, or registered with the relevant appropriate parenting order, including maintenance
authorities. The law, therefore, does not formally arrangements and deciding which parent will be
recognise Aboriginal and Torres Strait Islander given parental responsibility for the child. The orders
customary law marriages as having any legal are made on the basis of what the court determines
standing. is in the ‘best interests’ of the child, and of the child’s
In 1986, the Australian Law Reform Commission need to maintain a connection with Aboriginal or
tabled a report (Recognition of Aboriginal Customary Torres Strait Islander culture and traditions.
Laws) in parliament dealing with this. The part of the ex-nuptial nuptial
report focusing on marriage, children and property a Latin term meaning a Latin term meaning
settlement recommended that traditional marriages ‘outside marriage’; an ex- ‘marriage’; a nuptial child
nuptial child is a child born is a child born within a
of Indigenous Australians should be recognised and outside a marriage marriage
given legal status in order to:
• ensure the legitimacy of the children of those
relationships
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CHAPTER 12 OPTION 3: FAMILY
of child support from the courts to an administrative
system, and the Child Support (Assessment) Act 1989 12
(Cth) introduced a formula for the calculation of
child support owed, again using an administrative
rather than judicial procedure.
Blended families
When a parent and their children from a former
marriage or relationship live with another parent
and children in similar circumstances, the result is
considered a blended family. The family includes
the stepmother or stepfather and stepchildren. One
Figure 12.2 Single-parent families are becoming out of every four registered marriages in Australia
more common.
in 2013 involved individuals who were marrying for
the second time. Nearly half of those who have been
Single-parent families divorced remarry.
The increase in the number of divorces, the changes Although a step-parent may be viewed as the
in social attitudes, improved welfare provisions and parent of their partner’s child, step-parents do not
greater financial independence of women have all have the same legal responsibilities for that child. A
contributed to the growth of single-parent families. step-parent does not have an automatic right or duty
According to the Australian Bureau of Statistics, in to discipline their partner’s child or to make day-to-
June 2016 there were just over 6.7 million families in day decisions concerning the health and welfare of
Australia; of these, 14% were single-parent families. the child. A step-parent is not responsible for the
The majority of these families were single-mother maintenance or support of a partner’s child; the
families (83% of one-parent families). One in six financial obligations towards a child remain with the
children (18%) lives in a single-parent family. child’s parents. However, a court may make an order
In addition to the many social issues confronting requiring a step-parent to pay financial support if
single parents, they may face difficulties in accessing satisfied that the step-parent has a duty to maintain
legal advice, pursuing their rights in court and the child (Family Law Act 1975 (Cth) ss 66D, 66M,
obtaining adequate legal protection. The high cost 66N). A step-parent may also become financially
of taking a matter to court may discourage single responsible for their partner’s children if the family
parents from doing so. The Child Support Scheme has existed for a long time and the natural parent is
was introduced to enforce maintenance orders on dead or cannot be found.
parents who do not reside with their dependent Step-parents intending to adopt must first apply
children. The scheme, which was originally part of to the Family Court (Family Law Act 1975 (Cth) s 60G).
the Australian Taxation Office, ensures that parents Upon approval, the step-parent must then apply to
fulfil their responsibility towards their children, the state Supreme Court for an adoption order. For
thereby ensuring compliance to the law. such an order to be granted in New South Wales,
The Child Support (Registration and Collection) the step-parent must have lived with the child and
Act 1988 (Cth) shifted the collection and enforcement the child’s natural or adoptive parent for no less than
two years, and the child must be at least five years
Legal Links old (Adoption Act 2000 (NSW) s 30). If a step-parent
does adopt their partner’s children, these children
For more information on changes to family will have the same legal rights as children born
structures see ‘Australian households and naturally into the parental relationship.
families’, Australian Family Trends No. 4, July Stepchildren do not have an automatic claim
2013 at http://cambridge.edu.au/redirect/?id= to the estate of their step-parent if the step-parent
6343. dies intestate. In order to claim successfully against
the estate of a step-parent, stepchildren must prove
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CAMBRIDGE LEGAL STUDIES HSC
that they were financially dependent upon the step-
parent. Stepchildren in this situation may apply for
a family provision order (Succession Act 2006 (NSW)
s 57(1)(e)).
Review 12.2
1 Discuss the status of traditional
Aboriginal and Torres Strait Islander
marriages under federal and state law.
2 Identify some challenges for single-
parent families and ways the federal
government has tried to address these
challenges.
3 Discuss the rights and obligations of a
step-parent to stepchildren under: (a)
federal law; and (b) state law.
Figure 12.3 Laws regarding de facto relationships
apply to heterosexual and same-sex couples.
De facto relationships
A de facto relationship is defined in s 4AA of another or related by family’. To determine whether
the Family Law Act 1975 (Cth) as one in which the a de facto relationship exists, all the circumstances
partners: of the relationship are taken into account. The
• are not married to each other by law Act provides protection to people in same-sex de
• are not related by family facto relationships in the areas of property division,
• are living together on a genuine domestic basis inheritance and decision-making in illness and after
as a couple, and death.
• have cohabited for a minimum of two years The definition of ‘de facto’ in this Act also applies
unless they have had a child together. to people making an application for family provision
According to the Australian Bureau of Statistics, under the Succession Amendment (Family Provision)
in 2013 over 76% of couples who marry have lived Act 2008 (NSW), and to entitlements of the de facto
together prior to marriage. De facto relationships partners of individuals who died intestate, under
also include same-sex couples. the laws amended by the Succession Amendment
(Intestacy) Act 2009 (NSW).
Same-sex relationships
State legislation Federal legislation
As discussed at the beginning of this chapter,
The law recognises relationships that exist outside
the ‘marriage power’ is one of the enumerated
the traditional concept of marriage. The De Facto
powers of the Commonwealth Parliament under
Relationships Act 1984 (NSW) was amended by the
the Australian Constitution. However, as a result of
Property (Relationships) Legislation Amendment Act
states referring their powers to the Commonwealth,
1999 (NSW) and renamed the Property (Relationships)
the Family Law Act 1975 (Cth), as amended by the
Act 1984 (NSW). The Property (Relationships) Act 1984
Family Law Amendment (De Facto Financial Matters
(NSW) recognises same-sex relationships as having
and Other Measures) Act 2008 (Cth), governs property
the same legal standing as heterosexual de facto
settlements and maintenance orders for de facto
relationships, and provides the same protection.
couples who are separating. The federal legislation
Section 4 of this Act defines a de facto relationship
applies to couples whose relationship broke down on
as ‘a relationship between two adult persons who live
or after 1 March 2009, and to those whose relationship
together as a couple, and who are not married to one
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CHAPTER 12 OPTION 3: FAMILY
broke down earlier if they choose to be bound by Polygamous marriages
federal rather than state law in this matter. Matters A polygamous marriage is a relationship that is 12
relating to the children of de facto relationships are formed when an individual marries more than one
heard in the Family Court. person. While some cultures and religions permit
Section 4AA(5) of the Family Law Act 1975 (Cth), polygamous marriages, polygamous marriages are
inserted in March 2010, states that a de facto not legal in Australia. However, under s 6 of the
relationship can exist whether the people are of the Family Law Act 1975 (Cth), a polygamous marriage
same sex or different sexes. Therefore, the Family that was entered into overseas is deemed to be a
Law Act now governs property settlements between marriage for the purpose of children’s matters,
separating same-sex couples. property settlements and other court proceedings
Under s 18 of the Evidence Act 1995 (Cth) and under the Family Law Act. This means that if an illegal
s 18 of the New South Wales and Victorian Evidence polygamous marriage breaks down, the parties may
Acts, which are modelled on that Act (the Uniform seek orders for child and/or spousal maintenance,
Evidence Acts), a de facto partner in either a division of property, and parenting plans. A party
same-sex or opposite-sex relationship cannot be can also seek domestic violence orders.
compelled to give evidence against their partner
in certain criminal proceedings. Not all states have
such provisions in their Evidence Acts, however. Review 12.3
In response to the Australian Human Rights
1 Define ‘de facto relationship’.
Commission’s report Same-Sex: Same Entitlements:
2 Explain the status of de facto
A National Inquiry into Discrimination against People
relationships with respect to:
in Same-Sex Relationships: Financial and Work-Related
a property settlements
Entitlements and Benefits (2007), 84 Commonwealth
b wills
Acts were amended by the federal government in
c giving evidence against one’s partner
2008 to eliminate differential treatment of same-
in a criminal proceeding
sex couples. These Acts included laws about tax,
d superannuation and identify whether
superannuation, Medicare, aged care, veterans’
the matter is governed by state or
entitlements, workers’ compensation, employment
federal law.
entitlements, family law and child support.
3 ‘Same-sex marriage is a human rights
While these amendments gave same-sex couples
issue.’ Discuss.
most of the same rights as de facto heterosexual and
married couples, successive federal governments
resisted the idea of amending the Marriage Act 1961
(Cth) to allow same-sex marriage. A bill that would Legal rights and obligations of
have done so, the Marriage Equality Amendment parents and children
Bill 2009, was introduced by the Greens but was Within the family, the rights of the child are
defeated in the Senate in February 2010. Since then, paramount, because children are seen as the most
a number of state and territory governments (New vulnerable members of the family and as such
South Wales, South Australia, Tasmania and the require the greatest legal protection.
Australian Capital Territory) have expressed support As noted above, the Family Law Act 1975 (Cth)
for the legalisation of same-sex marriage. However, governs proceedings for a divorce or annulment of
‘marriage’ remains within the federal government’s a marriage, as well as maintenance and property
jurisdiction, so even though a growing number of proceedings, whether the parties are married or
states support same-sex marriage, it will not become in the process of ending the marriage. Part VII of
legal until the federal government changes the the Act governs proceedings in relation to children,
current definition of marriage. A growing number particularly parenting arrangements. However, most
of countries have legalised same-sex marriage, of the laws relating to the care and protection of
including Canada, France, New Zealand, Norway children are at state or territory level.
and the United Kingdom.
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CAMBRIDGE LEGAL STUDIES HSC
Table 12.1 Legislation concerning children in New South Wales
Name of the Act Area covered by the Act
Adoption Act 2000 (NSW) Adoption of children and access to information relating to
adoption
Child Protection (Offenders Requirements of people convicted of certain offences against
Registration) Act 2000 (NSW) children, including the requirement to register with the police
upon their release into the community and to provide specified
information about themselves to police
Children (Criminal Proceedings) Act Sets out court procedures in dealing with children who commit
1987 (NSW) crime
Children (Protection and Parental Responsibility of parents for the behaviour of their children;
Responsibility) Act 1997 (NSW) greater police powers in respect of children, such as removal of
children from public places and returning them to their parents’
residence
Children and Young Persons (Care and Responsibilities of Family and Community Services (in New
Protection) Act 1998 (NSW) South Wales) and other agencies regarding the care and
Children and Young Persons (Care protection of children and young people who are at risk of harm
and Protection) Amendment Act 2009 or are being abused
(NSW) This act was amended in 2009 to make further provision for out-
of-home care agencies.
Children’s Court Act 1987 (NSW) Establishment of a Children’s Court of NSW; its jurisdiction and
functions
Status of Children Act 1996 (NSW) Ex-nuptial children are recognised as having the same rights as
children born in a marriage
Young Offenders Act 1997 (NSW) Procedures for dealing with child offenders, including youth
justice conferences, cautions and warnings; court proceedings
are seen as a last resort
Children have the obligation to obey the law just Australia ratified CROC in 1990 and so is bound,
as adults do, though the procedures for enforcing in international law, to its terms.
those laws are different from the legal mechanisms International instruments may be used by courts in
that apply to adults. interpreting statutes and in judgements that develop
Some of the Acts concerning children in New the common law. In addition, CROC was declared
South Wales are listed in Table 12.1. a ‘relevant international instrument’ under the
Australian Human Rights Commission Act 1986 (Cth),
Parental care so the Australian Human Rights Commission can
Rights derived from international law refer to it when hearing complaints of discrimination.
The rights of children are articulated and protected However, as with the other human rights treaties
by the UN Convention on the Rights of the Child to which Australia is a party, no federal legislation
(CROC), which was adopted by the United Nations has been passed implementing it in Australian
(UN) in 1989 and has been signed and ratified by domestic law. This means that it is not binding at
all 194 UN member states except Somalia, South the domestic level (not enforceable in Australian
Sudan and the United States. The convention has courts). The 2011 report from the NGO Child Rights,
54 articles and declares that people under 18 years of Listen to Children, recommended that CROC should
age must be protected from violence, discrimination, be comprehensively incorporated into Australian
exploitation and neglect, and that states must act in law. The Commonwealth has left implementation of
the best interests of the child. CROC obligations to the state governments.
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CHAPTER 12 OPTION 3: FAMILY
Legal Links Legal Links 12
Look up the Children and Young Persons Go to http://cambridge.edu.au/redirect/?
(Care and Protection) Act 1998 (NSW) at http:// id=6345 for a simplified version of the UN
cambridge.edu.au/redirect/?id=6344, and Convention on the Rights of the Child, as well
read s 10, ‘The principle of participation’. as links to the full text of the convention.
Many of CROC’s principles are already embedded (a) children have the right to know and be cared for
in state child protection legislation. Following by both their parents …
art 3 of CROC, legislation in both federal and state (b) children have the right to spend time … and
jurisdictions states that children’s best interests communicate on a regular basis with, both their
should be a primary consideration in decisions parents, and other people significant to their care
concerning children. Other elements of CROC welfare and development …
that are reflected in state legislation include (c) parents jointly share duties and responsibilities
art 12 – a child has the right to express their opinions concerning the care, welfare and development of
and be heard in proceedings affecting them, in a their children …
manner consistent with the procedural rules of the (d) parents should agree about the future parenting
jurisdiction, and the child’s views are to be given of the children; and
due weight in accordance with the child’s age and (c) children have the right to enjoy their culture
maturity. This is reflected in legislation providing for (including the right to enjoy that culture with other
children’s participation in decision-making. people who share that culture).
‘Taking due account of the importance of the
traditions and cultural values of each people for The emphasis on responsibilities being shared
the protection and harmonious development of the equally by both parents was introduced in large part
child’ is one of the aims of legislative provisions that by the Family Law Reform Act 1995 (Cth), which made
specifically prescribe taking an Indigenous child’s significant amendments to the Family Law Act 1975
culture into account in decision-making procedures (Cth) with respect to children. Further amendments
(for example, in Children and Young Persons (Care made by the Family Law Amendment (Shared Parental
and Protection) Act 1998 (NSW) ss 11, 12 and 13). Responsibility) Act 2006 (Cth) emphasised the child’s
For judicial applications, see also In the Marriage right to meaningful family relationships and care,
of Sanders (1976) 10 ALR 604 and F v Langshaw and
Others (1983) 8 Fam LR 832.
Parental responsibility under the Family
Law Act 1975 (Cth)
Part VII of the Family Law Act 1975 (Cth) has the object
of ensuring that the best interests of children is the
chief factor that courts must take into consideration
when making parenting orders. ‘Best interests’, as
listed in s 60B of the Act, include:
• the opportunity to maintain a meaningful
relationship with both parents
• to be protected from harm, including neglect
and abuse
• proper parental care. Figure 12.4 The Family Law Reform Act 1995 introduced
Section 60B(2) also sets out the principles plans for child welfare and living arrangements that
underlying these objects: can be negotiated between two parents.
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CAMBRIDGE LEGAL STUDIES HSC
rather than either parent’s ‘right’ to have the child security) may result in criminal prosecution for
live with them. neglect of the child. Neglect is a criminal offence
The Family Law Reform Act 1995 (Cth) introduced under both the Children and Young Persons (Care and
parenting plans, which are written agreements Protection) Act 1998 (NSW) (s 228), which carries
voluntarily agreed to by parents. In contrast to court fines of up to $22 000, and the Crimes Act 1900 (NSW)
orders assigning custody to a parent, parents are (s 43A), which provides for a jail term of up to five
encouraged to create such plans themselves. The years. Family and Community Services (FACS) is
plans can deal with any aspect of a child’s care and the main New South Wales department responsible
welfare, such as the child’s living arrangements, for implementing the laws under the Children and
the amount of time the child will spend with each Young Persons (Care and Protection) Act 1998. If child
parent, how the child’s educational, cultural and abuse or neglect is suspected, FACS may initiate a
religious needs will be handled, and what process Joint Investigation Response Team (JIRT). JIRTs
will be used to make changes to the plan or resolve are comprised of Community Services, police and
disagreements. If the parents cannot agree, they will New South Wales health professionals. The main
be issued with a parenting order, which is a court- aim of JIRTs is to provide a timely and coordinated
imposed decision. In some cases – such as those intervention in instances where child neglect or abuse
involving domestic violence – parents may apply is suspected or is proven. JIRTs may investigate
for parenting orders without first attending family claims of abuse or neglect, provide care and support
dispute resolution. services, or refer the individual to crisis counselling.
In those instances where there is reasonable In some cases, FACS will apply to the Children’s Court
grounds to believe that the child has been subject to of NSW for an order (for example, for supervision
abuse or family violence, the presumption of ‘equal of the family relationship through visits, support
shared parental responsibility’ does not apply. The services, or transfer of parental responsibilities,
priority for the Family Court is the protection of the perhaps to another member of the child’s family or
child rather than the maintenance of a meaningful foster care). Foster care is usually temporary and
relationship with an abusive parent. To this end, involves a couple taking on the parental
the Family Court may take into account any aspects responsibility of caring for and controlling the
which may adversely affect the future welfare of child. One alternative to foster care is for children
the child, including the parent’s criminal actions, to live in ‘group homes’ under adult supervision,
drunkenness, illicit drug use or mental stability. such as under the care of a youth worker and child
The law allows parents to raise their children counsellors.
as they see fit, within general guidelines. Parental
responsibilities to a child are not specifically defined neglect
ongoing failure by a parent to provide a child with the
in the legislation, but would include: basic requirements for proper growth and development,
• providing adequate food and shelter such as food, shelter, medical care, hygiene and
supervision
• providing access to education
• providing discipline
• protecting the child from harm and ensuring New legislation passed in 2014 (Child Protection
that they are not exposed to illegal activities. Legislation Amendment Act 2014 (NSW)) focuses on
the safety and wellbeing of a child or young person by
Consequences of parental neglect under providing them a secure environment in accordance
state laws with ‘permanent placement principles’ (s 10A). This
Parents who fail in their duty to their child may face requires child protection authorities to investigate
any of a number of consequences. These offences, whether putting a vulnerable child up for adoption
and their consequences, are provided for in state is preferable to placing the child in temporary foster
and territory legislation. Ongoing failure by a care. The aim of the laws is to provide children a
parent to provide the basic requirements for proper more stable home environment, which they would
development (food, shelter, hygiene, medical and not otherwise experience if they were moved from
dental care, adequate supervision and emotional one foster home to another.
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CHAPTER 12 OPTION 3: FAMILY
In addition, the new laws allow authorities to The defence of ‘lawful correction’ in criminal
seize children once they are born if it is proven that proceedings against a parent or other person for 12
the birth mother had a history of drug or alcohol assault is not available if the physical force was not
abuse during the pregnancy (Child Protection reasonable.
Legislation Amendment Act 2014 (NSW) s 38A,
‘Parent responsibility contract’). Finally, courts assault
a criminal offence involving the infliction of physical
now have the power to force parents to undergo force or the threat of physical force
treatment to deal with issues, such as alcohol or
drug addictions under a ‘parent capacity order’ What is considered reasonable and acceptable
(ss 91A–91I). discipline can vary from culture to culture, but
The Children and Young Persons (Care and punishments that will not be considered reasonable
Protection) Act 1998 (NSW) addresses family
problems in terms of the child’s needs and care.
Other state laws, such as the Children (Protection Review 12.4
and Parental Responsibility) Act 1997 (NSW) and the
Children (Criminal Proceedings) Act 1987 (NSW), deal 1 Evaluate the influence of the CROC on
with the prevention of juvenile crime and the family law in Australia.
criminal processes appropriate to people under 2 Discuss the concept of ‘the best interests
18 years. of the child’ and describe what the courts
may consider to be in the ‘best interests’
Education of the child.
The right to an education is one of the objects of 3 Explain the concept of parents’
the Education Act 1900 (NSW), and it is also found responsibility or obligations to their
in the CROC (art 28). The Education Act imposes on children, giving examples.
the state the duty to ensure that every child receives 4 Identify the requirements that must be
an adequate education. Parents cannot refuse their satisfied before a person can leave school.
child an education, but they do have the right to
choose where their child will be educated. There
are provisions for the parent to educate the child Research 12.1
at home (if government consent has been granted)
or by distance education, as long as the child is View the Children (Protection and Parental
educated according to curricula approved by the Responsibility) Act 1997 (NSW) at http://
state NSW Education Standards Authority. Failure cambridge.edu.au/redirect/?id=6346 and
to enrol a child in a school or to give the child access then complete the following tasks.
to an education is a criminal offence. 1 When deciding how to deal with a child
Changes to the Education Act 1900 (NSW) in 2009 under this Act, what factors do the court
make it compulsory for a child to attend an educational take into account? (See s 6.)
facility from the age of six until 17 years of age. Children 2 Explain two ways a court might respond
who intend to leave school and have completed Year 10 to encourage parental responsibility once
but are not yet 17 must be in some form of education, their child has been found guilty of an
training or employment until they turn 17. offence. (See ss 8 and 9.)
3 Look at Part 3 of the Act, especially ss 18,
Discipline 19, 20, 21 and 22.
Parents have the right to discipline their child a Summarise the specific issue or
by using physical force in order to correct their issues that the Act attempts to
child’s behaviour, but the physical force must be address in these sections.
‘reasonable, having regard to the age, health, b Do you think this Act is the best way
maturity or other characteristics of the child, [and] to address these issues? Justify your
the nature of the alleged misbehaviour or other answer.
circumstances’ (Crimes Act 1900 (NSW) s 61AA).
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CAMBRIDGE LEGAL STUDIES HSC
by a court in Australia include striking the head or under 16 years, and a young person as one who is
neck of a child, causing pain lasting for more than aged 16 or 17.
a short period, shaking a young child and striking a
child with a closed fist. Ex-nuptial children
In the past, ex-nuptial children (they used to be
Medical treatment called illegitimate) had no legal status and therefore
Parents are responsible for ensuring that appropriate had no legal rights. Legitimacy was important
medical and dental care are available for their child. because it provided a child with certain rights,
However, consent must be given before a doctor can such as inheritance and maintenance. Legitimacy
carry out any treatment. As with any decision carrying automatically existed for a child if the child was:
risk, a person’s consent implies an understanding of • born during marriage – that is, was a nuptial
what is involved and an acceptance of the risks. For child
children under 14 years old, the consent of a parent • ex-nuptial, but the parents of the child later
(or guardian) is required, and parents have the right married
to authorise any such treatment they consider in • adopted.
the child’s best interests. For those between 14 and The Children (Equality of Status) Act 1976
16, either the child’s consent or a parent’s consent (NSW) – later replaced by the Status of Children Act
is required. Medical or dental treatment of young 1996 (NSW) – gave ex-nuptial children the same
people aged 16 or 17 requires the consent of the rights as those born to parents who are married.
young person. These requirements are contained in Later Acts have reinforced the status of ex-nuptial
the Minors (Property and Contracts) Act 1970 (NSW) (s children. All children have the right to be cared for
49). If the parents refuse medical or dental treatment by their parents.
(for instance, on religious grounds), a court can The Act allows a presumption that those
authorise the treatment. who say they are a child’s parents are in fact the
If the child is over 16 and is intellectually disabled, child’s parents (this is called the ‘presumption of
such that they do not understand the problem and parentage’); evidence has to be provided to a court
the treatment, then the Guardianship Act 1987 (NSW) to disprove that. Parentage can be established
specifies who can give consent. Usually, this will be through DNA analysis of a blood sample, or through
a ‘person responsible’, such as a parent. the parent’s voluntary recognition of the child as
theirs. If a person making a will wants to exclude
Autonomy of children any of their children, this must be explicitly stated
Children are regarded as not yet having developed the (for example, by listing only the children the testator
cognitive abilities and the capacity to understand the wants to inherit their property).
consequences of their actions, and are considered
testator
unable to make fully informed decisions. In an effort
a person who makes a will
to protect children, the law makes it illegal for them
to engage in certain activities. A child’s ability to
make their own decisions increases as they get older,
and this is reflected in the law regarding children’s Review 12.5
autonomy and rights (see Table 12.2).
1 Explain why consent to medical treatment
autonomy
freedom of the will, self-government; the ability to act
is necessary, and why age determines
without outside interference legal capacity to give consent.
2 Explain the term ‘autonomy’ and how
As suggested above with respect to consent to it will change the parent–child legal
medical treatment, some laws distinguish between relationship.
‘children’ and ‘young persons’. For example, the 3 Explain the term ‘presumption of
Children and Young Persons (Care and Protection) parentage’.
Act 1987 (NSW) defines a child as a person who is
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CHAPTER 12 OPTION 3: FAMILY
Table 12.2 Legal autonomy of children in Australia*
12
Area of
responsibility Explanation
Alcohol and It is illegal for a child under 18 to purchase, possess and/or consume alcohol and
cigarettes cigarettes.
Arrest The police can only question a child in the presence of an adult. This adult could
be the child’s parent or guardian.
Civil law Children can be sued for any damage or injury that they cause. In some situations
a child’s parents may be held responsible for the damage their child caused.
Contracts A child can only enter into a contract if an adult acts as guarantor. The contract
must be for the benefit of the child.
Criminal Children under 10 years old are not criminally responsible for their actions
responsibility because there is a presumption that they do not have the capacity to understand
the difference between right and wrong and so cannot form an intention to
commit a criminal act. If the child is aged 10 to 14 years the prosecution must
prove that the child understood that their act was illegal (that is, that criminal
intent was present). Children aged 14 years or older are considered to be
responsible for their criminal actions.
Driving A child can obtain their learner’s permit at 16 years in New South Wales. Once
the child turns 17 they can obtain a probationary licence.
Employment There is no minimum age for starting part-time or casual employment in New
South Wales. However, those under 15 who want to leave school and start full-
time work must seek permission from the Department of Education and Training.
Otherwise, anyone who has completed Year 10 but is under 17 and does not want
to stay at school can do an apprenticeship, or work full-time (25 hours per week),
or do a combination of approved education or training and paid work (see http://
cambridge.edu.au/redirect/?id=6347 on school leaving age).
Evidence Children can give evidence at any age if they understand the nature and
consequences of the oath or affirmation.
Leaving home There is no minimum age for leaving home in New South Wales. Young
people between the ages of 16 and 18 will not normally be forced to return to
their parents’ home, as long as they have a safe place to go and can support
themselves financially.
Marriage A person under 16 cannot marry. A person between the ages of 16 and 18 can
marry only with the court’s permission and only in exceptional circumstances.
Sexual intercourse The legal age for consensual sex is 16. It is an offence to have sexual intercourse
with a child under 16.
*The legal definition of a ‘child’ is any person aged under 14, which is different from a ‘minor’, which refers to anyone under 18.
(For more information regarding children and the law, go to the Lawstuff website at http://cambridge.edu.au/redirect/?id=6348.)
The Family Provision Act 1982 (NSW) removed Adoption
the concept of ‘illegitimacy’ and the Succession Act Adoption is the process of transferring parental
2006 (NSW) permits any child to apply for a family rights and responsibilities from the biological
provision order, whether the child is nuptial or ex- parents to the adoptive parents. The aim of adoption
nuptial. law is to ensure that the best and most appropriate
parents are found for the child. The needs of the
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CAMBRIDGE LEGAL STUDIES HSC
adults are secondary to the needs of the child. • The prospective male parent must be at least
Adoption re-creates the legal relationship between 18 years older than the child and the female
the child and their parents. parent must be at least 16 years older than the
child.
adoption • The applicant must be a person of good repute,
the legal process of transferring parental rights and
responsibilities from the biological parents to the be a fit and proper parent, and be able to fulfil
adoptive parents the responsibilities of a good and caring parent.
Also, where applicable, the child’s culture,
language and religion will be taken into account
Legal requirements and process
when determining an adoption order.
Adoption is a state responsibility. In New South
Prospective parents who meet the criteria above
Wales, adoption is governed by the Adoption Act
are then placed on a waiting list. The decision as to
2000 (NSW).
who will adopt is based on what is in the best interests
If the birth parents are married or in a de facto
of the child and whether the child’s overall welfare
relationship, both parents must give consent to give
will improve by being adopted by the applicant(s).
up the child for adoption. In the case of a single
Once the birth parents agree to the adoption, the
mother, only the mother need give consent; the
court will make an adoption order, following official
father must have been notified prior to the adoption
notification from the relevant agency or department.
and given 14 days to respond. Children aged over
An adoption order creates certain legal changes.
12 years must consent to their adoption themselves.
The Registrar of Births, Deaths and Marriages will
A birth mother cannot consent to adoption within
issue a new birth certificate in the child’s adopted
three days of the child’s birth. Once the birth parent
name. The birth certificate will include the family
or parents have given consent, there is a 30-day
details of the adoptive family, such as the full names
revocation period during which they can change
and dates of birth of the child’s adoptive parents and
their minds. If the child’s parents cannot be found or
any other children of the adoptive parents. The birth
are incapable of giving informed consent, the court
parents no longer have any rights or obligations
can give consent.
concerning the child. The adopting parents have
Relinquishing parents can nominate a relative
the legal responsibility for the care and wellbeing of
to adopt their child, but all adoption criteria must
the child, who is now legally their child. The adopted
be met and the adoption can only proceed if the
child’s rights of inheritance to the estate of their
court permits it. Parents who give up their child
biological parents are removed (unless the child is
for adoption can nominate a desired religious
specifically mentioned in a will), and the adopted
upbringing for their child.
child will have the automatic right to inherit from the
relinquishing parent estate of their adoptive parents.
a parent who nominates their child for adoption
Overseas adoptions
Because adoption laws are primarily concerned An increasing number of Australian couples are
with the rights of the child, the law has established applying to adopt children born overseas. Inter-
strict guidelines as to who can apply to adopt: country adoptions are governed by the Hague
• Married couples and those in long-term, stable Convention on Protection of Children and Cooperation
de facto relationships (including same-sex in Respect of Intercountry Adoption, and by bilateral
couples) can apply to adopt. agreements between Australia and countries that
• Individuals who are not in a relationship have not ratified the convention. In response to
can apply as single applicants. (There is the growing number of intercountry adoptions,
no distinction between heterosexual and the Attorney-General’s Department established in
homosexual applicants.) 2015 a new adoption service, Intercountry Adoption
• Applicants must be over 21 years of age, but Australia. The service includes an informational
under 51 years of age. website providing advice on overseas adoption,
links to relevant government sites and a telephone
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CHAPTER 12 OPTION 3: FAMILY
register, maintained by Community Services in New
South Wales, is still in operation, but Community 12
Services does not help parties search for each
other. The Adoption Amendment Act 2008 (NSW)
gives relinquishing parents and adopted children
the right to request personal identifying information
from Community Services, which they can then use
to contact one another and other family members.
Adopted children may apply to Adoption
Information Unit to obtain a ‘supply authority’,
which contains identifying information of the birth
parents. This document then allows them to obtain
further information from adoption records. Parents
Figure 12.5 Australian couples are applying to adopt who have given up their child for adoption can also
children born overseas. ask for a ‘supply authority’, allowing them to obtain
a copy of their child’s amended birth certificate
advice line for families intending to adopt a child (the one prepared after their adoption), which now
from overseas. contains information about the adoptive family.
In New South Wales, prospective parents Parents and children who do not want to be
must apply through the Department of Family and contacted by the other can lodge a ‘contact veto’.
Community Services to arrange for an inter-country Alternatively, the contact details of adopted children
adoption. They will be offered a child from the other and relinquishing parents can be placed on the
country, and if the parents accept the offer they Advance Notice Register, which notifies them if
may lodge an adoption visa application, which is any application for information is made. Even though
then forwarded to the appropriate overseas welfare the relinquishing parents or the adopted child may
agency. The child is then subject to standard not wish to be contacted, their information will be
migration medical checks. If the child satisfies the released once the party seeking the information
health requirements, the adoption will either be has signed an undertaking not to make contact.
finalised overseas in the child’s country of origin A party who breaches a contact veto may be subject
or the overseas welfare agency will authorise the
child to leave so that the adoption can take place in
Australia. The child will then be granted permanent Review 12.6
residence in Australia. Any intercountry adoption
must be in the best interests of the child. 1 Explain the concept of adoption and
Privately arranged adoption is possible if the discuss how adoption changes the
adoptive parents can prove they have been living relationship between the child and the
in the overseas country for more than 12 months relinquishing parents, and the child and
prior to their application, and if the authorities in their adoptive parents.
the overseas country have approved the departure 2 List the conditions that must be met by
of the child to Australia. The child must meet prospective adoptive parents. Evaluate
migration standards – the Australian Department these requirements with regards to the
of Immigration and Border Protection can refuse to child’s ‘best interest’.
grant an entry visa for the child. 3 Explain why adopted children may want
their birth parents’ personal information.
Access to information Critically analyse whether they should
Previously, all personal information, of both the have complete access to all information
parent and the child, could only be released by the regarding their parents and possible
Reunion and Information Register, and only if both siblings.
parties placed their information on the Register. This
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CAMBRIDGE LEGAL STUDIES HSC
to a fine and/or imprisonment. Both relinquishing are leading separate lives; for example, they sleep
parents and adopted children who want to make separately, do not socialise with friends together,
contact with one another can enter their names and no longer share finances.
in the Reunion and Information Register. In 2014, Although the Act removed fault and established
Barnados Australia, a leading child welfare agency, one ground for divorce, it did not intend to encourage
launched a digital ‘memory box’ using a software divorce. Rather, it was designed to encourage parties
called ‘MyStory’ to provide a sense of stability to to seek an amicable resolution to their problems,
children who go through a number of foster homes. including the use of counselling services. The Act
allows for one period of reconciliation of up to three
months during the period of separation, under
12.2 R
esponses to problems in s 50 (the ‘kiss and make up clause’). If they do not
family relationships succeed in reviving the marriage during this interval,
the separation period resumes, with the total time
Divorce before and after the reconciliation period counting
Divorce is the legal dissolution (termination) of towards the 12 months.
a marriage. Under s 48 of the Family Law Act 1975 If the couple seeking to dissolve their marriage have
(Cth), the only ground for divorce is the irretrievable been married for less than two years, they must attend
breakdown of the marriage. This means that there family counselling before they can divorce. Also, if
is no chance that the parties to the marriage wish to the court feels there is a chance the parties may be
remain in a relationship. reconciled, the court can order marriage counselling.
divorce
the legal termination of a marriage by an official court
Legal consequences of separation
decision Children
If the couple has children, no application for
Before 1974, married couples who wanted to dissolution (divorce) will be approved until the court
divorce had to apply under the Matrimonial Causes is satisfied that there are proper arrangements in
Act 1959 (Cth) on the ground of ‘fault’ (that is, on the place for the care of the children. Once this has
basis that one or both spouses admitted to acting in occurred, the court will order a decree nisi, which
a way that undermined their marriage). Grounds for begins the process of divorce. About one month
divorce under the Matrimonial Causes Act included later, the decree nisi becomes a decree absolute,
adultery, cruelty (family violence), insanity, chronic at which time the marriage is legally dissolved.
alcoholism and desertion.
decree nisi decree absolute
The Family Law Act removed all other grounds for a Family Court order that a final decree of the
divorce and established the Family Court, which hears is made to signal the dissolution of marriage
all matters related to marriage and divorce. Having just intended termination of a
marriage
one ground for divorce removes the need to find fault.
In order to prove that the relationship has irretrievably
broken down, the parties must have been living The focus of the law is not on ‘parental rights’ but
separately and apart for a period of 12 months. Once on ‘parental responsibility’. Parents are responsible
divorced, each party is free to marry another person. for the long-term care of their children and the
The 12-month separation begins when one party presumption is that it is in the best interests of the
tells the other that he or she intends to leave the children for both parents to share this responsibility
marriage. It does not matter that only one party to equally. Therefore, irrespective of where the
the marriage wishes to end the relationship. The law children reside, both parents are still responsible.
will not force an individual to stay in a relationship Parental responsibility will only cease with a court
he or she does not want to continue. order, the adoption of the children, the children’s
The parties can be held to be living separately 18th birthday or the children’s marriage. Parents
and apart even if they are still sharing the same are encouraged to make and voluntarily agree to
house. In this instance, parties must show that they their own arrangements in relation to the care and
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CHAPTER 12 OPTION 3: FAMILY
responsibility of their children, rather than asking having equal time with both parents, contact with
the court to do so. other family members, and the day-to-day care of 12
Under Part VII of the Family Law Act 1975 (Cth), any the children, and ensure that the children maintain
disputes concerning children must be decided in the their cultural links. Parenting plans are voluntary
best interests of the child. The court determines ‘best agreements, and most parents comply with them. If
interests’ by reference to primary and additional parents cannot reach an agreement, they may apply
considerations set out in s 60CC. The two primary to the Family Law Courts (the Family Court and the
considerations include the child’s right to maintain a Federal Circuit Court of Australia) to make parenting
meaningful relationship with both parents (s 60CC(2) orders. Section 64B of the Family Law Act explains
(a)) and the need to protect the child from harm (s that parenting orders may deal with any matters
60CC(2)(b)). Other factors taken into account include relating to the care and welfare of a child, such as
factors that may modify the ability of parents to share which parent the child is to live with, the time to be
the parenting of the child equally, such as the views spent with the other parent, and maintenance.
of the child, the nature of the child’s relationship
with each parent, and where the parent lives.
The presumption that equal shared parental Review 12.7
responsibility is in the best interests of the child will
not apply ‘if there are reasonable grounds to believe 1 Identify the sole ground for divorce in
that a parent of the child … has engaged in abuse Australia, and the consequences of there
of the child … or in family violence’ (s 61DA(2)(a) being only one ground.
and (b)). The 2006 amendments to the Act, which 2 Describe what it means for a couple to be
introduced shared parental responsibility and other ‘living separately and apart’.
provisions of Part VII (via the Family Law Amendment 3 Contrast ‘shared parental responsibility’
(Shared Parental Responsibility) Act 2006 (Cth)), have and ‘shared parental care’.
been criticised for not dealing adequately with family 4 Why might ‘shared parental
violence, exposing children who had previously responsibility’ not be in the ‘best interest
been victims of parental abuse to the possibility of the child’?
of further abuse. Another criticism centres on the
idea that the child’s views are not given enough
weight. There have also been complaints that the
Act does not make clear the distinction between
shared parental responsibility and shared care –
some parents mistakenly believed that shared parental
responsibility entailed 50/50 ‘custody’ of the children.
In 2011, the federal government passed the Family
Law Legislation Amendment (Family Violence and
Other Measures) Act 2011 (Cth). The Act recognises
the need to protect children from harm and aims
to improve the court’s response to family violence
by providing better information concerning the
existence or risk of family violence, allowing the
court to make provisions for the child’s safety in
future parenting arrangements.
Separating parents are required to attend family
dispute resolution before they can apply to the court
(subject to certain exceptions) for parenting orders.
Any agreement reached at this stage can be drafted
into consent orders or a parenting plan. Parenting Figure 12.6 Some shared assets may be sold if a
plans must consider the practicality of children couple separates.
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CAMBRIDGE LEGAL STUDIES HSC
Property couples have been able to claim superannuation that
The Family Law Act 1975 (Cth) uses a broad each spouse had accumulated during the marriage
definition of ‘property’. Property includes homes, as part of the matrimonial property.
bank accounts, companies and partnerships, There is no set formula for the distribution of
shares, superannuation and household goods. If property. The court aims to be as fair as possible
the separating couple reach an agreement as to the and to achieve an equitable outcome for both
allocation of property and want to formalise it and parties, taking into account their differing needs
make it binding, they can either apply to the Family and contributions.
Court for consent orders or enter into a financial
agreement. Financial agreements
If the division of property is fair and equitable, Financial agreements can be made between a couple
the court will then make the consent orders legally before their marriage (these were formerly known as
binding. A couple in dispute regarding property ‘prenuptial agreements’), during the marriage, or
allocation can choose to have the matter heard at the end of the marriage (see Family Law Act 1975
in the Family Court. When determining property (Cth) ss 90B, 90C and 90D). Financial agreements
allocation under ss 75 and 79 of the Family Law Act arose out of individuals’ desire to protect their
(or ss 90SF and 90SM for de facto spouses), the court property rights. They can include guidelines for
will consider a number of factors, which can include: the division of property, debt and other financial
• the financial and non-financial contribution concerns if the relationship ends. Such agreements
to the property by both parties (including tend to reduce the combative nature of divorce and
contributions made as home-maker and carer separation by removing two of the main sources of
for children) hostility between parties: money and property. Any
• the age of both parties and the income, agreements regarding children are deemed illegal.
property and financial resources of both parties Financial agreements may prescribe what
• the financial commitments of the parties in property is and is not to be included in the settlement,
supporting themselves and a child of another settle questions relating to how property is to be
person that the party has a duty to maintain divided after the marriage has ended, or establish
• whether or not each or either party has the care who owns what property. Financial agreements can
and control of a child of the marriage who is also include provisions as to whether, how and by
under 18 years of age whom spousal maintenance is to be paid.
• the ability of each party to maintain a In the past, agreements between spouses were
reasonable standard of living not binding, and were just one of the matters that a
• other contributions, such as any inheritance, court could consider when determining a property
and the acquisition, conservation and settlement. Amendments to the Family Law Act in
improvement of any assets (including 2000 allow the Family Court to recognise them as
maintenance of the family home or working for binding financial agreements. A party can apply to
the family business). the Family Court to have the agreement set aside, but
The court can, and usually will, order the this can be a costly and time-consuming process.
disputing couple to attend a conference in an The grounds on which they can be set aside are
attempt to have them determine a fair and equitable set out in s 90K (marriages) and s 90UM (de facto
allocation of property and an agreeable settlement. relationships) of the Act.
If this mediation process is unsuccessful, the Family As discussed earlier in this chapter, property
Court can make an order about the allocation settlements for separating de facto couples are now
of matrimonial property, which is all property governed by the Family Law Act. De facto couples
purchased or acquired during the marriage. can also have binding financial agreements, just
Superannuation is regarded as an asset and the like married couples, for property settlements if they
court takes into account the financial and non- separate. They can be made before, during or after
financial contributions made by both parties to the breakdown of a relationship (see Family Law Act
superannuation entitlements. Since 2002, separating 1975 (Cth) ss 90UB, 90UC and 90UD).
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CHAPTER 12 OPTION 3: FAMILY
In Court 12
C and M [2006] FamCA 212
The parties (both aged 29) married in October 2002 after a lengthy engagement. However, after two
months they separated. During their engagement the couple had bought land on which they intended
to build their home. The land was purchased in the husband’s name and he was responsible for paying
the mortgage. The couple had been using the wife’s credit cards and personal savings for day-to-day
expenses and she was now deeply in debt. When the couple separated, the husband transferred the
property to himself and his parents, thus preventing his wife from attempting to claim the property.
During the period 2002–06 the husband continued to pay the mortgage and his parents provided him
with substantial financial support in order to build a home on the land.
The court in the first instance found that both parties had contributed equally to one another’s
debt. The husband was ordered to pay half his wife’s debt, but was awarded 92.5% of the assets. No
adjustment under s 75(2) of the Family Law Act 1975 (Cth) had been made for the husband’s higher
income or greater earning capacity. On appeal, it was held that the method of calculation of the parties’
assets and liabilities effectively left the wife with only 3.8% of the net assets. The court ordered that
the wife’s share of the ‘asset’ (the land and house) should reflect her financial contributions to the
mortgage repayments (assessed at 20% of the total assets).
However, taking into account the short period of time that the marriage – and hence also the
financial contributions – had lasted, the ages of the parties, and the lack of any restrictions on the wife’s
earning capacity, the court held that there would be no adjustment for disparity of earning capacity.
effectiveness of protection orders, the prevalence of
Review 12.8 domestic violence and child protection.
The Crimes (Domestic and Personal Violence)
1 Describe the factors that are taken into
Act 2007 (NSW) describes domestic violence as
account when deciding the allocation
personal violence committed against someone with
of property after a marriage or de facto
whom the offender has, or has had, a ‘domestic
relationship has broken down.
relationship’ – that is, a marriage, a de facto
2 Outline the major changes that have been
relationship or another close personal relationship
made in family law regarding property
(such as between a parent and child).
allocation.
3 Identify and explain the various orders domestic violence
that the Family Court can make. any act, whether verbal or physical, of a violent or abusive
nature that takes place within a domestic relationship
Domestic violence may include physical violence,
Legal responses to domestic sexual assault, economic abuse, emotional or
violence psychological abuse, stalking, damage to property
Domestic violence has become a major social, judicial and behaviour that causes a child to be exposed
and economic issue within the Australian community. to the effects of domestic violence. It also includes
The Australian Law Reform Commission conducted ‘threatening behaviour’ that coerces, controls or
an inquiry into domestic violence in response to the causes the victim to be ‘fearful’.
findings of the National Council to Reduce Violence The definition of ‘domestic relationship’ in the
against Women and their Children, Time for Action Act is so wide that it incorporates almost every
(2009). The ALRC examined the existing federal and domestic arrangement imaginable. The Act does
state domestic violence laws. Issues the commission not stipulate a time limit for these relationships,
considered included the role of police, bail and the so even if a relationship only existed for a short
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CAMBRIDGE LEGAL STUDIES HSC
period in the past, it still qualifies as a domestic There are many reasons why families experience
relationship for the purpose of the Act. The words interpersonal problems. Causes of family crises can
‘intimate personal relationship’ are not defined, but range from psychological or social problems to
the section stipulates that the relationship between financial difficulties. Examples of these problems
parties need not be nor have been sexual in nature. are listed in Table 12.3.
The wording of the Act also indicates that those in
a ‘domestic relationship’ would include boyfriends Violence between spouses
and girlfriends, and those in same-sex relationships. Violence between spouses may, as noted above, take
In enacting the legislation governing domestic the form of physical, verbal, emotional, financial,
violence, the New South Wales Parliament expressly psychological and/or sexual abuse, social isolation,
stated that domestic violence in all its forms, or actual or threatened violence or harassment. Males
including behaviour that extends beyond physical tend to commit more domestic violence than women
violence and may involve the exploitation of power and the majority of domestic violence victims are
imbalances and patterns of abuse over many years, women and children. However, men are also victims
is unacceptable. The legislation also recognises that of domestic violence.
domestic violence is predominantly perpetrated by The 2012 Personal Safety Survey estimated that
men against women and children, and that it occurs 49% of men and 41% of women since the age of 15
in all sectors of the community (Crimes (Domestic have experienced some form of violence. Women are
and Personal Violence) Act 2007 s 9 (3)). more likely to experience violence in the context of
Domestic violence can include: their homes. A significant number of women tend to
• physical violence, such as punching, kicking experience violence perpetrated in the home (62%)
and shoving compared to men (8%). Even though both men and
• sexual assault, including coercing the victim to women experience sexual assault (an estimated 17%
be sexually compliant of women and 4% of men), women are nearly four
• economic abuse, such as controlling the times as likely to have been assaulted by a known
victim’s access to money person than by a stranger. About a third of domestic
• threatening behaviours, such as stalking and violence incidents are alcohol related.
damaging the victim’s property Domestic Violence NSW, a political lobby group,
• effecting social isolation by preventing announced in 2014 that it had launched an online
someone from contacting family and friends petition calling for zero tolerance of domestic
• intentional damage or destruction to property, violence. This was in response to the increasing
including harm to animals. prevalence of domestic violence and the increasing
Table 12.3 Causes of family problems
Psychological problems Social problems Financial problems
• Lack of self-esteem and poor • Drug dependency, including • Lack of money (due to
self-image alcoholism and addiction to unemployment, low-paid work
• Inability to express anger or prescribed drugs or illegal or part-time work), making
frustration appropriately substances it difficult to pay bills and
• Strong desire to control or • Disputes over housework, or mortgage or rent
dominate others other domestic duties • Disputes over how to spend a
• Cycle of violence: an abused • Disputes over child discipline limited supply of money
child may become an abusing issues • Expectation that the children
adult • Lack of quality time spent will need to find employment
• Mental illness, including with family members to contribute to the family’s
depression • Cultural or geographic finances
• Lack of positive male and isolation • Inadequate amount of money
female role models for child care
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CHAPTER 12 OPTION 3: FAMILY
have children in their care. It is estimated that family
violence costs the community of New South Wales 12
$4.5 billion each year (see http://cambridge.edu.au/
redirect/?id=6349).
Victims of domestic violence can press criminal
charges, or they can apply to the Local Court
for a family violence order or an Apprehended
Violence Order (AVO) or, more specifically, an
Apprehended Domestic Violence Order (ADVO).
It may also be possible to apply to the Family Court
for an injunction for personal protection, but these
are often more complex than an ADVO, and they are
less easily enforced by local police.
The issuing of an ADVO does not mean the person
is charged with a criminal offence. However, if the
person breaches the order, they may be charged with
a criminal offence; if there is sufficient evidence to
support a conviction for this offence and any associated
offence, police will arrest and charge the person.
Apprehended Violence Apprehended Domestic
Figure 12.7 Violence against spouses can take many Order (AVO) Violence Order (ADVO)
forms. a court order that aims to a specific type of AVO
protect the applicant from issued under Part 4 of
violence and other forms the Crimes (Domestic
numbers of women being murdered by their spouse of intimidation or abuse by and Personal Violence)
or partner. According to the New South Wales another person Act 2007 (NSW) when the
perpetrator of violence is a
Bureau of Crime Statics and Research (BOCSAR), family member
in June 2017 there were 28 639 domestic-related
assaults in New South Wales and the ABS reports injunction breach
38% of all homicide victims (nearly one woman per a court order directing to fail to obey
someone to do something
week) were killed in domestic-related incidents. The or prohibiting someone
cost to the Australian economy in 2016 was estimated from doing something
to be $21.7 billion per year.
In its attempt to curb this alarming statistic, the New
South Wales Government has proposed that abusive Research 12.2
partners should be listed on a domestic violence register,
which would enable concerned individuals to seek Go to http://cambridge.edu.au/redirect/?id=
information regarding their partner. The prevalence 6352 for information on domestic and family
of domestic violence and its growing importance as a violence and complete the following tasks.
social issue has been recognised by authorities. In 2015, 1 a What is domestic violence?
the Australian of the Year, Rosie Batty, whose son was b What are the types of domestic
beaten to death by his father at cricket training, received violence?
the honour for her work in trying to rid the Australian 2 How does domestic violence affect
community of domestic violence families and children?
Domestic assaults accounted for over half 3 What is the Domestic Violence Line and
(54.4%) of all assaults. Women are at greater risk of what services does it provide?
experiencing violence at the hands of someone they 4 Discuss the ‘Staying Home Leaving
know; and of all women assaulted, approximately Violence’ program. Why is this program
73% will experience repeated attacks. Sadly, of needed?
women subjected to domestic violence, 61% will
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CAMBRIDGE LEGAL STUDIES HSC
• If the notification concerns a threat of abuse or
Legal Links actual abuse, an AVO is made.
• The police can charge the accused.
See http://cambridge.edu.au/redirect/
• The Family Court can restrict contact by the
?id=6350 for information on domestic violence.
offender with any children the court feels are at
Go to http://cambridge.edu.au/redirect/
risk.
?id=6351 and click on the Interactive NSW
• Community Services can apply for a variety
Crime Tool and investigate the latest maps
of care and protection orders, including the
and statistics of crimes, victims and offenders.
removal of the child from a violent environment.
Additional changes to the care and protection
of children have been made under the
Violence involving children Children Legislation Amendment (Wood Inquiry
Violence against children Recommendations) Act 2009 (NSW). The Act
Article 19 of CROC declares that no child should introduced the concept of ‘significant harm’,
be subjected to violence and it is the responsibility simplified Children’s Court processes and
of the state to protect ‘the child from all forms of established Child Wellbeing Units in government
physical or mental violence, injury or abuse, neglect agencies that deal with children, including the
or negligent treatment, maltreatment or exploitation, Department of Human Services, the Department
including sexual abuse, while in the care of parent(s), of Education and Training, NSW Health and the
legal guardian(s) or any other person who has the NSW Police Force. Less serious cases reported to
care of the child’ (CROC art 19). Community Services are referred to these Child
The Children and Young Persons (Care and Wellbeing Units.
Protection) Act 1998 (NSW) covers abuse as well as
neglect. Specifically, s 227 prohibits intentional acts Violence by children
resulting or likely to result in physical injury or sexual Violent acts are not committed solely by adults.
abuse, emotional or psychological harm, or harm to However, the law deals with child offenders
health or physical development. Children can be differently. Laws relating to child offenders reflect
included on an adult’s AVO or ADVO application, the basic philosophy underlying the UN Convention
or a separate application, a child protection order, on the Rights of the Child: all decisions relating to
can be made for children by the Children’s Court. children should be in the best interests of the child.
A police officer is the only person who can apply Section 5 of the Children (Criminal Proceedings)
for an AVO for children under 16 years of age; those Act 1987 (NSW) states that children under the age
over 16 can apply for their own AVOs. However, a of 10 cannot be guilty of a criminal offence. The
court may grant an AVO for the protection of a child law considers a child under 10 as being unable
even if the application was not made by a police to understand the consequences of their actions.
officer (Crimes (Domestic and Personal Violence) Act Children aged between 10 and 14 years are also
2007 (NSW) s 38(5)). If there is a parenting order in presumed to be incapable of committing a crime; it
place that allows the offender access to the children, is up to the prosecution in a case where the accused
and their safety is at risk, the applicant for an AVO is in this age range to rebut the presumption by
must inform the court of its existence (s 42(1)). proving that the child committed the alleged act and
In New South Wales, certain professionals are that they knew that it was wrong. If this is proved the
required by law to report to Community Services if child can be held criminally liable.
they suspect that a child is at risk of harm (Children Once a charge is laid, the child or young person
and Young Persons (Care and Protection) Act (NSW) will usually face proceedings in the Children’s
1998 ss 24–27). These people include teachers, Court, but the Young Offenders Act 1997 (NSW) does
doctors, school counsellors and anyone who works provide alternative options for young offenders.
with children. If a report has been made, Community They include warnings and cautions and youth
Services is legally required to investigate. Possible justice conferences. Having the child offender
outcomes after notification include the following: face proceedings in the Children’s Court is the last
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CHAPTER 12 OPTION 3: FAMILY
resort. The emphasis is on preventing the child Weatherburn stated that, in four out of the five
from coming into contact with the justice system, by cases, ADVOs have been successful in putting a 12
employing a welfare approach through counselling stop to violence, intimidation and harassment.
and education, and by encouraging young offenders For example, the concept of ‘battered wife
to take responsibility for their actions, rather than to syndrome’, which was originally applied only
punish them. The long-term goal is to prevent the to women in heterosexual marriages, has been
child from becoming an offender as an adult. extended to include battered partners in de facto
relationships, including same-sex relationships.
Also, the automatic presumption in favour of bail
Review 12.9
was removed after several women were stalked
1 Identify and explain the various factors and killed by their partners who had been released
that may cause problems within a on bail, and although gun-related crime is relatively
family. low in Australia, the Firearms Act 1996 (NSW) offers
2 Explain what AVOs and ADVOs are. the additional protection of prohibiting the issue of,
3 Outline the legal remedies that are or revoking, a gun licence or permit if the individual
available to victims of domestic violence. has been subject to an AVO. The Surveillance
4 Explain how the law deals with juvenile Devices Amendment (Police Body-Worn Video) Act
offenders. 2014 (NSW) allows police to use video evidence
when prosecuting perpetrators of domestic violence.
Under these amendments, videoed statements
and footage of the scene of the alleged crime may
Effectiveness of the law in protecting be used as evidence in court. It is anticipated that
victims of domestic violence these changes will help in achieving a greater
Recent educational campaigns have raised percentage of successful prosecutions by reducing
community awareness of domestic violence as an the possibility of the victim withdrawing or changing
important social issue, and helped the community their statement when the matter goes to court. All
understand that domestic violence is not a ‘private of these legislative changes have been in response
matter’, and is not acceptable. Legislative reforms to community pressure and specific instances of
reflect this changing attitude to domestic violence. domestic violence.
Domestic violence is recognised as a community Several states have introduced mandatory
problem, not an individual or isolated occurrence, counselling for perpetrators of domestic violence.
and most people now appreciate that reducing Criminal penalties apply if they fail to attend. New
its incidence is in some respects a societal South Wales does not have such a program. There is
responsibility. little evidence supporting the effectiveness of such
ADVOs have become an important means of programs in reducing domestic violence.
reducing the incidence of domestic violence. One There have been allegations made that ADVOs
advantage of these orders is that they are a quick, are too easy to obtain and that women have falsely
inexpensive and accessible form of protection, and claimed to be victims of domestic violence when
they are complemented and supported by the full contesting parenting orders. However, claims of
weight of the criminal law if they are breached. domestic violence do not necessarily affect family
However, it has been argued that only people who law proceedings and there is little evidence to
are normally law abiding will comply, and that support such allegations.
these orders do little to deter persistent offenders. The current approaches in dealing with domestic
In addition, protection orders can only be effective violence have been heavily criticised. In response,
if they are policed. But it is unfair to state that laws in 2010 the Commonwealth Government launched a
aimed at domestic violence have failed utterly. 12-year program called Time for Action: The National
Rather, these laws have slowly evolved in response Council’s Plan to Reduce Violence against Women and
to circumstances that legislators or the courts had their Children 2009–21. The aim of the national plan is
not considered. In a 2016 BOCSAR report, Dr Don to bring together the state and territory governments
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CAMBRIDGE LEGAL STUDIES HSC
In September 2015, the federal government
Case Study announced it would spend $100 million on a range
of initiatives to combat domestic violence. These
The New South Wales Domestic
include:
Violence Intervention Court Model
• GPS tracking of offenders
Two specialist courts operating in • giving mobile phones to victims to help them
Campbelltown and Wagga Wagga were evade their abusers
established in 2005 to hear domestic violence • more training for police, social workers and
cases. The initial aim of these courts was to emergency staff in supporting victims
improve the criminal justice system response • training for hospital staff to help them
to cases involving domestic violence. recognise signs of domestic violence
Under this model police and courts • increasing the number of Community
adopted a more proactive approach to Engagement Police Officers in Northern
domestic violence, including improvements Territory remote Indigenous communities
in the collection of evidence, better support • expanding the Safer Schools website to provide
for victims and the referral of perpetrators to resources on respectful relationships.
appropriate counselling programs. The Family Law Legislation Amendment (Family
A 2012 review of the model by the NSW Violence and other Measures) Act 2011 (Cth) redefined
Bureau of Crime Statistics and Research domestic violence and placed more weight on the
found that it had met with limited success. safety of the child. The priority is no longer ‘shared
There have been improvements in victim parental responsibility’ and the maintenance of a
support, the management of domestic ‘meaningful relationship’ but rather that the child
violence offenders, and a reduction in the should be ‘protected from harm’. For example, if
time taken to hear domestic violence cases, a parent has been charged with a crime related
but there has been no change in the number to child abuse, that parent’s access to their child
of alleged offenders being charged or in the may be limited or access may be granted only if it is
number of charged offenders who plead
guilty.
Review 12.10
in order to consolidate and implement strategies Read the media article on page 357 and
aimed at reducing the levels of violence against complete the following tasks.
women and children. The National Plan is made 1 To what extent was the mother
up of four three-year plans, each of which will be responsible for the death of her son?
reviewed at its end. The focus will be on preventing 2 Explain what the relevant authorities
violence, building respectful relationships, gender could have done to prevent the child’s
equality and encouraging behavioural change. death.
The New South Wales Government announced
in 2012 its own response to combat the alarming
growth in domestic violence with ‘It Stops Here – the Research 12.3
NSW Government’s Domestic and Family Violence
Framework for Reform’. These DFV reforms centre Read the article ‘Violence, abuse and the
on the welfare of the victim and include new referral limits of shared parental responsibility’
pathways, coordinated community services to cater (available on the Australian Institute of
for the needs of victims, and reducing the stress and Family Studies website at http://cambridge.
trauma felt by victims when they are recounting their edu.au/redirect/?id=6353) and discuss this
experiences. The reforms also focus on preventing statement: ‘Parenthood should be dissoluble
domestic and family violence and aim to provide in certain situations.’
support to the perpetrator to end the cycle of violence.
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CHAPTER 12 OPTION 3: FAMILY
12
Sydney mother pleads guilty to manslaughter of her son, 7, who had ‘plethora of injuries’
Sydney Morning Herald, 31 March 2015
The mother of a 7 year old boy pleaded guilty to manslaughter. The mother had originally claimed
that the boy had died of injuries sustained when he had fallen off his pogo stick.
During the post-mortem examination it was discovered that the boy had a ‘plethora of injuries’.
Injuries sustained by the child included a fractured skull, fractured ribs and bruising consistent with
repeated physical abuse.
The mother who had once been described as ‘attentive’, adopted the extreme religious views of her
boyfriend, especially his approach to parenting which centred on severe physical abuse and neglect
to make the child ‘strong and so he would grow to be a man’.
Over several months the boy was subjected to sustained physical abuse from the woman’s boyfriend,
including being beaten by a branch while running along a beach, denied adequate food, clothing and
shelter. At one stage the child was forced to eat his own faeces.
In March 2013 the mother filmed the man assaulting the boy.
The boy was the youngest of three children. All three children had been withdrawn from school.
The night before the child died he was subjected to 6 hours of physical abuse from the boyfriend,
including squatting against a wall and being forced to stand for hours on a coffee tin. Police
stated that the mother had failed to seek medical help for the child despite having found the boy
unconscious.
The boyfriend had told the woman to lie to the police about the accident.
The woman was charged with consenting to the use of her child to produce child abuse material,
possessing and distributing child abuse material, reckless wounding and manslaughter.
Her boyfriend was charged with the boy’s murder.
supervised. Under these changes ‘family violence’ Methods of resolving disputes
would also be redefined to include actual or Family dispute resolution
threatened conduct that causes a family member to Family dispute resolution is defined in s 10F of the
reasonably fear or be concerned about their safety. Family Law Act 1975 (Cth) as a non-judicial process
In recognising the need to provide children in which an independent practitioner helps people
additional protection, all state and territory affected by a separation or divorce resolve some of
governments have endorsed the National Framework their disputes with each other.
for Protecting Australia’s Children 2009–2020. This Section 60I of the Family Law Act 1975 (Cth)
framework aims to provide a long-term national requires couples who have a dispute about matters
approach to protecting children and tackling the that may be dealt with by a court order under Part
issues surrounding child abuse. However, the main VII of the Act (involving children) to make a genuine
responsibilities for statutory child protection are effort to resolve their dispute, using family dispute
retained by state and territory governments. resolution, before applying for an order. If there is a
history of family violence, family dispute resolution
may not be appropriate.
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CAMBRIDGE LEGAL STUDIES HSC
Different forms of dispute resolution are provided Once an agreement has been reached,
by Family Relationship Centres – government- separating parents enter into a parenting plan or file
funded community centres that help couples and consent orders with the court. All matters relating
families at all stages of relationships (see Family to the children of the relationship must be finalised
Relationships Online at http://cambridge.edu. before the divorce is granted. If parties fail to reach
au/redirect/?id=6354) – but disputing parties can an agreement, or if there are issues relating to abuse
go to private providers of counselling services if or family violence, the matter will be heard by a court.
they choose. The Family Court and the Federal
Circuit Court of Australia (the Family Law Courts) Adjudication
can refer disputing parties to an extensive range Adjudication is the determination of a matter by a
of counselling services for both adults and court judgement or ruling. The Federal Circuit Court
children, and can also order separating couples of Australia and the Family Court can make decisions
to attend dispute resolution. Although individuals regarding division of property, maintenance,
have to pay for these services, some associated costs and any decision that may affect children of a
may be subsidised by the government, depending on relationship. Divorce is automatic if the parties can
the financial circumstances of the individual parties. show irretrievable breakdown of marriage and the
Types of dispute resolution services include: required period of separation. Once the court has
• reconciliation counselling – for separating made its decision it will impose an order, such as
couples who are attempting to reconcile a parenting order, which both parties must comply
• post-separation parenting programs – for with. Unlike a parenting plan (agreement), any
couples whose issues adversely affect their breach of the court order may result in further
carrying out of parenting responsibilities; court action, financial penalties or other criminal
the program usually takes the form of family sanctions.
counselling, group lectures and discussions, Individuals wishing to divorce can now file
and teaching techniques to resolve disputes an application for divorce online through the
• mediation – for separating couples who have Commonwealth Courts Portal (see http://cambridge.
made an application to the Family Court, edu.au/redirect/?id=6355). A small administrative
mediation involves a neutral, impartial third fee is payable once the application has been made.
party (a mediator) helping them identify issues, This fee can be waived in certain circumstances (for
formulate options, consider alternatives and those who hold government concession cards or are
reach agreement; this service may be used experiencing financial hardship, for example).
before a court hearing.
Couples are more likely to comply with an The role of the courts in family law
agreement that they have had some say in. matters
Individuals also learn additional skills, such as better The law is primarily concerned with protecting
communication, which may help reduce future the rights of family members and ensuring that
conflicts. In addition, dispute resolution is less costly individuals meet their family obligations. But the
than court proceedings, in terms of both time and law also aims to provide structures and processes
money, and less stressful for all parties involved. that will help disputing parties reach an amicable
Individual counselling is available to any child resolution. For this reason, the Family Court
whose parents are separating. The counsellor focuses more on reconciliation and on encouraging
(mediator) will meet and discuss with the child their compliance than on arbitration and the use of
needs, issues, fears and concerns. The counsellor sanctions or coercion.
will then present a family report, which will include
a summary of the information that the child has Family Court of Australia and Federal
given to the counsellor, to the presiding judge. The Circuit Court of Australia
purpose of this process is to ensure that the needs Before the establishment of the Family Court in
and welfare of the child are identified and met by any 1975, the state courts would hear matters relating
parenting order issued by the Family Court. to divorce. The Family Court is a specialised court –
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CHAPTER 12 OPTION 3: FAMILY
that is, outside the judicial hierarchy – and it hears now be heard in the Family Court, and the same
matters relating to separation, divorce and other federal provisions cover all children. 12
disputes related to marriage. Its jurisdiction is
limited to those areas controlled by the Family Law
Review 12.11
Act 1975 (Cth), which include property and financial
matters, maintenance, and parenting arrangements. 1 Explain the concept and purposes of
In late 1999, the Federal Magistrates Court, now ‘family dispute resolution’.
known as the Federal Circuit Court of Australia, 2 Explain the difference between
was established to relieve some of the case load adjudication and other methods of
of the Federal Court and the Family Court, and to dispute resolution.
reduce the cost and time required to deal with some 3 Outline and contrast the tasks of
federal matters. The Federal Circuit Court of the Family Court and the family law
Australia has a similar jurisdiction to the Family jurisdiction of the Federal Circuit Court of
Court in that it can hear matters relating to divorce, Australia.
the division of property, maintenance and children,
and it can hear these for both married and de
facto couples. It cannot hear any matters related The Children’s Court
to adoption, applications concerning nullity (that The Children’s Court is a state court. New South
the marriage did not exist in the first place) or the Wales has six permanent Children’s Courts, as well
validity of a marriage. as children’s magistrates who can conduct hearings
The majority of divorce applications are now in other locations. The President of the Children’s
heard in the Federal Circuit Court of Australia, Court is also chairperson of the Children’s Court
and more complex issues, such as the intention Advisory Committee, which provides advice on the
of a parent to move interstate or to emigrate, and rules, practice and procedure of the court.
serious allegations of family violence or child abuse The Children’s Legal Service, which operates
(Magellan cases) are heard in the Family Court. All through Legal Aid NSW, provides representation for
other issues (such as adoption, inheritance and children and young people in both criminal cases
wills) are heard in the appropriate state court. and child welfare cases before the Children’s Court.
Initially, the jurisdiction of the Family Court did The Children’s Court Clinic is part of the
not extend to ex-nuptial children. This is because Children’s Court, and provides independent
the Commonwealth Parliament’s constitutional clinical assessment of children, young people and
power to enact legislation only extended to marriage
and divorce, and matrimonial issues arising from
divorce; therefore only children of a marriage
came within the Act. However, all the states except
Western Australia referred their power to pass law
regarding certain matters relating to children to
the Commonwealth in 1986, through Acts such as
the Commonwealth Powers (Family Law – Children)
Act 1986 (NSW). In New South Wales, any matter
relating to the care and maintenance of a child will
Legal Links
Visit the Family Law Courts website (http://
cambridge.edu.au/redirect/?id=6356) to learn
more about the family law system in Australia. Figure 12.8 Albion Street Children’s Court in Surry
Hills, Sydney
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CAMBRIDGE LEGAL STUDIES HSC
their families. The clinic provides a report to the (a) to establish a scheme that provides an alternative
Children’s Court to help the court make decisions process to court proceedings for dealing with
regarding the care and protection of children. children who commit certain offences through
The Children’s Court hears cases relating the use of youth justice conferences, cautions
to the care and protection of children under the and warnings, and
Children and Young Persons (Care and Protection) (b) to establish a scheme for the purpose of
Act 1998 (NSW). Such cases are usually brought providing an efficient and direct response to the
by Community Services, a division of Family and commission by children of certain offences, and
Community Services in New South Wales. They are (c) to establish and use youth justice conferences to
responsible for keeping children and young people deal with alleged offenders in a way that:
safe from harm, and supporting their families. (i) enables a community based negotiated
The Children’s Court is a closed court, which response to offences involving all the affected
means that people not directly involved in the case parties, and
are not allowed to be present unless the court (ii) emphasizes restitution by the offender and the
otherwise orders. Court proceedings are informal acceptance of responsibility by the offender
and each step is explained to the child. During the for their behaviour, and
hearing the child will be represented by a solicitor. (iii) meets the needs of victims and offenders, and
The standard of proof required is that it is ‘very (d) to address the over representation of Aboriginal
highly probable’ that the child is in need of care. and Torres Strait Islander children in the criminal
If the Children’s Court finds that a child is in justice system through the use of youth justice
need of care, it can make a variety of orders, which conferences, cautions and warnings.
can be either short term or long term. Community
Services may be required to supervise the parents to The role of non-government
ensure that they fulfil their parental responsibilities. organisations (NGOs)
Alternatively, the court may decide to place the child There are a number of NGOs that provide support
with a relative, foster family or other appropriate for families and individuals who may be struggling
adult. If this decision is reached, the child’s parents with personal relationships and other family issues.
no longer have control over their child. Contact visits Many of the better-known organisations are operated
may be permitted to allow the parent(s) and child by religious groups such as the Salvation Army,
to maintain a personal relationship, but such visits or by churches such as Family and Relationship
are closely supervised and regulated. A variety of Services Australia (http://cambridge.edu.au/
support services may be provided to both parents redirect/?id=6357) and Anglicare (http://cambridge.
and children, including educational, psychological edu.au/redirect/?id=6358).
and welfare services. Orders by the Children’s Court NGOs that are not associated with religious
cease when the child turns 18 years old. groups and that provide similar services include
The jurisdiction of the Children’s Court also Relationships Australia (http://cambridge.edu.
includes crimes committed by people who were au/redirect/?id=6359) and the Smith Family
under 18 at the time of the alleged offence. (http://cambridge.edu.au/redirect/?id=6360).
Bringing a child to court for a criminal offence is Services provided by these organisations include
seen as the last resort. Many have argued that the mentoring, support for new parents, counselling
earlier a child comes into contact with the law, the and relationship advice, assistance with managing
more likely they are is to commit serious offences conflict and dealing with violence in the family,
upon reaching adulthood. Consequently, the legal emotional support to children of separating parents,
system should minimise contact between children mediation, and advice on creating parenting plans.
and the legal system, in the hope that fewer children Many of these organisations are dependent on
will become repeat offenders. This view underlies donations and the goodwill of volunteers, and/
the objectives set out in s 3 of the Young Offenders or have to apply for government funding. Under
Act 1997 (NSW): the ‘Keep Them Safe’ initiative, the New South
Wales Government has committed $750 million to
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CHAPTER 12 OPTION 3: FAMILY
Legal Links Review 12.12 12
A more complete list of community-based 1 Explain how and why children are
family relationship services can be found treated differently from adults in the
at Family and Relationship Services legal system.
Australia (refer to http://cambridge.edu.au/ 2 Explain the two roles of the Children’s
redirect/?id=6361). Court.
3 Explain how NGOs support families.
expanding the role of NGOs in providing help and
support to families in crisis. The aim is to encourage
NGOs to take over the provision of services that are 12.3 C
ontemporary issue:
currently delivered by the state government. Recognition of same-sex
relationships
The role of the media
The media has changed dramatically within the About the issue
last few years and will continue to change with the The Marriage Act 1961 (Cth) and various state statutes
development of new communications technologies. give heterosexual couples a number of rights and
The Family Law Courts have embraced new media obligations from which same-sex couples are
technologies, placing self-help guides, brochures excluded and, although the Sex Discrimination Act
and forms, and links to other sites on their own 1984 (Cth) and state anti-discrimination Acts protect
websites, and establishing the National Enquiry heterosexual de facto couples against discrimination
Centre to answer telephone and email enquiries on the basis of marital status, same-sex couples do
about general court procedures and individual not enjoy the same protection because their legal
cases, to provide referrals to legal advice and other marital status remains ‘single’.
services, and to provide forms and publications. In 2001, The Netherlands became the first country
The courts have effectively used new media to recognise same-sex relationships. Since then
technologies to provide better information about a number of countries have enacted legislation
rights and obligations under family law, as well as recognising same-sex marriage. These countries
additional support services. They are also keenly include the United States, England, France, Brazil,
aware of the need to protect the privacy of individuals Canada and New Zealand. A number of countries
affected by the breakdown of a relationship, so they have indicated that they intend to create legislation
restrict how the media publish court proceedings, recognising same-sex marriages. Under the as yet
thus balancing the provision of information and legal un-enacted Relationships Register Amendment
direction with the protection of personal information (Recognition of Same-sex and Gender-Diverse
about separating families. Relationships) Bill 2014 (NSW) same-sex couples
who marry overseas can have their marital status
recognised by the NSW Relationships Register for
administrative purposes. This means that same-sex
Research 12.4 couples will be able to register their marriage and
declare themselves as ‘married’ when completing
Read the report A Study of the Children’s forms. Tasmania (2010) and Queensland (2011)
Court of New South Wales: Part of a National have already passed similar legislation recognising
Assessment of Australia’s Children’s Courts same-sex marriage performed overseas. This does
2014 (available at http://cambridge.edu.au/ not mean that same-sex ‘marriages’ have any legal
redirect/?id=6362) and critically evaluate the standing within Australia. For some same-sex couples,
effectiveness of the Children’s Court. the desire for legal recognition of their relationship
does not necessarily mean that they want the right
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CAMBRIDGE LEGAL STUDIES HSC
to be married. The removal of institutionalised areas. Under the Family Law Amendment (De Facto
discrimination and the provision of adequate legal Financial Matters and Other Measures) Act 2008 (Cth),
protections may be a more pressing concern. property and maintenance matters for separating
The Commonwealth Government reaffirmed same-sex couples are determined by the Family
the traditional concept of marriage as ‘the union of Court or the Federal Circuit Court of Australia. The
a man and a woman’ when it passed the Marriage Act extends the definition of ‘de facto’ to include two
Amendment Act 2004 (Cth), which amended the people who are not married or related by blood and
definition by adding those words to s 5(1) of the who live together ‘on a genuine basis’. The Act does
Marriage Act. The purpose of the amendment was not distinguish between heterosexual and same-
to clarify that parties to a marriage must be one sex relationships. Finally, under changes to the
man and one woman. This means that any same-sex Family Law Act, all matters related to children,
marriage is automatically void in Australia, including including children of same-sex couples, are heard
the marriage of any same-sex couple who had in the Family Court.
previously married in a country that granted same- But same-sex relationships were still not
sex marriages legal status. It will not be possible recognised as having the same status as a ‘marriage’
for any same-sex marriage to gain legal standing in under federal laws. In 2008, following the Australian
Australia until this definition has been amended to Human Rights Commission’s report Same-Sex: Same
allow same-sex marriages. The debate concerning Entitlements, the Australian Government introduced
the legalising of same-sex marriages continues. reforms with the aim of removing discrimination
Changes to the law have been slow and and giving same-sex couples the same entitlements
haphazard, but the law is gradually changing. Such as those presently enjoyed by heterosexual de
changes are to be encouraged if the law is to continue facto couples. Since 2008, under the Same-Sex
to protect the rights and mutual obligations that are Relationships (Equal Treatment in Commonwealth
created when two individuals form a relationship. In Laws – General Law Reform) Act 2008 (Cth), federal
addition, there are cumulative benefits for our society law reforms have removed areas of discrimination
in protecting any mutually supportive relationship, from a range of laws and programs by amending
not least of which is the economic benefit associated or extending definitions such as ‘de facto partner’,
with a two-income family (which is more likely than ‘child’, ‘parent’, ‘couple’ and ‘family’ to include
a heterosexual relationship to be without children). same-sex relationships.
This purchasing power has been acknowledged For example, the Health Insurance Act 1973 (Cth)
by marketing and sales representatives as they try now allows a same-sex couple and their children
to attract the ‘pink dollar’. It is arguably against to register as a family for Medicare and receive the
society’s interests to penalise such relationships. same entitlements as a heterosexual couple and their
children. Additional areas amended have been tax,
Legal responses social security, family law, superannuation, workers’
The law has recognised relationships that exist compensation and child support. Same-sex couples
outside the traditional concept of marriage. will be able to claim the same tax concession as
Originally these relationships were covered by the those presently available to married or heterosexual
De Facto Relationships Act 1984 (NSW). This Act de facto couples. They and their children will be able
was later amended by the Property (Relationships) to claim superannuation benefits, and to receive the
Legislation Amendment Act 1999 (NSW) and renamed same social security and family assistance payments
the Property (Relationships) Act 1984 (NSW). The as heterosexual couples.
Property (Relationships) Act 1984 (NSW) recognises A major change in state laws concerns the
same-sex relationships as having the same legal recognition of a same-sex partner as the ‘parent’ of
standing as heterosexual de facto relationships, and their partner’s child. Male partners in a heterosexual
provides the same protection. marriage or de facto relationship have parental
Between 2000 and 2009, various Australian states rights and responsibilities towards a child conceived
and territories introduced a number of law reforms during the relationship – that is, biological parents
recognising same-sex relationships in specific are regarded as having joint responsibility for the
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CHAPTER 12 OPTION 3: FAMILY
child. However, a partner of the same sex had no cambridge.edu.au/redirect/?id=6364). Australian
legal standing and could not make decisions about Marriage Equality argues that the legally recognised 12
the day-to-day care of the child unless the Family institution of marriage should not exclude these
Court had so ordered. Children conceived through couples. A different classification sends the message
donor insemination or assisted reproduction had that their relationships are of a lesser standard or
only the mother listed on their birth certificates. character and that the people are second-class
The Miscellaneous Acts Amendment (Same-Sex citizens. Justice requires changing the law to make
Relationships) Act 2008 (NSW) granted equal marriage available to all Australians who choose it,
parenting rights for the female partners of mothers, not classifying same-sex couples as de facto couples
and both are listed as mothers on the child’s birth or permitting them only to form ‘civil unions’. The
certificate. This change gives children born into Gay and Lesbian Rights Lobby has a wide-ranging
same-sex relationships equal rights to inheritance agenda, including advocacy, lobbying government
from both parents and protects the rights of both and the media to address discrimination, hosting
mothers in matters involving the children if the consultations, educating the gay and lesbian
relationship ends. community on their rights and providing referrals
In September 2010 the New South Wales to legal and welfare services.
Parliament passed a law allowing same-sex couples Some sections of the media have been critical
to adopt. of these changes and have resorted to ridicule. For
example, in 2003 two radio program hosts made
Non-legal responses comments ‘capable of inciting severe ridicule
Non-legal responses to the reforms have been varied, of homosexual men’ and therefore were held to
ranging from complete support to criticisms of the have breached the vilification provisions of the
various state and federal governments for not going Anti-Discrimination Act 1977 (NSW). In 2008, the
far enough in granting same-sex couples equal hosts’ appeal was settled, with a public apology
rights, to individuals and groups who are highly on air and a written apology in the Sydney Morning
critical of any added protection of the rights of same- Herald.
sex couples. However, it should be noted that there In 2012, a Queensland politician was widely
has been a steady shift in public opinion in favour criticised in the media for portraying gay marriage
of same-sex marriage. In a Nielsen poll conducted in a negative manner in order to undermine his
in 2013, 65% of respondents supported same-sex political opponent.
marriage. Seventy-two per cent of respondents
supported same-sex marriage in a similar poll
conducted by CrosbyTextor in 2014.
The Australian Human Rights Commission
(AHRC) has held a number of inquiries into areas of
discrimination and human rights violations. AHRC
also makes recommendations to the government
regarding the removal of institutionalised discrimi
nation and legislation that does not comply with
UN human rights treaties. In 2007, the AHRC
report Same-Sex: Same Entitlements recommended
amending federal laws that discriminated against
same-sex couples and their children in the area of
financial and work-related entitlements and benefits.
Other groups that actively lobby and campaign
for the legal rights and social equality of gay and
lesbian couples include Australian Marriage Equality Figure 12.9 Many believe that same-sex couples
(http://cambridge.edu.au/redirect/?id=6363) and deserve equal rights. Our current laws discriminate
the NSW Gay and Lesbian Rights Lobby (http:// against same-sex couples wishing to marry.
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CAMBRIDGE LEGAL STUDIES HSC
Most of the lobby groups that oppose equal marriages that have taken place in states that had
rights for homosexual couples have a religious already recognised same-sex marriages must also be
affiliation: see the Australian Christian Lobby (http:// recognised in all states. This effectively has meant
cambridge.edu.au/redirect/?id=6365), for example. that same-sex marriages are now legal throughout
Under the current discrimination laws, religious the United States.
groups continue to be able to discriminate on the However, arguments against the recognition of
basis of sex, sexuality, race, disability and age. This same-sex relationships continue to exert an influence
allows these organisations to withhold services to in the public sphere. The legislative changes to de
individuals. facto entitlements by the federal government in
2008, while welcomed, sat alongside a continuing
Responsiveness of the legal refusal to amend the Marriage Act to permit same-
system sex marriage.
In order to change the law, courts have to be willing
to act, a significant number of politicians must
support legislative reform, and there also needs to Legal Links
be a societal change. Law reform bodies have the
For more information about the Irish
task of investigating and recommending changes.
referendum, see the newspaper article at
The Anti-Discrimination Board of New South
http://cambridge.edu.au/redirect/?id=6366.
Wales is part of the New South Wales Department of
Attorney-General and Justice. It administers the anti-
discrimination laws of New South Wales. It handles
complaints of discrimination, and also informs the
public of how individuals can prevent and deal with Conclusion
discrimination, through consultations, education In his speech at the Conference on Legal Recognition
programs, seminars, talks, community functions and of Same-Sex Partnerships in 1999, then High Court
publications. The board’s third function is to advise Justice Michael Kirby stated:
the government and make recommendations. It has
made a number of submissions to both the state and As a people committed to equal justice for all under
federal governments concerning changes to current the law, I have confidence that the Australian legal
legislation that are necessary in order to give same- system, and those who make laws in Australia, will,
sex couples the same legal rights and protections in due course, eradicate unfair discrimination on the
that are now enjoyed by married couples. basis of sexuality. The scales are dropping rapidly
In 2013, there was an attempt to introduce from our eyes. Injustice and irrational prejudice
legislation which would have recognised same-sex cannot survive the scrutiny of just men and women.
marriages entered into overseas. These proposed
changes followed the introduction of legislation
allowing same-sex marriages in New Zealand and
would have allowed any Australian same-sex couple Review 12.13
marrying in New Zealand having their marriage
recognised in Australia. 1 List the issues surrounding same-
Although a successful referendum regarding sex relationships and discuss the
changing the definition of marriage was held in effectiveness of legal and non-legal
Ireland in May 2015 legalising same-sex marriage, responses in addressing them.
there has been heavy criticism of the outcome, 2 Discuss the changing social attitudes
most notably from the Catholic Church. Marriage in towards same-sex marriage and whether
Ireland may occur between two people irrespective or not the Australian Government has
of their sex. In June 2015, the US Supreme Court responded to this issue appropriately.
ruled that all US states must grant marriage licences
to same-sex couples wishing to marry and that
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CHAPTER 12 OPTION 3: FAMILY
Both the state and federal governments take note to family law have tended to focus on maintaining
of and continue to respond to issues surrounding positive and supportive family structures even when 12
discrimination. These issues are not limited to parents separate. But the law has also focused on
same-sex relationships. Similar recognition, rights ensuring that parents meet their responsibilities
and protections for non-traditional and alternative towards their children.
or extended family relationships are also needed. There is a perception that the ideal of shared
parental responsibility is frequently not reflected in
reality. There are always instances where the child
12.4 C
ontemporary issue: will spend a disproportionate amount of their time
The changing nature of with one parent. This could be because of financial
parental responsibility or geographic constraints, or issues such as a
parent’s alcohol abuse or poor health. In more than
About the issue 60% of parenting plans and orders, children spend
The concept of parental responsibility has changed. more than half of their time with their mother. The
In the past, parents sought ‘custody and control’ over main reason for a child to spend no time or less than
their children, enforcing their parental rights. Now 30% of their time with a male parent was concern
the courts are less concerned with parental rights about abuse or family violence and entrenched
and more concerned with parental responsibility. conflict. For women it was concerns regarding their
The focus of the law is on ensuring that parents fulfil mental health, and issues surrounding transport or
their legal obligations towards their children. finances, as well as abuse.
Parents have joint responsibility for the child A key point to remember is that shared parental
(see Family Law Act 1975 (Cth) ss 61B and 61C). responsibility, or shared responsibility for major
Reforms to parental responsibility were made in 2006 decision-making, is not the same as shared care
under the Family Law Amendment (Shared Parental (equal time with both parents). However, it can be
Responsibility) Act 2006 (Cth). Shared parental argued that the 2006 family law changes, which
responsibility applies equally to a child born within were aimed at encouraging parents to share both
marriage (nuptial) and to a child born outside of responsibility and care more equally, have had some
marriage (ex-nuptial). This responsibility is not unintended and undesirable consequences. One of
altered if the parents separate, marry or remarry, these was that more parents mistakenly believe that
unless there is a court order otherwise. Reforms they are now entitled to 50/50 shared care of their
children. Another is that the legislation’s emphasis
on a child’s right to a relationship with both parents
has been given more weight than is warranted.
Legal responses
Reforms introduced by the Family Law Amendment
(Shared Parental Responsibility) Act 2006 (Cth)
included two types of considerations to be taken into
account by a court in respect of the ‘best interests’
of the child (Family Law Act 1975 (Cth) s 60CC).
The court will now take into account ‘primary’ and
‘additional’ considerations. Primary considerations
include the benefit of the child having a positive
and meaningful relationship with both parents,
and the need to protect the child from abuse and
family violence. Additional considerations include
Figure 12.10 Shared responsibility as a parent is often the child’s wishes, the nature of the relationship
difficult, and children may end up spending more between the child and the parent, the financial
time with one parent than the other. ability of the parent to care for the child and the
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CAMBRIDGE LEGAL STUDIES HSC
ability of the parent to provide for the intellectual Australia, can help separating parents negotiate
and emotional needs of the child. Where there is their own parenting agreements and can also provide
the risk of violence, the court may consider that a range of information and referrals. Counselling,
further contact may not be in the best interests of education and skills training not only help parents
the child. develop better parenting skills, but may also assist in
Another change involved the notion of the child recognising gender issues that affect relationships
spending ‘substantial and significant time’ with with children in negative ways (for example, the
each parent, where equal time is not considered to attitude that fathers are inherently less competent
be in the best interests of the child (Family Law Act s than mothers in caring for toddlers, or that a good
65DAA). Some have argued that this provision has work–life balance is essential for mothers but less
not been sufficient to address parents’ misperception important for fathers).
that both are ‘entitled to’ time with the child, and that Resolving problematic issues about shared
they should both have ‘substantial and significant parenting and shared responsibility requires
time’ even when there are other factors suggesting changes in societal attitudes, and these interact
otherwise. with legislative enactments and amendments.
When more time with children is coupled with Successful shared care was occurring before the
reduced child support payments, the motivations 2006 amendments, where the parents involved
for seeking shared care become less clear, and were willing to cooperate to achieve the best
courts may have a harder time reconciling the aim circumstances for their children. Non-legal
of facilitating the child’s relationship with both mechanisms such as women’s resource centres,
parents with the actual facts of the particular family the National Council of Women of Australia and
situation. parenting networks for mothers, fathers or both
A parent who has been pressured into allowing may be of value in furthering this aim. Dads in
the other parent more time with the child may be Distress Support Services provide support for
discouraged from raising concerns about family men who are going through a divorce, separation
violence, and may think that the court will order or relationship breakdown. The service provides
shared care anyway. counselling, a helpline, referrals and advocacy.
The federal government’s Time for Action: The A second support group, Interrelate, provides
National Council’s Plan to Reduce Violence Against ‘fathering programs’ and aims to help men build
Women and Their Children 2009–21 identified a range and maintain positive relationships with members
of issues which undermined the effectiveness of of their families. It also provides counselling and
the present domestic violence and child protection referrals to other agencies.
legislative framework. In response, the Family Law
Legislation Amendment (Family Violence and Other Responsiveness of the legal
Measures) Act 2011 (Cth) was passed. Under that Act, system
courts must now take into consideration evidence of Sometimes changes to the law have led to changes
and any findings made in relevant domestic violence in what the community accepts as moral behaviour,
order proceedings in determining parenting matters. and sometimes they reflect these social changes.
If there are reasonable grounds to believe that one or The obligation to take responsibility for the care
both parents have neglected or abused their child, and financial support of a child is now, for example,
this overrules the presumption of equally shared considered one that should be met by both parents.
parental responsibility. Under the 2011 amendment, In addition, views about men and women have
the priority is to protect children from harm rather expanded to accommodate a much wider range of
than to ensure that children maintain a meaningful roles for fathers as well as mothers. A significant
relationship with a parent. number of Australians now believe that fathers
are equally capable of parenting, just as mothers
Non-legal responses are equally capable of fulfilling other roles seen as
Community and church-based institutions, as well important aspects of a satisfying and productive
as nation-wide organisations such as Relationships human life.
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CHAPTER 12 OPTION 3: FAMILY
In order to ensure that parents meet their that it is no longer possible to presume the identity
responsibilities, the government has enacted a of the biological parents. Birth technologies include: 12
number of laws. Some of the trends that have arisen • artificial insemination – where donated sperm
since the 2006 reforms to the Family Law Act suggest are artificially introduced into the vagina or
that courts – and society – still need to distinguish uterus
between families in which shared care is desirable • IVF (in vitro fertilisation) – where fertilisation
and those in which there are concerns that override takes place outside the uterus using the sperm
this aim. The most obvious legal response would of a parent or donor and the ovum of a parent
be to change the law to distinguish between equal or donor, and the resulting embryo is then
responsibility and equal time. implanted in a uterus
• use of genetic manipulation, gene shearing or
Conclusion donated genetic material to alter a foetus in
The emphasis on children’s rights reflects the idea utero.
that children are vulnerable members of our society Birth technology has created many legal issues,
and need greater protection. All decisions must be from paternity and rights of inheritance to who has
in the best interests of the child; the interests of their care of and control over the child. The father of the
parents or care-givers are secondary. It is important child may not necessarily be the ‘natural father’.
to protect the child’s right to maintain a quality For any child conceived via artificial insemination
relationship with both parents, but the law also or in vitro fertilisation, the parents (whether married
needs to ensure that parental responsibility entails or not) are considered to be the legal and natural
more than the child merely spending half their time parents of the child and have all the obligations
with each parent. of maintaining and caring for the child. Under the
Status of Children Act 1996 (NSW), these children
Review 12.14 have the same legal status as children conceived
naturally.
1 List the issues surrounding equal The Status of Children Act created the notion
parental responsibility and discuss the that ‘presumption of paternity’ is automatic, and is
effectiveness of legal and non-legal irrefutable if the couple are married or in a de facto
responses to these issues. relationship. Under this Act, ‘when a woman becomes
2 Consider and discuss whether further pregnant by using donor sperm from someone other
legislative reforms would be useful to than her husband, then that man is presumed not
address the problems raised by parents’ to be the father of the child born’. In the case of B
misunderstanding the idea of shared v J (1996) 21 Fam LR 186, the father refused to pay
parental responsibility. maintenance, arguing that the child was not his child
and that maintenance was the responsibility of the
sperm donor because the donor’s name appeared
on the child’s birth certificate. The court rejected
this argument. Under the ‘presumption of paternity’
12.5 C
ontemporary issue: he automatically became the child’s father because
Surrogacy and birth he was in a relationship with the child’s mother,
technologies and he therefore had all of the responsibilities and
obligations in respect of the maintenance and care
About the issue of the child, who was born within the relationship.
Birth technologies A sperm donor is automatically presumed not to
Under common law, the mother of a child is the be the father (to have no paternity), and thus is
woman who gave birth to the child. The father not required to pay maintenance even if his name
is the man who acknowledges and accepts the appears on the child’s birth certificate. However, any
responsibility for the child or who is proved to be the such presumption about the sperm donor may be
father in court. Advances in birth technology mean altered if he makes a written application, signed by
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CAMBRIDGE LEGAL STUDIES HSC
the mother and lodged with the Registry of Births, responsibility for the child to another person, by
Deaths and Marriages. If paternity is in dispute, the adoption or agreement, with the child to be treated
Act allows the identity of the father to be determined as the child of that other person. As noted above,
by blood tests. commercial surrogacy remains illegal.
The Assisted Reproductive Technology Act 2007
(NSW) outlines the processes regarding consent to Legal responses
other reproductive processes such as IVF to ensure The laws concerning surrogacy in Australia are
all parties involved are informed of their rights and state or territory based. Until recently, as noted,
responsibilities. these laws have been inconsistent and provided
inadequate protections and guidance. Some state
Surrogacy and territory laws prohibited both altruistic and
Surrogacy involves an agreement between a commercial surrogacy, some allowed altruistic but
commissioning couple and a woman, where the prohibited commercial surrogacy, and other laws
woman agrees to bear a child for the commissioning were silent on the issue.
couple and then give the baby to the couple when In 2008, the Standing Committee of Attorneys-
he or she is born. Under the law, it is usually the General, a ministerial council drawn from state and
woman who gives birth to the child – whether the Commonwealth parliaments and including the New
child is conceived naturally or artificially – who is Zealand Minister of Justice, agreed that a national
the mother. Before 2010, even if the birth mother model law regulating surrogacy was needed. In
used both donor ova and donor sperm or a donated 2010, the standing committee released a draft of
embryo to achieve the pregnancy, she was still 15 principles for a national surrogacy model which
considered the legal and natural mother of the would include the following:
child. The status of the natural mother as the birth • The informed consent of all parties is essential,
mother can be found in the Status of Children Act along with specialist counselling.
1996 (NSW), the Family Law Act 1975 (Cth) and the • Court orders should be available to recognise
Marriage Act 1961 (Cth), and under common law. the commissioning parents as the legal parents
However, under the Surrogacy Act 2010 (NSW), it is if that is in the best interests of the child.
now possible to transfer the parentage of the child
from the birth parent to the prospective parent in
the surrogacy contract. This will in effect avoid
the commissioning parents having to go through a
formal adoption process. Any parentage order must
be made in the best interests of the child. Under the
Surrogacy Act, commercial surrogacy remains illegal
even when carried out overseas.
Altruistic surrogacy, by contrast, is an
arrangement in which the surrogate receives no
financial payment for the pregnancy or the transfer
of the child, though the commissioning parents may
pay expenses related to her pregnancy and the birth.
Summary
Surrogacy raises many complex social, emotional
and parenting issues, including the legal recognition
of genetic parents. The law distinguishes between
commercial surrogacy and altruistic surrogacy.
Figure 12.11 Surrogacy laws vary from state to state.
Commercial surrogacy is an agreement involving a In recent times, Australian surrogacy laws have
fee or reward paid to the woman who gives birth to created issues involving parents who travel overseas
the child, and the transfer of custody and parental for surrogacy services.
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CHAPTER 12 OPTION 3: FAMILY
• Court orders should not be granted for at the time lacked clear state legislation relating
commercial surrogacy. to surrogacy. The commissioning parents were 12
In May 2009, the Legislative Council Standing attempting to apply to the Family Court to adopt the
Committee on Law and Justice tabled a report on child under s 60G of the Family Law Act 1975 (Cth).
altruistic surrogacy in New South Wales which The essential question was, ‘Who are the parents of
aimed to clarify the legal rights and responsibilities a child born as a result of a surrogacy agreement?’
of commissioning parents and birth parents, and In this case, the two biological parents (Sharon and
clarify the rights of children born through surrogacy. Paul) sought an order to adopt their child after the
Drawing on the recommendations of the national surrogate mother (Lauren) had given birth to Michael.
and state committees, the New South Wales There was no dispute between the parties over who
Parliament introduced new legislation in 2010 to should have custody and responsibility for Michael,
regulate surrogacy arrangements in New South but the court had to determine whether Sharon and
Wales. The New South Wales Parliament passed Paul were Michael’s legal parents, in order to decide
the Surrogacy Act 2010 (NSW), which commenced whether or not they could initiate proceedings to
in early 2011. adopt him. However, under the Family Law Act, if no
Prior to the commencement of the Act, in most orders have been made under state law regarding
cases in New South Wales the Status of Children Act parentage, the child is deemed to be the child of the
1996 (NSW) meant that a child’s legal parents were woman who gave birth and her partner (s 60H) – in
presumed to be the birth parents. This meant that this case, Lauren, the surrogate mother, and her
commissioning parents in a surrogacy arrangement, partner Clive, neither of whom contributed genetic
although in practice the parents of the child, would material. It was irrelevant that Lauren and Clive
not be recognised as the legal parents and could did not intend to be the legal parents. Even though
face difficulties if trying to enrol the child in a school, Michael’s birth certificate named Sharon and Paul
access certain government benefits or apply for a as his parents, the court found that the presumption
passport for the child. In addition, where the child of their parentage based on the birth certificate (s
was conceived in a stable relationship, the male 69R) was rebutted (by s 60H). The court could not
partner of the surrogate could be assumed to be the make an order for Sharon and Paul’s adoption of
father even if he was not the biological parent. This Michael. However, they could apply to the Supreme
would mean that the child’s biological father had Court of New South Wales for an adoption order
no rights in regard to his child. It was also illegal under the Adoption Act 2000 (NSW).
for the surrogate mother to ‘give’ her child to the The Surrogacy Act 2010 (NSW) introduced a
commissioning parents, as placing a child with a system of parenting orders where parties can
person who is not a relative for more than 28 days is apply to the NSW Supreme Court for an order to
illegal under the Children (Care and Protection) Act transfer full legal parentage of the child from the
1987 (NSW). If, however, one of the commissioning birth parent in a surrogacy arrangement to the
parents was also a biological parent of the child, this commissioning parent. The new parentage orders
would be permitted. grant the commissioning parents full legal capacity
Some aspects of altruistic surrogacy were to make decisions in the child’s interests and aim to
previously covered by the Human Tissue Act 1983 provide relief and certainty for all parties involved in
(NSW) or as adoption issues under the Adoption Act surrogacy arrangements.
2000 (NSW). There were also a few federal provisions Under the new system, the commissioning
addressing surrogacy issues in the Family Law Act parents must apply for a parentage order between
1975 (Cth), but these were not adequate to address all 30 days and six months after the child’s birth. The
of the potential issues surrounding surrogacy. One first 30 days are intended to operate as a cooling-
important case involving commissioning parents off period for the birth mother, to encourage careful
attempting to have parentage rights recognised was consideration before any consent to the grant of a
the case Re Michael: Surrogacy Arrangements [2009] parentage order. The orders also apply to de facto
FamCA 691. The case was heard under the Family couples (including same-sex). A parentage order
Law Act because, as noted above, New South Wales requires that if two people enter into a surrogacy
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CAMBRIDGE LEGAL STUDIES HSC
arrangement as intended parents, they must be a the commissioning couple who then returned to
couple. Some of the other requirements of the new Australia with his twin sister, leaving the boy with
framework are: his mother in Thailand. In the second instance, a
• An order can be made only if it is in the best commissioning couple refused to take both children,
interests of the child. instead choosing to take only one and leaving the
• An order cannot be made in relation to a second child with their Indian surrogate mother. This
commercial surrogacy. had occurred in 2012 but only came to light in 2014.
• The parties must have counselling and legal There have also been reported cases where parents
advice before entering into a surrogacy have discovered that children born to surrogate
arrangement to ensure that they fully mothers in India may in fact not be their biological
understand the implications, and the children. The Family Law Council of Australia
arrangement must be in writing. received a submission from the Department of
• The birth mother must be at least 25 years old Immigration and Citizenship (as it was then called)
before entering the arrangement. in 2013 which raised numerous issues surrounding
• The consent of the birth parents is required the growing number of Australian couples engaging
before an order can be made. in international surrogacy. These concerns included
• There must have been a ‘medical or social the legal, ethical and moral issues raised by the
need’ for the arrangement. lack of a legal framework governing international
The Act also made certain amendments to other surrogacy. Some of these issues include:
New South Wales legislation to ensure that the • The Australian Citizenship Act 2007 (Cth) does
parentage orders and the status of the child would not define ‘parent’; this means that a child born
be recognised in matters concerning, for example, in India, which currently allows commercial
wills, property, relationship registers and other surrogacy, will be granted Australian
government entitlements. citizenship by descent but the child’s intending
While it permits and provides a legal framework parents may not be considered the child’s legal
for altruistic surrogacy, the New South Wales parents.
legislation expressly prohibits arrangements • There are inconsistent requirements
involving commercial surrogacy. The commissioning concerning surrogacy and the risk of
couple may pay for ‘reasonable costs’ associated unauthorised adoptions being described
with the pregnancy and birth of the child (Surrogacy as ‘surrogate’ to avoid specific immigration
Act 2010 (NSW) s 7). New South Wales residents who requirements.
procure commercial surrogacies now risk a fine of up • There is a growing risk of ‘child trafficking’ in
to $275 000 and/or imprisonment for up to two years. the guise of ‘surrogacy’, and the exploitation of
More and more prospective parents are pursuing young girls and women in developing and poor
surrogacy arrangements overseas. In 2008, there nations.
were 423 and in 2012 there were 978. This may be due Presently an international legal framework
to two broad factors: one is the difficulty in securing governing surrogacy does not exist and in light of
an altruistic surrogacy in New South Wales and the growing number of international surrogacies
the second is that surrogacy is poorly regulated in there is a growing need to devise such a framework.
many countries. This second reason raises issues However, such a framework is problematic as
surrounding the exploitation of women in poor or surrogacy, whether altruistic or commercial, is a
developing nations and concerns surrounding the contentious issue and raises specific moral and
welfare of any child born in such arrangements. legal issues within individual countries which may
The problematic nature of international surrogacy never be able to be resolved in one international
was raised in 2014 when Australian couples who had instrument.
entered into a surrogacy arrangements refused to
take both children when the surrogate mother gave Non-legal responses
birth to twins. In one instance, ‘Baby Gammy’, who Various organisations and lobby groups have
was born with Down syndrome, was rejected by opposed surrogacy on moral grounds, usually based
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CHAPTER 12 OPTION 3: FAMILY
become parents under surrogacy arrangements
Research 12.5 were forced to deal with legal schemes that were 12
not designed for those situations.
Go to http://cambridge.edu.au/redirect/?id= The Surrogacy Act 2010 (NSW) encourages
6367 and read the article ‘Should commercial parties to a surrogacy arrangement to make sure they
surrogacy be legal in Australia?’ Answer the thoroughly understand the psychological, social and
following questions. legal complexity of their decisions and the impact
1 Discuss whether or not commercial on the child. This new framework is an important
surrogacy should be legalised in development in increasing legal certainty for people
Australia. who are parties to a surrogacy arrangement because
2 What ethical and legal issues need to be they are otherwise unable to have children, but also
considered? in protecting the interests of children who are born
into surrogacy arrangements.
on religious principles. These concerns centre Conclusion
on the concept of a traditional family, especially Advances in birth technology have created a great
because surrogacy may provide an avenue for need for law reform. When considering the new
same-sex couples to have children. These lobby laws in this area, both parliaments and the courts
groups have expressed a desire that surrogacy be need to address a multitude of conflicting ethical
restricted to infertile heterosexual couples. They views. The rapid development of birth technology
have claimed that families with parents of the has challenged long-standing moral and legal
same sex face difficulties ranging from problems in conceptions of ‘family’ and ‘parent’. Prior to IVF,
accompanying one’s small child of the opposite sex the woman who gave birth and her husband or
to a public toilet to social stigma. A slippery-slope partner were the child’s parents. However, the legal
argument has also been employed; for example, definition of ‘parent’ has now been extended to meet
the Australian Christian Lobby claimed in 2009 the challenges of new family arrangements and
that surrogacy ‘would pave the way for two men technological advances.
or two women to “order” a baby they are not even
genetically connected to’, and would deny the child
either a male or a female parent and role model. Review 12.15
There has been a growth in commercial surrogacy
1 List the issues surrounding surrogacy
centres, particularly in India where commercial
and discuss the effectiveness of legal
surrogacy is permitted. Commercial surrogacy has
and non-legal responses to these issues.
become increasingly popular, particular for women
2 Identify the jurisdictional problems in the
in poorer nations like India who can now earn
area of surrogacy.
$5000 to $7000 per child, which may provide their
own families enough money to purchase their own
homes and a better life. It is estimated that global
surrogacy has become a billion dollar industry (see
http://cambridge.edu.au/redirect/?id=6368).
Responsiveness of the legal
system
The federal government has been slow to pass
laws relating to surrogacy issues and the courts are
constrained by existing legislation. There remain
wide inconsistencies in surrogacy laws between the
states and territories. In New South Wales, previous
laws were inadequate and people who sought to
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CAMBRIDGE LEGAL STUDIES HSC
12.6 C
ontemporary issue: Care The report showed that in 2016–17 there were
and protection of children 168 352 children who had an investigation, care and
protection order and/or were placed in out-of-home
About the issue care; that is, one in 32 children. Aboriginal and
All states and territories, together with the Torres Strait Islander children continued to be over-
Commonwealth Government, have passed laws represented as they were seven times more likely to
regarding family violence, child abuse and child have received child protection services.
neglect. The focus of the Children and Young
Persons (Care and Protection) Act 1998 (NSW) is on Legal responses
safeguarding the health and wellbeing of children, The Family Law Act 1975 (Cth) defines ‘family violence’
including protecting them from violence or abuse, as any action or threat of violence by one family
and on the mandatory reporting of concerns to member against another, including witnessing that
Community Services – teachers, doctors, nurses action or threat, that causes fear or apprehension
and other professionals must report if they believe about personal safety. The 2006 amendments to the
there is a risk of harm from family violence or abuse. Family Law Act 1975 (Cth) endeavoured to ensure that
The amendments to the Family Law Act 1975 (Cth) children are protected from both direct harm and
by the Family Law Amendment (Shared Parental harm resulting from exposure to family violence. The
Responsibility) Act 2006 (Cth), which aimed to ensure presumption of equal shared parental responsibility
that children have a meaningful relationship with does not apply if there is a risk of child abuse or
both their parents, require the court to consider the family violence (Family Law Act 1975 (Cth) s 61DA).
child’s best interests rather than parental interests. If there is evidence of family violence, the court
The Child Protection Legislation Amendment Act may order that the child’s contact with the offending
2014 (NSW) amended the Children and Young parent is restricted or that the contact takes place
Persons (Care and Protection) Act 1998 (NSW), the within a controlled environment, such as with a
Adoption Act 2000 (NSW) and the Child Protection social worker present. In this instance the concept
(Working with Children) Act 2010 (NSW). The aim of ‘shared parental responsibility’ does not apply. If
of the amendments is to improve early intervention relevant authorities consider that the child or young
services, introduce parental capacity orders and person is in urgent need of protection, Community
allow adopted children to maintain a connection Services can apply to the Children’s Court for an
with their biological parents. Emergency Care and Protection Order.
According to the submission of the NSW
Ombudsman to the Wood Inquiry (Special
Commission of Inquiry into Child Protection Services
in NSW) on mandatory reporting,
the number of ‘at risk of harm’
reports made to Community
Services has increased steadily
and continues to grow.
A 2018 report by AIHW
showed that the number of
notifications has risen from
272 980 in 2012–13 to 379 459 in
2016–17 – an increase of 39%.
Around 50% of notifications of
child abuse are investigated, and
between 2012–13 and 2016–17 the
total number of substantiations
of notifications received across Figure 12.12 Total number of notifications, investigations and
Australia increased by 27%. substantiations across Australia from 2012–13 to 2016–17
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CHAPTER 12 OPTION 3: FAMILY
In cases where there is evidence that family centre or any of the 22 JIRTs for further assessment
violence has occurred, family dispute resolution and investigation. Members of this team include 12
may be inappropriate. The court will hear cases Community Services representatives, NSW Police
that raise family violence issues quickly so that it and representatives from the NSW Health. Once the
can take appropriate action to protect vulnerable report has been made, the response team will speak
family members. to the young victim and act to protect the child if
The Family Court can order relevant state and there is immediate danger.
territory agencies to provide information regarding If police decide that there is evidence of a
allegations of family violence. crime, the suspect will be charged, the child will be
The Child Protection Helpline, set up by assigned a caseworker, and the child will receive
Community Services NSW, enables easy access to medical attention if needed. The JIRTs were
report any child at risk of harm. Once such a report is established to improve interagency collaboration
received, involving allegations of physical or sexual between NSW Health, the police and Community
abuse, neglect or other criminal conduct regarding Services, and to provide counselling and trauma
a child, a caseworker makes an assessment to support for victims.
determine the extent of the risk. Almost two-thirds Reporting reduces the amount of administrative
of all reports are referred to a Community Services work for a caseworker as well as the call load on
Figure 12.13 Graffiti in Lisbon depicting a priest chasing two children in criticism of the child abuse scandals of
the church
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CAMBRIDGE LEGAL STUDIES HSC
Helpline, thus allowing caseworkers to focus on All major religious bodies which have contact with
assessment. The implementation of the Child children and young people have established internal
Protection National Minimum Data Set in 2013 has procedures for investigating abuse claims. As part
standardised the reporting procedures and enabled of this process, each has established counselling
a more comprehensive collection of data. It now services for abuse victims and compensation funds
has child figures for three areas of notification, to pay future claims made by victims.
investigation and substantiation; care and There are also a number of initiatives to provide
protection orders; and OOHC. The 2018 AIHW report support for families and children in crisis. These
showed increases in all of these areas: the number include:
of substantiated notifications rose from 7.8 per 1000 • Child Abuse Prevention Service (CAPS)
children in 2012–13 to 9.1 in 2016–17. The number of (http://cambridge.edu.au/redirect/?id=6369) –
children on care and protection orders rose from 8.2 aims to alleviate child abuse by educating
to 9.9 per 1000, and the number in OOHC rose from the community about child abuse issues and
7.7 to 8.7. providing counselling and ongoing support for
victims and perpetrators
Non-legal responses • Child Protection and Family Crisis Service –
Churches and organisations such as the Salvation provides 24-hour telephone counselling
Army have traditionally provided extensive • the Benevolent Society (http://cambridge.
support and educational services to children in edu.au/redirect/?id=6370) – offers programs
need. These services include childcare centres, supporting families to overcome stresses that
counselling services (for example, for addiction and lead to abuse and neglect; services include
bereavement), and emergency housing and youth counselling, home visits, access to child health
support programs. Although these groups have professionals, play groups, social groups for
provided necessary help and support to children parents, art therapy and links to local services
and families in crisis, some groups have also been • Families NSW – a state government initiative
heavily criticised for their lack of action in dealing which aims to make parenting easier by helping
with accusations of child abuse made against their parents become better parents.
own members. • Kids Helpline – offers a 24/7 confidential
Clergy members of various churches have been helpline as well as online counselling and
accused and found guilty of serious misconduct support services for young people aged
and child abuse. Some church organisations have between 5 and 25 years.
been heavily criticised for their lack of support for • Create Foundation – gives a voice to children
victims of abuse at the hands of the clergy and some in OOHC to help improve the child protection
churches have been accused of protecting known system.
child sex offenders within their ranks. Various local municipal councils also offer
In response, the Anglican Church established programs providing help and support for children
a Professional Standards Unit that investigates and young people.
complaints involving clergy and ancillary staff.
In 2002, the Anglican Church made a public Responsiveness of the legal
apology for the misconduct of clergy and staff system
and reaffirmed the church’s condemnation of Criticisms of child protection in New South Wales
such behaviours. In 1996, the Catholic Church have been made about Community Services, the
established the Melbourne Response to investigate police, the courts and community groups. A review of
claims of clergy abusing young children. This has the New South Wales child protection system began
been heavily criticised as inadequate, with the in 2006. A Children’s Commissioner was established
average compensation paid to victims of systemic to monitor state programs to eradicate child abuse
church abuse being $50 000. and strengthen existing child protection. The review
Victims of abuse have been encouraged to contact also proposed that a national framework for child
the relevant church authorities to lodge a complaint. protection should be established.
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CHAPTER 12 OPTION 3: FAMILY
Keep Them Safe: A Shared Approach to Child resources and staff cuts, Community Services has
Wellbeing was a report from the 2008 New South been unable to provide adequate protection and 12
Wales government inquiry into Child Protection support for families and victims of child abuse.
Services. The report highlighted the importance of In January 2013, a Royal Commission was set up
the wellbeing of all children and aimed to provide to investigate institutional responses to child sexual
appropriate support to families to reduce the abuse. The six-member Royal Commission, with
growing number of families requiring statutory child the Honourable Justice Peter McClellan serving as
prevention. Chair, has held numerous formal public hearings
The federal government has recognised child to hear evidence of institutionalised child sexual
abuse and neglect as major issues. In April 2009, the abuse. The focus of these hearings has been on how
National Framework for Protecting Australia’s Children various institutions, such as the Catholic Church,
2009–2020 came into effect. This is a collaboration the YMCA, Salvation Army and various private
between Federal, State and Territory governments, educational facilities, have responded to allegations
as well as relevant non-government organisations. It of child sexual abuse. The commission also heard
identifies six outcomes: evidence from survivors of child sex abuse of their
1. Children live in safe and supportive families experience of the ‘Towards Healing’ process, a
and communities ‘pastoral response’ established by the Catholic
2. Children and families access adequate support Church after the Wood Royal Commission. This
to promote safety and intervene early process has been criticised extensively as being
3. Risk factors for child abuse and neglect are inadequate in meeting the emotional and financial
addressed needs of victims and their families.
4. Children who have been abused or neglected
receive the support and care they need for their Conclusion
safety and wellbeing Children are vulnerable members of our society and
5. Indigenous children are supported and safe in as such they deserve, and are in greater need of,
their families and communities higher levels of protection than adults. The legal
6. Child sexual abuse and exploitation is prevented system has strengthened legislation surrounding
and survivors receive adequate support. the care and protection of children. Neglect and the
The legal system has been accused of acting too abuse of children are now considered serious crimes.
slowly to protect child victims of abuse and there are
claims that existing mechanisms to protect children
are inadequate. An increasing number of people Review 12.16
under 18 have been placed on care and protection
List the issues surrounding the care and
orders. AIHW in 2016 reported that nationally nearly
protection of children and discuss the
152 000 children were receiving child protection
effectiveness of legal and non-legal responses
services (investigation, care and protection orders
in addressing them.
and/or out-of-home care). During 2014–15, there
were 57 861 children on care and protection orders.
While some would argue that this indicates that
people, once they are aware of their rights, will seek
ADVOs to protect themselves and their children from
harm, it also indicates that support and counselling
services provided to perpetrators have been less than
successful in modifying their abusive behaviours.
Sadly, in 2015, 79 children who had been
previously reported to Community Services as being
at risk of significant harm died at the hands of their
abusive parent or carer. Many of the victims were less
than five years old. Hampered by dwindling financial
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CAMBRIDGE LEGAL STUDIES HSC
Chapter summary
• The concept of family includes nuclear, are any outstanding issues related to any
extended, blended and single-parent families, children of the relationship.
and the main function of the family is the care • In property settlements, courts will consider
and protection of its members. financial and non-financial contributions, age,
• Marriage is a voluntary union for life. A valid income, childcare factors and other specific
marriage is between two people (previously characteristics of the parties.
‘a man and a woman’ – see the digital update • Binding financial agreements can be made
materials for a full explanation of this change), before, during or after a marriage.
who must be adults and not closely related. • A main focus of family law is the protection
• Marriage imposes legal rights and obligations. of children. Many of the amendments made
These include matters relating to maintenance, to legislation centre on enforcing parental
property and wills. responsibility and ensuring that decisions
• The Australian Government has the power and concerning children are made in the best
authority to make laws governing marriage and interests of the children.
divorce. However, state laws regulate de facto • The law also aims to provide dispute resolution
and other domestic relationships, including structures and processes that will help
adoption. parties reach an amicable termination of
• Parents have legal and moral obligations to their their relationship. The court focuses more on
children. Children have the right to the care reconciliation and on encouraging compliance
and protection of their parents, and the right to than on enforcement through the use of
education, medical treatment and inheritance. sanctions.
Recent reforms to the Family Law Act centre on • Legal responses to domestic violence include
shared parental responsibility. AVOs/ADVOs, injunctions and criminal
• The UN Convention on the Rights of the Child charges.
(CROC) recognised the need for the universal • A number of countries around the world have
protection of children’s rights. The convention recognised same-sex marriage, with Australia
has influenced family law within Australia. doing so in December 2017 – see the digital update
• There is only one ground for divorce in materials for a full explanation of this change.
Australia: irretrievable breakdown of marriage. • Advances in birth technology have raised a
• The spouses must live separately and apart number of new ethical and legal issues. The
for 12 months before a divorce order will be concept of parentage has expanded. Surrogacy
granted. A divorce will not be granted if there remains a problematic area within family law.
Questions
Multiple-choice questions 2 A parenting plan is an agreement between
1 Marriage in Australian society: parents covering:
A can only be entered into by a person of A living arrangements only
sound mind and understanding B living arrangements and maintenance
B is the joining of two people to live together agreements
for the remainder of their lives C living arrangements, maintenance
C is defined in legislation and not in case law agreements, religion, culture, education,
D is based on the idea of romance and can health and other issues
only occur once the couple have become D living arrangements and maintenance
engaged agreements but not religion, culture,
education, health and other issues
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CHAPTER 12 OPTION 3: FAMILY
3 If an ADVO is breached, police can arrest the
offender:
Short-answer questions
1 If a marriage breaks down, should the
12
A if there is sufficient evidence to prove that dependent spouse be entitled to maintenance?
such a breach occurred Outline and explain the various factors that
B although sufficient evidence is not should be taken into account when determining
necessarily required to prove that such a maintenance issues.
breach occurred 2 Discuss the issues surrounding blended families
C if they suspect the offender of previous and explain why a step-parent is not financially
breaches responsible for the children of their spouse.
D but they don’t have to investigate claims of 3 Briefly explain how family law has responded
domestic violence to changing social values, such as increased
incidence of divorce and the acceptance of de
4 Family Relationship Centres were established facto and same-sex relationships.
to: 4 Create a table listing in chronological order the
A help people find a partner legislative and common law changes in family
B help individuals maintain healthy law and their effects.
relationships and encourage good parenting 5 Outline the legal issues surrounding family
practices violence, and evaluate the effectiveness of
C provide information, referrals and current family law remedies in achieving just
assistance to individuals seeking to have the outcomes for all family members.
dominant share of responsibility and care
for their children Extended-response questions
D provide a forum for disputing parents to 1 Evaluate the effectiveness of existing legislation
negotiate a settlement in protecting individuals from domestic violence.
2 Identify and evaluate the arguments for and
5 Individuals who enjoy greater protection of their against changing the definition of marriage
rights than others include: to include same-sex couples. Discuss, with
A adults, who have more rights because they reference to the claim that practical benefits
can earn money such as superannuation, tax, property rights
B children, who have rights until they are 18 and medical consent issues are more important
years of age than the symbolic social role of marriage.
C adults, because they are seen as vulnerable 3 What weight should be given to children’s
members of our community, especially in views with respect to disputes about parental
their dealings with the law and with other responsibility?
adults 4 Discuss the role of the media and NGOs in
D children, because they are seen as family law.
vulnerable members of our community, 5 Identify and critically evaluate current
especially in their dealings with the law and Australian surrogacy laws. Suggest reforms
with adults that could be made in this area.
In Section III of the HSC Legal Studies 1000 words in length (approximately eight
examination you will be expected to complete examination writing booklet pages). Marking
an extended response question for two criteria for extended-response questions
different options you have studied. There will can be found at http://cambridge.edu.au/
be a choice of two questions for each option. It redirect/?id=6371. Refer to these criteria when
is expected that your response will be around planning and writing your response.
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CAMBRIDGE LEGAL STUDIES HSC
Themes and challenges
The role of the law in encouraging compulsory attendance at parenting programs,
cooperation and resolving conflict community service orders and, in extreme
in regard to family circumstances, imprisonment (Division 13A of
• An emphasis on mediation and counselling Part VII of the Family Law Act 1975 (Cth)).
as primary dispute resolution processes has • Although AVOs/ADVOs are designed to provide
encouraged greater levels of cooperation protection against harm, there are concerns
between separating couples, and the vast about their effectiveness. Approximately 10%
majority of family disputes are now resolved of individuals do not comply with protection
without arbitration. orders. AVOs depend on the named individual’s
• This has been enhanced by court provision of voluntary compliance with the order, the
information via websites and do-it-yourself kits. active policing of the AVO, and the victim’s
• Disputing couples are required to attend willingness to report any breaches to the police.
compulsory family dispute resolution and family
counselling sessions. Changes to family law as a
• The Family Court has reviewed its own internal response to changing values in the
processes and made substantial changes to community
make them less complex. • The law reflects community values. Individuals
are therefore more likely to obey the law if they
Issues of compliance and believe that the law is essentially enforcing
non-compliance and promoting ‘right’ behaviours. Family law is
• The Family Law Council (a Commonwealth concerned with managing human relationships,
statutory authority established under s 115 of the which is complicated by the multicultural
Family Law Act 1975 (Cth) to advise the federal nature of our society. The legal system must
Attorney-General) has recommended that an balance different cultures, ethical systems,
enforcement agency be established to oversee religious values, social and family attitudes,
the enforcement of parenting orders and assist and individual rights in the effort to develop the
in bringing complaints before the court. best processes for society as a whole.
• It is only when parties cannot reach an • When children born in Australia to migrant
agreement that the dispute will be heard in the parents adopt the cultural beliefs and practices
Family Court. Court intervention is seen as a of their new country, family conflict can result.
‘last resort’ because individuals are more likely • The first major change in family law was the
to comply with a decision that they negotiated introduction of no-fault divorce. The declining
and reached voluntarily. Enforcement of Family influence of religion, an interest in removing the
Court orders therefore only comes into effect conflicts and difficulties resulting from blame, and
when there is a breach. The court will act to the idea that marriage does not always last ‘for life’
protect individual rights and enforce spousal or were social factors that influenced this change,
parental responsibilities. reflected in the Family Law Act 1975 (Cth), as well
• An individual must apply to the court to enforce as the introduction of the sole ground for divorce –
orders breached by another party. Once the ‘irretrievable breakdown of the marriage’.
court is satisfied that a breach has occurred, it • Another important change in social attitudes
can impose various sanctions depending on the has been in the increasing acceptance of
type, magnitude and number of breaches. gay and lesbian relationships. Recent law
• If the breach was of orders pertaining to reforms have centred on providing same-sex
children, the court has a range of actions couples the same rights and obligations as
available to it. Remedies available to the de facto heterosexual couples and removing
court include variation of parenting orders, discrimination based on sexuality.
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CHAPTER 12 OPTION 3: FAMILY
• The concept of responsible parenthood with
respect to the care and financial support
rights has occurred, it can make recommendations
for legislative change to Parliament.
12
of a child is considered an important moral • One perennial criticism of the law is that
obligation that should be met by both parents. it moves too slowly and does not adjust
The Australian Government has enacted to changed circumstances fast enough.
legislation to encourage and enforce parental However, if the law changes too quickly, it may
responsibility through the legal system. become poor law – too broad or too narrow,
• Many of the changes in the law have revolved contradictory and hard to enforce.
around protecting children. The emphasis • One of the main criticisms of legislative reform
on children’s rights reflects the idea that is the recurring problem of time delays between
children are vulnerable members of our society proposing legislative change, drafting and
and need greater protection. All decisions enacting the change. Any unnecessary delay
regarding children must be in the children’s may have enormous consequences; however,
best interests, and the interests of their parents passing legislation without due consideration
or caregivers are secondary. This change can can lead to an unjust outcome.
be seen in the emphasis on parenting plans
and parental responsibility, in contrast to The effectiveness of legal and
‘residence’ and ‘custody’. The legal system’s non-legal responses in achieving
aim is to protect the child’s right to maintain a just outcomes for family members
quality relationship with both parents. • The legal system acts to protect the values
• Although a majority of people in Australia that the whole community holds important.
supported same-sex marriage, parliament The principles of fairness, justice and equity
remained hesitant to act on this issue, instead constitute key values. In addition, our community
reinforcing the legal definition of marriage believes that it is important to protect the
as being between one man and one woman. disadvantaged, or those who cannot act to
However, on 9 December 2017, the Marriage preserve their own rights – particularly children.
Amendment (Definition and Religious Freedoms) • Domestic violence continues to be a large
Act 2017 commenced. The Act changed societal issue. There have been numerous law
the definition of marriage and provided for reforms concerned with eradicating family
marriage equality in Australia. The right to violence and protecting its victims. Law reforms
marry in Australia is no longer determined by include mandatory reporting and changes to the
sex or gender. See the digital update materials Bail Act 2013 (NSW). Non-legislative mechanisms
for a full explanation of this change. include services provided by government and
NGOs to assist families with conflict resolution,
The role of law reform in such as counselling and mediation.
achieving just outcomes for family • Changes to the Surveillance Devices Amendment
members and society (Police Body-Worn Video) Act 2014 allow police to
• Agencies of reform are not limited to videotape evidence and statements taken at the
parliament and the courts. Law reform may be scene of the offence to be used in court. This
initiated by interest groups, the Law Reform removes the need for victims to testify in court
Commission, international treaty bodies and and shows the immediate impact of domestic
government departments. Other agents of violence to the court.
law reform include lobby or pressure groups • There are still concerns about the effectiveness
attempting to influence members of parliament of child protection services. Community Services
who will support the group’s aims. NSW has been inundated with reports of alleged
• The Australian Human Rights Commission abuse. There is evidence that the laws relating to
monitors and investigates any breaches of human domestic violence and the protection of children
rights recognised under Australian law. If the are inadequate, particularly when considering
commission determines that a breach of human the deaths of children identified as being at risk.
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Chapter 15
Option 6: Workplace
25% of course time
Principal focus
Students will be investigating the workplace, legal rights and responsibilities of workers, the ability of the
law in achieving justice and issues that have recently arisen in this area.
Themes and challenges
Themes and challenges to be incorporated throughout this option include:
• how the law resolves conflict and encourages cooperation in the workplace
• dealing with compliance and non-compliance
• how workplace laws reflect changes in values and ethical standards
• how recent law reform recognises rights and enforces responsibilities of workers
• the legal and non-legal responses in achieving effective justice in the workplace.
At the end of this chapter, you will find a summary of the themes and challenges relating to the workplace.
The summary draws on key points from the text and links them to each of the themes and challenges. This
summary is designed to help you revise for the external examination.
Chapter objectives
In this chapter, students will:
• outline the increasing need for workplace law
• outline where workplace regulations come from
• describe the rights and responsibilities employees and employers have in the workplace
• examine workplace law and the legal framework behind it
• evaluate the effectiveness of dispute resolution processes
• assess regulation of the workplace and the legal system’s role
• outline what determines remuneration
• evaluate the effectiveness of legal and non-legal actions in recognising and protecting workplace rights
• identify and investigate some contemporary workplace issues, and evaluate the effectiveness of legal
and non-legal responses to these issues.
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Key terms/vocabulary
arbitration equal employment opportunity mediation
Australian Workplace legislation outworker
Agreement (AWA) express term peak body
Better Off Overall Test (BOOT) freedom of contract picket line
casual employment gig economy regulation
codification greenfields agreement retrenchment
conciliation guild sexual harassment
constitutional corporation implied term stand down
contract for services independent contractor strike
contract of service indirect discrimination trade union
direct discrimination industrial action unfair dismissal
discrimination industrial award vicarious liability
duress industrial relations workers’ compensation
employment Industrial Revolution workplace surveillance
enterprise injury management wrongful dismissal
enterprise agreement journeyman
enterprise bargaining laissez-faire
Relevant law
IMPORTANT LEGISLATION
Conciliation and Arbitration Act 1904 (Cth) Industrial Relations Act 1996 (NSW)
(repealed) Workplace Relations Act 1996 (Cth) (repealed)
Racial Discrimination Act 1975 (Cth) Age Discrimination Act 2004 (Cth)
Anti-Discrimination Act 1977 (NSW) Workplace Relations Amendment (Work Choices) Act
Sex Discrimination Act 1984 (Cth) 2005 (Cth) (repealed)
Australian Human Rights Commission Act 1986 (Cth) Fair Work Act 2009 (Cth)
Workers Compensation Act 1987 (NSW) Fair Work Amendment Act 2015 (Cth)
Disability Discrimination Act 1992 (Cth) Work Health and Safety Act 2011 (Cth)
Superannuation Guarantee (Administration) Act 1992 Fair Entitlements Guarantee Act 2012 (Cth)
(Cth) Workplace Gender Equality Act 2012 (Cth)
SIGNIFICANT CASES
Ex parte H.V. McKay (1907) 2 CAR 1 (Harvester case) Australian Municipal, Administrative, Clerical and
Wilsons & Clyde Coal Co. v English [1938] AC 57 Services Union v Ansett Australia Ltd (2000) 175
Paris v Stepney Borough Council [1951] AC 367 ALR 173
R v Kirby; Ex parte Boilermakers Society of Australia Hollis v Vabu Pty Ltd (2001) 207 CLR 21
(1956) 94 CLR 254 Russell v Trustees of the Roman Catholic Church
Equal Pay for Equal Work Case (1969) 127 CAR 1142 [2007] NSWSC 104
Equal Pay for Work of Equal Value Case (1972) 147 Commonwealth Bank of Australia v Barker [2014]
CAR 172 HCA 32
Legal oddity
The Fair Work Commission determined that an employee was fairly dismissed for swearing at his supervisor.
The dismissal was valid given that the employee had previously been warned. Although it was accepted
by the employer that swearing in the workplace was commonplace, the employer distinguished general
swearing from swearing at a particular person. In this case, the employee took issue with having to undertake
some manual handling within a confined space which caused him physical pain. He took this issue up with
his supervisor by way of swearing and abuse. As he had already received a formal warning, his employment
was terminated.
CAMBRIDGE LEGAL STUDIES HSC
15.1 T
he changing nature of products that they could not produce. These people
workplace law over time did not receive payment for their labour and so were
not employed by the local lord, who generally was
The main subject matter of workplace law is
the owner of the land. They had few rights and little
employment. To be employed means to have a
choice but to work for the landowner in exchange for
particular type of contract with another person (a
the right to live on the land; however, the lord might
contract of service), under which the employee
provide protection from external threats.
receives monetary payment and other benefits in
As cities developed, there was greater regulation
exchange for doing work. It is also possible to have a
of the work of artisans and craftsmen. These laws
contract for work that does not involve an employer–
usually aimed to prevent people from making a
employee relationship. The person doing the work in
profit from their own work or having much say in
such a situation is usually called an independent
the terms, conditions and price paid for it. Laws
contractor.
were also designed to prevent people from leaving
employment independent contractor agricultural areas, because labour was scarce –
the contractual someone who is paid for
relationship between an work done for another this was due to the toll taken by disease. Statutes
employer and an employee, person without there being enacted throughout the 14th and 15th centuries
involving work performed a contract of employment
allowed lords to be sued if they paid their workers
for monetary payment and between them; instead, the
other benefits parties will have a contract more than other lords did, pressed people into work
for services with penalties if they refused, or required parents
to put their children to work on lords’ estates. In
Laws about employment have changed over the some rural areas of England, gangs of people, often
centuries due to changes in economic conditions, women and children, moved from farm to farm under
attitudes and technology, and the influence of trade the direction of a ‘gang master’, who was paid by
unions. Australian workplace laws were originally farmers seeking a temporary workforce.
based on British industrial laws, but over the past
100 years these laws have been amended to reflect Early employment law
the changing nature and specific demands of the The law related to employment in Britain from
Australian workplace. medieval times through the 18th century was limited,
due to the nature and type of employment available.
The Middle Ages It also favoured the rich and influential members
Our employment law has its roots in English medieval of society, who were more concerned with making
law. The majority of people in feudal England profits than with the needs of their employees.
(approximately 800–1400 ce) either worked on the Guilds of craftsmen or merchants were
land (farming) or produced clothing, household associations of people in a particular trade. Their
goods and/or food for their own use. The family purpose was primarily to ensure that their products
could sell any excess production or use it to barter for were of good quality. They also regulated conditions
Figure 15.1 Many people in feudal England worked on the land.
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CHAPTER 15 OPTION 6: WORKPLACE
of labour, but generally in the interest of maintaining 1799, stated that being a member of a trade union
the quality of the goods, rather than to protect the was grounds for imprisonment. Some early union
workers’ rights. For example, working on holidays leaders were hanged for ‘sedition’ – encouraging
was prohibited to ensure that some craftsmen did people to ‘rise up against and overthrow the lawful
not enjoy an advantage over the others by having a government’. Unions were legalised in 1832, with the
larger stock of goods. When conflicts arose between passing of the Reform Act by the British Parliament.
journeymen and their masters, laws were passed to
regulate the formation of guilds, and perhaps also to trade union
an organisation of workers created to preserve and
ensure that they did not gain too much influence. further their rights and interests
guild journeyman
a medieval association of
craftsmen or merchants
dating from the later
Middle Ages, a worker Review 15.1 15
who had completed his
apprenticeship (period
of training) and was then 1 Describe the social and economic
qualified to work for wages conditions experienced by most people
for a master
in feudal England.
2 Explain how wealthy and powerful
people used the law to their advantage at
The Industrial Revolution the expense of workers, and identify the
The Industrial Revolution that took place in Britain advantages they obtained.
during the late 18th and early 19th centuries changed 3 Outline how the nature of employment
the way goods were produced. This affected not changed during the Industrial Revolution.
only how people worked but also where they lived.
The bulk of the working population turned from
agriculture to industry.
Industrial Revolution
Laissez-faire and state
the rapid development of industry in the 18th and 19th intervention
centuries, characterised by changes in manufacturing,
Nineteenth-century employment was based on
agriculture and transport
the concept of freedom of contract – individuals’
freedom to negotiate the terms of the contracts
With the increased use of machines, employees
they enter, without government restrictions. This
became specialised or skilled in only a few aspects
idea is the foundation of laissez-faire capitalism,
of the production of an item. Clothing factories no
which regards government intervention in economic
longer required highly skilled weavers; machines
activity, including employment, as inappropriate. It
could do this faster and more cheaply than any
is based on two assumptions:
individual. People who had earned money by
• Since individuals are the best judges of their
working at home producing small amounts of
own interests, they should be allowed to
manufactured items, such as cloth, were now
bargain freely and create a contract that suits
employed in the new factories and mills. Employee–
them, without interference.
employer relationships also changed. Employees’
• The parties have equal bargaining power.
wages were paid out of the sale of goods produced,
This, of course, is not true, as people will often
and the factory owners received the profit.
agree to terms that are not in their best interests in
The changing nature of employment in Britain
order to get or keep a job. An employer could simply
during the Industrial Revolution also resulted in
sack a worker they regarded as troublesome and hire
changes in labour laws. Factory owners (who were
someone else.
usually wealthy, and had some parliamentary
influence) created laws to maintain their profits and
to protect their interests and growing economic
power. One British statute, the Combination Act of
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CAMBRIDGE LEGAL STUDIES HSC
freedom of contract laissez-faire
the freedom of individuals a French term used
to bargain the terms to describe economic
of their own contracts, philosophies that
without regulation by the government should not
state intervene in business
Employers did have to pay a minimum wage to
workers, but this amount was very low and hardly
enough to pay for food, clothing and shelter. Unions
had effectively been banned, so working conditions
were bad and people worked long hours. Factories
were often poorly ventilated, poorly lit, noisy and
extremely dangerous. Employees could work up to
16 hours a day, seven days a week. These working
conditions were also experienced by children,
some of whom started work in cotton mills or textile
factories when they were as young as seven. The Figure 15.2 The formation of trade unions allowed for
Poor Laws were partly to blame for this. These laws fairer conditions for workers.
were based on ‘charitable’ efforts to prevent future
unemployment and vagrancy by training children
to work from a young age. There was no difference placed severe restrictions on their activities. Their
between the working conditions for adults and rights were narrowly defined in terms of meeting to
children, but there was a large difference in the bargain over wages and conditions, and they were
wages they received. prohibited from doing anything to ‘molest’, ‘obstruct’
These substandard working conditions led to or ‘intimidate’ others. Any trade union that engaged
the beginning of state intervention in workplace in industrial action was punished under criminal
relations in 19th-century Britain. In 1819, an Act that law until the 1870s, when the Trade Union Act of 1871
prohibited the employment of children under nine was passed, granting trade unions legal status for
years old, and limited children’s working hours to 12 the first time in England.
in a day, was passed. Further legislation expanded
industrial action
these protections: it included prohibiting night work, any action taken by employees to reduce productivity
limiting children’s employment underground in in the workplace, such as strikes, slowdowns of work,
refusal to work overtime, or doing only the minimum
mines, requiring ventilation and working equipment required; the purpose is usually to protest unjust
in the mines, raising the minimum age for working workplace policies of the employer
in textile factories to 10, and eventually (in 1901) an
effort to limit the employment of women too soon
after they had given birth. Industrial relations in Australia
Australian craftsmen and other workers began to
Trade unions organise themselves into trade unions in the early
A trade union is an association of wage earners 19th century. The first significant union campaign
that exists in order to maintain and improve the pay in Australia was the effort to achieve an eight-hour
and working conditions of its members. When trade working day, by stonemasons in Sydney in 1855 and
unions began to form in Britain in the late 1700s, Melbourne in 1856. Although the eight-hour day was
the British Government passed the Combination achieved for only some trades, it was a first in the
Acts of 1799 and 1800, which outlawed unions. The world.
second of these Acts was repealed in 1824, largely During the Australian gold rush in the 1850s,
due to the lobbying efforts of the reformer Francis many workers left their employers in order to seek
Place, and a new Combination Act was passed in gold. At the same time, Australia experienced an
1825. The new Act allowed trade unions to form, but influx of immigrants hoping to make their fortunes.
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CHAPTER 15 OPTION 6: WORKPLACE
The subsequent increased demand for goods and Division of the Federal Circuit Court operates using
services meant that industries could not meet supply more informal and efficient procedures, allowing it
unless employers were willing to pay higher wages to hear matters more quickly.
and improve working conditions to attract individuals
conciliation arbitration
back to their jobs. During this period Australian a form of alternative (industrial relations law)
trade unions became increasingly political and dispute resolution in the process of resolving
which the disputing an industrial dispute,
gained important rights for workers. parties use the services often after conciliation
Conciliation and arbitration have been at the of a conciliator, who takes has failed, by a legally
centre of Australian industrial relations law since a more active role than enforceable order of a
in mediation, advising court or commission
1904, when the Conciliation and Arbitration Court the parties, suggesting
15
was established by the Conciliation and Arbitration Act alternatives and
encouraging the parties
1904 (Cth). The court could settle disputes by making to reach agreement; the
an award – an order that sets out the workplace conciliator does not make
terms and conditions for a group of employees – the decision for them
and could also enforce that award. In 1956, the court
was replaced by two bodies: the Commonwealth The New South Wales industrial relations system
Conciliation and Arbitration Commission and the was established by the Industrial Arbitration Act 1901
Commonwealth Industrial Court. This came about (NSW). The Court of Arbitration, which was created
as the result of the High Court’s decision in R v under this Act, heard disputes between unions and
Kirby; Ex parte Boilermakers Society of Australia employers when voluntary arbitration had failed. The
(1956) 94 CLR 254 that, because of the doctrine of Industrial Arbitration Act 1912 (NSW) established the
separation of powers, it was unconstitutional for Court of Industrial Arbitration, which had powers
the Conciliation and Arbitration Court to exercise of conciliation but not arbitration. The Industrial
both judicial powers and the non-judicial power of Arbitration (Amendment) Act 1926 (NSW) replaced
arbitration. In 1977, the Federal Court of Australia the Court of Industrial Arbitration with an Industrial
took over the functions of the Industrial Court, and in Commission, which heard applications from unions
1988 the Australian Industrial Relations Commission and employers, made awards setting rates of pay and
(AIRC) replaced the Conciliation and Arbitration working conditions, and had the power to determine
Commission. In 2009, the AIRC was in turn replaced any industrial matter.
by the Fair Work Ombudsman (FWO) and Fair Work As a result of the Industrial Arbitration
Australia, which has been renamed the Fair Work (Amendment) Act 1932 (NSW), the Industrial
Commission (FWC). Commission began to focus more on conciliation. The
The FWO is an independent statutory body
created by the Fair Work Act 2009 (Cth). The
ombudsman aims to provide information regarding Review 15.2
rights and obligations, unfair practices, enforcing
workplace laws and enforces compliance with 1 Define ‘freedom of contract’ and explain
Australia’s workplace law, with the aim of creating the assumption on which this doctrine is
more productive and cooperative workplaces. based.
The FWC is also an independent statutory body; it 2 Identify some of the circumstances that
facilitates negotiation of new awards and agreements, led to greater workplace regulation by
approve agreements, regulates industrial action, the state in 19th-century Britain.
make and change awards, determines the 3 Explain why workers might want to form
minimum wage and working conditions for workers a trade union rather than negotiate their
in Australia, and hears complaints about bullying own contracts of employment.
and unfair dismissals. The Federal Court or the Fair 4 Discuss how the conciliation and
Work Division of the Federal Circuit Court can hear arbitration process has changed in
disputes regarding unfair dismissal and termination Australia.
if conciliation fails at the FWC. The Fair Work
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CAMBRIDGE LEGAL STUDIES HSC
commissioner could call a compulsory conference in
industrial disputes to obtain an agreement between
the parties. In 1988, the state’s industrial laws and
procedures were comprehensively reviewed (the
result was the Niland Report). Following the Niland
Report’s recommendations, the commission was
replaced by the Industrial Relations Commission
(IRC) and a separate Industrial Court. Unlike the
federal industrial system, the state system does not
separate the judicial and administrative functions
in relation to the commission’s powers. Another
important change was the introduction of individual
workplace enterprise agreements.
The commission’s role is to resolve industrial Figure 15.3 A written contract is more easily
disputes through conciliation and arbitration, to enforced.
make industrial awards setting working conditions
and wages, to approve enterprise agreements and they have the contract with, and there is no ongoing
to hear claims of unfair dismissal. legal relationship between the two once the work
has been completed. However, there may be a series
of contracts between a contractor and a client. For
15.2 C
ontracts example, a freelance writer may provide articles
primarily to one newspaper or magazine, without
Types of work contracts being employed by that client.
When parties enter into a contract for work to be
done, it will generally be either a contract of service Contract of service
or a contract for services. A contract of service (also known as a contract of
employment) is an agreement between an employer
contract of service contract for services
an employment agreement an agreement between and an employee for work specified by and under the
under which a worker a contractor and a client direction of the employer. It imposes certain duties
(employee) works for under which the contractor
an employer; it imposes performs agreed tasks
on each party and provides each with certain rights.
certain duties on each for an agreed fee but is A contract of employment may be for a fixed
party and provides specific not employed by the other term or ongoing. Generally, a fixed-term contract
rights for the period of party
employment, which may be cannot be terminated before the end of the specified
for a fixed term or ongoing period, unless the contract provides otherwise. If the
contract does not contain such a term, it can only be
Both types of contract are legally binding, and terminated if one party has breached an essential
both types may be in written or oral form, although term. At the end of the specified period of time, if the
a written contract is more easily enforced because employer continues to accept an employee’s work,
it is easier to prove the existence of a particular term the contract may be deemed to have been converted
of the contract. to an indefinite contract.
Whether there is a contract of service between
Contract for services two parties, rather than a contract for services, will
A contract for services (also known as an depend on all the characteristics of their relationship.
independent contract for services) arises when a The most important factor has traditionally been
person agrees to do one or more specific tasks for whether the employer has the right to control the
another person, without being employed by them. way in which the work is performed (that is, to tell
For example, a plumber agrees to unblock a sink and the employee how to perform the tasks). Also, an
is paid for the work once it has been successfully employer generally provides the equipment or tools
done. The plumber is not the employee of the person necessary for the work to be done; an independent
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CHAPTER 15 OPTION 6: WORKPLACE
In Court
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Mr Hollis was injured when struck by a courier who was unlawfully riding a bicycle on the footpath.
The courier was wearing a jacket with the words ‘Crisis Couriers’ on it. Crisis Couriers was a business
operated by Vabu Pty Ltd. It contracted with bicycle couriers, who were required to be available during
certain hours every day, to take the jobs that were allocated to them and to wear the uniforms issued
by Vabu. Vabu set the pay rates and there was no room for negotiation. However, the couriers had to
provide their own bikes and bear the expense of maintaining them. They received no annual leave or
sick leave, were taxed as independent contractors, and had contributions towards Vabu’s insurance
deducted from their pay. 15
The High Court held that the couriers were employees rather than independent contractors, and
Vabu was therefore vicariously liable for the negligence of the courier who ran into Mr Hollis. The
judgement was based on all the facts of the relationship, including the terms of the contract and the
work practices imposed. The couriers had little control over how their work was to be performed, the
hours or the pay, and the only tool they had to provide was a bicycle, which could be used for other
purposes besides courier work. The court noted that a different conclusion might result in a case
where the couriers invested more in equipment, and greater specialised skills and training were
required in order to do the job.
contractor must usually provide their own tools of done by employees, and so should also bear the risk
trade. of employees’ behaviour at work.
Another factor is the manner of payment. An
employee is usually paid a regular salary or wages vicarious liability
legal liability of an employer for the wrongful act of
rather than being paid for each job completed, and the another
employer will deduct tax and pay superannuation on
behalf of the employee. An independent contractor
is responsible for their own taxes and must charge Review 15.3
fees that will take account of future retirement
needs. 1 Distinguish between a contract of
Permanent employees (employees who are not service and a contract for services.
casual employees) are entitled to annual leave, sick Provide an example of a type of worker
leave and long service leave. While an independent who would enter into a contract for
contractor has the flexibility of arranging their own services.
working hours, they must negotiate both fees and 2 What factors are taken into account
work schedules that will allow time off for holidays, when determining if the individual is
illness, family commitments and so on. employed under a ‘contract for service’
One reason why it is significant whether someone or a ‘contract of service’? You may refer
is employed under a contract of service or works to Hollis v Vabu Pty Ltd (2001) 207 CLR 21.
under a contract for services is that it is relevant in 3 Define ‘vicarious liability’. See also
determining vicarious liability. An employer can Century Insurance Co v Northern Ireland
be held legally responsible for the conduct of an Road Transport Board [1942] AC 509.
employee as long as the employee was acting ‘in 4 Discuss whether or not an employer
the course of employment’ – in other words, the should be held vicariously liable for the
employee was carrying out the duties that they were actions of an employee. Use examples to
contracted to perform. This is often justified on the illustrate.
basis that the employer gains benefits from the work
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CAMBRIDGE LEGAL STUDIES HSC
Terms of a contract of Implied terms
employment As well as express terms, there are also terms within
All contracts of employment contain express and an employment contract that are implied. Implied
implied terms. terms are not recorded in writing and may not even
have been discussed by the parties to the contract.
Express terms These terms may arise from the common law, from
Express terms are terms that have been specifically current practice or custom, from specific state or
stated and agreed to by both parties at the time the federal legislative requirements, or where it is clear
contract is made, either in writing or orally. Express that the parties would have included the term as an
terms in a contract of employment usually cover only express term if they had turned their minds to it. The
the key elements of the employment relationship, criteria for when a term can be implied by common
such as: law are:
• the position description • it must be reasonable and fair
• whether the position is ongoing or for a fixed • it must be necessary to ensure that the contract
term works effectively
• whether it is full-time, part-time or casual • it must be so obvious that it ‘goes without
employment saying’
• hours of work • it must be capable of being expressed clearly
• where the work is to be done • it must not contradict any express term of the
• leave provisions. contract.
express term casual employment implied term
a contractual term that has employment ‘as needed’, a contractual term that has not been included in the
been specifically stated on an irregular basis, formal agreement; a term can be implied by custom or
and agreed to by both with no set schedule or law, or because of the presumed intentions of the parties
parties at the time the guarantee of ongoing
contract is made, either in employment; generally
writing or orally paid at an hourly rate In Australia, courts have held that implied terms
in a common law employment contract confer certain
Employers and employees have a duty to fulfil the rights and duties on employers and employees.
express terms in a contract, and each has a right to Where an employee has a duty to do something, the
expect that the other party will do so. employer has a right to expect it. Similarly, where an
employer has a duty or obligation to do something,
provide something to employees, or ensure that
certain protections are in place, the employee has a
right to expect that protection or provision.
Duties of employers
Employers have:
• the duty to provide work for the purposes of the
employment contract. Where the employee’s
pay depends on the amount of work done,
the employer must ensure that the work and
any necessary materials are available. If the
employer cannot achieve this, the employee
must still be paid the agreed wage. The
employer must also provide work for employees
whose skill would diminish without it. For
example, a hospital must provide a surgeon
Figure 15.4 Express terms can determine where an with enough surgery to maintain their skills.
employee can complete work. • the duty to provide a safe working environment.
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CHAPTER 15 OPTION 6: WORKPLACE
This duty is now largely imposed by and within the bank. Barker did not receive important
regulated through legislation. A contract office emails offering redeployment opportunities
of employment with provisions stating that as his email account had been terminated. In his
employees must work in conditions that are appeal, Barker argued that the bank had breached
dangerous cannot be enforced. its implied duty to maintain trust and confidence in
• the duty to pay reasonable wages. While the him by withdrawing his email. He also argued that
actual amount is set by an award or agreement the bank had failed to inform him of redeployment
and is generally written into the contract opportunities within the bank.
as an express term, what is ‘reasonable’ The High Court decision means that employees
can be determined by the amount of money faced with redundancy and denied an opportunity
that is usual for that type of occupation or
employment. This duty arises only where
for redeployment will not be in a position to sue for
damages as a result of the employer’s breach of 15
there is no express term of the contract about ‘implied duty of trust and confidence’. It does not
payment. mean that employees and employers are free to
not ‘trust’ or have no ‘confidence’ in one another.
Duties of employees In Australia there exists an extensive range of
Employees have: legislation that protects the rights of employees and
• the duty to obey lawful directions given by the employers. These include work, health and safety
employer and unfair dismissal legislation.
• the duty to exercise reasonable care in carrying
out the work, and to meet certain standards in
Review 15.4
their work
• the duty of fidelity (faithfulness or loyalty) to 1 Define and explain express terms and
the employer. This includes obligations not to implied terms.
steal from the employer or damage equipment, 2 Identify the rights of employers and
not to disclose confidential information (for employees that come from implied terms.
example, not to divulge ‘trade secrets’ to other 3 Do employees have an automatic right to
companies) or act in a manner designed to redeployment?
undermine the profitability of the company,
and not to use the employer’s time for their own
purposes.
15.3 A
wards, agreements and
Mutual duties of employers and employees statutory conditions
Within the employment relationship between An industrial award is an order of an industrial
employer and employee there exists implied duties of commission, tribunal or arbitrator that is made to
mutual trust, confidence and good faith. For example, settle a dispute. Today the term usually refers to a
in Russell v Trustees of the Roman Catholic Church legally binding document, approved by an industrial
[2007] NSWSC 104, the New South Wales Supreme commission, which sets out the minimum terms and
Court held that the employment relationship gives conditions for employees in a particular industry
rise to parties’ obligation to exercise their rights or occupation, or who are employed by particular
reasonably and honestly, with ‘prudence, caution employers.
and diligence’.
However, the High Court of Australia in 2014 found industrial award
a standard set of wages and working conditions for
that contracts of employment do not automatically employees in a particular industry or occupation, or
include a ‘mutual duty of trust and confidence’. those who are employed by particular employers
In Commonwealth Bank of Australia v Barker [2014]
HCA 32, the plaintiff, Barker, had been informed
by the bank that he was to be made redundant. He
was granted one month to explore redeployment
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CAMBRIDGE LEGAL STUDIES HSC
In Court
Ex parte H.V. McKay (1907) 2 CAR 1
An Act designed to provide better pay to workers had created an excise tax on locally made machinery,
which could be waived if the manufacturer’s workers were paid ‘fair and reasonable’ wages.
H.V. McKay, a Melbourne manufacturer and owner of the Harvester Company, applied to the
Conciliation and Arbitration Court to waive the excise tax. McKay’s company was not known for
fair and reasonable treatment of its employees, and the union the workers belonged to opposed
the application. Justice Henry Bourne Higgins ruled that McKay was obliged to pay his employees
a ‘fair and reasonable wage’, and defined this as an amount sufficient to ‘support the wage earner
in reasonable and frugal comfort’. He took evidence as to the cost of housing, food and clothing in
Melbourne for a man with a non-working wife and two children, and used that to establish the cost of
living. This decision was the first time an industrial tribunal set wage levels for workers, rather than
allowing them to be set by individual employers. The decision applied to more than 1000 workers at
the Harvester Company, working in a variety of jobs. It is regarded as a momentous judgement that
paved the way for workers’ entitlement to a basic living wage for their work.
Industrial awards awards throughout Australia. State awards could
By 1920, there were 96 federal awards in force, and only apply to unincorporated employers, employers
all the states, as well as the Commonwealth, had not involved in trade or commerce (such as charities)
adopted systems of conciliation and arbitration. and state governments in their capacity as employers
The AIRC, which eventually took the place of earlier of state public servants. Transitional provisions
conciliation and arbitration bodies, created federal allowed federal awards to continue to apply to those
awards that covered a wide range of industries. There already covered by them for three years. No new
were also state Industrial Relations Commissions, awards could be made, and federal awards were
which created state awards. further simplified and trimmed down by reducing
Federal awards were created due to interstate their content to even fewer allowable matters. Some
industrial disputes, but disputes taking place within allowable matters (such as notice of termination,
a state were governed by state awards. In 1996, jury service, long service leave and superannuation)
Victoria became the first state to refer its industrial were removed on the basis that they were covered by
powers to the Commonwealth. It abolished state other legislation. The 14 protected award conditions
awards and created a limited number of statutory could be excluded or modified by an Australian
entitlements, leaving employees to negotiate all Workplace Agreement (AWA).
other terms and conditions with their employers.
The Workplace Relations Act 1996 (Cth) aimed to Australian Workplace Agreement (AWA)
an individual workplace agreement between an employer
simplify and streamline awards. It contained a list and an employee under the Workplace Relations Act 1996
of only 20 ‘allowable award matters’, and any terms (Cth); an AWA overrides and takes the place of any award
or collective agreement
or conditions that were not among the allowable
matters would not be enforced. The allowable
matters included hours of work, rest breaks, rates of The Fair Work Act 2009 (Cth) replaced
pay, annual leave, parental leave, personal carer’s WorkChoices. In late 2009, all states except Western
leave, penalty rates and dispute settling procedures. Australia referred their industrial powers to the
Obviously, the fewer the number of matters that Commonwealth, which then created a national
can be contained in an award, the weaker the ‘safety workplace relations system. As a result, all employers
net’ is. and their employees (except state governments
The 2006 amendments to the Workplace Relations and their employees) who were previously covered
Act 1996 (Cth), called ‘WorkChoices’, further limited by state industrial relations systems moved to the
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CHAPTER 15 OPTION 6: WORKPLACE
federal Fair Work system in 2010, and existing state level: agreements could be tailored to a particular
awards were replaced by federal ‘modern awards’. enterprise , whereas awards covered a whole
State awards covering employees of organisations industry or occupation, either nation-wide or
that are not constitutional corporations (such within a state. The law provided that an enterprise
as sole traders, partnerships and unincorporated agreement could not be less advantageous to the
associations) were permitted to remain in force for a employees working under it than the relevant award
transitional period of 12 months from 1 January 2010 would be.
before being replaced by modern awards.
enterprise bargaining enterprise agreement
negotiation of an a legally binding
constitutional corporation agreement about wages agreement between the
a corporation to which s 51(xx) of the Australian and working conditions employees of a corporation,
Constitution applies (for example, foreign corporations
and companies incorporated under Australian law that
by an employer and its
employees, or by the trade
non-profit organisation
or government body and
15
engage in financial activities and buying and selling) union representing them their employer, setting the
terms and conditions of the
employment relationship
enterprise
Review 15.5 a business or company
1 Explain why the Harvester decision is There is no distinction between union and non-
significant to Australian workplace law. union agreements under the Fair Work Act 2009 (Cth).
2 Define ‘industrial awards’ and identify The current process of negotiating an enterprise
their purpose. agreement has been characterised as ‘collective
3 Describe the reforms made to the bargaining at the enterprise level’. An enterprise
industrial relations system in 2009. agreement will be made between an employer and
some or all of its employees. Employers must notify
their employees of their right to be represented in
the bargaining process, and employees can choose
Agreements who will represent them. Those who are union
Enterprise agreements members will automatically be represented by their
In 1991, enterprise bargaining was introduced as an union, unless they choose otherwise.
alternative to awards, and enterprise agreements
became the primary means of setting wages and Individual agreements
conditions. This was seen as a means of creating The Workplace Relations Act 1996 (Cth), and especially
a more ‘flexible’ system of industrial regulation as the WorkChoices amendments, were designed to
negotiations took place at the individual workplace move workers from collective to individual forms of
employment contracts. An employer could make it
a condition of hiring someone that the employee
signed an AWA; under WorkChoices, this did not
constitute duress. Employees had no statutory
right to collective bargaining, and while an AWA
was in operation, it overrode any award or collective
agreement. WorkChoices introduced five minimum
statutory entitlements, which replaced the ‘no
disadvantage’ test. Both collective agreements and
AWAs had to pass this test to ensure that employees
would be no worse off under the agreement than
under the relevant award.
duress
coercion or pressure used by one party to influence
Figure 15.5 Wages and conditions can be determined another party
through negotiation.
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CAMBRIDGE LEGAL STUDIES HSC
Business rejects Australian unions’ push for minimum wage rise
Nick Toscano
Sydney Morning Herald, 27 March 2015
Australian unions will push for a wage rise of $27 a week for the nation’s lowest-paid workers, while
businesses warn that granting the above-inflation claim will force job cuts.
In a claim to be lodged on Friday, the Australian Council of Trade Unions will press for a substantial
pay rise it says will halt rising inequality.
The ACTU calls for the minimum wage to be lifted to $17.58 an hour, or $667.90 a week. That equates
to an increase of more than 4 per cent, well above the inflation rate of 2.2 per cent.
The minimum wage case, which will be heard by the FWC, affects the pay of about 1.8 million
workers who rely on awards for their pay.
The ACTU submission states Australia had the biggest drop in the minimum wage as a percentage
of the average wage between 2003 and 2013.
ACTU secretary Dave Oliver said inequality was ballooning with the minimum wage now at a record
low of 43 per cent of the average weekly earnings.
‘A $27 per week pay rise for our lowest paid workers is essential if Australia is to avoid creating an
underclass of working poor.
‘There are already signs that Australia is developing a working poor with financial stress, deprivation
and poverty on the rise among low paid workers.’
But employer groups will vigorously oppose the unions’ claim. The Australian Industry Group,
which argues for a much lower minimum wage rise of $10.25 a week, says the ACTU’s proposal was
‘unrealistic, unsustainable and would be unfair to those whose jobs prospects it would damage’.
‘The best that can be said for the Australian economy in 2015 is that it is underperforming,’ Ai Group
chief executive Innes Willox said.
‘Underemployment is trending higher ... as of February 2015, the unemployment rate was 6.3 per cent
and the number of active jobseekers had reached 781 600, the highest such number since April 1997.’
Mr Willox said the Australian minimum wage was among the highest in the world and any further
rise ‘beyond a modest amount’ would damage Australia’s competitiveness.
The Australian Chamber of Commerce and Industry – the nation’s biggest business lobby – said the
ACTU’s proposed wage rise was ‘unsustainable’.
‘Such a steep increase would make it harder for employers to afford low-skill workers and young
people in entry-level positions,’ ACCI chief Kate Carnell said.
‘[It] may prompt some employers to let go of existing staff or reduce unprofitable hours.’
Ms Carnell said ACCI’s submission, to be lodged with the commission on Friday, would call for a
‘cautious and restrained’ minimum wage rise.
Randolph Guinan, 57, of Faulkner, has earned the minimum wage as a cleaner at the Melbourne Arts
Centre and Hamer Hall for 18 years.
He is hoping for a pay rise this year that could help ease the financial strain he faces as his family’s
sole breadwinner.
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CHAPTER 15 OPTION 6: WORKPLACE
‘I have two daughters and it does get tight sometimes, it gets difficult,’ he said.
‘We always have to budget things ... we have our good days and bad days.’
The ACTU will also make a claim for the first time to try and claw back superannuation increases for
minimum-wage workers after the Abbott government put a freeze on employer contributions.
With the Coalition halting compulsory super increases until 2021, the ACTU will ask the commission
to increase contributions by 0.5 per cent to 10 per cent for workers on award minimum wages. 15
Mr Willox said the trade unions’ claim was ‘nothing less than irresponsible’.
Read more at http://cambridge.edu.au/redirect/?id=6382.
Individual agreements were abolished when better off overall test (BOOT)
the Fair Work Act 2009 (Cth) came into effect. From a criterion for the Fair Work Commission’s approval of
an enterprise agreement, requiring that employees are
2009, existing individual and collective workplace better off overall than under the relevant modern award
agreements were replaced by ‘enterprise
agreements’. The Fair Work Act lists three types of
enterprise agreement: Review 15.6
• single-enterprise agreement – made between a
single employer and their employees 1 Define and contrast collective
• multi-enterprise agreement – made between agreements and individual agreements.
two or more employers and their employees 2 Explain the difference between
• greenfields agreement – an enterprise agreements and awards.
agreement made between a new enterprise 3 Discuss how the BOOT would enable
of the employer and prospective employees employees to make a more flexible
(that is, the agreement is made between the agreement with their employer.
employer and a union prior to individuals being
employed).
An enterprise agreement must contain an expiry
Review 15.7
date, dispute settlement procedures, allowance
for individual flexibility arrangements, and a Read the media article on page 394 and
requirement for all parties to enter into consultation complete the following tasks.
about changes to the workplace. Since 2014, 1 Why is it necessary to increase the
agreements cannot require employees to contribute minimum pay?
to a ‘default’ superannuation fund unless certain 2 What arguments could be put forward
safeguards are met. The ‘no-disadvantage test’ was to support raising the minimum hourly
replaced by the Better Off Overall Test (BOOT) in wage rate?
assessing enterprise agreements.
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CAMBRIDGE LEGAL STUDIES HSC
Statutory framework was broadened. They can be made and varied by
Federal legislation the FWC; the awards that applied prior to the Fair
Work Act were replaced by modern awards.
The main features of the Fair Work Act 2009 (Cth) are:
Modern awards can contain terms setting out
• a legislative safety net of 10 National
minimum pay (including overtime and penalty
Employment Standards (NES)
rates), annual wage or salary, leave and leave
• new ‘modern awards’
loading, superannuation, redundancy, and
• new enterprise bargaining arrangements
procedures regarding consultation and dispute
• improved mechanisms to protect industrial
settlement processes. All modern awards must also
rights, including protection against
have a ‘flexibility term’, which allows employees
discrimination and unfair dismissal
and employers to negotiate changes to the award to
• the creation of national industrial relations
accommodate individual workplace circumstances.
organisations: FWC and the FWO.
If an employee’s take-home pay has been reduced
National Employment Standards by modernisation of an award, an application to
increase it to previous levels can be made to the
The 10 National Employment Standards (NES) are
FWC by the employee or by the union they belong
set out in the Fair Work Act. They set minimum
to. A take-home pay order can be made to ensure
standards for employees’ pay and conditions.
that the person earns no less while remaining in the
All awards, agreements and contracts of full time
same job. However, such an order will not be made
employment (minimum of 38 hours of work) between
if the FWC finds that the workers under the award
employers and employees in the national industrial
have been adequately compensated in other ways
system must meet these minimum standards. They
for the reduction.
include maximum hours of work, flexible working
Modern awards generally cover employees in
arrangements for parents, leave entitlements
jobs that have historically been covered by awards.
(such as sick leave, parental and annual leave),
For example, the terms of more senior positions have
and termination and redundancy pay. They also
traditionally been contained in other instruments.
include a requirement that employers must give a
Employers can exclude employees earning a
‘Fair Work Information Statement’ to all new
guaranteed income of more than $108 300 per year
employees. The statement contains information
(indexed annually) from modern award coverage.
about NES, modern awards, individual flexibility
Modern awards are reviewed by the FWC every
arrangements, termination of employment and the
four years, and minimum wage provisions are
role of the FWC.
reviewed annually.
The NES also cover casual employees, who
are entitled to unpaid compassionate and carer’s
Enterprise agreements under the Fair Work
leave, community service leave and a ‘Fair Work
Act 2009 (Cth)
Information Statement’. If the employee has been
Enterprise agreements may include a broader
employed as a casual for a substantial period of time,
range of matters than modern awards. Like awards,
the employee may be entitled to long service and
parental leave, and the right to request more flexible
work arrangements.
Research 15.1
Modern awards
Use the internet to research the FWC’s role in
The second half of the ‘safety net’ is the modern
creating fair workplaces through the National
award. Modern awards were created to establish a
Workplace Relations Systems, including
single set of minimum conditions for people working
‘aspects of a fair workplace’ and the internal
in the same industries or jobs across Australia.
resolution of disputes.
The process of ‘modernisation’ of previous awards
Reference http://cambridge.edu.au/
involved updating them to reflect current work
redirect/?id=6383.
environments, and in many cases their coverage
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CHAPTER 15 OPTION 6: WORKPLACE
agreements must provide entitlements at least as undertaken by the employer upon deciding
favourable as the NES (for example, a minimum four to make a major change to the enterprise that
weeks’ paid leave per year). affects employees.
Enterprise agreements between an employer • The agreement passes the BOOT test: each
and its employees must be approved by a majority employee covered will be better off overall than
of employees before being submitted to the FWC they would be under the relevant modern award.
for approval. Once the parties are satisfied with BOOT replaced the ‘no disadvantage’ test.
the draft agreement, the employer must ensure
that the employees have been informed of its terms New South Wales arrangements
and their consequences, and of the time, place and New South Wales enterprise agreements were
procedure for voting. A ballot is then held to approve
the agreement.
introduced under the Industrial Relations Act
1996 (NSW). As a result of the state’s referral
15
An enterprise agreement, made with or without of its industrial powers to the Commonwealth
union involvement, may apply to workers in a in 2009, through s 9B of the Industrial Relations
specific workplace (single-enterprise agreements) (Commonwealth Powers) Act 2009 (NSW), that Act
or at an industry level (multi-enterprise agreements). no longer applies to private sector employers and
A single-enterprise agreement requires a majority employees in New South Wales; since January 2010,
of employees to endorse it, and a multi-enterprise all employees of sole traders and partnerships, and
agreement requires a majority of employees of employees of constitutional corporations, have been
at least one of the employers to do so. The FWC covered by the federal industrial relations system.
can help certain low-paid employees and their However, the referral of powers does not include
employers negotiate a multi-enterprise agreement, the powers regarding state and local government
if it is in the public interest to do so. These include employers. Section 9A of the Industrial Relations
people working in child care, aged care, community Act 1996 (NSW) declares those employers not to
services, cleaning and security, who have often be national system employers. The awards and
lacked the bargaining power to negotiate for better collective agreements in place in the various
wages and conditions at the single-enterprise level. departments and agencies in state and local
A third type of enterprise agreement is a government continue to apply.
greenfields agreement , which covers future This means that the New South Wales IRC
employees of a new enterprise to be established continues to have jurisdiction in relation to the
by one or more employers. The agreement is made
when it has been endorsed by each employer and by
the trade union or unions that cover the prospective
employees.
greenfields agreement
an agreement created to cover prospective employees of
a new enterprise
Once the agreement has been approved
by the parties, it is then submitted to the
commission. The agreement must meet certain
conditions to be approved by the FWC. These
include:
• The parties have come to a genuine agreement.
• The agreement has a specified expiry date, not
more than four years after approval.
• The agreement contains a dispute settlement Figure 15.6 The New South Wales IRC still has
procedure, a flexibility term, and a term jurisdiction in relation to the employment terms and
outlining the consultation procedure to be conditions of state and local government employees.
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CAMBRIDGE LEGAL STUDIES HSC
employment terms and conditions of state and local laws with respect to ‘conciliation and arbitration for
government employees. For the IRC to approve the prevention and settlement of industrial disputes
an enterprise agreement for those employees, extending beyond the limits of any one state’. This
requirements similar to those contained in the Fair means that the Commonwealth Government cannot
Work Act 2009 (Cth) operate: a majority of employees use legislation to regulate industrial relations
must vote for the agreement, the agreement must directly; it is limited to creating machinery for
comply with relevant state legislation (laws relating settling interstate industrial disputes.
to workplace health and safety, anti-discrimination As Commonwealth legislative power is limited
and workplace surveillance, for example), and it to interstate disputes, a large proportion of disputes
must pass the ‘no net detriment’ test (s 35(1)(b)). still need to be settled at state level. This is why the
states have historically shared industrial relations
workplace surveillance power with the Commonwealth, and why there were
an employer’s use of technology such as cameras,
computers and tracking devices to monitor employees separate industrial law systems in place.
Section 5 of the Constitution Act 1902 (NSW) gives
The ‘no net detriment’ test is similar to BOOT. the New South Wales Parliament the power to make
The agreement must not put employees at a laws for the ‘peace, welfare and good government’
disadvantage compared with the state or federal of the state. The New South Wales Government
awards that would otherwise apply. This means therefore has the power to pass legislation that aims
that employees cannot make an agreement that to improve the welfare of employees and employers
removes or reduces award conditions. For example, (such as awards) and to establish procedures for the
they cannot make an agreement that provides lower resolution of industrial disputes.
pay or fewer annual leave days than are provided by As both federal and state governments can
the relevant award. The IRC must also ensure that create law in the same area, conflicts sometimes
the parties understand the effect of the agreement occur. If conflict does occur, federal laws will prevail
and that no duress was involved in signing it. (Australian Constitution s 109). This situation has
created confusion, and some employers have found
it difficult to determine which award or agreement
Review 15.8
applied to their workplace. This has often had to be
resolved in court.
1 Describe the changes made to the
The federal government has continued to
industrial statutory framework under the
extend its ability to legislate in areas that were
Fair Work Act 2009 (Cth).
traditionally considered part of state jurisdiction, in
2 Discuss the legislative powers retained
order to remove some of the cost, inefficiencies and
by New South Wales after referral of
inconsistencies of two systems of industrial relations
industrial powers to the Commonwealth.
laws and dispute resolution structures; the states
3 Explain the aim of BOOT and the ‘no net
have cooperated by relinquishing much of their
detriment’ test. Why is it necessary to
industrial relations power to the federal government.
have these two tests?
Industrial relations
Industrial relations is a term used to refer to the
relationship between employers, employees, the
15.4 R
egulation of the government and trade unions. These four groups
workplace are the major stakeholders in the industrial relations
process, but it would be reasonable to argue that
Industrial relations: the state and everyone is a stakeholder, because any industrial
federal framework change or dispute could have an impact on everyone
Commonwealth and state powers in the community.
Section 51(xxxv) of the Australian Constitution gives
the Commonwealth Government the power to make
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CHAPTER 15 OPTION 6: WORKPLACE
industrial relations who are undertaking the enterprise bargaining are
the relationship between employers, employees, the
genuinely attempting to reach an agreement. The
government and trade unions
action can be legally stopped if it involves injury to
people, damage to property, or the unlawful taking
The New South Wales IRC and Fair Work Australia
or use of property. Protected industrial action is not
were established to help resolve such disputes. The
available to employers unless they are taking action
Fair Work Act 2009 (Cth) created Fair Work Australia
in response to employees’ industrial action (Fair
(a national tribunal that replaced the AIRC and
Work Act 2009 (Cth) s 410 and s 411).
which has been renamed the FWC), the Australian
The FWC can stop an unprotected action. Action
Fair Pay Commission (which set minimum wages
is unprotected if the bargaining period has been
and is no longer operating) and the Workplace
Authority (which approved collective agreements
made before 1 July 2009 and assessed them using
suspended, if it does not comply with FWC orders
or if it is taken in support of claims that cannot 15
be lawfully included in an agreement. If parties
the ‘no disadvantage’ test). An industrial dispute can
continue with the unprotected action they may face
concern various matters, including unfair dismissal,
severe legal consequences, which are enforceable
discrimination or workplace health and safety.
by the courts.
The Fair Work Act also created the FWO, an
The FWC can stop or suspend protected action
independent statutory body. The FWO investigates
if it threatens to harm the economy or threatens the
complaints and ensures compliance with
safety of individuals, or if it believes that the parties
Commonwealth legislation. The FWO provides
would benefit from a cooling-off period (Fair Work
information regarding pay, leave and other
Act 2009 (Cth) s 418 and s 419). The Minister for
entitlements.
Employment can also terminate protected industrial
When employers and employees are in dispute
action on the grounds that it threatens people’s
they may engage in industrial action. Employers,
safety or threatens the economy.
as part of their industrial action, may lock out
The FWC acts to ensure that the bargaining
their employees (keep them from entering their
process complies with industrial laws. In order
workplace) until they agree to certain terms. They
to start a claim in support of a new enterprise
may stand down their employees, or refuse to pay
agreement after an existing agreement has passed
them. Employees may choose to go on strike, do only
its expiry date, employees must first obtain an order
the bare minimum required (‘work to rule’), reduce
from the commission allowing them to proceed.
their productivity (‘go slow’) or form a picket line. All
of these employee actions aim to exert pressure on
the employer to agree to the employees’ demands.
stand down strike
to suspend an employee employees’ organised
from the workplace without withdrawal of labour
pay, usually temporarily
picket line
a line of striking union members forming a boundary
outside or near their place of employment, which they ask
others not to cross
When employers and employees enter into
negotiations to create a new enterprise agreement
they can engage in protected industrial action.
Protected industrial action is a lawful action, and
can be taken when an existing agreement has
expired, the industrial action is in support of a
new enterprise agreement and the other party has Figure 15.7 Striking workers may engage in public
been given the required notice, or when parties actions to advertise their grievances.
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CAMBRIDGE LEGAL STUDIES HSC
A protected action ballot must be held to endorse ‘Award/agreement free employees’ (those who
industrial action. are not covered by either a modern award or an
Disputes under modern awards and enterprise enterprise agreement) may make agreements that
agreements will be resolved according to the dispute vary the operation of the NES about a limited number
resolution procedures contained in the award or of matters, summarised by the FWO as:
agreement.
• averaging of hours of work
• the cashing out or taking of paid annual leave
Review 15.9
• the substitution of public holidays
1 Explain Australia’s system of workplace • extra annual leave in exchange for forgoing an
law as it arose under the Australian equivalent amount of pay
Constitution. • extra personal/carer’s leave in exchange for
2 Outline the purpose of industrial action forgoing an equivalent amount of pay.
on the part of employees or an employer.
3 Identify the conditions for industrial The FWC makes minimum wage orders for
action that are protected under the Fair employees who are not covered by a modern award.
Work Act 2009 (Cth).
4 Why would the FWC act to stop either a Dispute resolution mechanisms
protected or unprotected action? Industrial disputes can arise over issues such
as working conditions, pay and entitlements,
and discrimination. Mechanisms used to resolve
disputes centre on mediation and other consensual
Negotiations between employers forms of resolution. If disputes cannot be resolved,
and employees the matter will move to arbitration.
Negotiations that take place between employees Under both the Fair Work Act 2009 (Cth) and
and employers about the type of work and working the Industrial Relations Act 1996 (NSW), all awards
conditions are known as workplace bargaining. and agreements must contain dispute resolution
When all employees within the workplace are united procedures (the New South Wales legislation
on a series of workplace issues, they can negotiate exempts businesses employing fewer than 20 people
with their employer from a position of strength, and from this requirement).
are therefore better able to achieve their desired Dispute resolution processes aim to help
results. Enterprise agreements reached through disputing parties come to a peaceful and mutually
collective bargaining by employees or their union
representatives often contain conditions that are
more generous than the conditions in awards.
When an individual employee is hired, the
employer will usually present a contract of
employment to be signed by both parties, specifying
working hours, pay rates, leave entitlements, and
so on. The terms of the contract cannot be less
favourable than the wage rates or conditions set
out in the modern award for that occupation or the
applicable enterprise agreement (if the workplace
has an enterprise agreement). The employer should
tell the employee which award or agreement they
will be working under. Most, but not all, employees
are covered by a modern award. However, no Figure 15.8 Mechanisms used to resolve disputes
employment contract can provide for entitlements centre on mediation and other consensual forms of
less favourable than the NES. resolution.
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CHAPTER 15 OPTION 6: WORKPLACE
beneficial agreement through consent or agreement, The Fair Work Commission (FWC)
not through arbitration. Consensual forms of dispute The FWC is an independent body which has a wide
resolution include conciliation and mediation. These range of powers: dispute resolution, enterprise
can take place between an individual employee and bargaining, industrial action, determining the
their employer or could involve a group of employees safety net for minimum wages and employment
negotiating with their employer. conditions, termination of employment and any
other industrial matters. When parties to a dispute
mediation
a form of alternative dispute resolution in which a neutral cannot resolve the dispute, they may take the matter
third party assists the disputing parties in reaching an to FWC. The role of FWC is in each case determined
agreement
by the dispute resolution procedures set down in
Conciliation and mediation are favoured over
the relevant agreement or award. Generally a FWC
representative will first discuss the issues in dispute
15
arbitration for a number of reasons. Arbitration with both parties and encourage them to come to
can be extremely costly and time-consuming, a consensual agreement through mediation or
and can involve direct confrontation between the conciliation; they may also make a recommendation.
employee and employer. This may lead to increased The FWC can also assist with disputes arising
antagonism. By contrast, in mediation both parties under the general protections provisions of the
are encouraged to put forward their claims and Fair Work Act, and with disputes arising during a
concerns, suggest solutions, and discuss proposed bargaining process.
terms and conditions. This allows the parties to
see themselves as an integral part of the dispute- The Fair Work Ombudsman (FWO)
settling process rather than as observers. Parties in The FWO has jurisdiction to deal with complaints
a workplace dispute may feel less inclined to honour about pay and entitlements, employers breaching
an agreement that they feel has been imposed upon the law, and discrimination. Again, the person
them by an outside third party than one in which they making the complaint must be covered by the
have been participants. Mediation allows disputing national system. The FWO strives to resolve disputes
parties to exercise their rights and take a key role in through consensual processes in the workplace. The
the process. On the other hand, sometimes parties ombudsman is supported by Fair Work Inspectors,
who have been involved in a long-running dispute whose role is to investigate complaints by starting
find it easier to accept a solution imposed by an with fact-finding, then assisting in voluntary
impartial outsider than to compromise with each resolution and then, where necessary, proceeding
other. to a full investigation and mediation. If investigation
The effectiveness of consensual forms of dispute reveals that a party has broken the law, the inspector
resolution depends on the nature of the relationship can give the party notice to remedy the breach, and
between the parties. If the relationship is built on if the party fails to do so, the matter may go to court.
mutual respect, then consensual forms of dispute The Ombudsman may consider that breaches of an
resolution will be more successful than arbitration. award or other illegal conduct are so substantial
Consensual forms of dispute resolution are less that its findings may be referred to the Director of
costly to all parties concerned. Some of the costs Public Prosecutions (DPP). However, investigations
associated with the supervision and enforcement of by the Ombudsman are not criminal investigations,
parties’ obligations will also be reduced, as parties
are more likely to comply with an agreement that
they negotiated. Legal Links
Under the Fair Work Act, when a dispute first
arises, parties are to follow the dispute resolution See http://cambridge.edu.au/redirect/?id=
procedures as outlined in their award or agreement. 6384 for media releases about current
The initial discussion will usually be between the workplace investigations by Fair Work
employer and employees within the workplace. Inspectors.
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CAMBRIDGE LEGAL STUDIES HSC
and evidence presented by the Ombudsman to the legal consequences of that. Courts provide
the DPP cannot be used in any criminal action. certainty by establishing legal principles, clarifying
The DPP would have to undertake its own criminal legal questions, and identifying and resolving
investigations. industrial issues as they emerge, ensuring that the
law continues to reflect community standards and
New South Wales Industrial meets the changing requirements of the federal or
Relations Commission (IRC) state industrial system.
The New South Wales IRC investigates alleged
breaches of state industrial legislation, awards The Fair Work Commission (FWC)
and enterprise agreements. It will first order a The FWC is the federal industrial relations tribunal.
compulsory conference between the parties, then It can resolve disputes including those arising in
conciliation. It will only use arbitration to deal with the course of enterprise bargaining and industrial
an industrial dispute if conciliation is unsuccessful. action, and can adjudicate matters involving
Its orders are binding. breaches of the law.
Federal Court and Federal Circuit Court
Research 15.2
The Industrial Relations Court of Australia was
1 Go to http://cambridge.edu.au/ established in 1993 as a superior court equal in status
redirect/?id=6385. to the Federal and Family Courts. The Workplace
a Discuss the dispute resolution Relations Act 1996 (Cth) (now repealed) transferred
procedures outlined. the jurisdiction of the Industrial Relations Court
b Apply the sample disciplinary to the Federal Court of Australia. The Industrial
procedure to the ‘Best employment Relations Court continued to exist at law as a court
practice – case studies’ provided. administered by the Federal Court until 2006.
2 Using the internet, research the The Fair Work Act 2009 (Cth) created a Fair Work
latest hearings and findings of the Division of the Federal Magistrates’ Court (now the
Royal Commission into Trade Union
Governance and Corruption about one
trade union as reported by the media.
Review 15.10
1 Explain why there is an emphasis on
consensual forms of dispute resolution
rather than arbitration.
2 Summarise the functions and powers
of the various federal and state bodies
that can help parties to settle industrial
disputes.
Roles
Courts and tribunals
Courts and tribunals still play a significant role in
the resolution of industrial disputes. The use of a
court as the final arbitrator lends weight to the Figure 15.9 Small claims matters (under $20 000) can
decision, and parties that do not comply will face be settled in the Federal Circuit Court.
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CHAPTER 15 OPTION 6: WORKPLACE
Federal Circuit Court) and a Fair Work Division of the • criminal prosecution of workplace health and
Federal Court. This change has made some aspects safety offences under the Work Health and
of industrial dispute settlement at the federal level Safety Act 2011 (NSW), which replaced the
more combative and adversarial. For example, Occupational Health and Safety Act 2000 (NSW).
when a union takes illegal industrial action despite
being ordered by FWC to cease the action, the Government organisations
employer may take the matter directly to the Federal New South Wales Industrial Relations
Magistrates’ Court. Commission (IRC)
The Fair Work Act also provides for certain The role of the New South Wales IRC is not limited
matters to be heard as small claim matters (not more to hearing disputes. It also establishes employment
than $20 000) in the Federal Circuit Court (Fair Work
Act 2009 s 548). This allows employees to pursue the
conditions and wages by making industrial awards
and approving enterprise agreements for those
15
recovery of unpaid entitlements or compensation. employees in the state system.
These proceedings are relatively informal: a party In its administrative role, the IRC can:
may not be represented by a lawyer without the • review awards and enterprise agreements,
court’s permission, the court is not bound by the rules ensuring that they comply with the ‘no net
that normally control the admissibility of evidence in detriment’ test and contain no discriminatory
legal proceedings, and it can investigate the matter provisions
as it sees fit. The small claims tribunal minimises • revise awards to comply with legislation that
costs and is less intimidating for many people. has been enacted
• register and regulate employer associations and
Industrial Court of New South Wales employee organisations (such as trade unions),
The Industrial Court of New South Wales exercises including through proceedings for enforcement
the judicial function of the New South Wales IRC. It of rules and challenges to the validity of rules.
has the same status as the state Supreme Court, and The New South Wales IRC plays a significant role
has an appellate jurisdiction (to hear appeals from in supervising enterprise agreements for state and
decisions of lower courts on industrial matters). It local government employees in New South Wales.
has exclusive jurisdiction with respect to industrial In addition to ensuring that agreements meet the
matters – in other words, it is the only court that can ‘no net detriment’ test, it must also consider the
arbitrate industrial disputes. The types of matters it appropriateness of the negotiation process. The IRC
hears include: has to ensure that the parties understand the effect
• unfair contracts claims of an agreement and that no duress was involved in
• offences under the Industrial Relations Act 1996 the signing of the agreement.
(NSW)
• proceedings for breaches of awards and The Fair Work Commission (FWC)
agreements, including underpayment of The role of the FWC is to oversee the federal
entitlements industrial relations system. In addition to its judicial
• superannuation appeals functions, it has an administrative role and can:
• unfair dismissal claims • vary awards
• make minimum wage orders
• review and approve enterprise agreements for
Review 15.11 all workplaces in the federal system, ensuring
that they meet the BOOT test
1 Briefly outline the role of courts and • assist with the modification of agreements
tribunals in governing industrial relations. when a business is transferred or a new
2 Explain the judicial role of the FWC and business is created
the New South Wales IRC and how they • provide assistance and advice about the
act to protect employee entitlements. industrial relations laws, through its telephone
helpline.
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CAMBRIDGE LEGAL STUDIES HSC
The Fair Work Ombudsman (FWO) A union usually represents employees from
Section 682(1)(a) of the Fair Work Act 2009 (Cth) similar occupations or industries. The union may
states that the functions of the FWO are to promote discuss working conditions, awards and enterprise
‘harmonious, productive and cooperative workplace agreements with employers. All employees have
relations’ and to ensure compliance with the Act, the right to join a union if they wish and many
awards, agreements and orders. It does this by occupations and industries have their own union.
providing education, advice and assistance to One such union is the Electrical Trades Union
employees, employers, outworkers and registered (ETU). Other unions represent a broad range of
organisations of employees and of employers. employees within diverse work places. For example,
The Ombudsman publishes information on the the Construction, Forestry, Mining and Energy Union
federal industrial relations system, and has offices (CFMEU) represents people working in the building,
throughout Australia as well as an online advisory timber, mining and energy production industries.
service. The FWO encourages employees and The Australian Workers Union (AWU) was formed
employers to take the initiative and try to resolve to represent the interests of shearers and miners,
complaints themselves. but later expanded into manufacturing and today
covers employees in aviation, food processing and
outworker retail areas as well as its traditional industries.
an employee who works at home or another place
besides the premises of their employer, or an independent
Unions may act together in pursuit of a common
contractor in the textile, clothing or footwear industry goal. The NSW State Wage Case of 2009 ([2009]
who works at home or at other premises NSWIRComm 120) is one such example. In this case,
Unions NSW applied to the New South Wales IRC for
The Ombudsman has the power to investigate a general wage increase in awards. Unions NSW is
and enforce breaches of the Act and of awards, the state’s peak body for unions, and is made up of
agreements and orders. For example, Fair Work more than 67 unions.
Inspectors can inspect and copy documents at an
employer’s premises. peak body
an association made up of a number of organisations
The Ombudsman can represent employees that have similar interests and aims; it sets policy
or outworkers in proceedings before a court or the and coordinates common activities for its member
organisations
FWC.
The Australian Council of Trade Unions (ACTU)
Research 15.3 is the national peak body for all Australian unions. It
was formed in 1927. The ACTU represents Australian
Go to the FWC website at http://cambridge.
labour organisations internationally, advocating and
edu.au/redirect/?id=6383 and complete the
articulating positions on human rights and other
following tasks.
issues. The ACTU has been influential in campaigns
1 Find the National Minimum Wage Orders.
to further the rights of workers within Australia.
2 Investigate how the FWO can help
Unions may act as lobby groups to exert pressure
employees and young employees
for legislative and government policy reforms. The
starting work for the first time.
ACTU continues to lobby for better parental leave for
both fathers and mothers; prioritises superannuation
and ensures that employee contributions go to funds
Trade unions that are low-fees, non-profit and which deliver good
returns; and campaigns for increased protection for
Trade unions are employee organisations. A group
overseas workers employed under temporary work
of people has greater bargaining power than
visas (457 visas).
individuals, and unions have been instrumental in
achieving better workplace safety, superannuation,
a 38-hour working week, penalty rates, rest breaks
and other benefits for employees.
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CHAPTER 15 OPTION 6: WORKPLACE
Employer associations Other NGOs
Employer associations are composed of employers Safe Work Australia is an independent statutory body
in the same or related industries. Employer whose main aims are to promote safer workplaces
associations can represent their members during and improve workplace health and safety.
the negotiation of a new enterprise agreement. The Human Rights Council of Australia is a
Associations may also present a case to the relevant private organisation that monitors and publicises
industrial relations commission or court in support the performance of governments, and provides
of their members’ interests. Employer associations links between Australian human rights activists
include the Australian Chamber of Commerce and and those in other countries. It works to promote
Industry, the Chamber of Commerce (NSW), the the development of Australian policy in human
Business Council of Australia (BCA) and Master
Builders Australia.
rights, which includes workplace issues such as
discrimination and safety.
15
The National Women’s Justice Coalition
Non-government organisations (NGOs) promotes women’s equality before the law, through
Non-government organisations (NGOs) may education and lobbying.
provide training and education to raise awareness The International Labour Organization (ILO),
of issues involving industrial relations, employment an agency of the UN, aims to encourage member
conditions and workplace safety. They may also nations to undertake common action in the protection
engage in research and make submissions to of workers’ rights around the world. It drafts and
government and other appropriate bodies on these oversees international labour standards, and seeks
issues. Some may undertake political campaigns to to promote compliance with these standards.
pressure the government.
An NGO may have been established by statute
Legal Links
and/or may receive government funding, but
nonetheless is not affiliated with any government To find out more about Safe Work Australia, go
and excludes government representatives from its to http://cambridge.edu.au/redirect/?id=6386.
membership and governance. A national NGO may
endure through many changes of government.
Australian Human Rights Commission The media
(AHRC) The role of the media and associated technologies
The Australian Human Rights Commission (AHRC) has changed over the past decade. New and
is an independent statutory organisation established innovative communications technologies have
in 1986 to act as the human rights ‘watchdog’. It meant that all stakeholders within the workplace
administers federal anti-discrimination statutes – are better informed and better placed to gather
Age Discrimination Act 2004 (Cth), Disability support for their cause with both the public and the
Discrimination Act 1992 (Cth), Sex Discrimination Act government. Employer associations and trade unions
1984 (Cth) and Racial Discrimination Act 1975 (Cth) – use the internet extensively to inform the public
and has powers under the Fair Work Act 2009 (Cth) to about current claims and negotiations. Unions, in
make submissions to the FWC in relation to reviews particular, use the internet to survey employees
of modern awards and enterprise agreements. If regarding hours of work and workplace conditions,
a provision of an award or agreement requires a and have used the information as the basis for test
person to do something that is illegal under one of cases. The IRC and the FWC have also effectively
the anti-discrimination Acts, the FWC must vary the used these technologies to inform employees and
award or agreement. employers about their rights and obligations under
The AHRC can accept complaints about workplace law, and to provide additional support
discrimination in the workplace, and generally will services.
conciliate, although it can also refer matters to the Use of the internet as a method of communication
Fair Work Division of the Federal Court. and a source of information within the workplace has
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CAMBRIDGE LEGAL STUDIES HSC
given rise to various issues. One issue is the extent
to which an employer can and should be allowed Review 15.12
to monitor and/or regulate employees’ use of the
internet while at work. 1 Briefly outline the role of government
If employers don’t monitor email and internet organisations, unions, industry groups
traffic, they may be at risk. In the case of sexual and NGOs in industrial relations.
harassment , if the employer has not taken 2 Critically evaluate the role of the media
reasonable steps to prevent offensive material being in industrial relations.
distributed, they may be held liable. A second issue 3 Discuss whether employers should be
is the growing number of employers who regularly able to monitor their employees’ social
check employees’ and prospective employees’ media.
Facebook pages, and how this information can 4 Do employers have the right to penalise
influence employee–employers relationships. employees for what they may release via
Releasing inappropriate or ill-conceived statements the internet?
via social media may adversely affect the career of
the individual.
Remuneration
sexual harassment
unwelcome and uninvited behaviour of a sexual nature,
Remuneration means an employee’s salary package,
which is likely to intimidate, humiliate or offend the which can include pay, superannuation, share offers,
person it is directed to educational expenses, and car and rental assistance.
The remuneration package must satisfy the NES as
Employees using the internet at work for private to minimum award rates of pay and entitlements.
correspondence and web browsing may not be It may also include an ‘incentive package’ that is
aware that their activity may not be protected from based on the employee’s performance.
scrutiny by their employer. There is no common law Many employers now bundle a variety of services
right to privacy in Australia. The federal Office of the and benefits as part of a salary package in order to
Privacy Commissioner has developed guidelines for attract and retain staff. This means the employee
employers, so that they can ensure that their staff receives the benefit as part of their salary, rather
understand the employer’s expectations and what than a higher salary on which income tax would be
is permitted at work, and what will be done with payable. The financial advantage for employees is
any personal information collected as a result of that although they may sacrifice part of their salary,
monitoring. Finally, the use of workplace electronic this is more than made up by the tax benefit.
communication for purposes related to trade union
aims has been addressed in at least one Federal Court
case. In Australian Municipal, Administrative, Clerical
and Services Union v Ansett Australia Ltd (2000) 175 ALR
173, a union bulletin had been circulated by email.
Ansett did not like the contents of the bulletin and
sacked the union delegate for using the workplace
email server to distribute union material. The Federal
Court held that the dismissal was unlawful. Her use
of email to distribute the material was considered
‘reasonable’, given her role in the union and because
Ansett had ‘impliedly permitted’ it by permitting a
union working group to be established at the work
site. In addition, the court held that a union should
be entitled to provide information on the outcome of
a meeting to its members. Figure 15.10 A salary package may include benefits
such as a car.
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CHAPTER 15 OPTION 6: WORKPLACE
Superannuation Guarantee Scheme direct discrimination indirect discrimination
a practice or policy of a practice or policy that
The Superannuation Guarantee Scheme treating a person or group appears to be neutral
was established in the early 1990s under the of people less favourably or fair because it treats
than another person or everyone in the same
Superannuation Guarantee (Administration) Act 1992
group in the same position, way, but which adversely
(Cth). Its main aim is to ensure that employees, on on the basis of gender, affects people with a
retirement, will have adequate funds to support them. race, national or ethnic particular characteristic
origin, age, sexuality, etc.
The scheme relies on the employer contributing a
sum equivalent to a percentage of the employee’s
annual salary to a fund where it will be preserved
Legal responses
(that is, it cannot be touched by either the employer
The Anti-Discrimination Act 1977 (NSW) initially
or the employee) until the employee retires and has
reached ‘preservation age’ (this is determined by the
prohibited discrimination only on the grounds of 15
race, gender and marital status. Over the following
year of birth). The employee can also make personal
years a number of additional grounds have been
contributions to their own superannuation fund,
added and the Act has been modified, albeit in a
and these contributions can be accessed before
piecemeal fashion. Although it was found that the
retirement but will be subject to tax.
Act had been successful in changing community
attitudes and behaviour, the New South Wales IRC
15.5 C
ontemporary issue: argued that it needed to be extended to include
Discrimination new grounds for discrimination in order to remain
relevant and up to date. One change has been the
inclusion of discrimination against an individual
About the issue
who is the carer of another person (children, adults
The ideal of equality implies that all people should be
with disabilities or members of one’s immediate
treated equally before the law. The notion of equality
family). Another area of law reform is the removal
in workplace law centres on equality of opportunity.
of age barriers. It is illegal to sexually harass a
The ILO first articulated and advocated equal
volunteer during their voluntary work, but volunteers
opportunity and the adoption of anti-discriminatory
may not enjoy the same protection under the Anti-
work practices as a basic workers’ right in 1919. The
Discrimination Act as employees, as they are not
preamble of the Constitution of the ILO states its
considered ‘paid employees’. This is an area which
general intention to eradicate working conditions
is in need of review.
which cause ‘injustice, hardship and privation
Discrimination is illegal in New South Wales
to large numbers of people’. This general aim is
under the state and federal Acts listed in Table 15.1.
reflected in Australian anti-discrimination, equal
The Acts cover different grounds for discrimination.
opportunity and human rights legislation.
In the workplace, employers must treat all employees,
Discrimination is the unfavourable treatment
and anyone applying for a job, fairly – that is, on the
of a person or group relative to the way others are
treated. It may take the form of direct discrimination
or indirect discrimination. In the context of the Table 15.1 Discrimination laws
workplace, it is unlawful to discriminate between
Racial Discrimination Act 1975 (Cth)
employees on the basis of gender, race, pregnancy,
Anti-Discrimination Act 1977 (NSW)
national or ethnic origin, marital status or sexual
Sex Discrimination Act 1984 (Cth)
orientation, for example.
Australian Human Rights Commission Act 1986
discrimination (Cth)
unfavourable treatment of a person or group relative to Disability Discrimination Act 1992 (Cth)
the way others are treated
Industrial Relations Act 1996 (NSW)
Age Discrimination Act 2004 (Cth)
Fair Work Act 2009 (Cth)
Workplace Gender Equality Act 2012 (Cth)
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CAMBRIDGE LEGAL STUDIES HSC
basis of their individual merit, skills and suitability against someone because they have HIV/AIDS or is
for the job, not on the basis of irrelevant personal associated with someone who has HIV/AIDS.
characteristics.
Unfortunately, these Acts do not make Age discrimination
discrimination illegal. Rather, they provide that It is illegal to discriminate on the basis of age under
workplaces have to develop appropriate programs the Age Discrimination Act 2004 (Cth) and the Anti-
to ensure the absence of discrimination and take Discrimination Act 1977 (NSW). This legislation also
positive steps to promote equal employment makes it illegal to force an employee to retire because
opportunity for members of disadvantaged groups. of their age. There are specific types of employment
The major difficulty in ensuring that employers that are excluded from that due to the nature of the
comply with the legislation is the lack of an employment: judges and aircraft pilots, for example.
enforcement provision. Publicising the name of a
workplace that fails to comply is one punishment Equal employment opportunity
available, as is excluding the employer from Equal employment opportunity legislation was
obtaining government contracts. found in the former Part 9A of the Anti-Discrimination
Act 1977 (NSW) and in the Equal Opportunity for
Areas covered by the Acts Women in the Workplace Act 1999 (Cth) (EOWW Act).
Racism Part 9A of the Anti-Discrimination Act (which dealt
A person cannot be treated differently because of with equal opportunity in government employment)
their membership of a particular race or cultural was repealed by the Government Sector Employment
group. This is prohibited by the Racial Discrimination Act 2013 (NSW). The EOWW Act was renamed the
Act 1975 (Cth) and the Anti-Discrimination Act 1977 Workplace Gender Equality Act 2012 (Cth) by the Equal
(NSW). Opportunity for Women in the Workplace Amendment
Act 2012 (Cth); it now includes all employees in the
Sexism workplace. The Act specifically focuses on equal
A person cannot be treated differently simply remuneration between women and men, and aims
because she is a woman or he is a man. This form of to improve women’s ability to participate in the
discrimination, which includes sexual harassment workplace. The Act also recognises that the caring
and discrimination due to pregnancy, is illegal responsibilities of both men and women are central
under the Sex Discrimination Act 1984 (Cth) and the to gender equality in the workplace.
Anti-Discrimination Act 1977 (NSW).
equal employment opportunity legislation
laws requiring employers to ensure that people are
Discrimination on the basis of sexual not subjected to discrimination and to eliminate factors
orientation that restrict groups’ equality of opportunity in the
workplace
Both the Anti-Discrimination Act 1977 (NSW) and
the Fair Work Act 2009 (Cth) make it illegal to treat
someone less favourably because they are gay,
lesbian or bisexual. The Anti-Discrimination Act Equal pay for equal work
also makes it illegal to discriminate against someone Two test cases, the Equal Pay for Equal Work Case
because they have a relative or associate who is gay, (1969) 127 CAR 1142 and the Equal Pay for Work of
lesbian or bisexual. Equal Value Case (1972) 147 CAR 172, established
certain principles with respect to wages for women.
Disability discrimination In the first, the court held that women doing the same
Under both the Disability Discrimination Act 1992 work as men should receive the same pay. In the
(Cth) and the Anti-Discrimination Act 1977 (NSW), second, it held that different jobs of the same worth
it is illegal to discriminate against someone on the warrant the same minimum wage. This decision was
grounds of their disability. This includes intellectual, intended to address the difference between men’s
physical, sensory, psychiatric and learning and women’s pay resulting from the preponderance
disabilities. These Acts also prohibit discrimination of men in some jobs and women in others.
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CHAPTER 15 OPTION 6: WORKPLACE
The ‘worth’ of a job has no legal definition. Non-legal responses
However, one significant reason for the difference Numerous independent bodies and NGOs are
in pay between work traditionally regarded as ‘men’s involved in investigating and researching discrimi
work’ and that regarded as ‘women’s work’ is the nation issues, and in making recommendations
greater value placed on some types of work. One to government or providing policy advice to
way to determine whether two different jobs are of relevant departments. These organisations usually
equal value or worth might be to ask whether there concentrate their efforts in particular areas. The
are equal levels of skill required or responsibility NSW Council of Social Services (NCOSS) and
attached, under the same or comparable conditions. the Federation of Ethnic Communities’ Councils
The average weekly earnings of women remain of Australia (FECCA) are examples. Each seeks to
far less than men. In 2013, the gender pay gap was
17.1%, with men earning an average of $1532 per
represent the interests of disadvantaged people
and modify government policy to support social
15
week compared to women who earnt an average of justice issues. National Disability Services, the
$1270. In 2014, the gender pay gap worsened. The peak body for non-profit organisations that provide
average wage for men was $1587 per week compared services to the disabled and the disadvantaged, is
to women whose earnings were $1289, or pay gap another organisation involved in this kind of work.
of 18.1% (Workplace Gender Equality Agency Gender The Workplace Gender Equality Agency continually
Pay Gap Statistics – see http://cambridge.edu.au/ lobbies for pay equity through its publications and
redirect/?id=6387 for more information). has nominated an ‘Equal Pay Day’, which occurs
on different days each year. ‘Equal Pay Day’ is
Legal Links calculated on the number of extra days that the
average woman must work to receive the same pay
See http://cambridge.edu.au/redirect/?id= as a man.
6383 for a 2015 ABC News report about the Other organisations, such as Amnesty
2014 gender pay gap statistics. International, regularly campaign for the recognition
of human rights and the removal of discriminatory
practices. These bodies do not have the legal
In the Equal Remuneration Case (2012), the FWC authority to make or amend laws; rather, their role
found that the predominantly female workforce in tends to be limited to investigating complaints and/
social and community services was paid less for or making recommendations to government.
work of comparable value done in state and local
government agencies. This implies that industries
that are traditionally designated as ‘female’ will
continue to be paid less than those industries which
society considers as ‘male’. However, this gender
pay inequity is also found within the same industry.
In 2014, the highest gender pay gap could be found
in the Financial and Insurance Services industry
(29.6%), while the pay gap in the Accommodation
and Food services industry was 9%.
In a discussion paper released by the ANZ Bank
in 2015 (Barriers to Achieving Financial Gender Equity),
it was noted that women’s workforce participation
had increased by 25% but that women in 2015
were paid on average 18.8% less than men. Over
the working life of women they would be earning
substantially less than their male counterparts and
this would continue to have a detrimental impact on Figure 15.11 Equal Pay Day demonstrations in Berlin
their superannuation. on 20 March 2015
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CAMBRIDGE LEGAL STUDIES HSC
Responsiveness of the legal There exist some minimum protections contained
system within the Fair Work Act (s 65) and enterprise
To a certain extent the law has responded to agreements. Under the NES and other work
the need to protect individuals and groups from arrangements, employees can negotiate with their
discriminatory practices. Changing social attitudes employer more flexible work arrangements such as
and human rights movements of the 1960s, such as changes to hours of work for a parent or care giver.
the feminist and civil rights movements, provided the In 2011, the Commonwealth government
initial impetus to create legislation protecting rights. passed the Sex and Age Discrimination Legislation
Later Australia became a party to several United Amendment Act 2011 (Cth). This act strengthened
Nations (UN) conventions, including the Convention existing laws regarding sexual harassment in the
on the Elimination of All Forms of Discrimination workplace, including the use of new technologies
Against Women (CEDAW) and the Convention on in harassing individuals. The Commonwealth
the Elimination of Racial Discrimination (CERD). As government announced in 2012 that it intended
such, Australia was obligated to create domestic to consolidate anti-discrimination laws under the
legislation in line with these conventions. Human Rights and Anti-Discrimination Bill 2012
Legislatures have responded to a number of (Cth). This bill is yet to be passed.
recommendations which pointed out that loopholes In a highly publicised case (Rich v Price
still existed with respect to protection from Waterhouse Coopers 2014), Christina Rich claimed
discriminatory practices. The Anti-Discrimination that the ‘boys’ club culture’ that existed within the
Amendment (Carers Responsibilities) Act 2000 accounting firm Price Waterhouse Coopers limited
(NSW) amended the Anti-Discrimination Act 1977 her promotional prospects, undervalued her work
(NSW) to prohibit direct or indirect discrimination and openly discriminated against women. Ms Rich
in employment because of an employee’s and Price Waterhouse Coopers settled out of court
responsibilities as a carer for children, adults with for a substantial amount.
disabilities, or other (immediate) family members. In 2012, the Australian Human Rights Commission
The courts and various tribunals have also conducted a telephone survey (‘Working without
responded to protect individual rights in this area. Fear’) to investigate the nature and extent of
In Mayer v Australian Nuclear Science and Technology sexual harassment in the workplace. Responses
Organisation [2003] FMCA 209, the complainant to the survey indicate that sexual harassment in
wanted to work part-time after returning from the workplace continues to be a major issue, with
maternity leave. She was unable to return to work 25% of working women and 16% of men claiming to
on a full-time basis because she now had to care have been sexually harassed in the past five years.
for her child. Mayer was told that her position The commission also noted in the report that when
was only available as a full-time position and she individuals had made a complaint they were in
was dismissed. The company’s refusal to allow turn subjected to ‘negative consequences’, namely
her to work part-time was found to be indirect sex victimisation.
discrimination, on the basis that it is still often In 2011, the Commonwealth government amended
women who bear the brunt of child care in a family. both the Age Discrimination Act (the creation of an
Although the legal system has acted to remove Age Discrimination Commissioner) and the Sex
discriminatory practices within the workplace, Discrimination Act, which strengthened the rights of
it has not been entirely successful. For example, employees in the areas of family responsibilities and
more than 30 years after the Equal Pay for Equal
Work Case and the passing of numerous Acts making
discriminatory pay practices illegal, there are still Legal Links
pay and promotional disparities between men and
women. In addition, those who have family or carer Go to http://cambridge.edu.au/redirect/?id=
responsibilities continue to face inequities in the 6389 to read more about law reform issues
workplace, such as lack of professional development surrounding age barriers to work.
and promotion and overtime opportunities.
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CHAPTER 15 OPTION 6: WORKPLACE
sexual harassment through the use of social media.
Table 15.2 Deaths resulting from
In one of the first cases alleging age discrimination,
work-related traumatic injury
Fair Work Ombudsman v Theravanish Investments
Pty Ltd and Ors [2014] FCCA (2 April 2014), a worker Year Number of worker fatalities
who had been terminated from his employment 2012 231
because he had turned 65 was successful in suing 2013 202
his employer. 2014 197
2015 211
Conclusion 2016 182
The various discrimination laws were introduced in Source: Safe Work Australia, http://cambridge.edu.au/
response to changing social attitudes and values.
Recent workplace reforms have centred on removing
redirect/?id=6390
15
discriminatory practices involving work–family Table 15.3 Incidence rate of serious
issues and age discrimination, and introducing injuries
family-friendly initiatives in the workplace. However,
Serious injuries per 1000
there is a need for further workplace reforms in the
Year employees
area of parental leave.
2000–01 16.3
2006–07 13.6
Review 15.13 2012–13 11.1
2014–15 9.8
1 Define ‘discrimination’.
Source: Safe Work Australia, http://cambridge.edu.au/
2 Discrimination can occur on many
redirect/?id=6392
grounds. Reflect on the different forms of
discrimination and how the law protects
employees. workplace will differ very much from what is safe on
3 Explain the concepts of ‘equal a naval destroyer carrying nuclear weapons.
opportunity’ and ‘equal pay for equal According to Safe Work Australia, in 2014–15
work’. there were nearly 107 355 serious injuries (these were
4 ‘Equal pay for equal work has never accepted compensation claims and involved at least
really existed.’ Discuss this statement, one week absence for work).
providing examples to support your Since 2001 the incidence rate of serious injuries per
discussion. 1000 employees has steadily fallen (see Table 15.3).
5 Why does sexual harassment remain a For employers there is an enormous loss of
major issue within the workplace? production and profit; for the worker there is
the financial cost of medical treatment and lost
wages and the emotional ‘costs’ associated with a
serious illness or injury; for the government and the
community there are additional costs to the health
15.6 C
ontemporary issue: and welfare system, skills and productivity losses.
Safety Safe Work Australia estimated that the cost of
workplace injuries, disease and death in 2012–13 was
About the issue $61.8 billion or 4.1% of Australia’s GDP.
A safe workplace includes safe equipment, safe One issue of growing concern is the increase in
work systems and appropriate training procedures. stress-related or mental health claims. In 2008–09,
If there is a dispute, a court will decide what there was a total of 7970 claims; in 2011–12 this had
constitutes ‘safe’; the court’s decision is usually risen to 8045 and is expected to increase in the future.
determined by the relevant legislation and the Work health and safety (WHS) is a matter that
individual facts of the case. Therefore, workplace now falls within federal jurisdiction and is primarily
safety is a variable concept. What is safe in an office governed by federal legislation.
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CAMBRIDGE LEGAL STUDIES HSC
Legal responses In order to prove negligence, the plaintiff (the
The legal system has responded to workplace safety injured party) must prove three elements:
concerns through development of the common law • that a relationship existed between the parties
duty of care in relation to employer negligence, and (that is, the employer owed the employee a duty
through legislative reforms. of care)
• that there was a breach of that duty of care
Common law duty of care in that the employer did not provide a safe
Employee rights concerning safety were originally working environment (for example, the
protected under the common law. Employers had an employer failed to provide adequate training or
implied duty of care to their employees, to safeguard did not install a safety guard on a machine)
their health and safety. A breach of the duty of • that the plaintiff suffered damage as a result of
care resulting in injury to an employee in the the breach (that is, the worker was injured or
course of performing their duties amounts to the suffered a loss).
tort of negligence. The employer is negligent if it Employers’ duty of care includes a duty not
fails to: to expose employees to unreasonable hazards,
• employ competent staff and provide proper such as toxic chemicals, dust or disease-causing
supervision, which includes maintaining the agents.
skill levels of employees In certain instances, workers may find it difficult
• provide a safe working environment and to establish that they were owed a duty of care.
equipment In today’s workplace, the dividing line between
• provide a safe means of access to the workplace an employment relationship and a contract for
• ensure a safe system of conducting work. services is not always clear. For example, a business
Authority for these principles is found in the may contract with a hire company, which in turn
English case Wilsons & Clyde Coal Co. v English engages workers. The business might argue that
[1938] AC 57. it had no contract of any kind with the workers,
Employers’ obligations to their employees are and that liability for their safety rests with the hire
enforceable in tort. If someone owes a duty of care company. In another example, an employee might
to another person, and their action or omission be responsible for their hours or work and the
(failure to act) causes foreseeable loss or injury to manner in which the job is performed. The employer
that person, compensation in the form of damages might argue that the ‘control test’ points to an
may be payable to the victim. Medical bills, lost independent contract for services, not a contract
wages and the cost of retraining are some examples of service, and therefore there is no duty of care
of compensable losses. owed to the worker and no liability for loss suffered.
In such cases, the court would need to look at other
In Court
Paris v Stepney Borough Council [1951] AC 367
In this UK case, Mr Paris was already blind in one eye when he began working for the council as a
motor mechanic. It was not the practice to provide safety goggles to employees. Paris was hammering
at a rusty bolt when a shard of rust flew off and lodged in his good eye, resulting in total blindness. It
was held that the potential seriousness of the harm to Paris was much greater than for an employee
with sight in both eyes, and therefore the standard of the duty of care owed to him was higher. Knowing
his unique circumstances, the council should have provided him with safety goggles. The duty owed
by the employer to the individual employee must take into account the employee’s circumstances,
and therefore the standard of care owed may be greater.
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CHAPTER 15 OPTION 6: WORKPLACE
aspects of the parties’ relationship, such as whether NSW is a statutory body that administers the
the employee uses a business structure under which scheme and also investigates and monitors WHS
invoices are issued (the ‘economic reality’ test). issues. Under the Workplace Injury Management
and Workers Compensation Act 1998 (NSW), another
Statutory duties of employers role of WorkCover is to oversee the development
Statutory duties are found in a number of Acts. of appropriate injury management programs. All
In New South Wales, the principal Act governing employers are required to take out a WorkCover
workplace safety was the Occupational Health and policy if their annual payroll is $7500 or more. Even if
Safety Act 2000 (NSW). This was replaced by the Work an employer is exempt, they must provide assistance
Health and Safety Act 2011 (Cth). It contains general to an injured employee to manage their injury and
requirements which must be met at all places of
work in New South Wales. It covers employees,
support the injured employee when they return to
work. 15
contractors and self-employed people.
There is also associated legislation with other Development of statutory duties
legal requirements about WHS. This may be specific Workplace safety in New South Wales was originally
to an occupation, such as the Health Practitioner covered by individual Acts that were confined to
Regulation National Law (NSW). This also includes specific industries. These included:
statutes governing workers’ compensation and • Employers Liability Act 1880 (NSW) – this Act
injury management. Injury management programs gave ‘workmen’ who were injured in specific
that employers may be required to institute cover work situations or by fellow employees the
treatment, rehabilitation and retraining, to facilitate right to sue the employer for damages. The Act
the employee’s return to work. only referred to workmen who were manual
labourers; other types of workers were
workers’ compensation injury management
a compulsory insurance a program developed for excluded.
scheme paid into by an injured worker that • Factories and Shops Act 1912 (NSW) – this Act
employers to compensate, includes all aspects of their
through financial treatment, rehabilitation
required employers to follow specific work
payments, employees and retraining, and that is procedures or risk criminal penalties. The Act
injured at work; claims do aimed at facilitating their was written in general terms and was limited
not require proof of fault return to work
to factory settings, excluding the services
industries.
Some of the statutes providing for employer In the early 1970s, Lord Robens was tasked with
compensation for a worker’s injury or death are: inquiring into WHS issues in the United Kingdom.
• Workers Compensation Act 1987 (NSW) The Robens Report, published in 1972, concluded
• Workplace Injury Management and Workers that not only were there serious problems in the
Compensation Act 1998 (NSW) safety legislation at that time, but there was also
• Workers Compensation (Bushfire, Emergency a certain degree of worker apathy towards safety,
and Rescue Services) Act 1987 (NSW) and this was one of the primary causes of workplace
• Workers Compensation (Dust Diseases) Act 1942 accidents. The Robens Report considered that
(NSW). workers and management should work together to
Provisions for workers’ compensation have meet and improve the WHS standards prescribed
become mandatory in all workplaces, and employers in legislation. The aims included giving workers
who do not comply are subject to large fines. a greater responsibility for their own safety, and
Workers’ compensation in New South Wales is making employers subject to statutory duties to
governed by the Workers Compensation Act 1987 consult with employees about WHS measures.
(NSW). This Act introduced the WorkCover scheme These recommendations formed the basis for
of workplace injury insurance. The WorkCover legislative reform in the area of workplace safety in
premiums paid by an employer cover the costs of both England and Australia.
the compensation provided to employees if they are Within a decade of the publication of the Robens
hurt or become ill because of their job. WorkCover Report, workplace safety in New South Wales was
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CAMBRIDGE LEGAL STUDIES HSC
also being scrutinised. In 1981, the New South Wales
Government established a commission of inquiry
into WHS, chaired by NSW Industrial Magistrate
T.G. Williams. The Williams Report pointed out
that New South Wales workplace safety legislation
was inadequate and did not do enough to prevent
workplace accidents. The report recommended that
any new legislation must include specific employer
and employee duties and rights. In addition, it stated
that there had to be greater cooperation between
employers and employees in order to improve
workplace safety. The report introduced the notion
of individual workplace safety committees. More
importantly, it recognised that workplace safety
was the responsibility not just of the employer but Figure 15.12 In 2012–13 there were nearly 118 000
serious workplace injuries.
of everyone within the workplace.
Employees’ role in workplace safety safety representative or create a committee. The role
The Williams Report recommended the codification of the committee and/or representative is to consult
of common law in order to provide uniform workplace with the employer about risks to health and safety,
practices across all industries. A few years later, the and participate in decisions about appropriate
Occupational Health and Safety Act 1983 (NSW) was measures to be taken. Failure to consult can result
passed, codifying much of the law that had evolved in fines of $20 000 per individual or $100 000 for a
through the courts. Later reforms and amendments body corporate.
to the 1983 Act resulted in the Occupational Health The committee can investigate any matter that
and Safety Act 2000 (NSW). may be a risk to health and safety in the workplace.
A WHS entry permit holder has the legal authority
codification to enter a workplace to investigate a suspected
the spelling out of obligations in legislation
contravention of the Act. They can issue an
improvement notice (ss 90–102). If the individual
The Occupational Health and Safety Act 2000 who has been issued a notice fails to comply within
(NSW) introduced employees’ obligations to take the specified period they may incur a fine of $50 000
reasonable care for the health and safety of people (individual) or $250 000 (body corporate) (see s 193).
at their workplace and those who may be affected by Inspectors from the WorkCover Authority of New
their acts or omissions, and broadened employers’ South Wales can also visit workplaces and are
duty of care to those who are not their employees authorised to investigate a wide range of safety-
but are visitors to the workplace. Under this Act, related activities. Their powers include prohibiting
employers, employees and the self-employed are all any further work, copying and retaining documents,
obliged to take reasonable care to ensure the health seizing evidence and imposing on-the-spot fines for
and safety of those in the workplace. any breaches discovered (ss 156–190).
The object of the Work Health and Safety Act 2011
(Cth) was to create a nationally consistent framework Non-legal responses
to ensure the health and safety of workers and The ACTU continues to play a major role in lobbying
workplaces. governments to strengthen workers’ rights to a safe
These statutory duties reflect the common law workplace. The ACTU national WHS campaign
duty of employees to work with due skill and care. ‘Speak Up’ aims to educate employees regarding
Part 5 of the Act makes it mandatory for individuals health and safety issues; to better inform workers
and employers to consult with one another. To help about their rights, the role of the union in representing
facilitate this process, workers may elect a health and them and the role of WHS representatives; and to
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CHAPTER 15 OPTION 6: WORKPLACE
encourage workers to voice their concerns about perhaps the Work Health and Safety Act’s greatest
health and safety issues in the workplace. achievement.
Safe Work Australia is an independent statutory However, there are times when the legal response
body established in 2009 to improve WHS and is inadequate in protecting victims and their rights.
workers’ compensation throughout Australia. It The legal system has acted to make companies
provides advice to the government concerning WHS more accountable for damages to employees in the
issues. Safe Work drafted the Model Work Health course of their employment. There have been very
and Safety Act in 2012 in an attempt to ‘harmonise’ few prosecutions for safety breaches and very few
work, health and safety legislation around Australia. prosecutions have resulted in the personal maximum
To date, not all states and territories have enacted penalty of $300 000 and $1.5 million for the company
the Act and WHS legislation remains within both
federal and state jurisdictions.
being imposed (see s 32).
With the increasing number of asbestos victims, 15
court claims and growing public pressure, the
Responsiveness of the legal government enacted the James Hardie (Civil Penalty
system Compensation Release) Act 2005 (NSW). The Act
The introduction of reforms to WHS legislation and required Hardie to establish a compensation fund
the emphasis on preventative measures (such as which would provide monetary compensation
educating employees and employers, making them for future asbestos victims. The Act attempted to
more aware of workplace issues and imposing a protect future victims’ rights to compensation by
mutual responsibility on employers and employees creating a $4.5 billion fund, and included provisions
for workplace safety) have reduced the number of to stop Hardie from restructuring its operations to
claims and the severity of workplace injuries. distance itself from its manufacturing and mining
The government has enacted reforms to WHS divisions, thereby avoiding liability.
laws to satisfy the expectations of the community Unfortunately, the Act failed to properly protect
that businesses and individuals responsible for victims’ rights. Hardie was able to move its parent
causing injuries and or deaths in the workplace company to The Netherlands, separating itself
will be prosecuted and that these prosecutions from its Australian subsidiaries and its obligation
would also act as a deterrent. In response to these to establish a compensation fund. It was only after
expectations, the Work Health and Safety Act 2011 intense media coverage and public outcry that
(Cth) sets out a wide variety of penalties ranging Hardie shareholders approved the compensation,
from corporate and individual fines, to terms of and the Asbestos Injury Compensation Fund (ACIF)
imprisonment, to ‘adverse publicity order’ which was established in 2007.
may require the offender to ‘publicise, in the way Under the 2005 Act, James Hardie is obliged to
specified in the order, the offence, its consequences, place 35% of its operating cash flow into the ACIF
the penalty imposed and any other related matter’ (s to fund future compensation payouts to asbestos
236). The Act can also impose heavy penalties for victims. To date, James Hardie has contributed $718.1
non-compliance of orders and provides the regulator million to the ACIF, a sum below the requirements
with sweeping powers to investigate possible set out in the Act. Current compensation claims
breaches under the Act. It is the combination of the now exceed $2 billion. Despite the intense media
regulator’s investigation and prosecution powers coverage, legal battles and government intervention,
which has perhaps acted as a deterrent. the ACIF has proved to be unable to adequately
In addition, encouraging both employees compensate asbestos victims (see http://cambridge.
and employers to be responsible for making their edu.au/redirect/?id=6393).
own workplace safe has resulted in a reduction
in workplace injuries. By focusing on educating Conclusion
employees and employers on workplace safety, Workplace deaths and injuries have tragic
the importance of self-regulation and changing consequences for victims and their families. In
workplace culture to one which accepts that safety in addition, economic losses from work-related deaths,
the workplace is everyone’s responsibility has been injuries and disease impose a heavy burden on the
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CAMBRIDGE LEGAL STUDIES HSC
Australian economy. The total cost of workplace Legal responses
injury and disease is estimated at over $60 billion Resignation
each year. The cooperation of governments, unions
When an employee wishes to leave a job, they can
and employer associations has thus far proven to be
resign. The procedure to follow when resigning and
the most effective means of reducing the number of
the conditions imposed on resignation are usually
deaths, injuries and illnesses, although it has been
contained in an enterprise agreement or award, or in
argued that a greater willingness to impose statutory
the contract of service. Usually a person intending to
regulation of business is needed.
resign must give notice (that is, inform the employer
of their intention to leave the job). The employee may
regulation
a form of subordinate legislation, made up of a set of be required to give two to four weeks’ notice, or an
rules made under an Act on the legislature’s delegated amount of time that is seen as reasonable. Notice
authority (that is, by the executive, which is composed of
ministers and their departments), providing the technical is usually in writing, but it does not have to be. An
and administrative detail required by the Act employee who does not give reasonable notice may
be in breach of the contract of employment and
could be sued by the employer.
Review 15.14 Constructive dismissal occurs when a worker
resigns because conditions at work leave them no
1 Explain, in detail, what is meant by alternative but to do so. It may be conduct of the
safety in the workplace. Use examples to employer that is designed to force the employee to
illustrate your answer. resign. For example, a worker may resign as a result of
2 Describe the elements that must be sexual harassment at work, which the employer has
proved to establish negligence. failed to act upon and halt. Constructive dismissal
3 Define and explain the role of workers’ may entitle the employee to sue the employer for
compensation and injury management. wrongful dismissal or unfair dismissal.
4 Outline the history of the development of
work, health and safety legislation. wrongful dismissal unfair dismissal
termination of employment under the Fair Work Act
5 Discuss the development of employers’ that constitutes a breach 2009 (Cth), termination of
statutory duties in relation to work health of the employment employment for reasons
contract, an award or a that are ‘harsh, unjust or
and safety.
statute unreasonable’, as found by
the Fair Work Commission
15.7 C
ontemporary issue:
Termination of
employment
About the issue
Termination of employment may occur as a result
of the employee leaving a job of their own accord,
or the employer asking the employee to leave. It can
occur in a number of ways:
• resignation
• retirement
• dismissal
• retrenchment.
Figure 15.13 Many Australians now work past their
retirement ages, usually as part-time or casual
employees.
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CHAPTER 15 OPTION 6: WORKPLACE
Retirement employee, and assistance in the form of retraining
A person retires when they voluntarily leave a job, or additional training.
usually due to age or health issues. Over the last Under s 388 of the Fair Work Act 2009 (Cth),
few years the Australian Government has attempted businesses employing fewer than 15 employees are
to encourage individuals to continue working by covered by the Small Business Fair Dismissal Code.
removing the statutory retirement age for many Summary dismissal or dismissal without notice may
areas of employment. Some areas of employment be considered fair if the employee committed fraud,
do have mandatory retirement ages: judges (70 years theft or violence. Under the code, all other dismissals
of age) and aircraft pilots (65 years), for example. may be considered fair if the employee was warned
Many Australians now choose to continue to work and given the opportunity to respond to the warning
into their sixties, moving from full-time to part-time
or casual employment.
and correct the problem.
15
Unfair dismissal
Dismissal If a dismissal is harsh, unjust or unreasonable, the
Dismissal with notice employee can file a claim of unfair dismissal with
An employer can dismiss an employee with notice, the FWC (or the New South Wales IRC if they are a
provided the dismissal is not discriminatory, unjust, state or local government employee in New South
harsh or unreasonable. If the FWC is asked to look Wales). Remedies available under the Fair Work
at a dismissal, it must take into account whether Act 2009 (Cth) include reinstatement, in which the
the employer had a valid reason, related to the employee is re-employed. Monetary compensation
employee’s ability or behaviour, including WHS may also be sought.
considerations, and whether the employee was
advised of that reason. Unlawful termination (adverse action
The period of notice of dismissal that must be involving dismissal)
given is usually in the contract of employment, Unlawful termination of an individual’s employment
award or enterprise agreement. For casual workers may result in the employee making an adverse action
the period of notice may be one hour; for other complaint.
workers it may be two weeks or more. An employer Section 772 of the Fair Work Act 2009 (Cth) prohibits
may choose to pay an employee who is dismissed for dismissal of an employee on the following grounds:
the period of notice of the dismissal. • temporary absence from work due to certain
illnesses or injuries
Dismissal without notice • trade union membership or participation
Dismissal without notice is also referred to as • non-membership of a union
summary dismissal or instant dismissal. Under • acting as, or seeking office as, an employee
common law, an employer can summarily dismiss an representative
employee under any of the following circumstances: • filing a complaint or action against an employer
• the employee is extremely incompetent involving alleged violation of laws
• the employee has committed an act of serious • race, gender, sexual orientation, age, disability,
misconduct marital status, carer’s responsibilities,
• the employee has acted in a certain way, pregnancy, religion, political opinion or
despite being warned not to do so. national origin
In the last example, the number of warnings • absence from work during parental or maternity
required varies according to the usual practice of leave
the employer, and the seriousness of the conduct. • temporary absence from work for the purpose
Each time a warning is given (usually in writing), of voluntary emergency service.
the employer is required to make it clear that the If a private conference between employer and
employee’s action was unacceptable, and to provide employee, initiated by FWC, is unsuccessful in
counselling for the worker. The counselling should resolving the matter, the employee can apply to the
include an explanation of what is expected of the FWO or the Federal Court.
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CAMBRIDGE LEGAL STUDIES HSC
Retrenchment The Corporations Law Amendment (Employee
Retrenchment occurs when an employee loses Entitlements) Act 2000 (Cth) was passed to make it
their job because there is no longer a job for that illegal for companies to alter corporate structures,
employee to do. When the job that person used to their accounts or their procedures in a way that
do disappears, the employee becomes redundant. would allow them to avoid paying their workers’
Redundancy has become a major area of dispute, entitlements.
as the real reason for the loss of jobs in an economic In 1984, the AIRC handed down a decision
downturn may be the need to reduce costs. regarding redundancy. This decision is referred to
as the Termination, Change and Redundancy Case
retrenchment (1984) 8 IR 34. Employers of more than 15 workers
the loss of a job because there is no longer a job for the
employee to do must consult with staff if the introduction of new
technology will reduce the number of workers
There is protection for redundant employees in needed and thus lead to redundancies. The AIRC
both federal and state legislation. Section 119 of the decided that there should be a minimum redundancy
Fair Work Act 2009 (Cth) sets out minimum rates of ‘package’. A redundancy package may include
redundancy pay. monetary compensation, assistance in finding
Section 14 of the Employment Protection Act 1982 other employment, retraining and counselling.
(NSW) gives the NSW IRC wide-ranging powers It also held that, in addition to the usual period
where state or local government employees are of notice of dismissal, a worker should be given
retrenched. four weeks’ notice that they will be retrenched.
In the late 1990s, over 3000 Australian workers Retrenched workers may be given one paid day of
lost an estimated $30 million of their entitlements, leave during each week of notice in order to look for
along with their jobs, because their employers another job. Employees who are over 45 and have
went bankrupt and had insufficient capital to pay worked for the employer for two or more years can
the employees their entitlements. Unions agitated be given one week’s extra notice as well as the four
strongly for both the state and federal governments to weeks’ retrenchment notice. Allowing for this extra
establish some means to protect worker entitlements. notice for those aged over 45 years was considered
Today, when a firm is facing bankruptcy, employee necessary because those individuals may find it
entitlements are one of the first obligations that more difficult to secure another job.
must be protected. Employees who have lost their The FWO has now taken over the role of
jobs as a result of their employers’ bankruptcy investigating complaints regarding unpaid
prior to 2012 may apply to the General Employee employment entitlements. If the disputes cannot be
Entitlement and Redundancy Scheme (GEERS) for resolved, the worker can make an application for the
basic entitlements such as unpaid wages, annual recovery of the unpaid entitlement.
leave and long service leave, and up to 16 weeks’ Industry-specific employee redundancy
redundancy entitlement. Workers who have lost entitlements are contained within the relevant awards
their jobs due to their employers entering into and enterprise agreements. Redundancy payments
liquidation or bankruptcy after 2012 must apply to the in the specific awards and agreements reflect the
Fair Entitlements Guarantee (FEG). The FEG created number of years worked and current salary. The
under the Fair Entitlements Guarantee Act 2012 (Cth) amount owed depends on the length of service – the
provides a ‘safety net’ scheme for workers who have minimum amount is four weeks’ pay (equivalent to
been made redundant and establishes maximum one year of service) and, depending on the individual
entitlements for workers. Under the FEG workers are agreement, the maximum payment could be as much
entitled to up to 13 weeks of unpaid wages, unpaid as 60 weeks (recognising up to 20 years of service )
annual and long service leave, payment in lieu of (see Pernod Ricard Winemakers Pty Ltd [2015] FWCA
notice (to terminate employment) of up to five weeks, 2923 regarding redundancy entitlements).
and redundancy pay (a maximum of four weeks per Businesses employing 15 or fewer employees
full year of service). Employees who wish to lodge a are excluded from redundancy legislation, meaning
claim can do so online (FEG Online Services). they do not have to provide redundancy payments.
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CHAPTER 15 OPTION 6: WORKPLACE
There have been suggestions that larger workplaces The government continues to create and amend
should also be excluded from making redundancy legislation to protect the rights of employees and
payments, due to the financial burdens such employers, adapting to the changing needs of
payments place on employers. industry, workers and the community while satisfying
Australia’s international obligations.
Non-legal responses
Industry interest groups lobby governments to Conclusion
influence policy direction or legislation, other Recently, a change of government and legislative
groups act on behalf of their members to promote reform have been major means of changing the
the objectives of their group, and yet other groups law relating to dismissal. Achieving protection
are motivated by concerns for the general welfare
of workers and their families and the protection of
for employees against retrenchment continues
to challenge trade unions and other advocates of
15
workers’ rights. workers’ rights, as the global economy and the
Groups that lobby on behalf of their members power of domestic and multinational corporations
include the ACTU and the major industry raise formidable hurdles.
associations representing employers’ interests,
such as the Australian Chamber of Commerce and
Review 15.15
Industry. One role that all kinds of groups perform is
presenting arguments in test cases that may affect 1 List and explain the various ways in
legal entitlements and obligations of employees which employment can be terminated.
and employers. Other groups, such as the Equal Identify which of these would be
Opportunity for Women in the Workplace Agency, considered voluntary.
work with employers to advance the interests 2 Under common law an employer can
of particular groups of workers and to address dismiss an employee. Outline the
inequities in legal entitlements. procedure that must be followed and list
NGOs such as the Salvation Army provide the grounds available for dismissal.
training and education opportunities as well as 3 Discuss whether or not an employer
counselling and welfare support to those struggling should have the right to summary
to find employment. dismissal of an employee.
4 Reflect on how the Fair Entitlements
Responsiveness of the legal Guarantee Act 2012 (Cth) protects the
system rights of redundant employees and
A number of factors influence the ways in which whether this protection has been
the law responds to issues involving dismissal and adequate.
redundancy. These include: 5 Go to the FWO website and find a
• Australia’s obligations under international registered agreement from two separate
treaties industries. How do these two agreements
• public opinion differ?
• pressures arising from global and national
economic circumstances
• the government of the day, its labour policies
and its affiliations.
Under WorkChoices, people working in a 15.8 C
ontemporary issue:
business employing fewer than 100 employees could Leave
be dismissed for no reason. Those working in larger
businesses could also be dismissed on grounds of About the issue
‘operational reasons’. The Fair Work Act 2009 (Cth) Leave is a fundamental right of employees, and can
abolished these provisions and introduced some be found within ILO conventions and UN treaties.
safeguards for employees of small businesses. Minimum leave entitlements are included in all
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CAMBRIDGE LEGAL STUDIES HSC
but many companies discourage employees from
accumulating large amounts of annual leave. Part-
time employees have the same entitlements but
accumulate them on a pro rata basis.
Long service leave
Long service leave for employees in New South Wales
(even individuals employed under federal regulations)
is governed by the Long Service Leave Act 1955 (NSW).
Two months’ long service leave is available after 10
years’ continuous service with the same employer.
For each subsequent five years completed, the
employee is entitled to an additional one month’s
leave. Long service leave is paid according to the
individual’s normal wage prior to leave, excluding
penalty and overtime rates. Leave can be taken prior
to completing 10 years’ service. If the employee
Figure 15.14 Community service leave allows an leaves their job prior to taking long service leave,
employee to take time off work while contributing to they will receive payment for the untaken leave.
the community.
Parental leave
modern awards and enterprise agreements and are The NES contains minimum parental leave
protected under both state and federal legislation. provisions; this includes same-sex couples. Parental
The types of leave available include: leave can be taken for up to 52 weeks (unpaid) by
• annual leave – a period of paid holiday time to either parent.
which an employee is entitled each year The AIRC’s decision in the Maternity Leave
• long service leave – an additional period of Test Case (1979) 218 CAR 120 of 1979 established
holiday time, provided in recognition of a long employed mothers’ right to 52 weeks’ unpaid
period of service to an employer maternity leave. In 1985, the AIRC extended this right
• personal leave – time off while ill or required to to adoptive mothers, and in 1990 to fathers. Although
provide care to a member of one’s immediate unpaid parental leave could be found in awards, it
family was not until 1988, with the passing of the Industrial
• community service leave – time off work for the Relations Act 1988 (Cth), that it was included in
purpose of voluntary emergency management legislation. In 2005, the AIRC Family Provisions Test
activity, such as service with a firefighting or Case [2005] AIRC 692 established the right to request
rescue organisation, and for jury service an extension of leave and to return to work on a part-
• parental (maternity and paternity), family and time basis. This was later extended to part-time and
adoption leave. casual employees (like all other workers, they must
De facto couples, which includes same-sex have been continuously employed for more than 12
couples, are also entitled to minimum statutory months to qualify for parental leave).
entitlements to various kinds of leave, including Unpaid parental leave was one of the five
carer’s, compassionate and parental leave. minimum statutory entitlements of employees under
WorkChoices, but the ‘return to work’ guarantee
Legal responses was removed. A woman’s return to work became
Annual and personal leave dependent on her employer’s decision. The NES
Under the NES, employees are entitled to four weeks’ established under the Fair Work Act 2009 (Cth)
paid annual leave, 10 days’ paid personal carer’s leave retained the WorkChoices provisions for parental
and two days’ unpaid compassionate leave or carer’s leave, but re-established the right to return to work.
leave. Annual and personal leave can accumulate, At the end of the period of leave, an employee is
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CHAPTER 15 OPTION 6: WORKPLACE
Non-legal responses
The idea of paid parental leave is not new. In 2001, the
Australian Human Rights Commission (then officially
titled the Human Rights and Equal Opportunity
Commission) released a discussion paper, Valuing
Parenthood. The paper argued that women’s general
health and wellbeing were adversely affected
by the economic instability resulting after the
birth of a child. The ILO (Convention 183) and the
UN Convention on the Elimination of All Forms of
Discrimination Against Women also promoted paid
leave to help women return to the workforce after
15
childbirth. The ACTU has, for the past 35 years,
lobbied Australian governments to provide greater
Figure 15.15 Parental leave can be taken by either
assistance in the form of parental leave.
parent.
The Family Provisions Test Case prompted the
Commonwealth Government to include new leave
entitled to return to the position held prior to leave. provisions in awards. These included parental leave,
If the position no longer exists, the employee has the flexible working hours, emergency family leave and
right to be employed in a similar position, with the personal or carer’s leave. Again, the ACTU had
same status and pay. argued for these inclusions over a significant period.
Generally, only one parent may be on leave, but Industry groups had opposed elements of the ACTU
there is provision for both parents to be on concurrent case. Industry groups suggested that the financial
leave for a period of up to eight weeks (each period burden of childbirth should be with the government,
must be at least two weeks). For parents who are arguing that the lack of appropriate and affordable
adopting, the primary carer is entitled to 52 weeks’ childcare facilities, rather than a lack of paid time
unpaid leave and two days’ pre-adoption leave. off, is a real cause of women not returning to work.
The Paid Parental Leave Act 2010 (Cth) created the While an award clause was introduced giving
federal Paid Parental Leave (PPL) scheme, which employees the right to request that their employers
commenced in 2011. The scheme provides eligible allow them to extend the one year’s unpaid parental
parents up to 18 weeks of paid leave capped at the leave to a second 12 months, or return to work
federal minimum wage – currently $656.90 per week. part-time, an employer had the right to refuse on
To be eligible, the primary carer of the child must be ‘reasonable’ grounds, which included cost, lack of
in paid employment and earn less than $150 000 per adequate replacement staff during the leave period,
year. From July 2016, parents who are eligible for paid the effect of the leave on ‘efficiency’, and the effect
parental leave from their employer may also apply for on customer service.
paid parental leave under the federal government’s
PPL scheme, but the amount will be reduced. If a Responsiveness of the legal
parent returns to work before taking all of their system
PPL entitlement, the unused part may be transferred The connection between work and family has
to another person (usually the other parent) if they become an increasingly important issue. More than
meet eligibility requirements. The scheme also five million Australians have responsibilities for the
covers the self-employed, contractors and casual care of someone else. The economic need or personal
employees. choice of both parents to work and an increase in
The federal government amended this Act further the number of single-parent families means that, in
to clarify several issues, including paid parental a majority of families, all the adults are employed.
leave in the case of a stillbirth or child’s death and The workplace has had to become more flexible to
allowing employees to undertake paid work for short meet the demands of a changing workforce. The
periods of time while on unpaid parental leave. number of people in casual employment has also
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CAMBRIDGE LEGAL STUDIES HSC
meant that their need for leave entitlements cannot of the weekly wage). Paternity leave in Australia is
be dismissed. limited to two weeks’ paid leave. Some countries
The Australian Parliament has tried – and have parental leave systems that incorporate a
continues to try – to meet these needs through father-specific leave entitlement, rather than having
legislation that provides greater entitlements for it as a separate right. France and Spain allow both
working families. While it must also respond to the parents to stay at home (unpaid leave) until their
concerns of the business community, the progress child’s third birthday, and return to their previous
made by other countries suggests that the global jobs or comparable ones (see http://cambridge.edu.
economy not only should but also can accommodate au/redirect/?id=6394).
the social necessities of working people.
Although annual and long service leave have Conclusion
been available to employees for many years, Issues relating to leave, such as demographic
Australia has lagged behind the rest of the world changes, will continue to be driving forces for law
in providing support for working parents. Despite reform. In the future the government may have
public criticism, the federal government refused to consider extending leave and creating more
to ratify the ILO’s Maternity Protection Convention flexible workplaces, as more Australians age and
of 2000, which recommended 14 weeks’ paid leave. increasingly need the support of their families.
The government argued that paid maternity leave Changes to parental leave that focus only on mothers
should be decided on an individual basis between have raised issues of equity, as many families want
the employee and the employer. fathers to have an equal role in caring for their
The World Health Organization recommends children. The capping of leave payments under PPL
a minimum of 16 weeks; the ILO now encourages at the federal minimum wage is a second issue of
governments to provide 18 weeks. However, even concern that will require resolution.
though Australia has moved to 18 weeks paid at
the minimum wage, it still lags behind other OECD
Review 15.16
countries. France (16–26 weeks), Germany (14 weeks)
and Norway (18 weeks) provide for maternity leave 1 List and explain the different forms of
paid at 100% of the employee’s wage. In contrast, leave available.
the rate payable in Australia is the current federal 2 Why has leave become an important
minimum weekly wage: $656.90 or approximately issue?
41% of the average weekly wage. 3 To what extent should the government
Periods of paternity leave are still much shorter provide support to working parents?
than for maternity leave worldwide. On average, 4 Discuss whether or not employers
OECD countries provide 17 weeks’ paid maternity should be expected to contribute to the
leave (paid at 77% of the average weekly wage) PPL scheme and provide parents with
and nine weeks’ paternity leave (paid at 64% of the additional financial support.
average weekly wage or four weeks paid at 100%
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CHAPTER 15 OPTION 6: WORKPLACE
Chapter summary
• Workplace law regulates the relationship terms include an employer’s duty to provide a
between employees and employers, ensuring safe working environment, and an employee’s
that the rights of workers are protected and that duty to obey lawful directions of the employer.
both employees and employers comply with • Australia’s industrial relations framework
their obligations. includes industrial awards and enterprise
• Labour laws began to develop during agreements. The federal system covers most
the Industrial Revolution in Britain, and employees in Australia, but New South Wales
government intervention in employment began retains legislative powers relating to state and
to replace laissez-faire policies, which assumed local government employees.
that parties negotiating an employment • In their judicial role, the FWC and the New 15
contract had equal bargaining power. South Wales IRC hear disputes, resolving
• Conciliation and arbitration have been at the issues through a process of negotiation and
centre of Australian industrial relations law conciliation to achieve a consensual solution.
since 1904. These bodies also have the administrative
• The Australian Constitution gives the federal functions of setting conditions and wages and
parliament the power to make laws to settle approving enterprise agreements.
interstate industrial disputes, but broader • The FWO can investigate and enforce the
industrial powers were shared with the states Act, awards or agreements. It also provides
until they all (apart from Western Australia) education, advice and assistance.
referred their powers to the Commonwealth • The NES are 10 minimum standards for
between 1996 and 2009. employees’ pay and entitlements. All awards,
• A contract of employment is a contract of agreements and contracts of employment must
service between an employer and employee meet these standards.
which provides specific rights and imposes • Trade unions represent workers’ interests and
specific duties on both parties. By contrast, work to achieve better conditions and pay.
a contract for services is an agreement to do • Work health and safety is regulated by the
work for an agreed fee, but the worker is not Work Health and Safety Act 2011 (Cth). Workers’
employed by the other party. compensation is a compulsory insurance
• All contracts of employment contain both scheme to compensate employees injured at
express and implied terms. Examples of implied work.
Questions
Multiple-choice questions 2 Non-voluntary termination of employment
1 Under the Part 5 of the Work Health and Safety includes:
Act 2011 (Cth), an employer has the duty to A unfair dismissal, retirement and long service
consult with their employees allowing them to leave
contribute to the making of decisions that affect B resignation, redundancy and dismissal
their: C resignation, retrenchment and retirement
A health, safety and welfare at work D summary dismissal, retrenchment and
B children’s health, safety and welfare dismissal with notice
C health, safety and welfare at home as well as
at work
D childcare arrangements
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CAMBRIDGE LEGAL STUDIES HSC
3 A valid enterprise agreement requires: 2 Discuss the advantages of being employed
A equal bargaining power between the under a contract of service rather than having a
parties contract for services. Use appropriate examples
B trade union representation for employees to support your discussion.
C approval by the FWC upon completion 3 Explain the importance of injury management
D a greenfields clause to cover employees programs.
commuting to work from rural areas 4 Evaluate the effectiveness of the law in
protecting and enforcing the rights of
4 In order not to be found negligent, an employer employees and employers.
must: 5 Assess the effectiveness of the law in
A hire only competent staff who require no responding to contemporary issues.
training or supervision 6 Assess the effectiveness of legal and non-legal
B provide all employees with safe transport to measures in resolving disputes within the
work workplace.
C provide a safe working environment and
equipment Extended-response questions
D require employees to provide their own 1 Critically analyse the interaction between
equipment and a certificate of safety legislative changes and changes in social
attitudes with reference to parental leave.
5 Protected industrial action is available: 2 Discuss the tension between the rights
A during negotiations for an enterprise of employees and the needs of Australian
agreement, if it does not threaten businesses and how governments have
individuals’ personal safety addressed these competing concerns.
B only after negotiations for an enterprise 3 Outline the role that trade unions have played
agreement have concluded in obtaining entitlements for workers, and
C only to employees who are not members of a discuss the question of whether unions are still
union relevant in today’s economy. Justify your answer.
D only if conciliation has failed 4 Reflect on how changing community standards
and values have influenced workplace laws.
Chapter summary questions 5 Explain why legislation is necessary to protect
1 Why is there an emphasis on consensual people’s health and safety at work, providing
forms of dispute resolution rather than examples. How does technology give rise to the
arbitration? need for legislative change?
In Section III of the HSC Legal Studies 1000–1200 words in length (approximately six
examination you will be expected to complete to eight examination writing booklet pages).
an extended-response question for two Marking criteria for extended-response
different options you have studied. There will questions can be found at http://cambridge.
be a choice of two questions for each option. It edu.au/redirect/?id=6395. Refer to these criteria
is expected that your response will be around when planning and writing your response.
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CHAPTER 15 OPTION 6: WORKPLACE
Themes and challenges
The role of the law in encouraging be imposed for any breaches of the law. For
cooperation and resolving conflict example, under the Part 5 of the Work Health
in the workplace and Safety Act 2011 (Cth), an employer has
• Legislation at both state and federal level has the duty to consult with employees to enable
created industrial relations processes with the them to contribute to the making of decisions
aim of minimising conflict within the workplace affecting their health, safety and welfare at
as well as encouraging cooperation between work. Failing to do so results in heavy fines.
employers and employees. • Mutual obligations and employees’ active
• Enterprise agreements encourage employers involvement in maintaining safety at work have 15
and employees to negotiate satisfactory work been shown to be a way to increase compliance
arrangements on an individual workplace level. with WHS legislation.
• Work Health and Safety (WHS) legislation also • Inspectors under the Work Health and Safety Act
emphasises employees’ duty to take reasonable 2011 (Cth) have wide powers to enter workplace,
care for the health and safety of others in conduct investigations and collect evidence.
their workplace, and their participation in Non-compliance may result in heavy fines for
maintaining a safe work environment through the individual and the firm.
representation on WHS committees.
• Employees and employers are encouraged Laws relating to the workplace as
to resolve disputes about pay and conditions a reflection of changing values
through negotiation and conciliation. All and ethical standards
modern awards and enterprise agreements • All legislation is subject to review, including
contain dispute resolution procedures, which the opportunity for members of the public
must be followed before taking the matter to comment on proposed amendments. This
further. It is only when discussions break down enables legislation to reflect current social
that the dispute will go to arbitration. values, attitudes and issues.
• The FWO is able to investigate complaints • A national review into model WHS laws
within the workplace and make an order concluded in 2010. The model laws created
resolving the conflict. uniform WHS laws in all Australian
• The FWC and the New South Wales IRC have jurisdictions. The process of review and public
a judicial role in settling disputes. The Federal comment, including publication of discussion
Court and the Federal Magistrates’ Court papers and establishment of reference groups,
have industrial divisions that hear workplace aimed to provide all interested parties with
disputes and appeals. the opportunity to have a voice in the drafting,
and to ensure that existing WHS laws are
Issues of compliance and not undermined. The ACTU has expressed
non-compliance concerns in this respect.
• Effective industrial laws require that governing • Various employer groups, including the
bodies be given the resources and authority to Business Council of Australia, have been
enforce compliance. Enforcement also includes critical of elements of the government’s Fair
the availability of penalties that will deter non- Work reforms, arguing that the new laws
compliance. Criminal sanctions are sometimes unfairly favour unions. Some advocates of
more effective than the imposition of a fine. workers’ rights have argued that the laws do
• In order to remove ambiguity and ensure not go far enough.
enforceability, employee and employer rights • Reforms to parental and paid maternity leave
and duties have been clearly defined in have been influenced by international reforms
legislation, as well as the penalties that can and changing community standards.
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CAMBRIDGE LEGAL STUDIES HSC
The role of law reform in The effectiveness of legal and
recognising rights and enforcing non-legal responses in achieving
responsibilities in the workplace justice in the workplace
• The law needs to reflect prevailing community • Employers’ associations, as well as groups
standards and expectations. Laws that are in representing workers’ interests, lobby
conflict with current attitudes are less likely to governments to influence legislation. Non-legal
be effective. Individuals may engage in civil responses to industrial relations issues include
disobedience, openly opposing the laws, or may the activities of unions. The peak body for
simply ignore the laws. To determine the best unions in Australia, the ACTU, has argued for
means of ensuring that laws reflect community an increase in the minimum wage, equal pay
standards and expectations, legislators may for women and the eradication of discriminatory
call for public submissions before debating practices in the workplace.
issues in parliament. They are, in the end, • Other groups, such as Equal Opportunity
accountable to the electorate for the laws that for Women in the Workplace Agency, act to
are passed. influence policy and industrial laws in the
• Those responsible for law reform aim to promotion of the rights of particular groups.
balance the needs of all stakeholders while However, women still earn substantially less
ensuring that the law is consistent with than men. One of the reasons is that they
Australia’s international obligations. comprise a large proportion of casual and
• While the laws passed may reflect the views part-time employees and as a consequence do
of the majority, this does not mean that the not have the same employment protections as
rights of minority groups are secondary. full-time employees.
Numerous laws have been passed protecting • NGOs include social welfare groups such as the
individual rights; this is seen as necessary for Salvation Army. They may help individuals find
the protection of the entire community. For employment and provide training, counselling
example, laws that make discrimination illegal and welfare support to people seeking jobs.
protect the rights of all employees. • NGOs play a varied role within state and
• The General Employee Entitlement and federal industrial relations. NGOs such as the
Redundancy Scheme (GEERS) was established Australian Human Rights Commission can
to protect workers’ entitlements in the event investigate discrimination complaints. If the
that their employer became bankrupt. This complaint cannot be resolved, the matter may
has been replaced by the Fair Entitlements go to court. While the commission does not
Guarantee. have the authority to enforce its rulings – for
• The protection of individual rights with respect example, by imposing a fine or order – its
to occupational health and safety can be seen findings can be used in a court or a tribunal in
in laws prohibiting smoking in the workplace. support of the complainant’s case.
• The Paid Parental Leave scheme recognises • The internet and the easy access to computers
that employees need financial support when and personal communication devices have
they interrupt their careers to have children. encouraged various organisation to create
• Well-drafted legislation clearly sets out the websites that educate and inform employees
rights and duties of employees and employers, and employers concerning their rights and
and provides for a process of resolving obligations.
disputes.
• Work, health and safety laws recognise that
a safe workplace is the responsibility of
employees and employers.
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CHAPTER 15 OPTION 6: WORKPLACE
• The ILO aims to encourage member nations to (for example, for outworkers). They may
undertake common action in the protection of make recommendations to government or
workers’ rights around the world. provide policy advice to relevant government
• Numerous independent and non-government departments. However, the power of these
organisations are involved in investigating and groups is limited. How effective they are in
researching issues relating to discrimination, changing government policy is difficult to
pay inequities and substandard conditions determine.
15
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Chapter 16
Option 7: World order
25% of course time
Principal focus
By referring to current issues and examples, students will be investigating the ways in which legal and non-
legal measures can effectively resolve conflict between states as well as promote peace.
Themes and challenges
Themes and challenges to be incorporated throughout this option include:
• how the legal system encourages world cooperation and resolves conflict
• dealing with compliance and non-compliance
• how changing ethical standards and values affect world order
• promoting and maintaining world order through international law reform
• effectively promoting and maintaining world order through legal and non-legal measures.
At the end of this chapter, you will find a summary of the themes and challenges relating to world order.
The summary draws on key points from the text and links them to each of the themes and challenges. This
summary is designed to help you revise for the external examination.
Chapter objectives
In this chapter, students will:
• discuss the concept of ‘world order’ and the various points of view on this issue
• outline the evolving nature of world order in both the Western and non-Western world
• describe the need for world order, its benefits and the threats to it, from various perspectives
• identify key treaties that underpin international law
• describe the various mechanisms by which international law is created and enforced
• explain the role of international law in encouraging cooperation and resolving conflict
• describe key international and non-government organisations that contribute to world order
• describe and explain the interaction between international law and domestic law, particularly in
relation to Australia
• locate authoritative information from a variety of sources and effectively analyse and synthesise that
information
• examine the role of sovereignty in assisting and impeding the resolution of world order issues, and how
the concept of sovereignty has changed in the last century
• identify and investigate contemporary issues involving world order and evaluate the effectiveness of
legal and non-legal responses to these issues.
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Key terms/vocabulary
Cold War humanitarian intervention non-government organisation
collective security interdependence (NGO)
communal violence intergovernmental organisation peacekeeping
convention (IGO) Permanent Five
crimes against humanity international humanitarian state sovereignty
dictatorial jus cogens supranational organisation
dominion law terrorism
ethnic cleansing mass atrocity crimes (mass unilateral
genocide atrocities) war crime
globalisation militia world order
hegemony multilateralism
Relevant law
IMPORTANT LEGISLATION
Treaty of Westphalia (1648) Treaty on the Non-Proliferation of Nuclear Weapons
Charter of the United Nations (1945) (also called Nuclear Non-Proliferation Treaty)
Universal Declaration of Human Rights (1948) (1968)
UN Convention on the Prevention and Punishment Anti-Ballistic Missile Treaty (1972)
of the Crime of Genocide (1948) UN Convention Against Torture and Other Cruel,
Geneva Conventions (1949) Inhuman and Degrading Treatment (1984)
UN Convention Relating to the Status of Refugees Treaty on European Union (Maastricht Treaty) (1992)
(1951) Comprehensive Test Ban Treaty (1996)
Treaty of Rome (1957) Rome Statute of the International Criminal Court
Limited Nuclear Test Ban Treaty (1963) (1998)
Treaty on the Prohibition of Nuclear Weapons (2017)
SIGNIFICANT CASES
Military and Paramilitary Activities in and against Obligations concerning Negotiations relating to
Nicaragua (Nicaragua v United States of Cessation of the Nuclear Arms Race and to
America), Merits [1986] ICJ Rep 14 Nuclear Disarmament (Marshall Islands v United
Legality of the Threat or Use of Nuclear Weapons, Kingdom) [2015] ICJ No. 2015/16
Advisory Opinion of 8 July 1996 [1996] ICJ Rep
1996
Legal oddity
By 2016, we could have been forgiven in thinking that the world has learnt from previous historical events
on how not to be at war. Increasing globalisation, better media coverage and an understanding of basic
human rights should all be catalysts for retaining world order. Yet, in 2016, the Syrian Centre for Policy
Research projected that Syrian war deaths were more than 400 000. Over half of Syria’s 22 million citizens
are internal or international refugees. It was the civil war and not the ISIS phenomenon that was responsible
for approximately 90% of these displacements and deaths, and the assaults of Assad militaries are thought
to be accountable for over three-quarters of them. World order appears to still be a long way off.
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CAMBRIDGE LEGAL STUDIES HSC
16.1 T
he nature of world order Cold War would mark the beginning of a new era
in which states would act collectively to address
The term ‘world order’ refers to the way in which
global problems that were beyond the capability of
global events are influenced by major actors in the
any of them to solve individually. Both former US
world. Until the 1990s, commentators on world affairs
President George Bush (Snr) and former President
called their discipline ‘international relations’. Since
Mikhail Gorbachev of the USSR used the phrase to
the advent of globalisation the term ‘international
define the emerging spirit of cooperation between
relations’ – relations between countries – is no
the superpowers, which they hoped would continue.
longer broad enough to describe the world. To
understand the world today, it is necessary to look
Cold War
at more than just the activities of states; it is also the state of hostility, without actual warfare, between
necessary to look at international organisations, the USSR and its satellites and the United States and its
allies in the Western world, which lasted from just after
international corporations, non-state actors such as World War II until about 1991
dissident groups and other non-traditional parties in
the international arena.
As ‘world order’ implies a certain level of peace
world order globalisation and stability, world order issues are those that relate
the activities and the ongoing integration to promoting peace and resolving conflicts between
relationships between of regional economies,
the world’s states, and societies and cultures states. The importance of world order as a goal can
other significant non-state brought about by the be seen in the dramatic growth and development
global actors, that occur removal of restrictions on
within a legal, political international trade, and
of international law over the last three-quarters of a
and economic framework; advances in travel and century. A major aim of this chapter is to explore the
an international set mass communication role of international law in promoting world order.
of arrangements for
promoting stability and Another is to examine how states work together to
peace promote peace and stability.
It is also important to consider the relationships
Although outdated now, the term ‘new world between political and economic issues. Not only are
order’ originated in the early 1990s in the wake of global peace and security prerequisites for economic
the optimism at the end of the Cold War. Many world stability and social progress for every nation on Earth,
leaders hoped that the end of communism and the whether rich or poor, but material disadvantage and
inequities have also historically led to conflict both
within and between states and regions.
The need for world order
Interdependence and global threats
Because of increasing globalisation and the
resultant greater interdependence between
nations, we have all become reliant not just on good
governance in individual countries, but also on a
healthy global economic, political and social order.
The need for world order has never been greater.
As the long-running Syrian Civil War demonstrated,
a major upheaval in one country can have a
destablising ripple effect in the region and around
the world. This feature of the globalised world has
not promoted stability, but instead has made the
Figure 16.1 US Vice President George H Bush (left), world more vulnerable. A global financial crisis
US President Ronald Reagan (middle) and USSR (such as in 2008), a terrorist attack within a state’s
President Mikhail Gorbachev (right) in 1988. These
borders, regional war sparked by miscalculation,
three men helped to end the nuclear arms race and
end the Cold War. an outbreak of illness in a single area, or mass
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CHAPTER 16 OPTION 7: WORLD ORDER
the total global population, benefit greatly from the
current world order. Recognising the threats posed
by interdependence, states have made serious efforts
towards cooperation over the past 30 years. The volume
of international law has grown exponentially and,
most incredibly, there is a high degree of compliance
with international law. The reason for this level of
compliance is simply that most international law is
created by consensus. All treaties are negotiated and
no state is ever forced to sign a treaty; states agree to
binding treaties and commit themselves to the treaties’
provisions because of mutual benefit. While there
are always some states that do not wish to sign up to
treaties seen as detrimental to their interests, the vast
Figure 16.2 A member of the US-backed Syrian
majority of international treaties, whether they relate to 16
trade, finance, transport or security, are recognised by
Democratic Forces, made up of an alliance of Arab
and Kurdish fighters, removes an Islamic State group the parties as benefiting them in some way.
flag in the town of Tabqa, about 55 kilometres west of
Raqa city, on 30 April 2017. In 2014 ISIS emerged from interdependence
the interconnection of two or more states to such an
the chaos in Iraq and created the so-called ‘Islamic extent that they are mutually dependent on each other for
State’. ISIS violated all rules of war and embarked survival and mutually vulnerable to crises
on a campaign of deliberately committing atrocities
in the territory that they captured and promoting
terrorist acts in their name around the world.
The development of world order
over time
atrocity crimes (mass atrocities) committed by a
The current world order is founded upon two
dictatorial regime can flow on immediately and affect
principles that on their face value seem contradictory:
the rest of the world. We are all potentially vulnerable
state sovereignty and multilateralism . State
if things go terribly wrong on another part of the
sovereignty is a state’s legal power and authority
planet, as the threats of nuclear war and climate
over everything that occurs within it. Multilateralism
change demonstrate.
is cooperation between multiple states for
mass atrocity crimes (mass atrocities) mutual benefit or to deal with common threats.
a broad term for crimes that fall into the categories of Multilateralism often requires a surrender of some
genocide, war crimes, ‘ethnic cleansing’ and crimes
against humanity; this is the term favoured by the United
degree of sovereignty. Both concepts were evident
Nations, because it avoids making distinctions on the in the 17th-century Treaty of Westphalia (1648).
basis of whether the crimes were committed in war or
peace, or as part of an intrastate or interstate conflict
Additional information about state
Benefits of interdependence sovereignty and multilateralism is available
in the digital versions of the book.
There is a positive side to interdependence. Those
in the developed world, representing one-sixth of
Review 16.1
Read the additional information in the digital versions before answering these questions.
1 Explain how the term ‘world order’ is broader than ‘international law.’
2 Explain the significance of the Treaty of Westphalia.
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CAMBRIDGE LEGAL STUDIES HSC
state sovereignty multilateralism
the authority of an cooperation between
independent state to multiple states for mutual
govern itself (for example, benefit or protection from
to make and apply laws; common threats
impose and collect taxes;
make war and peace; and
form treaties with foreign
states)
World War I and the League of Nations
The trend towards multilateral cooperation that
had developed in the early years of the 20th century
seemed to vanish instantly upon the outbreak of war
in Europe in 1914. In 1917, US President Woodrow
Wilson committed the United States to joining the
war on the side of the Allies on condition that a
‘league of nations’ was established at the end of
the war. At the 1919 Peace Conference this was
agreed to. The main aim of the League of Nations
was to prevent war; international peace would be
guaranteed by the principle of collective security.
collective security
a principle based on the agreement of a group of states
not to attack one another and to defend each other from
attack by others; the idea is that an attack on one is an
attack on all Figure 16.3 The United Nations was created in World
War II as a fully functioning wartime alliance before it
became a concrete organisation in 1945. This poster
was created by the United States Office of War in
World War II and the United Nations
1943.
The term ‘United Nations’ was first used on 1 January
1942, when 26 nations pledged their governments to
Interstate
fight for a common purpose against the Axis powers.
Detailed planning for the new world organisation
Conventional war
proceeded throughout the following three years of Conventional war is the use of large, well-organised
the war. The Charter of the United Nations was signed military forces. During such a war, soldiers wear
in San Francisco by 50 nations on 26 June 1945, and clearly identifiable uniforms and there is a clear
on 24 October 1945 the United Nations (UN) became command structure. The majority of wars in history
a legal entity. The second try at a grand scheme for have been conventional. Both World Wars were
multilateral cooperation had begun. conventional wars, as were the Korean War, the
Vietnam War, the Iran–Iraq War, the two Gulf Wars
The nature of conflict: Interstate and many more. From the beginning of the 20th
and intrastate century, technological advances have made each
War has existed throughout human history, and it successive conventional war more deadly. It was
seems that it will exist into the future, though the interstate conventional warfare that the drafters of
way wars are fought may change, as the means the UN Charter had in mind when they wrote the
of waging war evolve through new technologies. first words of the Preamble: ‘We the peoples of the
Warfare can be categorised as interstate war, which United Nations determined to save succeeding
is conflict between states, and intrastate war, which generations from the scourge of war, which twice in
is conflict within a state. our lifetime has brought untold sorrow to mankind …’
The provisions for the use of armed force in Chapter
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CHAPTER 16 OPTION 7: WORLD ORDER
from acquiring or building them. Another major
concern since the attacks of 11 September 2001
on the United States is that terrorist groups may
succeed in acquiring nuclear weapons.
With the end of the Cold War, tensions between
the United States and Russia decreased dramatically,
nuclear weapons treaties were negotiated and
massive cuts were made to the arsenals of both
powers. The 1990s saw a new era of cooperation
between these once determined enemies. However,
the election of George W. Bush (Jnr) as US President
in 2000 saw a revival of US interest in modernising
its nuclear weapons and developing new types, and
a weakening of the international mechanisms to
Figure 16.4 A 15-megaton thermonuclear explosion
at Bikini Atoll in the Marshall Islands, 1 March
control nuclear weapons. From 2008 and the election 16
of Barack Obama as President of the United States,
1954. The unexpected spread of fallout from the
there seemed to be a renewed commitment on the part
test contaminated 15 islands and atolls, affecting
20 000 inhabitants. Though this was a secret test the of that country to pursuing a multilateral approach
fallout spread as far as Japan, India and the United to nuclear disarmament and to strengthening the
States. This became an international incident and Nuclear Non-Proliferation Treaty. However, at the
prompted calls by nuclear disarmament groups to Nuclear Non-Proliferation Review Conference in May
end atmospheric testing. 2015 neither Russia nor the United States offered any
hope of a reduction in their nuclear arsenals.
Today there are approximately 15 000 nuclear
VII of the charter were designed to deal with an weapons in existence. A regional war using nuclear
aggressive attack by one state against another – that weapons (for example, between India and Pakistan,
is, conventional interstate war. or on the Korean peninsula) would have a massive
adverse impact on the environment as well as killing
Nuclear war millions of people. Use of thousands of nuclear
Nuclear war involves the use of atomic or hydrogen weapons in a conflict between Russia and the United
bombs. Since 1945, the number of types of nuclear States would probably destroy all life on Earth.
weapons has increased. During the height of
the Cold War, the United States and the USSR Cyber warfare
possessed 68 000 nuclear weapons between them. A cyber attack can direct a carefully engineered
The use of just a few hundred of these would have packet of data towards systems that control essential
caused utter devastation to the planet. The United infrastructure, such as power stations, dams,
States and the USSR ended atmospheric testing airports, hospitals, schools, transport systems,
of nuclear weapons with the signing of the Limited electricity grids and financial systems.
Nuclear Test Ban Treaty in 1963. According to Robert One of the problems of a cyber attack is that it is
McNamara, US Secretary of Defense from 1961 to hard to determine its origin. It may take days after
1968, luck has been the major factor preventing a the beginning of an attack to determine its origin, if it
nuclear war since the 1940s. can be done at all. A cyber attack could be launched
Today there are nine countries which possess by terrorists, criminals or states. Cyber war is now
nuclear weapons: the United States, Russia, Britain, treated very seriously in the defence establishments
France, China, India, Pakistan, Israel and North of many states. As Shane Harris explained in his 2014
Korea. In 2015, Iran was suspected of attempting book @War: The Rise of Cyber Warfare, the United
to build nuclear weapons in violation of the 1968 States now views cyberspace as the ‘fifth domain’
Nuclear Non-Proliferation Treaty, which prohibits any of warfare alongside warfare on land, in the air,
state that does not already have nuclear weapons on the seas and in space. In the future, any major
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CAMBRIDGE LEGAL STUDIES HSC
Security Council (UNSC), and this dramatically
reduced the effectiveness of the UN in dealing with
world order issues. After the Cold War, the five
permanent members of the UNSC have cooperated
on many things, though they still do not hesitate
to use their veto power when they think their own
interests, or the interests of an ally, are at stake.
Intrastate
The one thing that all the following forms of warfare
have in common is that the UN Charter was not
written with them in mind. The UN Charter focused
on provisions to deal with interstate conventional
warfare, yet today internal conflict now outstrips
interstate conflict. The UN has had to develop
approaches to each of these types of warfare and
Figure 16.5 NATO interoperability exercise at JFTC
graft them into the UN system. The notable example
training centre in Poland, conducting exercises of this is peacekeeping.
on cyber warfare and security on 22 June 2017 in
Bydgoszcz, Poland peacekeeping
the activity of creating conditions for sustainable peace
in countries affected by conflict, through the use of
force, quite often provided by a number of countries
and consisting of soldiers, civilian police and civilian
conflict between great powers will be fought across
personnel
all five domains. Military plans already exist for this
purpose. More than ever the world needs a collective
security approach to cyberspace. Civil war
A civil war is a conflict between two or more parties
Cold War
within one country. Prominent examples are the
The Cold War is the name given to the state of
American Civil War (1861–65) and the war in Lebanon
armed, uneasy peace between the United States
in the 1980s. Both the Korean War (1950–53) and the
and the USSR (the superpowers) between 1947
Vietnam War (1954–75) were civil wars in that there
and 1991. It involved rivalry in almost every political,
were two opposing sides in each country. The latter
economic, military and strategic matter, but did not
two wars also became Cold War conflicts by drawing
lead to direct war. Many commentators believe that
in the superpowers. Some notable examples of places
direct war was avoided due to the threat of mutual
where civil wars have occurred since the 1990s are
annihilation if nuclear weapons were used. This
Bosnia, Burundi, Cambodia, Congo, Darfur, Georgia,
situation is referred to by historians as the ‘balance
Iraq, Kosovo, Liberia, Rwanda, Sierra Leone, Sri
of terror’. However, this is disputed by others who
Lanka, Somalia, Sudan, Yemen and, more recently,
argue that blind luck saved the world from nuclear
Iraq, Syria and Ukraine. There is often considerable
annihilation during the Cold War period. One such
disagreement over whether a civil war or an armed
occasion was on 26 September 1983 when a computer
conflict is occurring in a particular country, due to
glitch indicated the Soviet Union was under US
varying interpretations of international law.
missile attack. Only the actions of one man, Lt Col
Stanislav Petrov, saved the world from World War III. Guerrilla war
The Cold War did not only involve the
Guerrilla war involves the use of hit-and-run tactics and
superpowers. Each side called upon its allies to
the element of surprise. Guerrilla fighters harass the
wage war with the other superpower’s allies in order
enemy, hide, retreat and repeat this pattern until the
to gain more influence and to counter the threat from
enemy’s army is worn down. Only then will the guerrillas
the other side. The Cold War also paralysed the UN
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CHAPTER 16 OPTION 7: WORLD ORDER
attack with some force. Such tactics can bog down a terrorism
acts of violence against a population, intended to cause
greatly superior military force. The Vietnam War (1954–
terror and thereby influence a government
75) is a prime example of a much smaller force, the Viet
Cong, using guerrilla tactics against the technologically
superior US (and other) forces. Guerrilla war tactics Communal violence
have been used by some armed groups opposing US
Communal violence refers to violence and warfare
occupation in Iraq and Afghanistan.
within communities, not necessarily perpetrated
by the government. This may be a result of ethnic
War waged by governments against their
rivalries, historical differences, religious differences
own people
or territorial grievances. This type of violence has
Dictatorial regimes often engage in systematic
been a feature of the world since the end of the
campaigns of genocide , mass murder, the
Cold War in the 1990s. During the Cold War, the
elimination of classes of people, or state-sponsored
superpowers exerted some restraining influence
terror and death squads. These activities can be
classified as war crimes, crimes against humanity
on rival groups in countries within their political
orbit. Following the collapse of the USSR’s empire
16
or mass atrocity crimes.
in Eastern Europe, however, there were outbreaks of
dictatorial genocide communal violence in Yugoslavia in the 1990s, after
(of a government) having the deliberate it was split up into Bosnia, Serbia and Croatia.
unrestricted authority or extermination of a national,
power ethnic, racial or religious
group communal violence
violence and killing within communities
In his 1998 study of the spread of global democracy,
Communal killing has also occurred in the
Pax Democratica, James Huntley found it useful to
African states of Somalia (1993) and Rwanda (1994).
describe this kind of warfare, waged by a regime
Since 2004, the international community has been
against its own people, as ‘democide’. Huntley
concerned about this type of conflict in the Darfur
argued that ‘democide’ captures the essence of this
region in Sudan. Many of these activities may fit into
sort of activity, which is the killing of a democracy.
the categories of crimes against humanity, war
The term was coined in 1994 by R.J. Rummel, an
crimes or mass atrocity crimes. This type of internal
international law expert. It does not include military
warfare often spills into neighbouring states, thus
deaths in war or the deaths of non-combatants
killed in attacks on military targets, because under
international law war deaths are seen as legitimate
killing. The term ‘democide’ has not gained the
same status as the term ‘genocide’, which is defined
in art 2 of the UN Convention on the Prevention and
Punishment of the Crime of Genocide (1948).
Terrorism
Terrorism means actions intended to cause death
or physical injury to civilians and to cause terror,
with the intent of coercing a government or other
body to meet certain demands. Terrorism has
become a greater global phenomenon since the 11
September 2001 terrorist attacks against the United
States. Terrorist networks such as Al Qaeda, which
was responsible for those attacks, have loosely
connected cells in many countries. ISIS emerged in Figure 16.6 Human skulls and bones of victims of the
Iraq and Syria during 2014 using both conventional Rwandan massacre sit in piles at a memorial site in
military tactics and acts of terrorism. Murambi, Gikongoro province, Rwanda, 1994.
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CAMBRIDGE LEGAL STUDIES HSC
becoming a serious issue of regional security and change: states that go to war are now, on the whole,
world order. The UN has found it very difficult to deal far more concerned to give a legal justification of
with communal killing because acting on it can be their actions.
seen as violating the sovereign rights of that state Despite this, the legal reasons that may be given
(see below). for going to war are quite often merely a front for the
real reasons. For instance, the stated public reason for
crime against humanity war crime
a widespread or systematic action carried out during the United States’ invasion of Iraq in 2003 – to eliminate
attack against any civilian a time of war that violates Saddam Hussein’s weapons of mass destruction –
population accepted international
rules of war
has been widely criticised as a sham, concealing an
agenda for securing American hegemony.
hegemony
Review 16.2 dominance of one nation over others
1 Explain why the League of Nations Competition over resources can also cause
failed to achieve its primary objective of regional instability, as is the case with the Democratic
preventing war. Republic of Congo. In 2012, according to the
2 Identify the milestones in the creation of International Crisis Group, the illegal exploitation of
the UN. natural resources by rebel militia groups and elements
3 What is the difference between of the Congolese Army was still fuelling conflict
interstate and intrastate warfare? in the region, and showed no signs of abating.
4 Identify the areas of the world today
where there in conflict. Which category of Access to resources
warfare do each of these fall into? One reason why the United States has so many
military bases around the world, and particularly
in the Middle East, is so that it can secure energy
resources for its economy, which is highly energy-
Access to resources as a source of dependent. The United States continues to be
conflict Israel’s staunchest ally partly because of its pivotal
position in the Middle East, and has sought good
War is the continuation of policy by other means.
relations with oil-rich Arab states such as Saudi
Carl von Clausewitz
Arabia and the Gulf states. One major factor in
the first Gulf War (1990–91) was the American fear
When nations do not get what they want by peaceful
that not only would Iraq succeed in its annexation
means, they are often tempted to revert to war. War
of oil-rich Kuwait, but also that it stood poised to
has been a constant feature of the human race
invade Saudi Arabia. The United States viewed the
throughout history. However, for most of human
prospect of an enlarged Iraqi superstate with control
history, war was also seen as a legitimate and in many
over the vast majority of the world’s oil supplies as
cases a desirable way of sorting out issues between
unacceptable. Similarly, a major factor in the US
states. Technological advances in the weapons of
invasion of Iraq in 2003 was Iraq’s oil. Ridding Iraq
warfare in the 20th century led to the belief that war
of its leader, Saddam Hussein, and installing a
was now too deadly to be allowed to happen randomly
democratic pro-US government in Iraq would be in
or without just cause. The desire to prevent war was
the United States’ geopolitical interests.
the main motivation for the creation of the UN, and
Other major powers are also very concerned to
the UN Charter made war illegal except in two cases:
secure future access to essential resources. China,
• self-defence (art 51)
with the fastest growing economy in the world, is
• UNSC authorisation (Chapter VII).
making great efforts to secure gas, coal, iron ore and
While war has continued to have a destructive
oil contracts as well as food supplies in Australia and
impact on the world since the signing of the UN
around the world, particularly in Africa.
Charter in 1945, there has been one significant
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CHAPTER 16 OPTION 7: WORLD ORDER
Other causes of war
While competition over resources is a major cause
of conflict, there are many others as well, such as:
• ideological disputes – the Cold War was in part
a competition of ideas, between communism
and capitalism
• religion – while religious conflict has been a
recurring theme in wars throughout history, the
rise of extreme fundamentalism in a number of
countries has accompanied a backlash against
the perceived decadence of Western consumer
culture
• global or regional hegemony – a state’s desire
Figure 16.7 Food aid bags for victims of a drought in
for dominance in an area or in the world often
leads to conflict as other nations resist what
16
Ethiopia in 2017. The Horn of Africa has suffered its may be seen as imperialism or the thwarting of
worst drought in decades. In 2017 almost 12 million their own ambitions
people in Ethiopia and Somalia were in urgent need • ethnic, religious or racial intolerance – the wars
of food and assistance due to lack of rain, poor crops
that occurred when Yugoslavia split apart in the
and death of livestock.
1990s were fought on ethnic and religious lines, as
have been many contemporary conflicts in Africa,
including the conflict in Rwanda between the
It is highly likely that competition for increasingly
Hutus and Tutsi, where over 500 000 Tutsi were
scarce resources will become a major source of
killed in 100 days by the Hutu majority.
conflict in the future both internationally and within
states. Disputes over water supplies, minerals, gas
and precious metals are all possible. These will
probably be exacerbated by climate change and Review 16.3
disruption to the global financial system.
Outline some examples from the past of
Food scarcity is also likely to be a cause of future
competition over resources leading to conflict.
conflict. Lack of sufficient food for the people of
the world today has a number of causes, including
overpopulation, climate fluctuations and drought,
soil degradation (from pesticides and inorganic
16.2 R
esponses to world order
fertilisers) and the redirection of food crops (to
biofuels and livestock production). Water shortages
The role of the state and state
caused by poor agricultural practices combined
sovereignty
with drought are another source of conflict. The
As explained earlier in the chapter, the states of the
upheavals caused by climate change will also be
world are like the building blocks of world order.
catastrophic, creating millions of refugees in the
States have sovereignty, which is the right to make
Asia–Pacific region alone and a rise in tensions
all the laws within the territories they govern. State
between states. The movement of large numbers
sovereignty also gives a state the right to make
of displaced people is almost certain to result in
treaties with other states. These treaties are the
a scarcity of resources and disputes about which
primary source of international law. However, states
states are to bear responsibility for the refugees’
can also impede the influence of international law
survival and health.
to a certain degree, by using their sovereignty as
a barrier to unwanted input from the international
community regarding their conduct.
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CAMBRIDGE LEGAL STUDIES HSC
The architects of the UN opted to use the current Permanent Five is threatened, as is the case with
system of international law, based on treaties made China’s blocking of effective UN action in Darfur,
between sovereign states. As a result, individual due to its interest in obtaining oil from Sudan.
states still have significant legal power. States can • The Permanent Five members of the UNSC are
decide to cooperate with the international community often unwilling to undertake the intervention
on matters in which they have some interest, and themselves, yet usually they are the only ones
they can also decide to reject international treaties that have the military muscle to mount an
that they believe conflict with their national interest. effective humanitarian intervention.
The principle of state sovereignty was enshrined in • It is also difficult to get other member states
art 2.7 of the UN Charter: to place their armed forces in harm’s way to
protect the human rights of some distant state.
Nothing contained in the present Charter shall The public back home may have little or no
authorize the UN to intervene in matters which are enthusiasm for placing their own troops in
essentially within the domestic jurisdiction of any danger in some far-off land.
state or shall require the Members to submit such • States have a justified fear of failure, such
matters to settlement under the present Charter; but as occurred with the US-led and UNSC-
this principle shall not prejudice the application of sanctioned humanitarian intervention in
enforcement measures under Chapter VII. Somalia in 1993. The UN and US missions were
both ill-defined and suffered from internal
The last phrase of art 2.7 (underlined) allows the bickering. The UN force lacked sufficient
UNSC to use its Chapter VII powers to overrule a resources, as well as political and financial
state’s sovereign right to deal with its own affairs support, and public opinion in the United
without UN intervention. This, combined with the States quickly turned against the intervention
placing of human rights as the second priority in the when 18 US soldiers were killed in a brutal
Preamble, has provided a thin legal wedge which firefight with Somali gunmen.
in theory allows the UNSC to intervene in a state
if there are widespread human rights violations Permanent Five
the five permanent members of the UN Security Council:
or mass atrocity crimes. However, there must be France, the United Kingdom, China, Russia and the
a ‘threat to peace’, a ‘breach of the peace’ or an United States
‘act of aggression’ before the UNSC is allowed
to take action to ‘restore international peace and
security’, according to art 39. The difficulty is that
the interpretation of these thresholds varies. In
short, this means that the effects of human rights
violations must in some way spill across the border
of the offending state. For instance, mass killings
within a state may cause an exodus of refugees into
neighbouring states, which can then be viewed
as a ‘threat to peace’ requiring UNSC-sanctioned
intervention. This type of action is known as
humanitarian intervention.
humanitarian intervention
military intervention in a state in order to stop serious
human suffering and/or human rights violations
Figure 16.8 UN Peacekeeping has been an integral
part of the UN since it was created as a permanent
The problems with UNSC-sanctioned intervention function of the UN in 1956. The drafters of the UN
in a state to stop mass atrocity crimes are: Charter made no mention of peacekeeping, only
• It is very difficult to get UNSC agreement, peace enforcement. However, UN peacekeeping is
especially when the interests of one of the now seen as one of the UN’s core functions.
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CHAPTER 16 OPTION 7: WORLD ORDER
In short, although the UN Charter can be used
to justify humanitarian intervention, it is difficult to
motivate military intervention where member states’
own interests are not obviously at stake. The more
realistic option is the placement of peacekeeping
forces once the fighting has stopped. This may or
may not require the use of Chapter VII powers by
the UNSC.
While state sovereignty is the foundation upon
which our global system is based, its exercise can
impede the resolution of world order issues.
Figure 16.9 US President Donald Trump addresses
the 72nd Annual UN General Assembly in New York
Review 16.4
on 19 September 2017.
How has the UN Charter been used by the 16
UNSC to justify humanitarian intervention in When considering the small amount of funding
a country? that the UN operates on, its achievements are
impressive indeed. The small scale of the UN budget
is indicated by the figures below.
UN core functions (employing 410 000 people) at
a regular budget cost of A$3.8 billion a year.
The United Nations
This compares with:
In June 1945, the leaders of 50 nations came together
• A$3.8 billion/year for the Tokyo Fire Department
in San Francisco, along with representatives from
• A$7 billion/year for the Australian Department
many non-government organisations (NGOs). The
of Human Services (with fewer staff)
meeting took place following the end of World War
• A$70 billion/year for the New York City budget.
II (in Europe) and was held through a determination
The UN Development Program, the UNHCR and
that the world would never again experience such
UN Peacekeeping (which employs over 120 000 people
widespread destruction. Through this conference,
to be military, police and civilian peacekeepers) cost
the leaders were able to establish a new world
A$4.2 billion/year.
organisation with such a purpose: it was called the
This compares with:
United Nations (UN).
• A$77 billion a year spent by the United States
in the war
The postwar record of the United
against Afghanistan (averaged over 2001–17)
Nations
• Starbucks Coffee, which employs more than
Over its history, the UN has achieved the following 191 000 people serving coffee around the world
aims. It has: • McDonald’s and its franchisees, which employ
• advocated the human rights of individuals of all 1.9 million staff worldwide.
nationalities Note: All money amounts are in Australian
• driven many peacekeeping operations dollars. For further information on the costs of war,
• acted as the central core for a large amount of see http://cambridge.edu.au/redirect/?id=6396.
international law It is obvious from these figures that the UN makes
• facilitated dialogue to continue between a significant contribution to world order with very
countries engaged in hostilities meagre resources. These days, total world military
• retained membership of all states, even those expenditure is running close to A$2 trillion. If the UN
that have been at odds with the international had this level of funding it could achieve far more.
community The UN has been involved in numerous missions
• functioned as a court of world opinion for since the 1990s, and although there were some
important international issues.
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CAMBRIDGE LEGAL STUDIES HSC
dramatic failures – such as Rwanda, Somalia and in favour of the change; the General Assembly
Bosnia – there have also been many successes. includes the five permanent members of the Security
Furthermore, the great drop in the number of conflict Council. A major criticism of the UN Charter is that
deaths and politically motivated mass murders since this makes change very difficult. First, achieving a
the end of the Cold War can, to a certain extent, be two-thirds majority of the General Assembly is an
attributed to the UN’s activities in conflict prevention enormous task in itself and, second, it only takes one
and peace operations. permanent member of the UNSC to use its veto for
Problems with the UN have come from a variety the proposed change to be rejected.
of sources, including its inflexible structure (under
the UN Charter), poor leadership (though not since The structure of the United Nations
the end of the Cold War) and the dominance of the The UN headquarters was built in New York during
Permanent Five in the UNSC. However, it must be 1948–49 on land donated by the wealthy American
remembered that the UN is a collection of member John D. Rockefeller, and officially opened in 1951.
states, and individual member states may act in ways The UN also has other major agencies in Vienna,
that are counterproductive or unhelpful. The UN can Geneva and The Hague.
only achieve what its member states allow it to. All international states whose values align with
the concept of ‘peace loving’ and will agree to commit
The UN Charter to the UN Charter are accepted into the UN. In reality,
The UN Charter is similar to a constitution, as it no stringent conditions have to be met for a state to
outlines the rights and obligations of the members join the UN. By 2016, there were 193 member states.
of the UN. The purposes of the UN, as stated in art The UN has five major organs: the General
1, are: Assembly, the Security Council, the Secretariat, the
• to maintain international peace and security Economic and Social Council, and the International
• to develop friendly relations among nations Court of Justice. A sixth body, the Trusteeship
• to achieve international cooperation in solving Council, was also established in 1945 to supervise
international problems of an economic, social, 11 trust territories and help them prepare for self-
cultural or humanitarian character government and independence. By 1994, all the
• promoting respect for human rights. trust territories had attained self-government or
Article 2 states that the UN and its members independence. The Trusteeship Council suspended
should act in accordance with the following its own operations, its work completed, and agreed
principles: to meet ‘as and when occasion may require’.
• sovereign equality of all its members In addition to the myriad day-to-day activities
• fulfilling obligations in good faith of the UN and its agencies to promote world
• settling international disputes by peaceful order, various other organisations participate in
means cooperative initiatives with the UN. These include
• refraining from the threat or use of force NGOs, regional organisations (such as the European
against of any state Union), military alliances (such as the North
• assisting in any action taken in accordance Atlantic Treaty Organization) and many other world
with the Charter, and refraining from giving organisations that are sympathetic to the aims of
assistance to any state against which the the UN Charter. The UN also provides leadership in
United Nations is taking preventative or dealing with issues that affect global order by:
enforcement action • commissioning research and reports
• ensuring that states which are not members • convening conferences
of the United Nations act in accordance with • initiating new treaties
these principles • promoting arms control
• no authorisation to intervene in matters within • promoting human rights
the domestic jurisdiction of any state. • carrying out peacekeeping operations
The UN Charter can be amended only if two- • providing humanitarian and development
thirds of the members the General Assembly vote assistance.
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CHAPTER 16 OPTION 7: WORLD ORDER
Research 16.1
1 Find out how many states there are in the world, whether all states are members of the UN, and
why or why not.
2 Use the UN website (refer to http://cambridge.edu.au/redirect/?id=6397) to complete the
following tasks.
a Construct a table about the six major organs of the UN. Draw up the table with columns titled
‘Origins’, ‘Role’, ‘Functions’ and ‘History’. Complete the table using information from the UN
site.
b Examine the membership and system of voting in the UN General Assembly. Explain how the
composition of and the system of voting in the General Assembly can be both democratic
and undemocratic. (Hint: What are the respective populations of China and East Timor and
how many votes does each have in the General Assembly? Also, how are the individual
representatives of the various states chosen?) 16
The UN Security Council During the Cold War the UNSC was paralysed
The UNSC has the main responsibility for maintaining by the inability of its permanent members to
international peace and security. There are 15 cooperate to deal with regional and global issues
members – five permanent and 10 non-permanent, that threatened world order. This all changed in
elected by the General Assembly to two-year terms. 1990 with Iraq’s invasion of Kuwait. The UNSC, for
The five permanent members – the United States, only the second time in 43 years, used its Chapter VII
France, the United Kingdom, China and Russia – powers. It authorised a US-led military force against
are often referred to as the Permanent Five, ‘PERM Iraq, ushering in a new era of global cooperation.
5’ or ‘P5’. For the UNSC to take action on a matter,
there must be nine votes in favour of it, including
all five permanent members. Any member of the
Permanent Five can halt an action by exercising
its power of veto. Often, member states (including
P5 members) will not vote against a resolution, as it
hinders relationships between states; instead, the
state in disagreement will abstain from voting.
The veto power is one of the most controversial
features of the Security Council. First, it enables any
of the permanent members to stop any substantive
action contemplated by the UNSC from being taken,
and, second, it can be used to block the appointment
of someone to the position of Secretary-General and
to block any changes to the UN Charter, thereby
hampering any substantial reform.
The UNSC is able to mandate ceasefire
ordinance, arrange for peacekeepers or military
observers, and encourage peaceful settlements
through the establishment of harmonious conditions.
By the terms of Chapter VII, various enforcement
Figure 16.10 Gary Quinlan was Ambassador and
strategies may be employed by the Security Council, Permanent Representative on the UN in New
including collective military action, arms embargos York from 2009 until January 2015, and Australian
and economic sanctions. Representative on the UNSC in 2013–14.
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CAMBRIDGE LEGAL STUDIES HSC
Though the UNSC has cooperated more
effectively since then, there have been many calls Legal Links
for its reform, particularly with respect to who the
For an outline of Australia’s term on the
permanent members are – they reflect the power
UNSC in 2013–14, see the Department of
realities of 1945 rather than of today. For instance,
Foreign Affairs and Trade report (Australia’s
it has been suggested that India, Brazil, Germany
Term on the United Nations Security Council
and Japan would be front-runners for permanent
2013–14: Achievements, 18 March 2015) at
member status today. Japan has been particularly
http://cambridge.edu.au/redirect/?id=6398.
vocal on this issue. Other possibilities for permanent
For an independent review, see Peter Nadin’s
membership are the Arab states and Africa. However,
Lowy Institute report (Australia on the UN
proposals like these are likely to be rejected by
Security Council: An End-of-term Review, 19
the current Permanent Five, as if even one of
December 2014) at http://cambridge.edu.au/
them objects, they have the power of veto on any
redirect/?id=6399.
proposal.
The non-permanent members of the UNSC are
selected according to a geographical and rotating
formula. There must be:
• three African states had no provision for a standing military force to deal
• two Asian states with blatant acts of aggression. This was perceived
• one Eastern European state as one of its weaknesses. The League of Nations
• two Latin American states was involved in a few peacekeeping operations in
• two states from Western Europe. the 1920s, using military forces put together on an
In 2007, the Rudd government campaigned ad hoc basis, but in the 1930s it crumbled in the
vigorously to get a seat on the UNSC. This effort was face of aggression by three major powers: Germany,
successful and in October 2012 it was announced Italy and Japan. The framers of the UN Charter were
that Australia had won a seat with 153 nations at the conscious of this weakness, so they sought to give
UN giving Australia their vote. Australia took up its the UNSC the legal right to use whatever force was
seat and served its two-year term from 2013 to 2014. necessary to maintain or restore peace. This power
(called ‘peace enforcement’) was incorporated into
Review 16.5 Chapter VII of the UN Charter, which enabled the
creation of a permanent military staff committee
1 Examine whether there are any consisting of the chiefs of staff of the five permanent
membership conditions for joining the members of the UNSC – all experienced military
UN. leaders. Their job was to coordinate a permanent UN
2 Identify the main aims of the UN as armed force whose role was to respond to aggression
expressed in its charter. and the illegal use of force. UNSC members were to
3 Briefly outline the roles and functions of have forces on standby to serve in the UN force.
the major UN organs. The onset of the Cold War in 1947 halted the
4 Outline the structure of the UNSC and implementation of the original UN plan for a
evaluate its effectiveness in meeting its military staff committee and the concept of peace
purposes. enforcement. This was because peace enforcement
relied on the cooperation of the Permanent Five. The
issue came to a head in the 1956 Suez Crisis, when
Britain, France and Israel invaded Egypt. The United
Peacekeeping States, with Canada, sponsored a UNSC resolution
The term ‘peacekeeping’ is not found anywhere in calling for a ceasefire, which was promptly vetoed
the UN Charter. However, the founders of the UN by Britain and France. The UN feared that if the
had a plan for enforcement action. This was to be United States and the USSR were also to become
an improvement on the League of Nations, which involved in the Suez Crisis it could lead to a
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CHAPTER 16 OPTION 7: WORLD ORDER
Legal Links
For further information on peacekeeping, go
to the UN peacekeeping website (see http://
cambridge.edu.au/redirect/?id=6400).
See the article by independent
researcher Peter Nadin on Australia and
UN peacekeeping: ‘Australia’s false start
on peacekeeping: a post-summit review,’ 13
October 2015 at http://cambridge.edu.au/
redirect/?id=6400.
International instruments 16
Figure 16.11 An Australian serviceman with East Treaties and customary law are the main sources
Timorese orphans. Australia provided a military of international law. Treaties are also known as
force to the UN peacekeeping mission in East Timor conventions, charters, covenants and statutes –
(Timor-Leste) up until November 2012, when the all these terms refer to a binding agreement
withdrawal of remaining troops began. voluntarily entered into by states. The agreement,
or treaty, places an obligation on the parties to act in
a particular way or adopt a certain type of behaviour
nuclear war. So the then Secretary-General of the
as the norm. Usually a treaty is entered into because
UN, Dag Hammarskjold, moved the debate to the
a state perceives that it will benefit from it.
General Assembly (over the objections of Britain
and France) and accepted a plan from Canada’s convention
foreign minister at that time, Lester B. Pearson, for another term for a treaty: an international agreement
between parties who are subject to international law
the establishment of a peacekeeping force – the UN (states and international organisations such as the UN
Emergency Force – to supervise a ceasefire. Thus a and its bodies)
watered-down version of peace enforcement, called
‘peacekeeping’, was born. There are two types of treaty:
The main difference between peace enforcement • bilateral treaties – treaties between two states
and peacekeeping is that the latter could operate (for example, the Free Trade Agreement
without the agreement of the five permanent between the United States and Australia,
members of the UNSC. Also, the whole UN signed in 2004)
peacekeeping apparatus has operated out of the • multilateral treaties – treaties between a
Secretary-General’s department since 1956. number of states.
Treaties between states have existed for
The future possibilities for the UN thousands of years, since the beginning of
civilisation. The majority of these treaties have
been bilateral. The number of multilateral treaties
Information about further development of
has increased over the past few hundred years,
the Peace Building Commission and the
escalating sharply since the end of World War II.
United Nations Emergency Peace Service is
Multilateral treaties now number in the tens of
available in the digital versions of the book.
thousands and are an indispensable part of the
current world order.
Since 1945 all states have been obliged to lodge
their treaties with the UN. This requirement is stated
in art 102 of the UN Charter:
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CAMBRIDGE LEGAL STUDIES HSC
particular leader or state accepts it. For example, it
Table 16.1 The most significant
is now accepted as a norm that slavery, piracy and
international documents since 1945
torture are prohibited under international law.
Charter of the United Nations (1945)
UN Convention on the Prevention and Punishment jus cogens
a Latin term meaning ‘compelling law’, also called a
of the Crime of Genocide (1948)
‘peremptory norm’: a norm of customary international
Universal Declaration of Human Rights (1948) law that is indisputably accepted by the international
Geneva Conventions (1949) community and is therefore binding on everyone
regardless of whether or not a particular leader or state
UN Convention Relating to the Status of Refugees accepts it
(1951) and Protocol (1967)
Treaty on the Non-Proliferation of Nuclear
Weapons (also called Nuclear Non-Proliferation Review 16.6
Treaty) (1968)
Rome Statute of the International Criminal Court 1 Explain how peacekeeping became a key
(1998) function of the UN even though it is not
mentioned in the UN Charter.
Every treaty and every international agreement 2 Identify the seven most significant
entered into by any Member of the United Nations international documents. Which of these
after the present Charter comes into force shall as documents was not created by the UN?
soon as possible be registered with the Secretariat
and published by it.
The requirement has its origins in former US Courts and tribunals
President Woodrow Wilson’s ‘Fourteen Points’ International Court of Justice
speech of January 1919. The first of Wilson’s The International Court of Justice (ICJ) deals with
Fourteen Points declared that treaties should be disputes between states. The ICJ was established
arrived at openly. This declaration was made in in 1946 as an organ of the UN. The court is based
response to the belief that one cause of World War I in The Netherlands and has 15 judges, elected by
was the existence in 1914 of secret treaties between the UN. The questions before the court are usually
governments, treaties that had not been approved decided by a majority of judges, and decisions are
by their citizens. arrived at by applying international conventions
The most significant treaties in terms of their and international customary law. The ICJ may
contribution to world order would undoubtedly be refer to academic writings and previous decisions
the UN Charter, the UN Convention on the Prevention to interpret the law, although it is not bound by
and Punishment of the Crime of Genocide, the previous decisions. If no clear-cut conventions apply
Universal Declaration of Human Rights (UDHR), the to a case, the court may make decisions based on the
Geneva Conventions, the UN Convention Relating to concept of ‘justice and fairness’, as long as the two
the Status of Refugees, the Nuclear Non-Proliferation parties agree to this basis of decision-making.
Treaty and the Rome Statute of the International Court The ICJ hears two types of case:
(1998). These treaties have to a large extent set the • disputes between states – the court gives
framework for international law. rulings between states that have agreed to be
bound by them
Jus cogens • advisory opinions – the court provides
States do not need to have agreed to or signed a reasoned, but non-binding, rulings on
treaty for an obligation to be considered binding on questions of international law submitted by the
them by the international community. The principle General Assembly of the UN.
of jus cogens refers to a legal norm that is accepted There are numerous treaties that confer
by the international community and is therefore jurisdiction on the ICJ. In theory, the court’s
binding on everyone regardless of whether or not a decisions are binding, final and without appeal,
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CHAPTER 16 OPTION 7: WORLD ORDER
except in cases where it gives an advisory opinion. In
practice, however, the ICJ’s effectiveness has often Research 16.2
been limited by the losing party’s unwillingness to
abide by the court’s ruling, and by the reluctance of Research the attitude of the United States to
the UNSC to enforce the rulings. the ICC during the two terms of George W.
Bush (2001–08). Then use the information you
International Criminal Court find to complete the following tasks.
The Rome Statute of the International Criminal 1 Outline the US opposition to the ICC.
Court is a treaty signed in 1998 by 121 states, 2 Outline the following measures that the
including Australia, which pledged the parties to United States took in relation to the ICC:
the establishment of a permanent court in which a American Service Members’
individuals can be tried for mass atrocity crimes Protection Act (also known as the
such as war crimes and genocide. In July 2002, the Hague Invasion Act)
Rome Statute came into effect when it was ratified b the threat to use the veto in the UNSC
by more than 66 states. The International Criminal c art 98 agreements. 16
Court (ICC) was established at The Hague, although 3 Assess the degree to which the attitude
it can hear cases anywhere in the world if it decides of the United States towards the ICC
to. The ICC was given jurisdiction only over acts of changed during the presidency of Barak
genocide, war crimes and crimes against humanity Obama.
committed since 2002 – these are the three most 4 How has the ICC been used by the UNSC
serious types of international crime and the cause in recent years?
of a great deal of regional disorder.
The ICC is a legal entity created independently
of the UN by a separate treaty between states. It resolution in 1993. It has jurisdiction over breaches
was not a product of the UNSC acting under the of the Geneva Conventions and international
UN Charter, as was the case with the tribunals customary law committed in the territory of the
set up to deal with war crimes in Rwanda and the former Yugoslavia since 1991. The most high-profile
former Yugoslavia; unlike those ad hoc international case is that of former Serbian leader Slobodan
tribunals, the UNSC cannot veto a state’s referral of Milosevic, who in 2001 was arrested for war crimes
a case to the ICC. and crimes against humanity in Kosovo and was
Despite this autonomy, the ICC works closely placed on trial in 2002. Milosevic died in 2006, before
with the UN. One hundred and twenty-four states are the completion of his trial.
members of the ICC, having both signed and ratified The International Criminal Tribunal for Rwanda
the Rome Statute; 41 states have signed but not ratified (ICTR) was established in 1994 and is based on the
the statute. Cases can be referred to the ICC by a party ICTY model. It has jurisdiction over acts of genocide
to the statute, the UNSC or the ICC Prosecutor. It can committed by the Rwandan Government and armed
be argued that this reduces the mandate and reach of forces in 1994. The government, dominated by
the court and renders it perhaps not as beneficial to the majority Hutu ethnic group, engaged in mass
the countries who need it the most, as they may not be atrocity crimes during 1994 against the minority Tutsi
parties to the Rome Statute. people, following the assassination of President
Juvenal Habyarimana. Since its establishment,
Other international tribunals many of the masterminds of the genocide have been
Following is a discussion of some other major tried. In 2012, the ICTR began the transfer of cases
international courts and tribunals. The first two of to national jurisdictions as part of its stated aim of
these were ad hoc tribunals set up by the UNSC in winding up all cases and appeals by 2014. The ICTR
the 1990s to deal with the human rights abuses that closed in December 2015.
had occurred in the Balkans and Africa, respectively. The Extraordinary Chambers in the Courts of
The International Criminal Tribunal for the Cambodia (ECCC) was established in 2003 as a
Former Yugoslavia (ICTY) was established by a UNSC joint venture between the UN and the Cambodian
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CAMBRIDGE LEGAL STUDIES HSC
The European Court of Human Rights (ECHR)
was first set up by the Council of Europe in 1959
in Strasbourg, France. In 1998, it was reformed
and established as a permanent court, directly
accessible by individuals, with jurisdiction over
issues of human rights arising under the European
Convention on Human Rights. The Council of
Europe (which is different from the European Union)
is an intergovernmental organisation (IGO) with
47 member states across the continent of Europe,
including all 28 member states of the EU. The court
is becoming increasingly important, and in January
2011 there were almost 140 000 applications pending
before it, more than half of which were lodged against
Russia, Turkey, Romania or Ukraine. The court has
been highly influential, not only in reforming the
Figure 16.12 Former Khmer Rouge minister Ieng
laws of the member states but also in promoting the
Thirith sits in the courtroom at the Extraordinary
Chambers in the Court of Cambodia (ECCC) in development of human rights law both regionally
Phnom Penh on 30 April 2010 for the delivery of the and globally. Some commentators argue that the
decision on appeal against her pre-trial detention. ECHR is one of the most effective mechanisms for
Up to two million people were executed or died of the protection of human rights in the world.
starvation and overwork under the movement until As states intensify their competition for access
the Khmer Rouge were ousted by Vietnamese-
to natural resources, tribunals with jurisdiction
backed forces in January 1979.
over the management of these resources, such as
the International Tribunal for the Law of the Sea,
Government. It has been given the task of bringing
are likely to grow in importance. This tribunal,
to justice Khmer Rouge leaders responsible for the
established under the UN Convention of the Law of
deaths of at least 1.7 million people from torture,
the Sea, can look at any issue relating to the sea,
starvation, execution and forced labour between
such as mining the seabed or overfishing of certain
1975 and 1979. However, the ECCC is plagued by the
types of fish. State parties are obliged to use either
slow pace of its trials, lack of funding and corruption
this tribunal or the ICJ to settle peacefully any sea-
issues. Many of the ex-Khmer Rouge leaders die
related disputes.
while awaiting trial. In 2010, Kaing Guek Eav, better
known as ‘Duch’, was convicted and sentenced to life
imprisonment for his role in the killing of up to 16 000 Review 16.7
people. ‘Duch’ had been the chief of the infamous
1 Identify all of the international courts.
Tuol Sleng centre in Phnom Penh. In August 2015,
2 Which courts predate the ICC and what
Ieng Thirith, a former top Khmer Rouge official on
are their functions?
trial in the ECCC, died at the age of 83. She had been
3 Compare and contrast the effectiveness
known as the ‘first lady’ of the Khmer Rouge. Her
of each of the courts.
husband was former foreign secretary Ieng Sary,
who died in 2013 at age 87, before the genocide case
against him could reach a verdict. Since its creation
in 2003 the ECCC has only brought half a dozen of
Intergovernmental organisations
the Khmer Rouge top leadership to justice and it is
Regional intergovernmental organisations (IGOs)
unlikely that it will seek out any further prosecutions
are making an increasingly significant contribution
despite the fact that there are vast numbers of
to world order. Each of these organisations has been
ex-Khmer Rouge members either in hiding or living
set up for a particular purpose. They vary enormously
openly in Cambodia.
in their economic power, effectiveness, level of
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CHAPTER 16 OPTION 7: WORLD ORDER
cooperation and integration, plans for the future and
impact on the rest of the world. Profiled are two of
the larger regional organisations: the EU and NATO.
The following are other notable examples:
• African Union (AU) – the African Union is
modelling itself on the EU and is receiving
assistance from the EU to set up its structures.
The African Union currently has peacekeepers
serving in Darfur under a UN mandate.
• Commonwealth – this is made up of former
members of the British Empire. In the past the
Commonwealth made a strong stand against
apartheid in South Africa. More recently,
Figure 16.13 Jean Monnet is widely credited as being
the Commonwealth has taken a strong stand
against the dictatorship that has existed in Fiji
the ‘father of Europe’ for his role in the creation of
the EU. In this photo he is making a speech in 1954 in 16
since 2006. In 2009, Fiji was suspended from the his role as President of the European Coal and Steel
Commonwealth for refusing to agree to hold Community.
elections in 2010.
• ASEAN (Association of Southeast Asian Despite their hopes, it took another world war and the
Nations) – this organisation has the most political commitment of a few individuals, especially
influence in trying to encourage the military Jean Monnet (credited as the ‘father of Europe’), to
dictatorship in Burma (Myanmar) to stop its bring the European federation into existence.
systematic human rights violations. The EU officially began in 1992 after a long and
gradual development from its origin in 1950, when it
intergovernmental organisation (IGO) was named the European Coal and Steel Community
an organised group of two or more states, set up to and consisted of just six countries: Belgium,
pursue mutual interests in one or more areas
Germany, France, Italy, Luxembourg and The
Netherlands. Under the Coal and Steel Treaty, the
European Union (EU) member states agreed to common management of
Despite the EU’s recent financial problems, it still those industries, so that none could make weapons
stands out as the most successful and influential of war to turn against any of the others. As it evolved,
regional intergovernmental organisation because it economic and political goals continued to coincide.
has created unprecedented wealth and security for In 1957, the Treaty of Rome was signed, forming the
its members and has revitalised European influence European Economic Community (EEC), which had
in the world. Furthermore, it has made the prospect the aim of allowing free trade across borders. The
of war between any of its 28 members unthinkable. 1992 Treaty on European Union, signed at Maastricht,
A large number of states seek admission to the EU The Netherlands, set rules for the future common
and it is emulated by other regional organisations, currency (the euro) as well as for common foreign
including the African Union. It is a supranational and security policy and closer cooperation in justice
organisation. and legal procedures.
As of 2015, there were 28 member states with
supranational organisation three more awaiting approval. The EU has strict
an organisation in which decisions are made by the
appointed or elected representatives of the member membership criteria, adheres to the UN Charter
states; because decisions are made by majority vote, it is regarding the use of force, and requires that its
possible for a member state to be forced to do something
it does not itself agree with members are democracies that uphold the rule of
law and respect human rights. It has a Charter of
A European federation of democratic states that Fundamental Rights and a Fundamental Rights
would forever end the scourge of war in Europe was Agency whose role is to advise policy-makers
a dream of visionaries during and after World War I. and raise public awareness. Member states work
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CAMBRIDGE LEGAL STUDIES HSC
North Atlantic Treaty Organization
(NATO)
The North Atlantic Treaty Organization (NATO) was
established in 1949 to counter the threat from the
USSR-led communist bloc of Eastern Europe. It is
an alliance of 28 countries from North America and
Europe, and its mission is to safeguard its members
through political and military means. It provides a
forum for European states, Canada and the United
States to discuss and address security issues of
common concern.
NATO military forces have helped to end conflicts
in Kosovo and Bosnia. The organisation provided
transport and training for the African Union’s
peacekeeping mission in Darfur, Sudan. Currently,
NATO has forces deployed in Afghanistan, aiming
Figure 16.14 Berlin, Germany – 15 May 2017: newly
elected French President Emmanuel Macron and to support the fledgling democratic government.
German Chancellor Angela Merkel shake hands as NATO’s International Security Assistance Force
they depart after speaking to the media following (ISAF) in Afghanistan is under the authority of the
talks. Macron visited Berlin only a day after UNSC, although it is not a UN body.
being sworn in as president in Paris. Macron and Like the EU, NATO has strict membership
Merkel have both demonstrated an unwavering
criteria, adheres to the UN Charter regarding the
commitment to the EU, especially in light of the
recent Brexit problem. use of force, and requires that its members are
democracies that uphold the rule of law and respect
human rights. Ex-communist countries from Eastern
together to develop common solutions in the areas Europe have flocked to join NATO, which they see as
of immigration and asylum, and to manage the a guarantee against Russian domination. However,
application process for people coming to Europe this eastwards spread of NATO has led to a Russian
to escape war, persecution, natural disasters or backlash. Over both Georgia and Ukraine, Russia
poverty. The states also cooperate to fight organised has demonstrated its determination to allow no more
crime, including drug and people trafficking, money former members of the old USSR to come into the EU
laundering and terrorism, through both legislation or NATO orbit. As Russia increasingly calls NATO’s
and police powers. Europol (the European Law bluff, it remains to be seen whether NATO can
Enforcement Agency) is responsible for coordinating retain its reputation as the most successful military
the various states’ police efforts in this area. alliance in history.
The EU has become a powerful role model to other
states and regional organisations, and exercises a
great deal of persuasive power by holding out the Review 16.8
promise of membership, by using development
1 Identify the milestones that led to the
assistance (it provides 50% of the world’s aid) and
creation of the EU.
by developing strategies for conflict management
2 Explain how NATO’s membership
for use around the world. However, the debt crises
expanded significantly at the end of the
that have afflicted the EU in recent years have led
Cold War.
some commentators to question the EU’s long-term
viability.
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CHAPTER 16 OPTION 7: WORLD ORDER
and civil society organisations commonly known
Research 16.3 as non-government organisations (NGOs) .
One of the first NGOs was the Red Cross. (In
1 Using the ‘Institutions and bodies’ section some countries the Red Cross is known by other
of the EU website (see http://cambridge. names, such as the Red Crescent or the American
edu.au/redirect/?id=6402), identify the Red Cross.) The Red Cross gives humanitarian
main institutions within the EU. aid to victims of war and natural disasters, and
2 Research the other regional champions international humanitarian law. NGOs
intergovernmental organisations listed have played an increasingly important part in
on pages 446–7 and create a table with world order since the end of World War II. There
columns showing the origin, purpose, are about 10 million internationally operating NGOs
structure, membership and role of each today, campaigning globally for humanitarian
organisation. ideals. NGOs helped to write the UN Charter and
3 Go to NATO's website and identify the are an integral part of the UN, and many of them
members of NATO. collaborate with various specialised agencies in 16
their humanitarian work on a daily basis.
Non-government organisations non-government organisation (NGO)
Organisations such as Amnesty International, an independent, non-profit group that often plays an
important role in advocating, analysing and reporting on
Human Rights Watch, World Vision, Greenpeace, human rights worldwide
Oxfam and ICAN are just a few of the tens of thousands
of privately run organisations, citizen associations
Figure 16.15 The Institute for Economics and Peace was created in 2007 by Australian businessman Steve
Killelea, and is now one of the top ‘think tanks’ in the world.
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CAMBRIDGE LEGAL STUDIES HSC
Finally, the ICG is strongly supportive of a
multilateral, rules-based approach to world order
using the current structures of the UN and other
international organisations, regional organisations
and international courts. The ICG is particularly
supportive of the new UN doctrine, the Responsibility
to Protect (R2P). (Responsibility to Protect is covered
later in this chapter.)
Figure 16.16 ICAN is an internationally operating
NGO. Some other NGOs that specialise in world order
issues are:
In addition to these NGOs, there are NGOs that • The Department of Peace and Conflict Studies
specialise in world order issues by investigating, (Sydney University), formerly known as the
researching, educating policy-makers and the Centre for Peace and Conflict Studies – http://
public, and lobbying leaders to take action. The cambridge.edu.au/redirect/?id=6403
International Crisis Group (ICG) was founded in 1995 • Campaign for Nuclear Disarmament (UK) –
by some retired international leaders in response http://cambridge.edu.au/redirect/?id=6404
to the failure of the international community to • Global Zero – http://cambridge.edu.au/
anticipate and respond effectively to the genocides redirect/?id=6405
that occurred in Somalia, Rwanda and Bosnia • Carnegie Endowment for International Peace (a
in the early 1990s. With a budget of around $22 private, non-profit US organisation dedicated
billion a year, the ICG monitors 60 conflicts and to international cooperation, especially US
potential conflict situations. The ICG’s aim is to be engagement; it has offices in Washington,
an accurate source of information for governments, Moscow, Beijing, Beirut and Brussels) – http://
IGOs and NGOs that are working to respond directly cambridge.edu.au/redirect/?id=6406
to conflict situations. The ICG also uses the media • World Federation of United Nations
effectively, getting 14 000 mentions annually. Gareth Associations (a global network connecting UN
Evans, Australian Foreign Minister in the Hawke Associations, which disseminate information
and Keating governments, served as president of about the UN, lobby governments, and
the ICG from 2000 to 2009. The current president is undertake other activities in support of the
Jean-Marie Guéhenno. UN) – http://cambridge.edu.au/
The ICG sees its role as: redirect/?id=6407.
• supplying behind-the-scenes support and
advice in peace negotiations Legal Links
• providing highly detailed analyses on policy
issues For further information on the International
• offering strategic thinking on the world’s most Crisis Group, refer to its website at http://
intractable conflicts, such as those in Burma cambridge.edu.au/redirect/?id=6408.
(Myanmar), Iraq and Israel/Palestine.
• giving an early warning when a security
situation is becoming a full crisis. The ICG is
constantly on alert in areas like Darfur, Somalia,
Pakistan and even Timor-Leste (which is still in
a fragile nation-building stage after initial UN
intervention in 1999).
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CHAPTER 16 OPTION 7: WORLD ORDER
external affairs power to bring a halt to Tasmania’s
Research 16.4 damming of the Franklin River. During the last
years of the Howard government a number of the
Locate the websites of five internationally states, under Labor governments, were at odds with
operating NGOs that are concerned with the federal government’s refusal to ratify the Kyoto
world order issues. Protocol on global warming.
1 Outline an issue or a crisis that each The states cannot enter into international
NGO focuses on. agreements in their own right. However, they can
2 Assess the role of each NGO in enact legislation that is in harmony with international
promoting world order. agreements. For instance, the New South Wales
3 Locate the organisation that produces Government went further in adhering to UN human
the Global Peace Index and find out who rights treaties with its Anti-Discrimination Act 1977
created it, when, and for what purpose. (NSW) than the federal government did with its
4 How might the information contained Racial Discrimination Act 1975 (Cth).
in the Global Peace Index assist in the 16
promotion of global stability and world Australia’s role in global affairs
order? Since federation in 1901, Australia has taken
5 Where is Australia ranked in the Global its global responsibilities seriously. Australia’s
Peace Index? What factors do you think major contribution in World War I was due to
would contribute to this ranking? its obligations to the maintenance of the British
Empire, which it saw as essential to global stability,
the spread of civilisation and the rule of law. From
1907 to 1914 Australia was a dominion of the British
Australia’s federal government Empire – a political entity that was nominally under
The Australian Constitution British sovereignty but independent from Britain
The structure of Australia’s federal government in all matters except its foreign policy. Australia’s
has implications for Australia’s response to world contribution during World War I won it, along with
order issues. First, under s 51(xxix) of the Australian the other dominions of Canada, New Zealand and
Constitution, the federal parliament has the power South Africa, recognition as a state in its own right
to make laws relating to ‘external affairs’ – that in the League of Nations. As a foundation member
is, matters of international concern. As such, the of the League, Australia played a very active role
federal government has the authority to enter into internationally. Many of its proposals were taken up
international treaties and agreements. In order by the UN when it was formed.
for international obligations to be binding in
Australian domestic law, federal legislation must dominion
a semi-autonomous political entity that was nominally
be passed implementing the treaty. For example, under the sovereignty of the British Empire
in 2006 parliament passed legislation relating to the
Lombok Treaty with Indonesia, which provided for
cooperation in a variety of security challenges. Australian involvement in the
United Nations
The states and international law A number of notable Australians have represented
Any international agreements entered into by the Australia internationally. One of these was Jessie
federal government can affect the states in some Street, who attended the League of Nations
way. The federal government usually consults the Assemblies in Geneva in 1930 and 1938. She was
states before signing an international agreement, co-founder of the UN Commission of the Status
but it is not obliged to do so. Sometimes international of Women and helped establish the Australian
agreements can be a point of contention between the Women’s Charter. After World War II, Australia was
states and the federal government. As discussed in a strong supporter of the international organisations
Chapter 11, in 1983 the federal government used its to promote world order. Dr H.V. Evatt, Foreign
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CAMBRIDGE LEGAL STUDIES HSC
Minister in the Chifley Labor government (1945–49), Australia has also been engaged in peacekeeping
was elected president of the UN General Assembly efforts internationally outside the UN. In recent years,
in 1948. Australia has conducted a peacekeeping operation
Many other Australians have also served the in the Solomon Islands and committed federal police
UN with distinction. From 1997 to 1999, Richard to many peacekeeping operations around the world.
Butler was one of the most powerful and
controversial figures in world politics as head of Australia and international agreements
the UN Special Commission (UNSCOM) charged Australia has also been a part of many other
with monitoring Iraq’s dismantling of its weapons international agreements to promote world order.
facilities after the Gulf War of 1990–91. Butler was Australia is a signatory to the Geneva Conventions
also involved in the Canberra Commission on the and the Rome Statute establishing the ICC. It is also
Elimination of Nuclear Weapons in 1996, which was party to other agreements that protect the rights
initiated to formulate a plan for the reduction and of people who are subject to instability, such as
eventual elimination of nuclear weapons. Gareth the UN Convention on the Rights of the Child, the
Evans, who served as Foreign Minister in the UN Convention on the Elimination of All Forms of
Hawke and Keating governments, has been Discrimination Against Women and the UN Refugee
very actively involved in the UN in the areas of Convention. As a temporary member of the UNSC,
nuclear disarmament and the new UN doctrine of Australia played a significant role in getting the
Responsibility to Protect. In 2009, then Prime Minister Arms Trade Treaty passed in December 2014.
Rudd took a leading role in the UN-sponsored Australia has undertaken many international
debate on global warming and in the debate at the obligations outside its multilateral agreements. The
Copenhagen Conference in December. In October majority of the 900 treaties and agreements that
2012, Australia won a temporary seat on the UNSC, Australia has signed are bilateral. In addition, most
held that seat throughout 2013 and 2014 and made of the $1 billion in Australian aid for the victims of the
significant contributions. 2004 Boxing Day tsunami was given as part of bilateral
aid partnerships with Indonesia and Sri Lanka,
Australia’s contribution to rather than through multilateral organisations, in
peacekeeping order to more easily target the funds into particular
Australia has also taken its responsibilities with
respect to the maintenance of world order seriously,
as evidenced by its consistent involvement in UN
peacekeeping missions. When and how Australia
becomes involved in such activities has to do
with the need in the country in question and with
Australia’s own internal policies and priorities.
Australia has contributed either military forces or
police to 54 peacekeeping forces, two-thirds of these
since 1991. In 1999–2000, Australia played a leading
role in establishing order in East Timor (Timor-Leste)
when Indonesian-backed militia went on a rampage
of killing there after the East Timorese people voted
for independence from Indonesia in a UN-sponsored
referendum in 1999. Australian military and federal
police have continued to play a peacekeeping role Figure 16.17 East Timorese independence leader
in East Timor. Xanana Gusmao shouts ‘Viva Peter Cosgrove’ to the
crowd gathered outside the UNTAET Headquarters
militia in Dili, East Timor, after Major General Peter
a group of unofficial soldiers who act outside Cosgrove handed over control from the INTERFET
international law and are often secretly used and funded peacekeeping mission to the United Nations, 23
by governments February 2000.
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CHAPTER 16 OPTION 7: WORLD ORDER
programs. The Australian Government continues to effect on how we view major events. One
be involved in conferences about common global characteristic of modern media is the tendency
problems and to sign up to international agreements to treat news as entertainment. This means that
when relevant to Australia. there is often little effort to provide a full and
considered background to major problems and
issues. Consequently, while people know of events
Review 16.9
taking place around the world, they often lack any
1 Outline the power that s 51(xxix) of real understanding of the issues involved. This is
the Constitution gives the federal particularly the case when it comes to war.
government. Nevertheless, the media has played a significant
2 Summarise Australia’s involvement in role in drawing the world’s attention to various
international activities and evaluate its disasters and political crises, and has the potential
contributions. to influence political leaders through public opinion.
Examples in the past decade include the ongoing
crises in Zimbabwe and the Darfur region in Sudan. 16
However, once such events are off the front pages
The media of the newspapers and the evening television news,
The media has an enormous influence on world order public interest in them tends to fade. This isn’t so
and that influence can be positive or negative. A free much about the media as about human nature and
and unbiased media is an essential ingredient of the about ‘donor fatigue’, where the constant cycle of
rule of law in the global sphere. We tend to see that conflict tires out those who view it, despite the depth
the less democratic a country is, the more constraints of suffering that is witnessed.
there are on its media and its population’s ability to The rise of social media is challenging the role
freely access it. of traditional media. News happening anywhere
Despite the immense technological advances in in the world can be spread instantly without the
all areas of mass media, the question of ownership global news networks being involved at all. Social
is a significant issue. For both print and broadcast media played a significant role in assisting the pro-
media, the trend has been towards domination by a democracy groups during the Arab Spring uprising
few large and powerful transnational corporations. in the Middle East in 2010. Due to the effectiveness of
No matter who owns the media and controls its social media as a news source, authoritarian regimes
various aspects, the media today has a tremendous (such as in Russia and China) are attempting to
Figure 16.18 Social media is now challenging the role of traditional media in
disseminating news about global events.
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CAMBRIDGE LEGAL STUDIES HSC
clamp down on and control social media. Meanwhile, imported products). Another example is Turkey’s
the powerful American organisation, the National bid for membership of the EU. To be permitted
Security Agency, is attempting to monitor all to join the EU and receive the massive economic
communications in cyberspace. Social media and benefits of a large, successful market, Turkey has to
the internet generally are contested areas in the improve its compliance with human rights. This type
world today. of persuasive power is described as ‘soft power’. Soft
power co-opts rather than coerces people.
Non-legal mechanisms for Persuasion was also effective in getting China to
international dispute resolution agree to pressure the government of Sudan to allow
Political negotiation the deployment of a UN peacekeeping force into the
Political negotiation is the simplest and most violence-wracked Darfur region. Credit for this goes
frequently used means of working with other to Hollywood actor Mia Farrow and director Steven
states and resolving disputes. Communication Spielberg in particular. Mia Farrow and a host of
between states now occurs at many levels of NGOs conducted a campaign that labelled the 2008
government, and each state has a vast array of Beijing Olympics the ‘Genocide Olympics’ because
experts who can negotiate the details of international of China’s repeated blocking of UNSC resolutions on
agreements. These changes in the means available ending the violence in the Darfur region. The high
for political negotiation have increased the scope point in the campaign came when Steven Spielberg,
for cooperation. When disputes cannot be solved who was an artistic adviser for the Games, publicly
through political negotiation, the next option is the challenged China to do something about Darfur.
use of persuasion. Finally, on 12 June 2007, the government of Sudan
accepted the UNSC proposal for a peacekeeping
Diplomatic pressure force. On 31 July 2007, China was a signatory to UNSC
States, international organisations and transnational Resolution 1769 which created a hybrid UN–African
corporations can be persuaded to change their Union peacekeeping mission, known as UNAMID,
behaviour through the pressure of world public tasked with securing humanitarian assistance and
opinion. ‘Diplomatice pressure’ is not a technical contributing to the promotion of human rights
term, or something that governments openly aspire and the rule of law. As one commentator – Helen
to, but it is a vitally important part of international Cooper, from the New York Times – remarked, this
relations. Persuasion, in the form of highlighting was ‘a turnaround that served as a classic study of
issues of concern, is one of the main ways in which how a pressure campaign, aimed to strike Beijing
NGOs achieve their objectives. The UN can also
use this tactic, through reports that it delivers on
various issues and the deliberations of its human
rights bodies. In 2013, the UN Human Rights Council
began an inquiry into human rights abuses in North
Korea. This was led by Australian former High Court
judge, Michael Kirby. The committee brought down
its damning report in 2014. However, it cannot force
North Korea to end its human rights abuses and can
only keep up the pressure on the dictatorial regime
by highlighting the abuses that occur in that country.
States can also be encouraged to improve their
behaviour by the prospect of membership of world
organisations. For instance, China had to raise its
trade standards in order to comply with the rules of
the World Trade Organization (for example, it had to Figure 16.19 Diplomatic pressure is one of the few tools
apply the same tariff rates to all member countries, that the international community can use in regard to
and apply internal laws equally to domestic and widespread human rights abuses in North Korea.
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CHAPTER 16 OPTION 7: WORLD ORDER
All Members shall refrain in their international
relations from the threat or use of force against the
territorial integrity or political independence of any
state, or in any other matter inconsistent with the
Purpose of the United Nations.
However, the architects of the UN Charter
realised that force would sometimes be used, so they
sought to create a legal framework for it. Article 51
of the charter states that force can be used in self-
defence. The United States argued that its invasion
of Afghanistan in November 2001 was legal because
it was carried out in response to the 11 September
attacks by terrorists of Al Qaeda. At the time of
the attack, Al Qaeda had bases in Afghanistan 16
Figure 16.20 The Iran deal in 2015 was controversial and was supported by the Taliban regime in that
in the United States. country. However, with a military commitment
that has continued since 2001 with no end in sight,
in a vulnerable spot at a vulnerable time, could commentators, while conceding the invasion may
accomplish what years of diplomacy could not’. have been legal, now question whether it was wise
Persuasion and negotiation were used to achieve and whether the Bush Administration had given
a landmark nuclear agreement with Iran in 2015. This due consideration to the amount of political and
was after many months of diplomacy between the economic commitment that would be required.
P5+1 (the United States, United Kingdom, France, As well as providing a self-defence clause, the UN
China, Russia and Germany) as well as the EU. The Charter was realistic enough to legitimise the use
final deal known as the Joint Plan of Action is a of force in circumstances other than self-defence.
plan to ensure that Iran does not acquire a nuclear However, the constraint placed upon this use of force
weapon. In return, tough trade sanctions that had was that it had to be agreed to by the UNSC. Article
been holding back Iran’s economy for years were 42 states that the UNSC can ‘take such action by air,
lifted. sea or land forces as may be necessary to maintain
or restore international peace and security’.
Legal Links
Multilateral action
For further information on the concept of soft In 1998, the threat of the use of the veto by two
power, see the article ‘Propaganda isn’t the Permanent Five members was enough to stop
way: soft power’ by Joseph Nye, at the Belfer the UNSC from intervening in the genocide that
Center website (see http://cambridge.edu.au/ was taking place in Kosovo. Kosovo is a province
redirect/?id=6409). of the state of Serbia, and has a majority Muslim
population. In 1998, the Serbian Government,
under the leadership of Slobodan Milosevic, began
engaging in ‘ ethnic cleansing’ of the Muslim
Force population of Kosovo. In this case, the UNSC was
When political negotiations break down and unable to immediately pass a resolution condemning
persuasion and soft power have no impact, then Serbia’s actions and sanction the use of force by the
there may be a resort to force. UN, because of the threat of a veto from China or
The idea that force or the threat of force should Russia. Russia had traditionally backed Serbia’s
not be the norm in international relations is enshrined control of Kosovo, and China sided with Russia.
in the UN Charter. Article 2(4) of the charter states: However, the prospect of a humanitarian disaster
caused by the acts of genocide perpetrated by the
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CAMBRIDGE LEGAL STUDIES HSC
Serbian forces caused great concern in Europe and As the international community has repeatedly
the United States. As a result, in March 1999, NATO proven to be inadequate when it comes to
successfully intervened in Kosovo. The UNSC, preventing mass atrocity crimes like genocide
minus China, which abstained, then called for an and war crimes, a new standard called the
international civil and security presence in Kosovo, ‘Responsibility to Protect’ (or R2P) has come
thus retrospectively ratifying the NATO intervention about. This principle arose from rising controversy
in Kosovo and lending it greater legitimacy. over the conflict in Rwanda, Bosnia and Kosovo:
whether there was a ‘right of humanitarian
ethnic cleansing intervention’ by the international community. On
a euphemism for genocide
one side, those who believe that humanitarian
intervention is necessary claimed that the powers
The NATO action in Kosovo invites questions
given to the UNSC in Chapter VII could be used to
about the circumstances that make the use of force
prevent more conflict. Their opponents, however,
legal under international law. The question is: was
stressed the concept of state sovereignty, which
the NATO action legal under international law before
doesn’t allow humanitarian intervention according
it was retrospectively sanctioned by the UNSC?
to art 2.7 of the UN Charter. Thus, the R2P was
Scholars of international law would answer that the
created in hopes of narrowing the division between
original NATO action in Kosovo was legal because
these two perspectives of state sovereignty. It
it was carried out by a multilateral force (NATO).
had its origin in the 2001 report produced by the
As a general rule, multilateral or collective military
International Commission on Intervention and
intervention has the backing of international law if
State Sovereignty, called The Responsibility to
it is in response to a situation where the threat to
Protect. Following some years of campaigning
peace is significant. Unilateral military intervention
and negotiations, the heads of state attending the
has been prohibited under international law since
World Summit in September 2005 unanimously
the end of World War II.
accepted R2P. It has also been accepted by the
unilateral
undertaken by one state or body
Review 16.10
1 Outline the conditions laid down by the
UN Charter on the use force.
2 What is Chapter VII and how is it used by
the UNSC?
16.3 C
ontemporary issue:
The principle of
‘Responsibility to Protect’
(R2P)
How can we possibly do worse flying under the flag
Figure 16.21 In 2017, Rohingya refugees were
of R2P than we did for centuries accepting, in effect,
forced to flee Myanmar after the military conducted
that state sovereignty was a licence to kill?
a campaign of burning their villages, and killing
Gareth Evans, President of the International and assaulting many. The Global Centre for the
Crisis Group, in an interview with Stiftung Responsibility to Protect stated that the military’s
Entwicklung und Frieden News, 2008 policy constituted ethnic cleansing. To many
observers this constituted a clear R2P situation.
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CHAPTER 16 OPTION 7: WORLD ORDER
UNSC. As this new norm is widely adopted by the Non-legal responses
international community, it shows the commitment Responsibility to Protect – Engaging
of states in the prevention of, and appropriate Civil Society (R2PCS)
reaction to, international crises regardless of their
NGOs have taken up the cause of R2P. In 2003, the
locations. R2P was used in Libya, but then when
World Federalist Movement–Institute for Global
the United States, United Kingdom and France
Policy launched the ‘Responsibility to Protect –
went beyond the UN resolution 1973 and changed
Engaging Civil Society’ project (R2PCS), with the aim
their mission to one of regime change, Russia and
of building support for R2P. The goals of this project
China objected. When the Syrian Civil War broke
were to engage civil society and educate other NGOs
out in 2011, Russia and China each used their veto
about R2P principles, in order to effectively lobby
to stop any UNSC intervention.
governments to respond promptly and appropriately
to emerging humanitarian crises.
Legal responses The R2PCS has been involved in:
R2P places the onus on states and international
organisations to protect populations from mass
• strengthening the acceptance of R2P by
governments and international organisations
16
atrocity crimes: • raising awareness about R2P and building
• Each individual state is responsible for the NGOs’ advocacy skills
protection of its own citizens, and is expected • promoting the implementation of R2P by the
to offer assistance to other states in order to UN
improve their ability to do so. • helping NGOs develop strategies to implement
• The UN, and other international organisations, R2P in country-specific situations.
are responsible for alerting and informing, for
developing effective preventative measures, International Coalition for
and for mobilising military action when Responsibility to Protect (ICRtoP)
required.
In January 2009, the R2PCS launched another project,
• NGOs and individuals have the responsibility to
the International Coalition for the Responsibility
draw the attention of the policy-makers to what
to Protect (ICRtoP). This effort is supported by a
needs to be achieved, by whom and when.
number of NGOs, such as Oxfam International,
From the perspective of international
Human Rights Watch, the International Crisis Group
organisations, which includes the UN, the R2P
and Refugees International. The coalition aims to
represents their responsibilities to alert and inform,
raise awareness about R2P and to educate NGOs
to develop effective preventative measures and to
on how to form partnerships with other interested
initiate military action when necessary. For NGOs and
NGOs and how to apply the norm to specific regions.
individuals, the R2P indicates their responsibility to
draw the attention of the policy-makers to highlight Conclusion
the public’s expectations of when what needs to be
R2P is a framework that enables the two contradictory
achieved and by whom.
aspects of the UN Charter – the non-interference
Overwhelmingly, prevention is the key response
principle in relation to state sovereignty and the
in the R2P doctrine, through measures such as
obligation on UN members to act against human
building states’ capacities to safeguard human
rights violations – to be reconciled. Some work still
rights, remedying grievances, and conforming to
needs to be done in making R2P a useful mechanism
the rule of law. But if prevention fails, R2P requires
the use of whatever measures are necessary to stop
mass atrocity crimes, whether those measures are Legal Links
economic, political, diplomatic, legal, security or, in
the last resort, military. For more information on the Responsibility
to Protect, R2PCS and ICRtoP, refer to http://
cambridge.edu.au/redirect/?id=6410.
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CAMBRIDGE LEGAL STUDIES HSC
for improving the international community’s 16.4 C
ontemporary issue:
response to crisis situations. There are a number Regional and global
of priorities for R2P to work on, more than five years situations that threaten
after its adoption by the UN. These are: peace and security – the
• Care should be taken in labelling conflicts nuclear threat
as R2P situations. In his 2008 book, The
Nuclear weapons are a significant threat to global
Responsibility to Protect: Ending Mass Atrocity
peace and security. At the height of the Cold War
Crimes Once and For All, Gareth Evans estimates
there were 68 000 nuclear warheads in the world.
that, of the 60 or so conflicts or potential conflict
The number has now been reduced to around 16 000,
situations in the world at any time, only 12 to
with thousands still on a 20-minute alert. However,
15 would be R2P situations. Evans stressed
the detonation of only a few hundred would not
that R2P does not apply to all human security
only destroy targeted cities but also cause massive
situations.
ecological damage to the parts of the world that were
• R2P is primarily about prevention and should
not targeted.
not be focused narrowly on military action.
We were very lucky to survive the Cold War without
• The UNSC needs to develop specific guidelines
a nuclear war between the superpowers. We came
for when force is used in R2P situations. It
close to World War III a few times during the Cold
needs to clarify the limits of military action.
War, particularly in 1962, 1973 and 1983. Then in 1995
• There needs to be a greater emphasis on
a false reading nearly sparked a nuclear retaliation
building the capacity of regional organisations
by Russia against a suspected US attack. There have
such as the African Union and NATO so that
been a number of bilateral nuclear weapons treaties
they have a variety of options and are prepared
and a few multilateral treaties to deal with the threat
to mount military operations.
of nuclear war. However, the world has a long way to
Finally, world leaders need the political will to
go before the threat of nuclear weapons is removed.
make the hard decisions. It is also the responsibility
of all those people of goodwill who believe in the
Legal responses
R2P principle to pressure their governments to be
Bilateral treaties
involved. The Responsibility to Protect has become a
The improved relationship between the two
globally accepted international norm. The challenge
superpowers helped rejuvenate the UN, and also
now is to see it implemented into policy.
meant that significant progress that was made in the
field of nuclear disarmament – the most significant
Review 16.11 since the start of the Cold War. However, the UN
was not pivotal in this advancement. These bilateral
1 Define the term the ‘right of
improvements include:
humanitarian intervention’.
• 1986 – the United States and the USSR talks
2 Compare the meaning of R2P as it applies
on nuclear weapons reductions with the
to international organisations, NGOs and
Reykjavik Summit in the October 1986. These
individuals.
talks eventually led to the groundbreaking INF
3 Explain the purpose of the International
Treaty and further agreed reductions in nuclear
Coalition for the Responsibility to Protect
weapons.
(ICRtoP).
• 1991 – the United States and Russia signed
START I and began to reduce their nuclear
stockpiles. They aimed to cut their arsenals
from about 58 000 to around 5000 each. The total
stores held by the two countries is about 11 000
at present.
• 2002 – US President Bush and Russian
President Putin signed the SORT treaty. Both
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CHAPTER 16 OPTION 7: WORLD ORDER
based on an agreement between the five states that
had nuclear weapons at the time, and all the other
states of the world that did not have them. The states
lacking nuclear weapons (except for Pakistan, India
and Israel) promised not to develop them if the five
that did have them (the United States, Russia, China,
Britain and France) agreed to gradually reduce the
number of weapons they held. The treaty was to be
renewed every five years, but in 1995 a positive step
was taken when the parties to the treaty decided to
extend it indefinitely. At this conference, they agreed
to adopt a new treaty called the Comprehensive Test
Ban Treaty by 1996. This would ban weapons-grade
fissile material from being produced, eradicate
nuclear weapons, support nuclear-free zones and 16
give security assurances to all states. The Australian
Government took the treaty to the General Assembly,
where it was adopted, and the Comprehensive Test
Ban Treaty entered into force in 2007. As of 2015 there
were 183 signatories and 164 ratifications, although
the United States is not among the ratifications.
Figure 16.22 Nuclear fallout shelters and civil
defence drills were common until the 1980s when it
In 2000, the nuclear weapons states declared
was realised that there is no real defence to a nuclear their unequivocal desire to completely eliminate
attack. nuclear arsenals. However, at the same time the
United States announced its intention to abandon
states were to reduce their nuclear weapons the Anti-Ballistic Missile Treaty of 1972. This was
to between 1700 and 2000 each. However, seen as ominous news by other major powers, who
SORT was widely criticised because it omitted feared that it signalled the first stage of the United
‘tactical’ nuclear weapons (those intended to States putting weapons into space. Also disturbing
be used on a battlefield) and only included was the United States’ 2002 announcement that it
deployed warheads, meaning parties could was prepared to use ‘pre-emptive’ action – to strike
simply put them in storage. It also omitted an enemy first, before the enemy could strike. This
verification procedures. represented an abandonment of basic UN principles.
• 2010 – US President Obama and Russian Multilateral cooperation took another hit
Prime Minister Medvedev signed New START, at the 2005 World Summit. There were high
to replace the expiring START I and SORT expectations that the world leaders would agree
treaties. The reductions required include a to a strengthening of the NPT. However, despite
reduction in deployed nuclear warheads to 1550 five weeks of negotiations, nothing was achieved
combined, down two-thirds from START I and and no final document was produced. The despair
one-third from SORT. The new treaty has been created by this failure of the nuclear weapons states
welcomed by commentators, but some have to meet their requirements under art 6 of the NPT
suggested that it could have gone further. led to renewed efforts by anti-nuclear groups to
work towards the elimination of nuclear weapons
Multilateral treaties by other means. President Obama’s commitment
In 1968, the Treaty on the Non-Proliferation of Nuclear to the NPT, expressed in support of UN Resolution
Weapons, usually known as the Non-Proliferation 1887 (2009), was a positive sign, but real progress
Treaty (NPT), was signed in Washington, London was very minimal. The 2010 NPT Review Conference
and Moscow. In 1970 it came into force, after being appeared to be more successful. A 64-point action
ratified by a sufficient number of states. This treaty is plan was agreed on, but over the following years
ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press 457
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CAMBRIDGE LEGAL STUDIES HSC
resolution required the destruction of all biological
Legal Links and chemical weapons, and ballistic missiles with
a range over 150 kilometres, and required Iraq to
For further information about the Nuclear
submit to a rigorous UN inspection system. The
Non-Proliferation Treaty and the NPT review
inspections were conducted by the UN Special
conferences see:
Commission (UNSCOM), and later by the UN
• UNODA – United Nations Office for
Monitoring, Verification and Inspection Commission
Disarmament Affairs (http://cambridge.
(UNMOVIC), throughout the 1990s and from the end
edu.au/redirect/?id=6411)
of 2002 until the US-led invasion in 2003. The fact that
• Reaching Critical Will (http://cambridge.
no ‘weapons of mass destruction’ were found after
edu.au/redirect/?id=6412).
the US invasion in 2003 attested to the success of
the earlier UN weapons inspections. The inspectors
were confident that the inspection regime had
very few steps were taken in the implementation of precluded the development of these weapons.
the plan. The 2015 NPT Review Conference failed to
agree on a final document. North Korea
In 1993, North Korea was referred to the International
The UNSC and nuclear disarmament Atomic Energy Agency (IAEA) for violating its
The General Assembly has focused on general safeguards. (The IAEA is an independent UN
disarmament and on supporting bilateral and organisation that supports the peaceful, secure and
multilateral treaties. For a long time, the UNSC was safe use of nuclear technologies, and verifies states’
unable to take action, but since the end of the Cold compliance with these principles.) The following
War, it has been able to function more collaboratively year, the Agreed Framework was signed between
on some cases. the United States of America and the Democratic
People’s Republic of Korea. This framework was
Iraq a non-binding political commitment, noted by the
At the end of the 1990–91 Gulf War, the UNSC UNSC, under which North Korea agreed, among
passed Resolution 687, which set out the terms that other things, not to manufacture nuclear weapons
Saddam Hussein’s Iraq was to comply with. The and to remain a party to the NPT. However, in 2003
North Korea withdrew from the NPT, and in 2006 it
detonated a nuclear bomb, allegedly as a test. The
UNSC put further pressure on North Korea, and in
2007 the country agreed to shut down its nuclear
weapons program. However, this did not happen.
In 2013, North Korea detonated another nuclear
bomb. By 2015 it was estimated that North Korea
had between 10 and 16 nuclear weapons, with some
Chinese experts estimating as many as 20.
Iran
For some time, Iran has seemed determined to
develop a nuclear bomb. Since 2006 the UNSC has
been putting pressure on it, but has been divided
on how to deal with Iran’s violations of the NPT.
However, after years of tension over Iran’s nuclear
ambitions an agreement was made between the
P5+1 and the EU and Iran. Iran agreed to a deal which
Figure 16.23 The UNSC chamber inside the UN limits its nuclear program and in return punishing
building in New York economic sanctions were to be lifted.
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CHAPTER 16 OPTION 7: WORLD ORDER
Conclusion treaty banning nuclear weapons, was created in
The UNSC has not fulfilled its role of establishing Australia in 2006: the International Campaign to
‘a system for the regulation of armaments’ in order Abolish Nuclear Weapons (ICAN). ICAN was also
to promote peace and security, as set out in art 26 of launched internationally in Vienna in 2007. ICAN
the UN Charter. Article 47(1) also gives the UNSC now has 424 partner organisations in 95 countries.
a disarmament role, and in art 39 legal authority is Former Prime Minister Malcolm Fraser was a patron
provided for the UNSC to take action on matters of ICAN.
that affect international peace and security. So it
potentially has great power to deal with weapons of The humanitarian impact movement
mass destruction (WMD) and conventional weapons, ICAN took a prominent role in three conferences on
as it can pass resolutions that virtually legislate the humanitarian impact of nuclear weapons in Oslo
what the rest of the world can and cannot do. (Norway), Nayarit (Mexico) and Vienna (Austria), in
Only time will tell whether the Permanent Five 2013 and 2014. In these conferences, representatives
from 158 countries attended to consider the
can work together and provide leadership in this
area, which represents perhaps the UNSC’s most humanitarian impact that nuclear weapons have had 16
important responsibility. If the UNSC fails in this both in the conduct of nuclear testing in the past and
task of delivering the world from the threat of nuclear the various scenarios of catastrophic harm that
weapons, it will be up to civil society to show the way would occur if a new weapons on large numbers of
forward. nuclear weapons were used again. Calls were made
at these conferences to ‘fill the legal gap’ and outlaw
Non-legal responses the use of nuclear weapons in the same way that
The International Campaign to Abolish chemical and biological weapons are illegal under
Nuclear Weapons (ICAN) international law. The process of achieving such a
As a result of the dismal failure of the NPT Review goal was seen as being similar to the Ottawa Treaty
Conference in 2005 a new organisation, with the banning landmines. One hundred and sixty-five
specific task of working towards an international countries signed the ‘Vienna Pledge’ calling for an
elimination of nuclear weapons.
Further information on the humanitarian
impact movement is available in the digital
versions of the book.
Legal Links
For further information about the movement
to ban nuclear weapons see:
• International Campaign to Abolish
Nuclear Weapons (http://cambridge.edu.
au/redirect/?id=6413)
• Reaching Critical Will (http://cambridge.
edu.au/redirect/?id=6414)
• Vienna Conference on the Humanitarian
Impact of Nuclear Weapons (http://
cambridge.edu.au/redirect/?id=6415).
Figure 16.24 ICAN was created in Melbourne in 2006.
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CAMBRIDGE LEGAL STUDIES HSC
Research 16.5
1 Examine the case made at the Vienna
Humanitarian Impact Conference
about the catastrophic harm of nuclear
weapons and the need to achieve a treaty
banning nuclear weapons.
2 Research the NPT Conference of 2015.
Find articles analysing the failure of the
NPT Review Conference.
3 Investigate the current global movement
for a nuclear weapons ban treaty and the
extent to which any progress has been
made since 2015 towards achieving this
goal.
4 What is the current Australian
government’s policy regarding a nuclear
weapons ban treaty?
Figure 16.25 Indigenous Australian Sue Coleman-
Haseldine spoke in Vienna, at both the Civil
Society Forum (organized by ICAN) and the Vienna same magnitude is climate change. The difference
Conference on the Humanitarian Impact of Nuclear is that nuclear annihilation can occur within hours,
Weapons, on the impact of nuclear bomb tests on her not decades. Furthermore, a decision to launch a
people in South Australia.
nuclear attack can be made by one person. There
will be no lengthy conferences, working groups and
Efforts of individuals – Ramesh Thakur committees to decide whether to start a nuclear
and Gareth Evans war. The only effective way to address this issue is
through multilateral cooperation. No single country
Information about Ramesh Thakur and can solve this problem. The UNSC’s Resolution
Gareth Evans is available in the digital 1887 of 2009 and the NPT Review Conferences of
versions of the book. 2010 and 2015 have failed to make progress on this
issue. The future of genuine nuclear disarmament
now depends on the actions of NGOs such as ICAN
Conclusion working with the majority of nation states who want
The elimination of the threat of nuclear weapons to see the elimination of nuclear weapons before it
is an enormous undertaking. However, nuclear is too late. For the time being it seems that NGOs
weapons are one of the most serious threats to and nation states will have to work outside of the
world order. The only other threat that is of the processes of the UN.
Review 16.12
1 Suggest why the Nuclear Non-Proliferation Treaty is reviewed every five years.
2 Explain why the end of the Cold War has made it easier for the UNSC to take action against those
countries still developing nuclear weapons.
3 Describe the role of non-legal campaigns and movements in the abolishment of nuclear weapons.
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CHAPTER 16 OPTION 7: WORLD ORDER
16.5 C
ontemporary issue: who were in the middle of an election campaign,
The success of global decided to ignore the invasion. However, it damaged
cooperation in achieving relations between Indonesia and Australia, and
world order – East Timor this was made worse when Indonesian soldiers
and UN intervention murdered five Australian journalists on the border
of East Timor and Indonesia – the ‘Balibo Five’. The
The UN intervention in East Timor in 1999 and in resulting tension between Indonesia and Australia
the years since is considered a successful example lasted for at least the following two decades.
of global cooperation in world order issues. In The UN never accepted Indonesia’s annexation
the case of East Timor, the issues were the illegal of East Timor, and it was debated repeatedly over
invasion of East Timor in 1975, the mass atrocity the following 25 years in the General Assembly.
crimes committed during the 25-year Indonesian Australian representatives to the UN did not openly
occupation, and violence committed by pro- criticise Indonesian rule of East Timor. Instead,
Australia tried to ensure that Indonesia ruled the
Indonesian militias in 1999.
territory fairly, sending a number of missions to East 16
Background Timor to research and report on conditions there. But
From the 1600s, East Timor was part of the in 1991, there was a massacre of civilians in the East
Portuguese empire, while the rest of Indonesia was Timorese capital, Dili, which happened to be filmed.
under the Dutch. In general, Indonesia has a mainly When the film footage was aired, the world and the
Muslim population, but East Timor is a mix of Malay Australian public became more inclined to believe
and Portuguese, and the people are predominantly the stories of mass atrocities that refugees from East
Catholic. In 1949, the Dutch gave independence to Timor had been telling for years. In addition, there
their colony in Indonesia, but it was not until 1975 was a growing number of politicians in Australia
that Portugal decided to withdraw from East Timor. who felt that we had betrayed the people of East
Timor by doing nothing about the 1975 invasion, and
Indonesian invasion that now it was time we stood up for the rights of the
With the departure of the Portuguese, there was East Timorese.
dispute over who should be the ruling party in
East Timor. The Indonesian Government was The UN-sponsored referendum
uncomfortable with this small, unstable state on its There had not been a true democracy in Indonesia
perimeter, fearing it might host groups antagonistic since the Dutch withdrawal in 1949. In 1966, the
to Indonesia, such as communists. Because of country was ruled by General Suharto, who called
this, the Indonesian government decided to take himself president but ruled as a dictator. Suharto
advantage of the disorder in East Timor, and invade gave the Indonesian army (the TNI – Tentara
it. The international community viewed this as a Nasional Indonesia) many positions of power
clear case of the type of aggression that is outlawed and even seats in the legislature. However, in
by the UN Charter, but the Australian Government, 1999, widespread disturbances and protests led
Figure 16.26 The killing of Australian journalists at Balibo by Indonesian troops in 1975 caused much
controversy. In 2014 the Australian Federal Police abandoned war crimes investigations into the newsmen’s
deaths.
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CAMBRIDGE LEGAL STUDIES HSC
to Suharto’s resignation. The new president, B.J. estimated that the militias destroyed over 70% of the
Habibie, committed his country to becoming a true infrastructure, leaving East Timor without utilities,
democracy. In May 1999, the then Prime Minister health care, food or schools. Also, it was estimated
John Howard wrote to President Habibie, asking him that over the next few weeks between 1000 and 2000
to let the people of East Timor vote on whether to people were killed while the TNI and Indonesian
remain part of Indonesia or become independent. police stood by. Foreign aid workers also became
Habibie agreed to allow the UN to conduct a targets of the militias. The TNI were seen giving
referendum on the issue. guns to militias, and Kopassus (Indonesian special
forces) were alleged to have been supplying the
Legal responses militias with money and drugs. Around the world,
The UNSC and Resolution 1246 people were appalled by the violence that was filmed
The matter was then referred to the UNSC, which by the few remaining journalists before they fled the
unanimously adopted Resolution 1246: ‘Ballot to country.
Decide on Special Autonomy for East Timor’. The
UNSC established the UN Mission in East Timor UNSC Resolution 1264
(UNAMET) and authorised the deployment of 280 At the UNSC in New York the violence was discussed
civilian police to act as advisers to the Indonesian for two days, and then the UNSC adopted Resolution
police (in East Timor) and 50 military liaison officers 1264. Under this resolution, a UN peacekeeping force
to keep the lines of communication to the TNI under Australian command was formed: INTERFET
open. Despite the robust UNSC mandate, the force (International Force for East Timor).
deployed to implement it was appallingly weak. Soon after, an Australian-led multinational force
None of the civilian police, many of whom were was dispatched, closely followed by humanitarian
Australians, was armed. The Indonesian authorities aid. The TNI left East Timor after a series of strained
in East Timor resented the UN-sponsored vote and negotiations between Australian commanding
were uncooperative, to the point of paying armed officers and Indonesian leaders. Within a few weeks,
groups of thugs to disrupt the process. It seemed INTERFET was able to establish control over East
that the UNSC still had not learnt the lessons of UN Timor, and the remaining Indonesian troops left by
failures earlier in the 1990s, in which under-manned 1 November 1999. The decisive military action of the
and under-armed forces were sent to do a job against Australian armed forces under a UNSC mandate
impossible odds. However, the force that the UNSC was hailed as an outstanding success for the UN,
authorised was all that the Indonesians would allow. for Australia and for global cooperation. Behind the
Under international law, the Indonesians still had scenes, significant diplomatic pressure had been
sovereignty over East Timor and the UNSC was put on the Indonesian Government not to attack the
not willing to authorise the use of military force. Australians.
The Indonesian Government was able to use its
sovereignty to keep UNAMET as weak as possible. UNTAET
The dramatic events of 1999 were only the beginning
The referendum and militia violence of the UN involvement in East Timor. INTERFET was
The referendum was held in August 1999 and was replaced by the UN Transitional Administration in
overseen by UNAMET. Unarmed UN personnel East Timor (UNTAET). UNTAET was established
worked courageously to administer the ballot to administer the territory, exercise legislative and
despite constant threats and harassment from executive authority during the transition period
pro-Indonesian militia groups. The result was and help East Timor prepare for self-government. It
announced on 3 September 1999: 78.5% of the East has an ambitious mission, including the exercise of
Timorese voted for independence. judicial powers, assisting with social services and
A violent reaction from pro-Indonesian militias the delivery of humanitarian aid, providing security,
ensued. Hundreds of independence supporters and promoting sustainable development. Essentially,
were killed, many buildings were destroyed and UNTAET’s role was to lead East Timor to statehood
250 000 people were forced from their homes. It is and help build the foundation for democracy.
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CHAPTER 16 OPTION 7: WORLD ORDER
On 20 May 2002, East Timor, which is now known willingness to contribute to the rebuilding may be a
as Timor-Leste, became an independent country. necessity for East Timor’s long-term success.
The UN Mission of Support in East Timor (UNMISET), Kennedy also argued that the UN is fortunate
which was authorised by the UNSC Resolution 1410, that smaller powers like Australia are increasingly
took over from UNTAET in supporting administrative willing to be involved in peacekeeping. The 47 000
structures. military personnel and civilian police serving in the
UN’s 15 peacekeeping operations came from 88
UN success in East Timor different countries.
Overall, the UN’s role in East Timor has been East Timor’s transformation to an independent
generally considered successful, as it put a halt nation was an enormous legal step, but it occurred
to the militia-led violence that followed the UN relatively quickly due to the assistance of the UN. It
ballot. However, it has also been criticised for not was only a few months before Timor-Leste became
anticipating that violence. Defenders of the UN’s the 191st member of the UN on 27 September 2002.
role in 1999 argue that there could not have been
an intervention without the agreement of the Non-legal responses 16
Indonesian Government, and that taking action The media
without that consent would have had even more Journalists and global media networks were able to
disastrous results. In terms of its mission since broadcast real-time film footage of the murderous
1999, the UN is viewed as having led to positive rampage of pro-Indonesian militia, as well as the lack
outcomes, chiefly the creation of East Timor as a of action to stop the violence by the Indonesian Army
nation. However, as UN historian Paul Kennedy and police. This was highly influential in turning
reminded us in his book, The Parliament of Man: world opinion against the Indonesian occupation of
The Past, Present and Future of the United Nations, East Timor and prompting decisive UN action.
a key component of the success was the fact that
a member state – namely Australia – was prepared Diplomatic pressure
to provide military assistance. Australia’s ongoing UN Secretary-General Kofi Annan did everything he
could, talking to all the parties involved in pursuit
of an end to the violence that occurred after the
referendum. He kept constant communication
with the Indonesian and Portuguese governments,
as well as other governments, such as Australia,
that could be involved in the establishment of an
international force.
In the meantime, the increasing violence in East
Timor led to an expression of concern by the UN High
Commissioner for Human Rights, Mary Robinson,
who argued that the UNSC should consider deploying
forces to East Timor, as a matter of urgency. In the
weeks after the UN ballot, there was a great deal
of communication between the UN and Indonesia,
with the UN urging Indonesia to accept outside
intervention. US President Bill Clinton also pressured
the Indonesian President to allow UN intervention.
Finally, the Indonesian Government conceded and
the Australian-led INTERFET mission began moving
into East Timor. US generals quietly warned their
Figure 16.27 Kofi Annan played an important role Indonesian counterparts not to attack the Australian
in ensuring a peaceful settlement of the situation in peacekeepers. Again, in the area of diplomacy,
East Timor. global cooperation was an essential ingredient.
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CAMBRIDGE LEGAL STUDIES HSC
NGO expertise
Many NGOs are involved in Timor-Leste, working in a
Legal Links
range of areas including education, health, women’s
For the latest information on the UN mission
rights and housing. There are also NGOs working
in Timor-Leste go to http://cambridge.edu.au/
in the area of peace and security. One notable NGO
redirect/?id=6416.
that has maintained a deep interest in Timor-Leste,
particularly since the civil strife that arose in 2006,
is the International Crisis Group (ICG). The ICG
assists the Timor-Leste Government and the UN 2006, Resolution 1704 established the UN Integrated
administration there by producing reports on issues Mission in Timor-Leste (UNMIT). Resolution 1867
that are of vital importance to Timor-Leste’s future in 2009 further extended UN operations into 2010.
peace and security. For instance, the February 2009 The UN began handing over responsibility for its
report, No Time For Complacency, noted that the operations to Timor-Leste in 2012.
security situation had dramatically improved since
2008 but that there were still problems with security, Australian aid
the justice system was weak and corruption was still Australia has assisted Timor-Leste since 1999 in
a concern. Assistance was still needed from the UN, numerous ways. Here are a few examples:
Australia and the international community. The • providing $890 million in assistance between
December 2009 report, Handing Back Responsibility 1999 and 2009
to Timor-Leste’s Police, also sounded a cautionary • building partnerships with the World Bank
note. The report was very critical of the way in which and the UN to help with the coordination of
the UN administration came in and took control of development assistance
the Timor-Leste police. • training 800 police for the Timor-Leste police
In short, work by NGOs such as the ICG is force
indispensable for the long-term success of nation- • providing medical aid in the form of 10 000
building in Timor-Leste. operations and 15 000 consultations by
Australian medical personnel, and providing
specialist training for people from Timor-Leste
Legal Links
• training and supporting thousands of civil
The ICG has an extensive database on servants
Timor-Leste, including detailed reports on • providing 170 scholarships for Timor-Leste
various issues. For the latest information on students to study at universities in Australia
peace and security in Timor-Leste, go to the • creating 32 000 jobs through public works
ICG website (see http://cambridge.edu.au/ projects
redirect/?id=6408). • supplying aid, water, food and medicine for
thousands of internally displaced people.
Australia has given strong political and moral
support to the government of Timor-Leste.
UN nation-building When Timor-Leste’s President Jose Ramos-Horta
The UN has committed itself to the long-term future was shot in an attempted revolt by some rebels in
of Timor-Leste. It has learnt from past errors in leaving 2008, Australia lent support by rushing the Timorese
conflict zones too early, only to see the area slip back leader to hospital in Darwin and ensuring that
into anarchy. The UN is using all its experience Australian troops maintained peace and security in
and expertise while also seeking out support the country.
globally to ensure that Timor-Leste finally makes
the transition to a strong, economically sustainable Conclusion
state characterised by the rule of law. To this end the While the UN intervention in East Timor is considered
UNSC passed a resolution in 2006 to shift the focus a successful example of global cooperation in
of the UN mission to nation-building. On 25 August world order issues, its work did not finish in 1999; it
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CHAPTER 16 OPTION 7: WORLD ORDER
continues to this day. The main task now is building 16.6 C
ontemporary issue: Rules
the institutions, infrastructure and economic regarding the conduct of
foundations for the future peace and security of hostilities – international
Timor-Leste. In working towards this goal, the UN humanitarian law
knows that Timor-Leste will need all the global
cooperation it can get. The UN also appreciates
International humanitarian law refers to the body of
the special responsibility that Australia has taken
treaties and humanitarian principles that regulate the
for helping to maintain peace and security, and for
conduct of armed conflict and seek to limit its effects.
continuing its aid packages.
The treaties that form the basis for international
Australian commitment has been needed. In fact,
humanitarian law include the Hague Conventions,
on two recent occasions Australia has had to take
the four Geneva Conventions of 1949 and the Geneva
significant action. In 2006, thousands of additional
Protocol of 1977. International humanitarian law
Australian police and soldiers were rushed to
operates during wartime in addition to international
the country to restore order and prevent further
bloodshed, and in 2008 Australian reinforcements
human rights law, but international humanitarian
law trumps international human rights law if there
16
were again sent. In 2012, the success of the recent
is a conflict between the two.
elections, held a mere 10 years after achieving
nationhood, was a positive sign for the new nation. international humanitarian law
The UN’s success in Timor-Leste has been based a body of international law developed from the Geneva
and Hague Conventions that deals with conduct of states
on global cooperation in the following areas: and individuals during armed conflict; also known as the
• UNSC working together to give a strong legal law of armed conflict
mandate for UN intervention
• diplomatic pressure exerted on Indonesia by International humanitarian law had its origins
John Howard, Kofi Annan, Mary Robinson and in the late 19th century. While travelling through
Bill Clinton a war-ravaged part of northern Italy on a business
• media coverage of the violence in Timor-Leste trip in 1859, a Swiss merchant named Henri Dunant
• Australian willingness and capability with witnessed the aftermath of a battle between French
respect to sending military forces in 1999 and Austrian forces near the town of Solferino:
• UN commitment to continued nation-building thousands of wounded soldiers were lying on the
in Timor-Leste battlefield, dying slow and lonely deaths. Dunant was
• Australian commitment to providing long-term appalled, and he abandoned his original trip to help
assistance. care for them. Reflecting on this experience, Dunant
came up with the idea of setting up a permanent
organisation that would look after the wounded
Review 16.13
of both sides in wartime. His book, A Memory of
1 Discuss why Australia did nothing to Solferino, was published in 1862 and concluded with
assist the East Timorese when Indonesia two appeals:
first attacked. • that permanent relief societies should be
2 Explain why the 1999 referendum resulted established in peacetime, with nurses who
in extreme violence from pro-Indonesian would be available to treat the wounded in the
militias event of war
3 Explain why Australia has a sense of • that these volunteers who give medical
duty to East Timor, and discuss the role assistance in wartime should be protected by
the locations of the two countries in this an international treaty.
relationship. In 1863, the International Committee for Relief to
the Wounded (which later became the International
Committee of the Red Cross) was established.
International conferences in Geneva, Switzerland
were held that year and the following year, the second
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CAMBRIDGE LEGAL STUDIES HSC
of which resulted in a treaty that was called Geneva Treaties
Convention for the Amelioration of the Condition of the The primary instruments governing international
Wounded in Armies in the Field. This convention, with humanitarian law are the four Geneva Conventions.
10 articles, was the First Geneva Convention. The 10 articles of the First Geneva Convention
Before the treaty, the treatment of people during were adopted by 12 nations in 1864. The convention
wartime was random, with no agreed universal covered the neutrality of ambulances, military
standards. All nations that signed the convention hospitals and medical personnel; it provided that
understood that it would afford protection to their wounded prisoners of war, if incapable of serving,
own wounded or captured soldiers in the future. They were to be returned to their home countries; and it
all had a stake in agreeing to respect international established the use of the white flag with a red cross
humanitarian law. as a symbol for neutral medical units.
Today we take the rules regarding the conduct After World War II, the First Geneva Convention
of hostilities for granted. Warfare is still horrific and was updated and expanded, giving it a total of 64
some soldiers commit atrocities in war. However, articles. Three other conventions were also created.
today everyone knows the standards and the rules The four Geneva Conventions of 1949 specifically
of war. No one can say that they did not know that a protect people who are not taking part in the
particular action was illegal. In an imperfect world conflict – civilians, medical personnel and aid
in which wars still occur, international humanitarian workers – and those who once were but are no
law encourages compliance with the standards of longer participating, such as the wounded, the sick,
human decency that this branch of international law shipwrecked soldiers and prisoners of war.
highlights. In 1977, two additional protocols were drafted to
supplement the Geneva Conventions, and another
Legal Links in 2015. The conventions and their protocols
contain strict rules to deal with ‘grave breaches’,
Dunant’s book, A Memory of Solferino, can which include wilful killing of people protected by
be downloaded free as a PDF file from the the conventions, torture and inhuman treatment,
Red Cross (refer to http://cambridge.edu.au/ including biological experiments, unlawful
redirect/?id=6417). deportation and forced service in the opposing side’s
military. People responsible for grave breaches must
be located and tried or extradited, regardless of their
nationality.
Legal responses In brief, the content of the Geneva Conventions
The International Committee of the Red Cross (ICRC) of 1949 is as follows:
has a hybrid nature. It is an NGO, since it was created • The First Geneva Convention protects wounded
by a group of private individuals and is not controlled and sick soldiers, as well as medical and
by any government. However, its main role, to provide religious personnel, on land during war.
assistance and protection to people in wartime, is • The Second Geneva Convention relates to
now mandated by international treaties and applies people at sea during war. It protects wounded,
to all states. Indeed, the Geneva Conventions are the sick and shipwrecked personnel, as well as
most signed and ratified set of treaties in the world, medical staff and hospital ships.
with 194 signatories – this means they have universal • The Third Geneva Convention protects
jurisdiction. This makes the ICRC more than just an prisoners of war. A central principle is that
NGO, because the treaties give it a legal personality there be no delay in releasing and repatriating
of its own and raise it to the level of IGO, with some prisoners of war, once hostilities have ended.
similarities to the status of the UN. Like the UN, • The Fourth Geneva Convention protects
the ICRC enjoys privileges and immunities, and its civilians, including those in occupied territory.
offices and facilities enjoy exemptions from taxation World War II brought the necessity of such a
and duties, inviolability of documents and premises, Convention into stark relief.
and immunity from prosecution.
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CHAPTER 16 OPTION 7: WORLD ORDER
• All four Geneva Conventions have a common the Paris Peace Conference in 1919, a permanent
article, art 3, which covers situations of criminal court was considered, but with the massive
intrastate armed conflict. This includes civil agenda facing the representatives and the peace
wars, internal wars that spill over into other conference, it did not eventuate.
states, and internal conflicts in which other In 1945–46 the Nuremberg Trials put top Nazi
states or a multinational force intervenes. This leaders on trial for war crimes and set a precedent
provision is essential given the nature of armed of holding leaders accountable for their actions. In
conflict today. 1948, when the Convention on the Prevention and
• Additional Protocol I (1977) further strengthens Punishment of the Crime of Genocide was adopted,
protection for civilians in international conflict the UN General Assembly asked the International
and bans the use of child soldiers. Law Commission to develop a treaty establishing a
• Additional Protocol II (1977) further strengthens court to hear and determine charges of genocide.
protection for civilians in intrastate conflict. However, the Cold War put an end to the project.
• Additional Protocol III (2005) protects people In the 1990s, the UNSC established ad hoc
working under any of the official symbols of international tribunals in response to the mass 16
the International Red Cross and Red Crescent killings in Rwanda and the former Yugoslavia. In
Movement. (The Red Crescent was formally 1998, 160 countries and 200 NGOs participated in
recognised in 1929, in connection with military a conference resulting in the Rome Statute of the
forces from Muslim countries; the Red Crystal International Criminal Court. After its 60th ratification
was introduced as an additional symbol with in 2002, the treaty entered into force and the ICC
equal status, for military forces from Israel and came into being. The ICC finally gave teeth to the
predominantly Jewish countries.) Geneva Conventions. Previously, the ICRC had to
The Hague Conventions of 1899 and 1907 govern depend on states to prosecute offenders. Individuals
other aspects of the conduct of war. Along with can now be prosecuted at the ICC for war crimes
the First Geneva Convention, they are among the under the Geneva Conventions.
earliest formal statements about the laws of war and
certain types of war crimes. They were negotiated Abu Ghraib and Guantanamo Bay: the
at two peace conferences held at The Hague, in Geneva Conventions defied
The Netherlands. The chief purpose of the Hague In recent years the ICRC has had to deal with
Convention of 1899 was to prohibit the use of certain breaches of the Geneva Conventions by nationals
types of technology in war, including chemical of an unexpected state: the United States. Vice-
weapons and hollow-point bullets, as well as the President Dick Cheney announced in 2001 that the
aerial bombing of cities and villages. The Hague ‘gloves were off’ and the United States had to be
Convention of 1907 modified and expanded upon prepared to work on the ‘dark side’ in its pursuit
the 1899 convention, with a greater focus on naval of terrorists. This was more than just talk. Secret
warfare. orders were given to allow the use of various
In addition to the formal written law contained in torture methods on those in US detention. The US
treaties, customary international humanitarian law Government claimed that since these people were
is another source of obligations on states. Customary terrorists and therefore ‘unlawful combatants’,
international law is general practice accepted as law they were outside the protection of the Geneva
by the international community. In 2005, the ICRC Conventions. In addition, the US military made it
undertook an exhaustive study of this, resulting in difficult for the Red Cross to visit detention facilities.
the identification of 161 rules that constitute the Finally, the US Government set up a prison for
body of customary international law. people captured in the ‘war on terror’ at their military
base in Cuba: Guantanamo Bay. Again, the reason
Courts was to avoid US law, albeit in a highly questionable
The ICRC was instrumental in the creation of the fashion. The Fifth and Fourteenth Amendments to
ICC. In 1872, Gustav Moynier, one of the founders of the US Constitution state that a person cannot be
the ICRC, proposed a permanent criminal court. At deprived of ‘life, liberty or property’ without due
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CAMBRIDGE LEGAL STUDIES HSC
In 2009, the Obama Administration announced
that it would not use torture and would respect
international laws in this regard. Discussions began
in the United States about whether or not to conduct
an inquiry into the actions of the people at the top
levels of the Bush Administration. The Obama
Administration also announced that it would close
Guantanamo Bay prison, but by the end of 2015 this
had not happened.
The International Court of Justice and
International Humanitarian Law
In 1996, following a request from the General
Assembly, the ICJ issued an advisory opinion
regarding the legality of the threat or use of nuclear
weapons. Though the 14 judges on the bench
Figure 16.28 11 January 2002, Camp X-Ray at Naval differed on some aspects they were unanimous in
Base Guantanamo Bay. Taliban prisoners in orange
stating the following: ‘There is in neither customary
jumpsuits sit in holding area under the watchful
nor conventional international law any specific
eyes of military police during in-processing to the
detention facility. The Guantanamo Bay prison has authorization of the threat or use of nuclear weapons.’
been the source of controversy about US obligations The ICJ viewed the use of nuclear weapons as a
to the Geneva Convention since it was opened in 2002. violation of both customary and humanitarian law.
Yet there are nine nation states in the world that
process of law – that is, they cannot be held without possess nuclear weapons and are reluctant to get rid
trial – and the Eighth Amendment prohibits ‘cruel of them. The issue at stake here is whether nuclear
and unusual punishment’. The argument offered weapons are exempt from the rule of law or whether
for their continued detention and their treatment they are in violation of not only customary law and
was that the constitutional protections did not humanitarian law, but also treaty law.
extend to foreigners held outside US borders. Nor, Currently the Marshall Islands are taking the nine
apparently, did the UN Convention Against Torture nuclear weapons states to the ICJ because they are
and Other Cruel, Inhuman and Degrading Treatment, in violation of art VI of the NPT, which states:
signed and ratified by the United States in 1994. That
convention prohibits, without exceptions, the kind of Each of the Parties to the Treaty undertakes to pursue
treatment the detainees were subjected to. negotiations in good faith on effective measures
The Bush Administration’s dabbling in the use of relating to cessation of the nuclear arms race at an
torture badly damaged the United States’ international early date and to nuclear disarmament, and on a
reputation when photos of Iraqi victims being treaty on general and complete disarmament under
tortured in Abu Ghraib prison in Iraq were released strict and effective international control.
to the media and the Red Cross released a damning
report on the prison. The United States’ allies in the Why is the Marshall Islands pursuing this case?
war, including Britain and Australia, were dismayed While under the control of the United States, 105
that their alliance partner was sanctioning the use atmospheric nuclear tests were undertaken on these
of torture. Not only had many of the Guantanamo islands. The people of the Marshall Islands believe
inmates, including Australian David Hicks, been held that no one else should ever suffer from the effects
in detention for years without being charged, but other of nuclear weapons as they have suffered. It will be
factors also made the practices thoroughly imprudent. interesting to see the ICJ’s judgement after hearing
For example, it was argued that terrorists could use all the cases that the Marshall Islands are bringing
photos showing the truth about Americans’ treatment to the court. The question to consider is: what will
of Muslims to attract more recruits. the ICJ say about the legality of nuclear weapons
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CHAPTER 16 OPTION 7: WORLD ORDER
when the ICJ itself ruled that they were a violation of • providing food, medicine, clothes and blankets
international humanitarian law in 1996? to those in need
For the full text of the 1996 Advisory Opinion see • facilitating the exchange of information
International Court of Justice, Legality of the Threat between people on both sides of the conflict
or Use of Nuclear Weapons at http://cambridge.edu. about prisoners of war and missing persons.
au/redirect/?id=6418. The ICRC has a database in Geneva with 55
million entries, which represent more than 30 million
Non-legal responses cases over the last 100 years.
The International Committee of the Red Cross (ICRC) Today the ICRC has offices in more than 60
plays a significant role in educating the military countries and conducts operations in about 80
forces of the world and the general public about the countries. Geneva remains the head office and
requirements of international humanitarian law. The provides backup for its field operations.
ICRC has detailed guides designed for all the groups
involved in wartime situations:
• victims
Legal Links 16
• journalists Go to http://cambridge.edu.au/redirect/?id=
• humanitarian workers 6419 for more information about the global
• UN peacekeepers work of the ICRC.
• soldiers.
The ICRC also undertakes extensive education
programs in high schools around the world so that
the next generation may be fully informed about
international humanitarian law. Conclusion
As well as initiating the rules and enforcement The rules regarding the conduct of hostilities
mechanisms regarding the conduct of war, the ICRC have evolved into a sophisticated branch of public
works in many non-legal ways to help people in armed international law. The international community has
conflict. In this work, the ICRC acts as a neutral party given this body of law universal jurisdiction and
and helps people on all sides in a conflict. This does strengthened enforcement measures. In addition,
not mean that ICRC representatives stay silent if they the ICRC has not only alleviated the suffering of
witness atrocities or war crimes. The ICRC is the people caught up in armed conflict, but has also
only organisation that has the right to free movement served as an inspection mechanism on the ground.
across battle lines in times of war. The following is a International humanitarian law plays an important
list of activities that ICRC delegates are constantly role in the maintenance of the international rule
engaged in: of law, which in turn promotes world order. The
• visiting prison camps, internment camps or question that we are faced with today is the extent
labour camps of both sides to which nation states, particularly the great powers,
• evaluating the conditions of prisoners of war remain committed to the principles of international
held in detention humanitarian law.
Review 16.14
1 In your own words, define the term ‘international humanitarian law’.
2 Explain the purpose of the prison set up by the US Government for people captured in the ‘war on
terror’
3 Discuss the following sentence: ‘The issue at stake is whether nuclear weapons are exempt from
the rule of law or whether they are in violation of not only customary law and humanitarian law,
but also treaty law.’ Share your thoughts on the issue.
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CAMBRIDGE LEGAL STUDIES HSC
Chapter summary
• An ordered world is needed if states are to cope Court of Justice, the International Criminal
with globalisation and to counter global threats Court and ad hoc tribunals set up to hear
such as nuclear war, climate change and matters arising from armed conflicts.
economic meltdown. • Australia has been an enthusiastic contributor
• Our system of international law is based on the to the UN in the areas of the regulation
concept of state sovereignty. of nuclear weapons, peacekeeping and
• Multilateral approaches are far more effective humanitarian assistance.
than unilateral action in dealing with the • Chapter VII of the UN Charter sanctions the use
common problems that face the international of force if authorised by the UNSC, and art 51
community. of the Charter allows a state to go to war in self-
• Competition over access to resources such as defence.
fossil fuels and water is likely to become an • The Geneva Conventions of 1949 are the most
even more serious source of conflict. signed treaties and are universally applicable.
• The creation of the UN was a massive • The UN intervention in East Timor from 1999
multilateral commitment to a global to the present has been a success, but this
environment characterised by the rule of law. success has only been possible with the
• A growing number of international courts cooperation and support of the international
exist to enforce international treaties and community.
conventions. These include the International
Questions
Multiple-choice questions 3 The ICC:
1 The principle of the Responsibility to Protect: A was authorised by the UNSC in 1998
A is the same as humanitarian intervention B was set up to deal with the mass atrocities
B allows the UNSC to send in peacekeepers committed by the Nazis in World War II
as soon as a country fails to meet basic C was created by the Rome Statute, an
standards of human rights agreement between a number of states
C focuses more on prevention than reaction D can hear only cases against states, not
D has yet to be agreed to by the UN General individuals
Assembly
4 International humanitarian law:
2 The Nuclear Non-Proliferation Treaty: A applies to all people in peacetime
A does not apply to the five permanent B applies to all people affected by armed
members of the UNSC conflicts
B has not been signed by Israel, India and C was created by the Universal Declaration of
Pakistan Human Rights
C has failed to prevent most countries of the D only applies to about half of the states in the
world from acquiring nuclear weapons world
D has not been signed by Iran, North Korea
and Burma (Myanmar)
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CHAPTER 16 OPTION 7: WORLD ORDER
5 The UNSC can override a state’s sovereignty Extended-response questions
when: 1 Critically evaluate the effectiveness of
A there are widespread human rights abuses multinational efforts to achieve world order over
or mass atrocity crimes that require the past century.
intervention 2 Discuss the role of NGOs in limiting the
B the state does not trade with any of the harm resulting from interstate and intrastate
Permanent Five members conflicts.
C there is a greater than 50% chance of 3 Choose one or more states and non-state actors
success (which can include international organisations)
D the state agrees to waive sovereignty and an example of a world order issue from
recent history or current events that has not
Chapter summary questions been discussed in this chapter. Outline the
1 Describe the main means of achieving world interrelationships and critically evaluate the
order that were put in place in the first five
years after the end of World War II.
parties’ conduct.
4 Can pressure be brought to bear on a state that
16
2 Explain the concept of state sovereignty and refuses to participate in international efforts
how states can use their sovereign powers to promote world order? Outline potential
to create treaties and promote world order, strategies and identify the parties that may
but can also use these powers as a barrier to be able to use such strategies. Justify your
international law. answers.
3 Explain how access to resources can become a
cause of conflict.
4 Assess the effectiveness of the various legal
and non-legal responses to the threat of nuclear
weapons.
5 Evaluate the effectiveness of the UN missions
in Timor-Leste (East Timor) since 1999.
In Section III of the HSC Legal Studies in length (approximately eight examination
examination you will be expected to complete writing booklet pages). Marking criteria for
an extended response question for two different extended response questions can be found
options you have studied. There will be a choice at http://cambridge.edu.au/redirect/?id=6420.
of two questions for each option. It is expected Refer to these criteria when planning and
that your response will be around 1000 words writing your response.
Themes and challenges
The role of law in encouraging peaceful means and for the use of force by the
cooperation and resolving conflict UNSC if all else fails.
in regard to world order • The ICRC has encouraged all military forces
• The UN Charter laid out the mechanisms for to educate their personnel about international
encouraging cooperation for the purpose of humanitarian law, particularly the Geneva
safeguarding human rights and promoting Conventions, and seeks to educate the
social and economic progress. It also gave community about how to alleviate the suffering
detailed guidelines for resolving disputes using of people affected by war.
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CAMBRIDGE LEGAL STUDIES HSC
• NGOs use education and persuasion to declared the protection of human rights to be
encourage global cooperation. one of the world community’s main priorities.
• Multilateralism is an approach to world order • The Universal Declaration of Human Rights
that draws on the individual and collective marked a fundamental change in the values
strengths of the various parties, and is generally of the international community and laid
the most effective way to resolve conflicts. the foundation for a major new branch of
• Peacekeeping has been strengthened since international law.
the 1990s by the willingness of the UNSC to use • The UN Convention on the Prevention and
Chapter VII powers to give its operations legal Punishment of the Crime of Genocide declared
authority. that the international community would never
again tolerate the sort of genocide carried
Compliance and non-compliance out by the Nazis against the Jews in the World
in world order contexts War II.
• Interdependence of states encourages greater • Responsibility to Protect places the security
compliance with international law, but also may of individuals at the centre of the international
contribute to non-compliance. community’s concern, rather than the security
• State sovereignty can be used as an of states.
impediment to compliance with international • UNSC Resolution 1887 of 2009 marked a return
law, but also may encourage compliance, to multilateral cooperation in dealing with the
especially when two or more states agree on threat of nuclear war.
world order issues.
• States that fail to comply with the Geneva The role of law reform in
Conventions and other mechanisms that promoting and maintaining world
regulate the conduct of hostilities will usually order
face international condemnation. • As the doctrine of Responsibility to Protect
• The UN and the UNSC sought to secure becomes the norm, all those organisations
compliance from Indonesia in 1999 by involved in dealing with difficult regimes that
intervening in East Timor. have little regard for their citizens will have
• International courts and tribunals seek clear guidelines on how to proceed.
to enforce individuals’ compliance with • The Geneva Conventions have been subject to
international law by providing a means to bring ongoing improvement for over 150 years; the
people to justice when their countries either ICRC continues to educate both the public and
cannot or will not take action. all military forces about the conventions, as well
• Force, persuasion and political negotiation are as monitor their observance.
generally used to obtain states’ compliance • The Nuclear Non-Proliferation Treaty has
with international law. proved very useful in limiting proliferation to a
• Force alone is generally ineffective in small number of countries. However, genuine
producing long-term compliance with the law; reform must occur from 2010 to tighten the
hence the need for more measured, long-term treaty and enforce compliance by intransigent
approaches, such as are represented by R2P states, as well as to reduce nuclear stockpiles
and the Peace Building Commission. significantly.
• UN peacekeeping was grafted onto the UN
The effect of changing values and system to meet an urgent need during the
ethical standards on world order Cold War. Since then it has been accepted as
• The UN Charter represents a fundamental performing an invaluable role in maintaining
change in world order; it declared war to be world order.
illegal except in specified conditions, and
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CHAPTER 16 OPTION 7: WORLD ORDER
• The ICC plays a critical role in enforcing members of the UNSC to allow their effective
international human rights law and operation. If the members are prepared to back
international humanitarian law. them with action, UNSC resolutions can be the
most powerful legal mechanism.
The effectiveness of legal and • The advent of the ad hoc tribunals in the 1990s
non-legal responses in promoting marked the beginning of a new chapter in using
and maintaining world order international courts to maintain world order by
• Most international law is made by treaties, prosecuting serious breaches.
which therefore have a major role in giving • NGOs use investigation, research, education
order and direction to global governance. and lobbying to promote the welfare of
• UNSC resolutions have the force of law and are individuals and groups.
binding upon all UN member states. • Wise political leadership is always a necessary
However, it is only since the 1990s that a level of ingredient for promoting a just and stable world
cooperation has existed between the permanent order.
16
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Answers to multiple-choice questions
Part I Chapter 9
Issue 1 – 1 C 2 C 3 A 4 B 5 D
Chapter 1 Issue 2 – 1 B 2 C 3 B 4 A 5 A
1B2A3D4D5B Issue 3 (digital only) – 1 D 2 C 3 C 4 A 5 C
Chapter 2
1A2D3A4C5A Part III
Chapter 3 Chapter 10
1A2B3C4A5A 1A2C3A4B5A
Chapter 4 Chapter 11
1A2D3C4C5C 1C2C3B4B5B
Chapter 5 Chapter 12
1B2C3C4B5C 1C2C3A4D5D
Chapter 6 Chapter 13 (digital only)
1D2C3C4C5D 1A2D3C4B5A
Chapter 14 (digital only)
Part II 1B2B3A4C5D
Chapter 7 Chapter 15
1B2B3A4C5B 1A2D3C4C5A
Chapter 8 Chapter 16
1B2C3C4C5D 1C2B3C4B5A
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Glossary
This glossary includes words from the digital version ancestor
a person from whom someone is descended, on either
of the book. parent’s side, such as a parent, grandparent or great-
abolitionism grandparent
a worldwide political movement that sought to abolish annulment
slavery a declaration by a court that a supposed marriage is in
fact void
acceptable quality
an implied guarantee in ACL that goods sold are fit for appeal
purpose, acceptable in appearance, free from defects, an application to have a higher court review a decision of
safe and durable a lower court
acceptance appeal against conviction
the unconditional consent to all the terms of an offer an appeal where the appellant (the defendant) argues
that they did not commit the offence of which they were
accommodation bond
found guilty
a payment made by nursing home residents to secure a
place, partially refunded when they leave the home appellant
in an appeal case, the party who is making the appeal
accommodation charge
a daily amount payable by nursing home residents who appellate jurisdiction
require ‘high care’ the authority of a court to review matters on appeal from
another court
accused
the person or alleged offender that criminal action is Apprehended Domestic Violence Order (ADVO)
being taken against a specific type of AVO issued under Part 4 of the Crimes
(Domestic and Personal Violence) Act 2007 (NSW) when
acquittal
the perpetrator of violence is a family member
a judgement that a person is not guilty of the crime with
which they have been charged Apprehended Violence Order (AVO)
a court order that aims to protect the applicant from
actus reus
violence and other forms of intimidation or abuse by
a Latin term meaning ‘guilty act’ that refers to the
another person
physical act of carrying out a crime
arbitration
ad hoc
(industrial relations law) the process of resolving an
for a particular purpose, usually exclusive and often
industrial dispute, often after conciliation has failed, by a
temporary
legally enforceable order of a court or commission
adoption
arrest
the legal process of transferring parental rights and
to seize a person by legal authority and take them into
responsibilities from the biological parents to the
custody
adoptive parents
assault
adversary system
a criminal offence involving the infliction of physical
a system of law where two opposing sides present their
force or the threat of physical force
cases to an impartial judge or jury
assimilation policy
advertising
a policy based on the idea that a minority group should
any action designed to draw the attention of consumers
adopt the language and traditions of the majority group
to the availability of goods or services in the marketplace
Atlanta Agreement
affray
an agreement between the ILO, the Sialkot Chamber
using or threatening to use violence on another that
of Commerce and Industry and UNICEF to abolish
would cause a reasonable person present at the scene to
child labour in Sialkot, including the manufacturing of
fear for their safety
commercial products for the Pakistani football industry
aggravated sexual assault in company
attempt
sexual assault performed with another person or people
an offence where a principal crime was attempted but
present together with aggravating circumstances
failed or was prevented for some reason despite the
aggravating factor intention to complete it
a circumstance that makes the offence more serious; it
auction
can lead to an increased sentence
a public sale in which people bid for goods or property,
alternative dispute resolution (ADR) and the sale goes to the highest bidder
methods other than formal court proceedings for settling
Australian Consumer Law (ACL)
disputes, including arbitration, negotiation, mediation
federal legislative provisions contained in Schedule 2 of
and conciliation
the Competition and Consumer Act 2010 (Cth) – formerly
the Trade Practices Act 1974 (Cth)
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CAMBRIDGE LEGAL STUDIES HSC
Australian Federal Police (AFP) burden of proof
Australia’s Commonwealth police force, established in criminal matters, the responsibility of the prosecution
to uphold Commonwealth criminal law and to guard to prove the case against the accused
Australia’s interests from crime in Australia and
cartel
overseas
a group of companies that work together to control prices
Australian Workplace Agreement (AWA) and markets; their behaviour is unlawful if it is found to
an individual workplace agreement between an employer be anti-competitive
and an employee under the Workplace Relations Act 1996
casual employment
(Cth); an AWA overrides and takes the place of any
employment ‘as needed’, on an irregular basis, with
award or collective agreement
no set schedule or guarantee of ongoing employment;
autonomy generally paid at an hourly rate
freedom of the will, self-government; the ability to act
causation
without outside interference
the link between the behaviour of the accused and the
award result (that is, that the behaviour of the accused actually
a legal agreement, made between federal and state caused the criminal act alleged)
industrial commissions, employers and employees,
caution (1)
which sets out the workers’ wages and conditions
a formal warning without charge issued by police for less
Bachpan Bachao Andolan serious offences
an organisation created by the Indian government to
caution (2)
enforce the criminalisation of child labour and forced
a formal, recorded alternative to prosecution where a
labour
young offender admits to the offence and consents to
bail receiving a formal police caution; it can later be taken
the temporary release of an accused person awaiting into account in the Children’s Court, but not in an adult
trial, sometimes on particular conditions such as court
lodgement of a sum of money as a guarantee
caution (3)
bait advertising a statement issued by police to a suspect when they are
advertising goods or services for sale at a specified price detained to inform the suspect of their rights
with the knowledge that the company will not be able to
caveat emptor
offer them at that price for a reasonable period
a Latin term meaning ‘let the buyer beware’; it implies
better off overall test (BOOT) that consumers should use their own care and
a criterion for Fair Work Australia’s approval of an knowledge to protect themselves against exploitation
enterprise agreement, requiring that employees are
celebrant
better off overall than under the relevant modern award
a person who is authorised to perform a civil or religious
beyond reasonable doubt marriage ceremony
the standard of proof required in a criminal case for a
chain of title
person to be found guilty
a series of deeds under the Old System title, used to
bilateral agreement establish the ownership history of a property
an agreement between two countries
challenge for cause
biodiversity when the legal team rejects a juror because they believe
the variety of life forms on Earth; the complete range of that for some reason the juror will be prejudiced
types that are possible within an ecosystem, biome or
charge
species
formal accusation of a person of committing a criminal
bipartisan offence
having the support of the two major political parties
charge negotiation
blended family an agreement between the DPP and the accused that
a family that is created when a parent remarries; it involves the acceptance of a guilty plea, usually in
includes the stepmother or stepfather and stepchildren exchange for something else
bond child soldier
a compulsory condition imposed on an offender for a a person under the age of 18 who participates, directly or
period of time, which the offender undertakes to comply indirectly, in armed conflict as part of an armed force or
with group, including both armed and support roles
breach circle sentencing
to fail to obey a form of sentencing for some adult Indigenous offenders
where sentencing is conducted in a circle made up of
break and enter
local community members and a magistrate
commonly known as burglary, break and enter offences
usually occur when a person enters a home with intent to codification
commit an offence the spelling out of obligations in legislation
built environment
all the buildings, transport routes and infrastructure,
parks and other surroundings that have been made by
people and constitute the setting for human activities
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GLOSSARY
Cold War condition report
the state of hostility, without actual warfare, between an inspection checklist of the state of the premises
the USSR and its satellites and the United States and its signed by both landlord and tenant prior to the tenant
allies in the Western world, which lasted from just after moving in
World War II until about 1991
conscription
collective right compulsory enlistment in the military force of a state
a right belonging to a group or a people, as opposed to
consent
an individual right
it is a complete defence for some crimes if the accused
collective security can show the victim freely consented to the act in
the principle based on the agreement of a group of states question
not to attack one another and to defend each other from
consideration
attack from others; the idea is that an attack on one is an
something given, done or suffered by the promisee in
attack on all
return for a promise in a contract
colonisation
conspiracy
the establishment of settlement and control in a foreign
when two or more people plot to commit a crime together
territory, as in ‘the British colonisation of Australia’
constitutional corporation
committal proceedings
a corporation to which s 51(xx) of the Australian
proceedings in which a magistrate determines if there is
Constitution applies (for example, foreign corporations
enough evidence for a case to proceed to trial in a higher
and companies incorporated under Australian law that
court
engage in financial activities and buying and selling)
common assault
constructive manslaughter
assault where there is no actual physical harm to the
the killing of a person while the accused was carrying
person assaulted, including threatening to cause
out another dangerous or unlawful act
physical harm to another person
consumer contract
common law (or Old System title)
a contract for the supply of goods or services, or for
a system of registration and transfer of ownership of
a sale or grant of interest in land, to an individual
property in use in New South Wales; under this system
purchasing the goods, services or land for personal,
an unbroken chain of title is required to be proven to
domestic or household use
establish title to the property
contemporary slavery
common property
a form of forced or bonded labour, with or without pay,
the areas in a strata scheme building or property that are
under threat of violence
owned jointly by all the lot owners, rather than being part
of an individual lot continued detention
ongoing detention of a person who has served the full
communal violence
sentence for their offence
violence and killing within communities
contract
community housing
a voluntary agreement made between two or more people
secure and affordable rental properties for people
that is recognised by the courts as being legally binding
who earn a low income and who have a housing need;
on the parties
homes are provided by not-for-profit community housing
organisations contract for services
an agreement between a contractor and a client under
community service order
which the contractor performs agreed tasks for an
a penalty where an offender is sentenced to serve
agreed fee but is not employed by the other party
specified hours of work in the community
contract of service
compensation
an employment agreement under which a worker
a monetary payment made to a person to make amends
(employee) works for an employer; it imposes certain
for any loss, injury or damage to property they have
duties on each party and provides specific rights for the
suffered
period of employment, which may be for a fixed term or
conciliation ongoing
a form of alternative dispute resolution in which the
control order
disputing parties use the services of a conciliator, who
similar to an adult sentence of imprisonment, except
takes a more active role than in mediation, advising the
served in a Juvenile Justice Centre
parties, suggesting alternatives and encouraging the
parties to reach agreement; the conciliator does not convention
make the decision for them another term for a treaty: an international agreement
between parties who are subject to international law
conclusive presumption
(states and international organisations such as the UN
a legal presumption in favour of one party that is final
and its bodies)
and cannot be rebutted by the other party
conveyancing
condition
the legal process used to transfer title of ownership from
(of a contract) a term of fundamental and essential
one party to another
importance; if a condition is breached by one party the
other party is entitled to terminate the contract and can
sue for damages
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CAMBRIDGE LEGAL STUDIES HSC
cooling-off period damages
a period of time that gives buyers an opportunity to (contractual) money ordered by a court to be paid to a
rethink their decision to enter into a contract of sale plaintiff where a contract is breached, for the purpose
of placing the plaintiff in the same situation as if the
coroner
contract had been performed
a judicial officer appointed to investigate deaths in
unusual circumstances debt bondage
a situation where a person is forced to repay a loan with
coronial inquest
labour instead of money, where the proper value of the
a court hearing conducted by a coroner to help
labour is not applied towards repayment and/or the type
determine the manner and cause of death
or duration of services is not properly limited
correctional centre
debt slavery
commonly known as a prison – an institution where
slavery in order to pay off a loan with forced labour rather
offenders are held in custody for the period of their
than money
imprisonment
declaration
court attendance notice
a formal statement relating to a particular issue or set
a legal document that states when and where a person
of issues, agreed to by a group of states but without
must appear in court and the charge to which they must
binding legal force
answer
decree absolute
court hierarchy
a final decree of the dissolution of marriage
the system of courts within a jurisdiction, from lower
courts to intermediate and higher courts decree nisi
a Family Court order that is made to signal the intended
covenant
termination of a marriage
a restriction on a property that is part of the title; an
example is a restriction not to build any structure or deed
fences above a certain height documentary proof establishing ownership of a property
crime de facto relationship
an act or omission against the community at large that is a relationship where the partners act as a married couple
punishable by the state but are not legally married
crime against humanity delegated legislation
described in the Rome Statue as an act ‘committed laws made by people or bodies to whom parliament has
as part of a widespread or systematic attack directed delegated law-making authority
against any civilian population’
descendant
crime against the international community a person who by genetics or adoption follows the family
a most serious crime, of concern to the international line of another, such as a child, grandchild or great-
community as a whole, and recognised by the grandchild
international community as requiring punishment
deterrent
criminal infringement notice something that discourages or is intended to discourage
a notice issued by the police outside of court alleging a someone from doing something
criminal infringement and requiring payment of a fine
dictatorial
criminal negligence (of a government) having unrestricted authority or power
where the accused fails to foresee the risk when they
diminished responsibility
should have and so allows the avoidable danger to occur
also known as substantial impairment of responsibility,
criminology this defence is used when the accused is suffering from
the scientific study of crime and criminal behaviour a mental impairment
Crown direct discrimination
the state party that commences a criminal action in a a practice or policy of treating a person or group of
court of law against an alleged offender: in New South people less favourably than another person or group in
Wales, the action is usually commenced by the Director the same position, on the basis of gender, race, national
of Public Prosecutions; if the alleged crime is against a or ethnic origin, age, sexuality, etc.
federal criminal law, the action is usually commenced by
discrimination
the Commonwealth Director of Public Prosecutions
unfavourable treatment of a person or group relative to
Crown land the way others are treated
land held under permit, licence or lease; reserves
diversionary program
managed by the community; lands of environmental
an alternative to the traditional court system that focuses
value kept in public ownership; lands used for Crown
on the rehabilitation of offenders
public roads; and other unallocated lands
division of powers
customary law
how powers are divided between the federal and state
principles and procedures that have developed through
governments
general usage according to the customs of a people or
nation divorce
the legal termination of a marriage by an official court
decision
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GLOSSARY
DNA evidence envirostunt
genetic material (such as hair, blood and saliva) that can a publicity stunt to attract attention to a particular
be used to link a suspect with a crime scene or criminal environmental issue
offence, or to clear a suspect
equal employment
doli incapax opportunity legislation laws requiring employers to
a Latin term meaning ‘incapable of wrong’; the ensure that people are not subjected to discrimination,
presumption that children under a certain age cannot be to eliminate factors that restrict groups’ equality of
held legally responsible for their actions and thus cannot opportunity in the workplace
be guilty of an offence
equal employment opportunity legislation
domestic violence laws requiring employers to ensure that people are not
any act, whether verbal or physical, of a violent or subjected to discrimination and to eliminate factors that
abusive nature that takes place within a domestic restrict groups’ equality of opportunity in the workplace
relationship
ethnic cleansing
dominion a euphemism for genocide
a semi-autonomous political entity that was nominally
evidence
under the sovereignty of the British Empire
information used to support facts in a legal investigation
dualist system or admissible as testimony in court
a legal system that does not deem treaties enforceable
ex aequo et bono
domestically until and unless they are incorporated into
a Latin term meaning ‘according to the right and
domestic law, usually by passing similar legislation
the good’; on the basis of what is fair and just in the
duress circumstances
coercion or pressure used by one party to influence
exchange of contracts
another party
when the vendor and the buyer of property exchange
easement signed copies of the contract of sale
a right of someone other than the property owner to use
executive committee
the property for a certain purpose
an elected subgroup of the owners’ corporation which
ecological footprint makes decisions about the management of the common
a measure of human demand on Earth’s ecosystems, property and other areas of concern that affect all
comparing human demand with the planet’s ecological residents
capacity to regenerate; a person’s impact on the planet
ex-nuptial
as a result of their lifestyle
a Latin term meaning ‘outside marriage’; an ex-nuptial
ecologically sustainable development (ESD) child is a child born outside a marriage
development which aims to meet the needs of today’s
exploit
society, while maintaining and conserving ecological
the act of using another person’s labour without offering
processes for the benefit of future generations
adequate compensation; often the work is not voluntary
Economic and Social Council (ECOSOC) and is obtained through the threat (real or perceived) of
the UN organ that acts as a forum for international violence
economic and social cooperation and development
express rights
embezzlement rights that are included (written) in a document
when a person steals money from a business over a
express term
period of time while they are employed at that workplace
a contractual term that has been specifically stated
employment and agreed to by both parties at the time the contract is
the contractual relationship between an employer and made, either in writing or orally
an employee, involving work performed for monetary
extended family
payment and other benefits
a family that includes individuals related through
enterprise marriage or parentage and not limited to one couple and
a business or company their children; in some cultures, close family friends are
regarded as members of the extended family
enterprise agreement
a legally binding agreement between the employees of a external costs (externalities)
corporation, non-profit organisation or government body the effects of an activity (such as the production,
and their employer, setting the terms and conditions of transport and sale of goods) on people who are not
the employment relationship directly involved in the activity, and that are not paid for
by those who are involved (such as the producer)
enterprise bargaining
negotiation of an agreement about wages and working extradition
conditions by an employer and its employees, or by the the legal surrender of a suspect or convicted criminal by
trade union representing them one jurisdiction to another to face criminal charges or
sentence
enumerated power
a legislative power that is specifically set out as fiduciary duty
belonging to a particular parliament; in Australia, the where one person (the fiduciary) undertakes to act in the
enumerated powers of the Commonwealth Parliament interests of a second person (the beneficiary) and has
are listed in s 51 of the Constitution the power to effect the interests of the beneficiary
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CAMBRIDGE LEGAL STUDIES HSC
fine grave adult behaviour
a monetary penalty imposed for infringement of a law where a young offender has acted like an adult in
committing an offence, in terms of the seriousness of the
fit for purpose
offence and other factors surrounding the behaviour,
an implied term in ACL, guaranteeing that the goods
such as premeditation
sold will do what they were designed to do
greenfields agreement
forced labour
an agreement created to cover prospective employees of
work performed under the threat of a penalty or harm
a new enterprise
and which the person has not voluntarily submitted to
guideline judgement
forced marriage
a judgement issued by the court, on application of the
marriage in which one or both parties is married against
Attorney-General, that will set out sentencing guidelines
their will, often on promise of payment of money or goods
for a particular offence
to the family or the other person involved
guild
forfeit
a medieval association of craftsmen or merchants
(also known as forfeiture) loss of rights to property or
assets as a penalty for wrongdoing hard law
conventions and treaties that under international law
Four Freedoms
create legally binding obligations
the freedoms for all people called for by US President
Franklin Roosevelt in his 1941 State of the Union address: heads of power
freedom of speech and conscience, and freedom from powers listed in ss 51 and 52 of the Australian
fear and want Constitution: the areas that the Commonwealth can
legislate on
fraud
deceitful or dishonest conduct carried out for personal hegemony
gain dominance of one nation over others
free trade historical continuity
trade between countries that is subject to few or no the existence of social, cultural, linguistic or spiritual
government restrictions links with past practices
freedom of contract holistic
the freedom of individuals to bargain the terms of their taking into account all aspects; looking at the whole
own contracts, without regulation by the state system rather than just specific components
gazump home detention
buy a property for which the vendor has already reached an imprisonment sentence where the offender is
a verbal agreement with someone else, by offering a confined to their home under certain conditions of
higher price monitoring
general deterrence homicide
punishment attempting to make an example of an the unlawful killing of a human being
offender in order to send a message to the rest of the
Housing Affordability Index
community
a key indicator that reports on the relationship between
Geneva Conventions household income, mortgage costs and the price of
four treaties, with three extra protocols, that set the housing
standards in international law for the humane treatment
human rights
of the victims of war, whether military or civilian
in a general sense, basic rights and freedoms believed to
genocide belong to all human beings
the deliberate extermination of a national, ethnic, racial
human shield
or religious group
the placement of civilians in or around military targets to
globalisation deter the other party from attacking that target
the ongoing integration of regional economies, societies
human trafficking
and cultures brought about by the removal of restrictions
the commercial trade or trafficking in human beings for
on international trade, and advances in travel and mass
the purpose of some form of slavery, usually involving
communication
recruiting, transporting or obtaining a person by force,
governance coercion or deceptive means
a method or system of government
humanitarian intervention
good root of title military intervention in a state in order to stop serious
when the Old System chain of title has not been broken human suffering and/or human rights violations
through the loss of one or more of the previous deeds of
implied rights
sale
rights that can be implied through the text, structure or
gratuitous violence purpose of a document
excessive violence carried out without reason, cause or
implied term
excuse
a contractual term that has not been included in the
formal agreement; a term can be implied by custom or
law, or because of the presumed intentions of the parties
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GLOSSARY
inadmissible evidence inquisitorial system
evidence that cannot be considered by a judge or jury a system of law where two sides present their cases to a
in court (for example, confessions that were obtained by judge who directs the cases and can call for particular
force) evidence
inalienable right in situ
a right that cannot be taken away a Latin term meaning ‘in the place’; used to describe the
place in which a piece of evidence is found or situated
incapacitation
making an offender incapable of committing further insider trading
offences by restricting their freedom when a person illegally trades on the share market to
their own advantage using confidential information
incorporation
the process by which a country incorporates a treaty into instrument
domestic law a document by which some legal objective is achieved;
it may be binding (for example, statutes, treaties,
indecent assault
conventions, protocols) or non-binding (for example,
an assault and ‘act of indecency’ on or in the presence of
guidelines, declarations and recommendations)
another person without their consent
Intensive Correction Order (ICO)
indefeasible title
an alternative to a custodial sentence where an offender
title that has been transferred to the new owner, and will
has restricted movement and must attend a rehabilitation
not be changed except under very limited circumstances
program
independent contractor
interdependence
someone who is paid for work done for another person
the interconnection of two or more states to such an
without there being a contract of employment between
extent that they are mutually dependent on each other
them; instead, the parties will have a contract for
for survival and mutually vulnerable to crises
services
intergenerational equity
indictable offence
fair and just behaviour of one generation towards
a more severe offences that is heard and sentenced by a
subsequent generations; in terms of environmental
judge in a District Court or tried before a judge and jury
issues, a concept that centres on preserving Earth’s
indirect discrimination resources for future generations
a practice or policy that appears to be neutral or fair
intergovernmental organisation (IGO)
because it treats everyone in the same way, but which
an organised group of two or more states, set up to
adversely affects people with a particular characteristic
pursue mutual interests in one or more areas
industrial action
any action taken by employees to reduce productivity
International Bill of Rights
the informal term collectively describing the UDHR,
in the workplace, such as strikes, slowdowns of work,
ICCPR and ICESCR combined
refusal to work overtime, or doing only the minimum
required; the purpose is usually to protest unjust International Court of Justice (ICJ)
workplace policies of the employer the primary judicial organ of the UN; has jurisdiction to
hear disputes submitted by member states and issue
industrial award
advisory opinions
a standard set of wages and working conditions for
employees in a particular industry or occupation, or International Covenant on Civil and Political
those who are employed by particular employers Rights (ICCPR)
the binding international treaty creating obligations
industrial relations
on states to respect the civil and political rights of
the relationship between employers, employees, the
individuals
government and trade unions
Industrial Revolution
International Covenant on Economic, Social and
the rapid development of industry in the 18th and 19th
Cultural rights (ICESCR)
the binding international treaty creating obligations on
centuries, characterised by changes in manufacturing,
states to respect the economic, social and cultural rights
agriculture and transport
of individuals
infanticide
international crime
the death of a baby under the age of 12 months at the
a broad term covering any crime that is punishable by a
hands of its mother
state, but that has international origin or consequences,
injunction or a crime recognised by the international community as
a court order directing someone to do something or punishable
prohibiting someone from doing something
International Criminal Court (ICC)
injury management an independent international court established by
a program developed for an injured worker that includes the Rome Statute in July 2002 to prosecute and try
all aspects of their treatment, rehabilitation and international crimes of the most serious nature
retraining, and that is aimed at facilitating their return to
International Criminal Police Organization
work
(INTERPOL)
the world’s largest international police organisation,
established in 1923 to facilitate collaboration among
intelligence agencies around the world
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CAMBRIDGE LEGAL STUDIES HSC
international customary law Juvenile Justice Centre
actions and concepts that have developed over time to a detention centre housing young offenders subject to
the extent that they are accepted by the international control orders
community and have become law
labour rights
international humanitarian law rights at work, including rights to safe working conditions,
a body of international law developed from the Geneva minimum wages, paid leave or to join a trade union
and Hague conventions that deals with conduct of states
laissez-faire
and individuals during armed conflict; also known as the
a French term used to describe economic philosophies
law of armed conflict
that government should not intervene in business
International Labour Organization (ILO)
laissez-faire economy
an international agency of the UN, created with the aim
an economic system in which the state refrains from
of improving conditions for workers around the world
interfering with markets by regulation or other means
interrogate
larceny
to formally question a suspect in relation to an alleged
when one or more people intentionally take another
crime
person’s property without consent and without intention
interrogation of returning it
the act or process of questioning a suspect, carried out
legal aid
by the investigating officers
a subsidised legal service provided by the state for those
interview friend on low incomes
a parent, guardian, friend or legal representative present
LEP (Local Environment Plan)
at the police interview of a minor; the interview friend’s
a document prepared by a local council, and approved
role is to offer support and witness that statements are
by the state government, to regulate the use and
made voluntarily
development of land within the council’s control
intragenerational equity
licensee
fair and just treatment of people and groups within
licence holder
a generation; in terms of environmental issues, a
concept that focuses on fair management and use of litigation
Earth’s resources among different groups of the same civil legal proceedings in which disputing parties seek a
generation binding remedy from a court
investigate locus standi
for the police, carrying out research to discover evidence a Latin term meaning ‘a place for standing’, also
and examine the facts surrounding an alleged criminal ‘standing’; a requirement that a person or group have a
incident sufficient interest in the subject matter to be permitted to
bring an action
invitation to treat
an initial invitation to others to make an offer magistrate
a judicial officer in the Local Court; in New South Wales
involuntary behaviour or automatism
they are appointed by the Governor
an act that cannot be controlled or is not voluntary, such
as an epileptic fit Magna Carta
a document signed in 1015 which recognised the principle
involuntary manslaughter
that everyone, including the king, was subject to the law;
the killing of a person where the death occurred because
2015 was this historic document’s 800th anniversary
the accused acted in a reckless or negligent way without
intention to kill mandatory sentencing
removal of judicial discretion by legislation, by setting a
journeyman
minimum or mandatory sentence for a particular offence
dating from the later Middle Ages, a worker who had
or type of offender
completed his apprenticeship (period of training) and
was then qualified to work for wages for a master manslaughter
the killing of a person in a manner that is considered to
judicial discretion
be less intentional than murder
the power of a judge or magistrate to make a decision
within a range of possibilities based on the particular marriage
circumstances of a case the Marriage Amendment Act 2004 (Cth) defined marriage
as ‘the union of a man and a woman to the exclusion of
jus cogens all others, voluntarily entered into for life’. The Marriage
a Latin term meaning ‘compelling law’, also called a
Amendment (Definition and Religious Freedoms) Act
‘peremptory norm’: a norm of customary international
2017 (Cth) changed this to ‘two people’ – see the digital
law that is indisputably accepted by the international
update materials for a full explanation of the background
community and is therefore binding on everyone
to, and significance of, this change.
regardless of whether a particular leader or state accepts
it mass atrocity crimes (mass atrocities)
a broad term for crimes that fall into the categories of
juvenile justice
genocide, war crimes, ‘ethnic cleansing’ and crimes
the area of law and policy concerned with young people
against humanity; this is the term favoured by the United
and the criminal justice system
Nations, as it avoids making distinctions on the basis of
whether the crimes were committed in war or peace, or
as part of an intrastate or interstate conflict
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GLOSSARY
maximum penalty natural law
set by parliament, this is the maximum sentence the theory that certain laws come from an unchanging
available to a court to impose for an offence; the ‘natural’ body of moral principles that are the basis for all
maximum penalty is rarely handed down human conduct, and so have validity everywhere
mediation neglect
a form of alternative dispute resolution in which a neutral ongoing failure by a parent to provide a child with the
third party assists the disputing parties in reaching an basic requirements for proper growth and development,
agreement such as food, shelter, medical care, hygiene and
supervision
mens rea
a Latin term meaning ‘guilty mind’, meaning that the negligence
accused intended (to some degree) to commit the crime, a breach of the duty of reasonable care owed by one
knowing their actions were wrong party to another, and damage to the plaintiff resulting
from this breach
mental illness or insanity
mental incapacitation at the time of the act, meaning the negotiation
accused cannot have formed the mens rea at the time of discussion aimed at reaching an agreement
the offence
non-government organisation (NGO)
militia an independent, non-profit group that often plays an
a group of unofficial soldiers who act outside important role in advocating, analysing and reporting on
international law and are often secretly used and funded human rights worldwide
by governments
non-parole period
mistake a period of imprisonment for which parole cannot be
the defendant acted under an honest and reasonable granted
mistake and thus could not have formed the mens rea
nullify
mitigating circumstances to declare legally void or invalid
circumstances that make an offence less severe; they
nuptial
can lead to a reduced sentence
a Latin term meaning ‘marriage’; a nuptial child is a child
mitigating factor born within a marriage
a circumstance that makes an offence less severe; it can
Nuremberg trials
lead to a reduced sentence
a series of military tribunals that took place in
monist system Nuremberg, Germany after World War II (from 1945 to
a legal system that deems treaties enforceable in 1946); they were organised and run by the victorious
domestic law as soon as they have been signed Allied powers, and are famous for their prosecution of
prominent leaders of defeated Nazi Germany for crimes
monopoly
against humanity and war crimes
exclusive control of a market by one company, which
generally results in increased prices because there are observer status
no alternative suppliers in the UN General Assembly (UNGA), the position of
an organisation or other entity that has been granted
mortgage
the right to speak at UNGA meetings, participate in
a type of loan whereby the property being purchased
procedural votes, and sponsor and sign resolutions, but
is used as collateral in case the borrower fails to meet
not to vote on resolutions and other important matters
the repayment obligations as set out in the home loan
contract offer
a firm proposal to form a binding contract, made with a
multilateralism
willingness to be bound by its terms
cooperation between multiple states for mutual benefit
or protection from common threats offeree
the person to whom the offer of an agreement is made
multilateral treaty
an international agreement involving three or more offeror
parties the person making an offer of an agreement
murder Office of the High Commissioner for Human Rights
the deliberate killing of a person (OHCHR)
the UN human rights office responsible for monitoring
nation
and reporting on human rights worldwide
a people that share common heritage, language or
culture and sometimes a common race Old System title
a system of registration and transfer of ownership of
native title
property in use in New South Wales; under this system
recognition under Australian law of the traditional laws
an unbroken chain of title is required to be proven to
and customs of Aboriginal and Torres Strait Islander
establish title to the property
people, as they apply to their interests and rights in land
and waters original jurisdiction
the authority for a court to hear a matter for the first time
natural environment
all the elements that surround and influence life on
Earth, including atmospheric conditions, soil, plants,
animals, micro-organisms, the water cycle and the
systems in which these elements interact
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CAMBRIDGE LEGAL STUDIES HSC
outworker positivism
an employee who works at home or another place the theory that laws are valid simply because they are
besides the premises of their employer, or an enacted by an authority or from existing decisions, and
independent contractor in the textile, clothing or that moral and ideal considerations do not apply
footwear industry who works at home or other premises
precautionary principle
owners’ corporation the principle that if an activity or policy may cause
a group consisting of all the lot owners within a strata serious harm to people or to the environment, the best
scheme course is to halt or modify that activity or policy, even
when there is no proof of the probability of the risk or the
parole
seriousness of the harm
release of a prisoner before the expiry of an
imprisonment term, temporarily or permanently, on the press-ganging
promise of good behaviour the act of forced conscription used in England during
the 1800s; groups of men known as press gangs were
pastoral lease
employed by the government to recruit people forcibly
a government lease that allows Crown land to be
into lifetime service with the armed forces
used, generally for farming; exists under Australian
Commonwealth law and also under state jurisdictions preventative detention
keeping a person in custody, even though they have not
peacekeeping
committed any offence, to prevent some future harm that
the activity of creating conditions for sustainable peace
they may commit
in countries affected by conflict, through the use of
force, quite often provided by a number of countries price-fixing
and consisting of soldiers, civilian police and civilian suppliers keeping prices in the market at a certain level
personnel by agreeing among themselves not to lower or raise their
prices
peak body
an association made up of a number of organisations private treaty
that have similar interests and aims; it sets policy when the sale of a property is carried out directly
and coordinates common activities for its member between the vendor and buyer; usually completed with
organisations the assistance of a registered real estate agent
penalty unit probation
a specified unit of money used in legislation to describe a type of good behaviour bond where the offender is
the fine payable; currently $110 in New South Wales released on condition of good behaviour but placed
under some form of supervision, such as daily reporting
people smuggling
to a probation officer
illegal transportation of people across borders, where
people voluntarily pay a fee to the smuggler, and then procedural fairness
are usually free to continue on their own after arrival in the body of rules that ensure that decision-makers act
the hope of starting a new life in the destination country fairly, in good faith and without bias when resolving
disputes
peremptory challenge
when the legal team rejects a juror without needing to proceeds of crime
provide a specific reason assets (money or property) obtained by an offender
through their criminal activities
Permanent Five
the permanent five members of the UN Security Council: product warranty
France, the United Kingdom, China, Russia and the a manufacturer’s promise or assurance that it will repair
United States or replace or otherwise compensate for defective goods;
breach of a warranty entitles the aggrieved party to sue
picket line
for damages, but not to end the contract
a line of striking union members forming a boundary
outside or near their place of employment, which they profit
ask others not to cross financial gain; money remaining after expenditure has
been subtracted from total income
plea
a formal statement of guilt or innocence by the accused prosecute
when the Crown or state takes action against an alleged
point of law
offender in a court of law
a question which must be answered by applying the
relevant legal principles and by an interpretation of the protocol
law an instrument that supplements a treaty, containing
specific provisions that the parties have committed to in
police prosecutor
order to fulfil the terms of the treaty
a legal practitioner employed by the Director of Public
Prosecutions, usually used to prosecute summary provocation
offences the defence where the defendant claims that their
actions were a direct result of another person’s actions,
pollution
which caused them to lose control of their own actions
environmental damage caused by the discharge or
emission of solid, liquid or gaseous materials into the public defender
environment a public barrister who can appear for an accused in a
serious criminal matter where legal aid has been granted
polygamous
having more than one wife or husband at the same time
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GLOSSARY
public prosecutor resolution
a legal practitioner employed by the Director of Public a decision passed by the UN General Assembly or
Prosecutions, usually used to prosecute indictable offences Security Council; when passed by the Security Council it
can be legally binding on all member states
pyramid selling
an illegal type of selling in which an individual pays to restorative justice
become a distributor of goods in return for a reward for a form of sentencing involving a voluntary conference
recruiting new distributors between the offender and the victim of the crime
ratify (ratification) retrenchment
the process of a state formally approving a treaty, making the loss of a job because there is no longer a job for the
it legally binding employee to do
reactionary retribution
responding to a situation after it has occurred punishment considered to be morally right or deserved
because of the nature of the crime
reasonable force
such force as is reasonably necessary for the officer to right to peace
perform the function; the officer must honestly believe the right of citizens to expect their government to do
that it was justified and not excessive all in its power to maintain peace and work towards the
elimination of war
rebuttable presumption
a legal presumption in favour of one party – it can be right to silence
rebutted by the other party if they can show sufficient the right of a person to refuse to answer any question put
evidence to disprove it to them by the police
recidivism riot
habitual or repeated acts of criminal behaviour after similar to affray, but with 12 or more people using or
having undergone treatment or punishment to deter threatening to use unlawful violence for a common
such behaviour purpose
recklessness robbery
when the accused was aware that their action could when property is taken directly from a victim, usually
lead to a crime being committed, but chose to take that forcefully
course of action anyway
Rome Statute
referendum the Rome Statute of the International Criminal Court; the
the referral of a particular issue to the electorate for a vote international treaty that established the International
Criminal Court
referral of powers
the giving up of a state’s legislative powers in a certain search and seizure
area to the Commonwealth by passing an Act, pursuant the power to search a person and/or their possessions
to s 51(xxxvii) of the Australian Constitution and take and detain items that are discovered
regulation Secretariat
a form of subordinate legislation, made up of a set of the UN administrative body headed by the UN Secretary-
rules made under an Act on the legislature’s delegated General; contains the departments and offices of the UN
authority (that is, by the executive, which is composed of
sedition
ministers and their departments), providing the technical
promoting discontent, hatred or contempt against a
and administrative detail required by the Act
government or leader of the state through slanderous
rehabilitation use of language; in Australia, sedition includes
an objective of sentencing designed to reform the offender the offences of urging force or violence against the
so that they do not commit offences in the future government
relinquishing parent self-defence or necessity
a parent who nominates their child for adoption the defendant acted in defence of self, another or
property; only accepted in limited circumstances and
remand
only for reasonable force
a period spent in custody awaiting trial
self-determination
remedy
the right of people to determine how they will be
a means by which redress or reparation is provided for
governed, or their political status based on territory or
the breach of a legal right
national grouping
remorse
self-identification
deep regret or sorrow for one’s wrongdoing
the principle that indigenous people themselves perform
rescind the determination of their indigenous identity
to revoke, retract or cancel
sentence appeal
residential lease an appeal against the severity or leniency of a sentence
an agreement between the owner of a property (landlord)
sentencing hearing
and the person who is renting it (tenant)
a hearing following a finding of guilt in which a
residual power magistrate or judge will determine the sentence to be
a government power that is not listed in s 51 of the given to the accused
Australian Constitution as a legislative power of the
Commonwealth Parliament, and thus belongs to the states
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CAMBRIDGE LEGAL STUDIES HSC
separation of powers strata scheme
preventing one person or group from gaining total power a detailed pictorial description of lots within a strata
by dividing power between the executive, the legislature complex; this includes the outlines of the buildings,
and the judiciary the dimensions of each lot, the details of each unit
entitlement and the common property
settlement
when final payment for purchase of property is made to strict liability offence
the vendor, and the purchaser receives title an offence where the mens rea does not need to be
proved; only the actus reus (the guilty act) needs to be
sexual assault
proved
when someone is forced into sexual intercourse against
their will and without their consent strike
employees’ organised withdrawal of labour
sexual harassment
unwelcome and uninvited behaviour of a sexual nature subpoena
which is likely to intimidate, humiliate or offend the a legal document issued by a court, requiring a person
person it is directed to to attend and give evidence and/or to produce specified
documents to the court
sexual intercourse
broadly defined in the Crimes Act 1900 (NSW) to include suffrage
oral sex or penetration of the vagina or anus by any part the legal right to vote in a democratic election
of another person’s body or by an object manipulated by
suffragette
another person
a supporter of women’s right to vote (or women’s
sexual slavery suffrage); the term was first used in Britain at the end of
repeated violation or sexual abuse, or forcing of a victim the 19th century
to provide sexual services; it often takes the form of
summary offence
forced prostitution or forced labour where sexual abuse
a less severe offence that is heard and sentenced by a
is common
magistrate in a Local Court
slavery
supranational organisation
a type of forced labour in which a person is considered to
an organisation in which decisions are made by the
be the legal property of another
appointed or elected representatives of its member
social housing states; because decisions are made by majority vote, it is
affordable and secure housing provided by Housing possible for a member state to be forced to do something
NSW for low to moderate income earners who meet it does not itself agree with
specific eligibility requirements
surety
soft law in bail, where another person agrees to provide a
international statements, such as declarations, that financial guarantee that the accused will return to the
do not create legal obligations for states but do create court for trial in exchange for the accused’s release until
pressure to act in accordance with them that date
sovereignty suspended sentence
complete legal and political control; supreme authority a sentence of imprisonment imposed but suspended on
condition of good behaviour
specific deterrence
punishment against an individual offender aiming to tax evasion
deter them from committing crime in the future an attempt to avoid paying the full amount of taxes due
by, among other things, concealing or underestimating a
stand down
person or business’s income or assets
to suspend an employee from the workplace without pay,
usually temporarily terra nullius
a Latin expression meaning ‘land belonging to no one’,
standard contract for sale
which is used in international law to describe territory
the contract for sale used to buy and sell in New South
that has never been subject to the sovereignty of any
Wales; contracts must contain minimum standard terms
state
standard of proof
terrorism
the level of proof required for a party to succeed in court
acts of violence against a population, intended to cause
state terror and thereby influence a government
a government and the people it governs; a country
testator
state sovereignty a person who makes a will
the authority of an independent state to govern itself (for
Torrens title
example, to make and apply laws; impose and collect
the central registration and transfer of ownership of
taxes; make war and peace; and enter treaties with
property
foreign states)
trade union
Stolen Generations
an organisation of workers created to preserve and
Indigenous Australian children who up until the 1960s
further their rights and interests
were removed from their families and tribal lands by
federal and state governments and church missions trafficking
under Acts of the respective parliaments dealing or trading in something illegal, particularly drugs
486 ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
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GLOSSARY
transatlantic slave trade universal suffrage
the trading of African people by Europeans, who the right of all citizens to vote in political elections,
transported them as slaves from Africa to the colonies of regardless of status, gender, race or creed
the New World
vicarious liability
transnational crime legal liability of an employer for the wrongful act of another
crime that occurs across international borders, either in
victim impact statement
origin or effect
a statement written by the victim or victim’s family about
treason the effects the crime has had on them, heard at the time
an attempt or manifest intention to levy war against the of sentencing
state, assist the enemy or cause harm to or the death of a
voluntary manslaughter
head of state
the killing of a person where the accused did intend to
treaty kill or was reckless about killing someone but there were
an agreement between two sovereign states that mitigating circumstances
establishes decision-making processes to allow fair
war crime
negotiations between communities
action carried out during a time of war that violates
Trusteeship Council accepted international rules of war
inactive since 1994 but originally responsible for
warning
overseeing the transition of UN trust territories to self-
a notice given to a young offender (usually for a first
government after decolonisation
minor offence) that is recorded by police but with no
unconscionable conduct conditions attached; the offender must be told of the
one party’s exploitation of the vulnerability of another nature, purpose and effect of the warning
party to a contract; the victim may have been impaired
warrant
by some external factor (such as age, disability or lack of
a legal document issued by a magistrate or judge
education) or may have been deceived or threatened by
authorising an officer to perform a particular act, such as
the stronger party
make an arrest, conduct a search, seize property or use a
unfair dismissal phone tap
under the Fair Work Act 2009 (Cth), termination of
warranty
employment for reasons that are ‘harsh, unjust or
a minor term of a contract whose breach entitles the
unreasonable’, as found by the Fair Work Commission
aggrieved party to sue for damages, but not to end the
UN General Assembly (UNGA) contract
the UN organ representing all UN member states; acts
weights and measures laws
as a forum for global discussion and runs numerous
laws that govern weights and measures stated on the
committees and programs
packaging of products (such as food and beverages) or
UN Human Rights Council (UNHRC) as indicated on the trading premises (for example, at a
the UN forum of member states responsible for petrol station) in order to protect consumers from being
overseeing and making recommendations on human cheated or deceived
rights in all member states
white-collar crime
UN Security Council (UNSC) a general term for various non-violent crimes associated
the UN organ responsible for the maintenance of with professionals or businesspeople, such as
international peace and security; it has the power to embezzlement, tax evasion or insider trading
authorise military action or other measures
workers’ compensation
unilateral a compulsory insurance scheme paid into by employers
undertaken by one state or body to compensate, through financial payments, employees
injured at work; claims do not require proof of fault
union
a united group of workers who are able to use the power workplace surveillance
of numbers to negotiate with their employers, usually for an employer’s use of technology such as cameras,
better wages and conditions computers and tracking devices to monitor employees
Universal Declaration of Human Rights (UDHR) world order
a declaration of rights adopted by the UN in 1948; the the activities and relationships between the world’s
first universal acceptance of the idea of human rights states, and other significant non-state global actors, that
and the reference point for all subsequent human rights occur within a legal, political and economic framework;
treaties. In 1948 the UDHR was hailed as being ‘a Magna an international set of arrangements for promoting
Carta for all humanity.’ stability and peace
universal education wrongful dismissal
free and compulsory education for all children termination of employment that constitutes a breach of
the employment contract, an award or a statute
universal jurisdiction
where a state claims a right to prosecute a person youth justice conference
for actions committed in another state, based on the a measure under the Young Offenders Act 1997 (NSW) to
common international opinion that the alleged crime is divert young offenders from the court system through a
so serious that normal laws of criminal jurisdiction do conference that addresses the offender’s behaviour in a
not apply more holistic manner
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Index
ABC v Lenah Game Meats Pty Ltd [2001] Australian Crime Commission v Louise on treaty registration 443–4
HCA 63 196 Stoddart and Anor [2011] HCA 47 196 on universal human rights 169–70
abolitionism 156–8, 207, 211 Australian Criminal Intelligence UNSC in 461
Aboriginal and Torres Strait Islander Commission (ACIC) 137 on use of force 455
people 89, 197, 336 Australian Defence Force (ADP) 223, 226 on war 432–4, 436
Abu Ghraib 469–70 Australian Direct Marketing Association Child Protection (Offenders Registration)
acceptable quality 245 (ADMA) 277 Act 2000 (NSW) 92, 340
acceptance of the offer 242 Australian Federal Police (AFP) 32, 136 child soldiers 208, 218–29
acquittal 62 Australian High Tech Crime Centre child support legislation 337
actus reus 6–8 (AHTCC) 138 children
adjournment 111 Australian Human Rights Commission autonomy of 344–5
adjudication (family dispute) 358 (AHRC) 196–7, 340, 363, 405 care and protection of 372–5
adoption 337, 345–8, 369, 372 Australian Industrial Relations divorce and 348–9
adversary system 54 Commission (AIRC) 387, 392, 418, 420 human rights of 218–19
advertising 240, 250–5, 272–4 Australian Law Reform Commission legal rights of 339–41
aerial herbicide spraying case (Ecuador v (ALRC) 15, 75, 104, 106, 351 neglect of 342
Colombia) 306 Australian Municipal, Administrative, nuptial and ex-nuptial 336, 344–5, 365
affray 20 Clerical and Services Union v Ansett parental responsibility of 336, 339–45,
African Union (AU) 186, 448 Australia Ltd (2000) 175 ALR 173 406 348–9, 365–7
Age Discrimination Act 2004 (Cth) 196, Australian Securities and Investments violence against 343, 354, 357
405, 407–8, 410–11 Commission (ASIC) 248, 259–60, 269, violence by 354
age of criminal responsibility 100–4 277 Children (Criminal Proceedings) Act 1987
aggravating factors (sentencing Australian Workplace Agreements (NSW) 101–2, 104–6, 108–9, 111–13,
decisions) 77–9 (AWA) 392 117–19, 340, 343, 354
agreements and awards (workplace) autonomy of children 344–5 children and crime 101–4, 354
391–8 awards and agreements (workplace) see also young offenders
alternative dispute resolution (ADR) 254, 391–8 Children and Young Persons (Care and
263 Protection) Act 1998 (NSW) 340, 341,
American Convention on Human Rights B v J (1996) 21 FamLR212 367 342–3, 344, 354, 360, 372
(1988) 166, 187 bail 32, 42–3, 112 Children Legislation Amendment (Wood
Anti-Discrimination Act 1977 (NSW) 196, Bail Act 2013 (NSW) 43, 112, 117, 120–1 Inquiry Recommendations) Act 2009
363, 407–8, 410, 451 bait advertising 251 (NSW) 354
appeals 48, 80–1 barristers 56–7 Children’s Court 51, 109–11, 359–60
appellate jurisdiction 48 al-Bashir, Omar 133 Children’s Court Act 1987 (NSW) 51,
Apprehended Domestic Violence Order Better Off Overall Test (BOOT) 395 109–10, 340
(ADVO) 353–5 beyond reasonable doubt 5, 59–60 circle sentencing 88–9
arbitration (workplace) 387, 401 bilateral treaties 140, 443, 459 Civil and Administrative Tribunal Act 2013
Arms Trade Treaty 452 Bill of Rights 1789 (US) (NSW)
arrests 32, 40–1, 104, 106–8 biodiversity 295, 297, 323 civil law 5–6
assault 10–13, 25, 34, 72, 79, 343, 352 Biodiversity Convention (1993) 303–4, 324 civil war 434
Association of Southeast Asian Nations birth technologies, family law and 367–8, coercion 253
(ASEAN) 189, 449 371 Cold War 430, 433–5, 442, 458
Astley v Austrust (1999) 197 CLR 1 247 Blackpool and Fylde Aero Club v Blackpool collective right 164
attempts, criminal 20–1 Borough Council, Court of Appeal Combination Acts (1799, 1899 and 1825)
Australia, responses by [1990] 3 All ER 25 243 385–6
to child soldiers issue 225–7 blended families 333, 337 Commercial Bank of Australia Ltd v
in East Timor 463–7 bonds (sentencing penalties) 84, 111 Amadio (1983) 151 CLR 447 246
to global environmental protection Booth v Bosworth & Anor [2001] FCA 1453 committal proceedings 50
288–9, 296–7, 313–16, 318, 322–4 287 common law 195–6
to human rights issues 189, 192–8, Boughey v The Queen (1986) 161 CLR 10 Commonwealth Attorney-General’s
199–201 Bradford Corporation v Pickles [1895] AC Department 136
to human trafficking issues 212–15 587 285 Commonwealth Consumer Affairs
to international crime 135–8 Bradley v The Commonwealth (1973) 128 Advisory Council (CCAAC) 259
to world order concerns 451–3 CLR 557 298–9 Commonwealth of Nations 186
Australian Border Force 137–8 built environment 285–6 Commonwealth v Tasmania (1983) 158
Australian Communications and Media burden of proof 59–60 CLR 1 313
Authority (ACMA) 274, 277 Bury v Pop, Cro. Eliz. 118 [78 Eng. Rep. communal violence 435
Australian Competition and Consumer 375] (1587) 285 Community Justice Centres Act 1983
Commission (ACCC) 260, 267, 269, (NSW) 264
271–2 C and M [2006] FamCA212 351 community service orders (sentencing
Australian Conservation Foundation v The Cannabis Caution Scheme 82 penalties) 84–5, 111
Commonwealth (1980) 28 ALR 257 Cartagena Protocol on Biosafety 304 Competition and Consumer Act 2010 (Cth)
286 cartel behaviour 260 238, 248, 250, 257–8, 263–4, 267, 269,
Australian Constitution casual employment 390 271, 273, 277
criminal trials and courts in 53, 68 causation 8–9 Competition and Consumer Policy
environmental protection and 313–15, cautions 41, 82, 106–7, 115, 116 Division of the Commonwealth
322 caveat emptor 238 Department of the Treasury 259
framework for industrial relations in challenges for cause 66 conciliation (dispute resolution) 263–4,
398 charge (for a crime) 34, 42 387, 401
human rights protected by 193–5 charge negotiations 57–8 conclusive presumption 101
marriage and divorce in 333, 338 charter of rights for Australia 197, 199–201 conditions (contract) 244
misleading or deceptive conduct in Charter of the United Nations (1945) 444 conduct of hostilities 467–71
251 framework of 440 consent as defence 63
world order issues and 451 on peace rights and enforcement conspiracy, criminal 20–1
Australian Consumer Law (ACL) 248–55, 167–8, 442 Constitution Act 1902 (NSW) 398
269 on self-determination 164–5 Constitution of the United States of
Australian Council of Trade Unions signing of 432 America 1787 (US) 156, 161
(ACTU) 404, 414–15, 421 on state sovereignty 179, 184–5, 438–9 constitutional corporations 393
488 ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
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INDEX
constructive manslaughter 11 elements 6–7 deterrent, criminal sentencing as 73–5
Consumer Affairs Forum (CAF) 260 against humanity 128–9, 131–3, 435 development, impact of 290–2
consumer law 238–40, 247–55, 265–77 international 126–43 Di Mento v Visalli (1973) 1 ALR 352 335
consumer(s) 267 investigating 34–40 dictatorial regimes 435
advertising and marketing to 250–5 nature of 4–5 Dietrich v The Queen (1992) 177 CLR 292
awareness and self-help used by 257 parties to 22–3 58
contemporary issues facing 264–77 preliminary 9, 20–1 diminished responsibility 63, 65
contracts 248–9 prevention 26–8 diplomatic pressure 454, 465
credit issues 264–7 against property 15, 34 Director of Consumer Affairs of Victoria v
definition 238–9 reporting 33–4 AAPT Ltd (Civil Claims) [2006] VCAT
government organisations’ support of transnational 126, 132–8, 140–3 1493 249
258–60 war 128–9, 132–3 Disability Discrimination Act 1992 (Cth)
industry organisations for 260–1 white-collar 15–17 196, 405, 407–8
legal avenues for 265, 267, 272–3, Crimes Act 1900 (NSW) 11–12, 14–16, discipline of children 343
275–7 19–21, 72, 83, 343 discrimination, workforce 407–11
legal protection for 238, 247–55, 265–77 Crimes Act 1914 (Cth) 4, 14, 75 dismissals
marketing innovations and 272–4 Crimes (Sentencing Procedure) Act 1999 from a job 416–19
media and 262 (NSW) 72–4, 76–7, 79, 82–3, 85 for young offenders 111
NGO support for 262 Crimes (Domestic and Personal Violence) dispute resolutions 260–1, 349, 357–8,
non-legal avenues for 266–7, 271, 274, Act 2007 (NSW) 351–2, 354 400–3, 454–6
277 Crimes (Sentencing Legislation) District Court Act 1973 (NSW) 51
product safety and 267–72 Amendment (Intensive Correction District Court of NSW 49, 51–2
redress and remedies for 240, 247–8, Orders) Act 2010 (NSW) 87 diversionary programs 88
257–64 Criminal Assets Recovery Act 1990 (NSW) division of powers 193–4
technology and 275–7 83 divorce 348–51
tribunals and courts for 261–3 criminal behaviour, factors affecting DNA evidence and sampling 35–7,
continued detention 91–2 23–5 107–8
contract(s) 240 Criminal Code Act 1995 (Cth) 14, 127, 135, doli incapax 100–3
case examples 243, 246 137, 212–13, 226 domestic violence 10, 13, 34, 343, 349,
consumer 248–9 Criminal Code Amendment (Trafficking in 351–7, 366, 372–5
elements of 241–4 Persons Offences) Act 2005 (Cth) 212 DPP v Newbury and Jones [1977] AC 500
of employment 388–91 criminal courts 59–60 11
relief for unjust 247–8 burden and standard of proof 59–60 driving offences 8–9, 11, 19
of service 388 defence to criminal charges 61–5 drug courts 88
for services 388 international see International drug offences 9, 18–19, 88
terms of 244–5, 390 Criminal Court (ICC) dualist system 193
types of 240–1 juries, role and responsibilities of 65–8 Durban Climate Change Conference
unconscionable 245–7 jurisdiction of 48–54 (2011) 320
Contracts Review Act 1980 (NSW) 247, legal personnel in 55–7, 109 duress
263–4 legal representation and legal aid contracts and 244, 393, 395
control orders 111–12 NSW 58–9 as defence 63
Convention on Wetlands of International pleas and charge negotiations 57–8 duty of care 412–14
Importance (1971) (Ramsar role of juries Dyilo, Thomas Lubanga 144–5
Convention) 303 use of evidence 60–1
conventional war 432–3 see also courts East Timor 452, 463–7
Conveyancing Act 1919 (NSW) 244, 254 criminal defences 61–5 ecological footprint 292, 319–20
conviction or no conviction recorded 82, criminal infringement notices ecologically sustainable development
111 (sentencing penalties) 82 (ESD) 294–7
cooling-off period 253–4 criminal justice system, effectiveness economic factors (criminal behaviour)
Copenhagen Conference (2009) 320 of 117–19 23
Copyright Act 1968 (Cth) 4–5 criminal law 5–6, 32 economic offences 9, 15–18
Coroner’s Court 49–50 criminal negligence 7 education, universal 162–3, 343
corporate compliance programs 261 criminal responsibility, age of 100–4 Education Act 1900 (NSW) 343
corporate compliance programs, criminology 23 embezzlement 16
customer-focused 261 Croome v Tasmania (1997) 191 CLR 119 employees 391, 400
correctional centres 85, 90–1 190, 197 employers 390–1, 400, 405, 413–14
Council of Europe 446 Crown, the 5 Employers Liability Act 1880 (NSW) 413
court attendance notice 42 Customs Act 1901 (Cth) 18 employment
Court of Criminal Appeal 52, 53 cyber warfare 433 definition of 384
courts termination of 416–19
consumer-focused 262, 263 damages 244 enterprise agreements and bargaining
family law and 333, 350, 358–60 dangerous driving causing death 11 393, 395–400
federal 53–4, 359, 402–3 Darby v Director of Public Prosecutions enumerated powers 313
global environmental protection and [2004] 38 environment
the 305–7 de facto relationships 333, 338–9, 350, court cases 307
hierarchy 48–9 355, 361–3, 420 definitions 285–6
High Court 53–4, 197–8 debt bondage 207–8 disasters 291, 317
human rights and 187–9, 196–8 debt slavery 155 protection see global environmental
hybrid 138–9 decisions 77–8 protection
intermediate 48, 51–2 declaration, definition 308 rights 166–7
international humanitarian law and Declaration of Independence (US) 156, 164 Environment Protection and Biodiversity
469 Declaration of the Rights of the Child Conservation Act 1999 (Cth) 286, 289,
lower 48–51 (1959) 218 296, 314, 318, 323
state and territory 48–9 Declaration on the Right of Peoples to Environmental Planning and Assessment
superior 48–9, 52–3 Peace (1984) 167–8 Act 1979 (NSW) 286, 288, 314, 316
workplace law and 402–3, 410–11 Declaration on the Rights of Indigenous envirostunt 312
world order and 444–5 Peoples (2007) 165 EPA v Gardner (1997) NSWLEC 169 53,
credit and consumers 264–7 decree absolute 348 316, 323
Credit Law Toolkit 266 decree nisi 348 equal employment opportunity
crime(s) Defence Act 1903 (Cth) 225 legislation 408–10
categories of see offences defences, criminal 61–5 equal pay 408–9
causation and 8 delegated legislation 193 ethnic cleansing 455
criminal law and 5–6 deportation 92–3 European Court of Human Rights
definition 4 detention, criminal 41–4, 85–7, 91–2, 107 (ECtHR) 188–9, 446
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CAMBRIDGE LEGAL STUDIES HSC
European Economic Community (EEC) family violence see domestic violence definition 154–5
447 federal courts 53–4, 359, 402–3 developing recognition of 154
European Union (EU) 311, 446–8 fiduciary duties 256 environmental rights and 166–7
evidence 32, 34–8, 60–1 fines (sentencing penalties) 83, 111 formal statements on 169–73
Evidence Act 1995 (NSW) 35, 60, 339 fingerprints (young people) 107–8 IGOs and 186–7
ex aequo et bono 305 fit for purpose 245 labour rights and 158–60
Ex Parte H.V. McKay (1907) 2 CAR 1 force, threat of (for dispute resolution) legislation on 196
(Harvester Case) 392 455–6 media and 191–2, 198
exclusion clauses 245 forced labour 207–8 NGOs and 168, 170, 190–1, 198, 215–16,
ex-nuptial (children) 336, 344–5, 365 forced marriage 208 227
express rights 194–5 forensic procedures 37, 107–8 peace rights as 167–8
express terms (contract) 244–5, 390 forfeiture of assets 83–4 self-determination and 164–5
extended families 333 fossil fuels 321 state sovereignty and 126, 180–1
external affairs power 194 Four Freedoms 169 trade unionism and 158–60
external costs (externalities) 285 framework treaties 302 treaties 189, 194
Extradition Act 1988 (Cth) 140–1 fraud 17–18 UN and 182–5, 187–8, 189, 438
extradition treaties 139–41 free trade 290 universal education as 162–3
freedom of contract 385–6 universal suffrage as 160–1
Factories and Shops Act 1921 (NSW) 413 human shield 219
Fair Entitlements Guarantee Act 2012 gender pay gap 409, 410 human trafficking 137, 158, 208–16
(Cth) 418 general deterrence 74–5 humanitarian impact movement 461
Fair Trading Act 1987 (NSW) 247, 249–51, genetic theories (criminal behaviour) humanitarian intervention 438–9, 456
263–4, 267, 269, 273 23, 25 see also Responsibility to Protect (R2P)
Fair Work Act 2009 (Cth) Geneva Conventions 135, 140, 222–3, 444, hybrid courts 138–9
on AHRC powers 405 452, 467–70 Hyde v Hyde and Woodmansee (1866) LR 1
creation of 392 genocide 127–8, 130–1, 133, 435, 469 P&D 130 333
on discrimination 407–8, 410 Giller v Procopets [2008] VSCA 236 196
on dispute resolution procedures global cooperation 293, 324–5, 430–1, implied rights 194–5
400401 463–7 implied terms (contract) 244–5, 390
on employment termination 417, global environmental protection 289 imprisonment 85–6, 90–3
418–19 Australia’s responses to 288–9, 296–7, in situ 34
on enterprise agreements 393, 395–8 313–16, 318, 322–4 inadmissible evidence 34, 38, 60
on FWO function 404 barriers to 324–5 inalienable rights 154
on industrial relations 399 concept and scope of 285 incapacitation 76–7
main features 387, 396 conferences and treaties for 289–90, incorporation 193
National Employment Standards in 308–11 Independent Commission Against
396 contemporary issues facing 316–25 Corruption (ICAC) 138
on parental leave 420 courts and tribunals for 305–7 independent contractors 384, 388–9
on small claims matters 403 demand for resources and 319–22 indictable offences 22–3
Fair Work Australia (FWA) see Fair Work development of 288–90 individual agreements (workplace) 393,
Commission (FWC) ESD and 294–7 395
Fair Work Commission (FWC) 387, IGOs and 311 industrial actions 386, 399–400
399–401, 403, 405 impact of consumption and Industrial Arbitration (Amendment) Act
Fair Work Ombudsman (FWO) 387, 399, development on 290–2 1932 (NSW) 387
401–2, 404, 411, 418 interdependence and cooperation for industrial awards 391–3
Family and Community Services (FaCS) 293, 324–5 Industrial Court of NSW 403
342 international instruments for 300, Industrial Relations Act 1996 (NSW) 397,
family law 302–5 400, 407
adoption and 337, 345–8 international law’s role in 316–19 industrial relations in Australia 386–8,
alternative family relationships in 333, local activism and domestic legislation 398–400
336–9 for 288–9 Industrial Revolution 158–9, 385
birth technologies and surrogacy in media and 313 industry organisations 260–1
367–71 nature of 285–8 industry-based ombudsman 261
concept of 333 need for 290–4 infanticide 11
contemporary issues 361–75 NGOs and 300, 310–12, 315, 319, 322 injunctions 263, 353
courts and 333, 350, 358–60 state sovereignty’s impact on 297–9 injury management (workplace) 413
dispute resolutions and 357–8 UN’s role in 299–302, 324–5 inquisitorial system 54
divorce and 348–51 globalisation 290, 430 insider trading 16–17
legal responses to domestic violence gratuitous violence 77–8 intensive correction order (ICO) 87
351–7 grave adult behaviour 113 intention (criminal) 6–7
legal rights (parents and children) greenfields agreement 397 interdependence, global 293, 324–5,
339–45 greenhouse gas emissions 321 430–1, 463–7
marriage and 333–6, 339 Guantanamo Bay (military base) 469–70 INTERFET (International Force for East
media, role of 361 guerrilla war 434 Timor) 464–5
NGOs support role in 360–1 guideline judgments 73 intergenerational equity 295, 297
parental responsibility and 336, guilds 384–5 Intergovernmental Agreement on the
339–45, 348–9, 365–7 Environment (IGAE) 315
Family Law Act 1975 (Cth) 333 Hague Conventions 467, 469 intergovernmental organisations (IGOs)
amendments to 341–2, 349, 356, 365–6, hard law 170, 302, 304 186–7, 311, 446–8
372 heads of power 194 Intergovernmental Panel on Climate
on blended families 337 hegemony, securing of 436 Change (IPCC) 300–1
on de facto and same-sex hierarchy, court 48–9 intermediate courts 48–9, 51–2
relationships 338, 362 High Court of Australia 49, 53–4, 197–8 International Bill of Rights 171–2, 181, 189
on dispute resolutions 357 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 International Campaign to Abolish
on divorce 348–51 389 Nuclear Weapons (ICAN) 461
on Family Court jurisdiction 359, 362 home detention 86–7 International Coalition for Responsibility
on parental responsibility 341, 365–7 homicide 9–11 to Protect (ICRtoP) 457
on polygamous marriages 339 human rights International Committee of the Red
on the protection of children 336, 372 abolition of slavery 156–8, 207, 211 Cross (ICRC) 191, 448, 450, 467–71
on the rights of children 339 Australia’s response to 189, 192–8, international community, crimes against
on surrogacy 368–9 199–201 the 126–43
Family Provision Act 1982 (NSW) 345 of children 218–19 International Covenant on Civil and
Family Provisions Test Case [2005] AIRC courts, tribunals and authorities Political Rights (ICCPR) 171–2, 179,
692 420–1 187–9, 196 181, 189–90
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INDEX
International Covenant on Economic, Limited Nuclear Test Ban Treaty (1963) North Atlantic Treaty Organization
Social and Cultural Rights (ICESCR) 433 (NATO) 186, 446, 448, 456
160, 164, 171–2, 179, 181 litigation 262 North Korea (Democratic People’s
international crime 126–8, 132–45 Local Court of NSW 49–50 Republic of Korea) 460
International Criminal Court (ICC) locus standi 286 NSW Civil and Administrative Tribunal
environmental rights in 166–7 lower courts 48–51 (NCAT) 261
foundation of 128, 139, 469 NSW Domestic Violence Intervention
human rights violations and 188 Mabo v Queensland (No.2) (1992) 175 CLR Court Model 356
jurisdiction of 128–9, 188, 445 1 197 NSW Fair Trading 258, 267, 271–2
peace rights and 168 magistrates 50, 55–6, 109 NSW Industrial Relations Commission
response to international crimes by Magna Carta (1215) 154, 173 (IRC) 388, 392, 399, 402–3
143–6, 188 mandatory sentencing 73–4 NSW Ombudsman 33, 258–9
world order and 445 manslaughter 10–11 nuclear disarmament and non-
International Criminal Court Act 2002 marketing 240, 250–5, 272–4 proliferation 459–62
(Cth) 135, 193 marriage 208, 333–6, 339, 361–4 nuclear energy and uranium 321
International Criminal Court Marriage Act 1961 (Cth) 333–6, 339, 361, Nuclear Non-Proliferation Treaty (1968)
(Consequential Amendments) Act 2002 364, 368 321, 433, 444, 459–60, 470
(Cth) 135, 193 Marriage Amendment Act 2004 (Cth) 334, nuclear threat/weapons 433, 458–62,
International Criminal Police 362 470–1
Organization (INTERPOL) 140–2 mass atrocity crimes 430–1, 435, 457 nuptial (children) 336, 365
International Crisis Group (ICG) 450, 466 maximum penalty 72–3 Nuremberg Trials 131, 138, 469
international customary law 170 McCartney v R [2009] NSWCCA 244 79
international humanitarian law 191, media observer status 312
467–71 consumers and 262 Occupational Health and Safety Act 2000
International Labour Organization (ILO) East Timor in 465 (NSW) 413–14
159–60, 207, 214, 405, 407, 421–2 family law and 361 occupations, regulation of 255–7
International Monetary Fund (IMF) 186 global environmental protection and offences
International Tribunal for the Law of the 313 computer 4, 15–16
Sea 446 human rights and 191–2, 198 driving 8–9, 11, 19
Internet, work use of 405–6 workplace law and 405–6 drug 9, 18–19, 25, 88
INTERPOL (International Criminal Police world order and 453–4 economic 9, 15–18
Organization) 140–2, 186 mediation (dispute resolution) 263–4, 401 elements applicable to 6
interrogation, suspect 32, 41, 104–6 medical treatment, consent for 344 examples 9
interview friend 106, 108 mens rea 6, 8–9 against the person 9–13
intragenerational equity 295, 297 Migration Act 1958 (Cth) 92–3 preliminary 9, 20–1
investigating crime, process of 32–40 militia 452 public order 9, 19–20, 25
invitations to treat 242 minimum wage 394–5 regulatory 9, 21
involuntary manslaughter 11 Minors (Property and Contracts) Act 1970 sexual 12–13, 25, 34, 72, 79, 92
Iran 460 (NSW) 263–4, 344 against the sovereign 14–15, 25
Iraq 460 mitigating circumstances 11 strict liability 7–8, 21
mitigating factors (sentencing decisions) summary and indictable 22–3
James Hardie (Civil Penalty Compensation 78–9 offer (contract) 240–2
Release) Act 2005 (NSW) 415 M’Naghten test 61 oral contracts 241
Johannesburg Summit (2002) 309 monist system 193 Organisation for Economic Cooperation
Joint Investigation Response Team monopoly 260 and Development (OECD) 311
(JIRT) 342 Montreal Protocol (1989) 303–4, 317–18, Organization of American States 187
journeymen 385 324 original jurisdiction 48
Jovicic, Robert 93 Motor Dealers and Repairers Act 2013 outworker 404
judges 55 (NSW) 254, 256 ozone layer destruction 317–18
judicial discretion and guidelines 72–4 multilateral treaties 289, 302, 443, 459 Ozone Protection and Synthetic
Judiciary Act 1903 (Cth) 48, 53 multilateralism 431–2, 455–6 Greenhouse Gas Management Act 1989
juries/jurors 65–8 murder 10, 63–5, 72, 133 (Cth) 324
Jury Act 1977 (NSW) 65–6, 68 Murphyores v The Commonwealth (1976)
jus cogens 444 136 CLR 1 314 Pacific Transnational Crime Network
juvenile justice 98, 100 (PTCN) 142–3
see also young offenders Nairobi Conference (1982) 309 parentage orders 369–70
Juvenile Justice Centres 111–12 nation, definition of 179 parental care 340
National Consumer Credit Protection Act parental neglect 342
Kable v DPP (1996) 189 CLR 51 91–2 2009 (Cth) 247, 265 parental responsibility and family law
Kony, Joseph 229 National Credit Code 265–7 336, 339–45, 348–9, 365–7
Kyoto Protocol (1997) 166, 302, 304, 308, National Employment Standards (NESs) Paris Agreement 166
320, 324 396, 420 Paris Climate Conference (2015) 310–11,
National Environment Protection Council 320
labour rights 158–60 Act 1994 (Cth) (NEPC Act) 315 Paris Peace Conference (1919) 167, 469
laissez-faire economy 238, 385–6 National Security Legislation Amendment parole 85, 90–1
Land and Environment Court 53 Act 2010 (Cth) 15 parties to a crime 22–3
Lange v Australian Broadcasting natural environment 285–6 pathological factors (criminal behaviour)
Corporation (1997) 189 CLR 520 195, natural law 154 23
197 neglect of children 342 peace
larceny 15 negligence (in consumer law) 249 enforcement 442–3
Law Enforcement (Powers and non-government organisations (NGOs) rights 167–8
Responsibilities) Act 2002 (NSW) 32, 190 peacekeeping 136, 434, 439, 442–3, 452
37–8, 40–1, 104, 106, 108 consumer redress and 262 peak body for unions 404
League of Nations 157, 159–60, 164, 167, family support by 360–1 penalty units 83
432, 442, 451 global environmental protection and people smuggling 208
Leatch v National Parks and Wildlife 300, 310–12, 315, 319, 322 peremptory challenges 66
Services (1993) 81 LEGRA 270 297 human rights abuses and 168, 170, Permanent Five (UN) 438, 441–2
leave (workplace) 419–22 190–1, 198, 215–16, 227 photos (young people) 107–8
legal aid, definition 57 workplace law and 405, 409, 419 pleas 57
Legal Aid NSW 58–9, 259, 359 world order and 448–50, 457, 462, 466, police powers 32–3, 35, 37–8, 40
legal personnel in a criminal trial 55–7, 469 police prosecutors 56
109 non-parole period 85 political factors (criminal behaviour) 23,
legal representation 58–9 Non-Proliferation Treaty (NPT) see 25
licensing, occupational 255–6 Nuclear Non-Proliferation Treaty (1968) political negotiation 454
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CAMBRIDGE LEGAL STUDIES HSC
pollution 288 remedies, consumer 240, 247–8, 257–64 standards, product safety and
polygamous marriage 334, 339 remorse (as mitigating factor) 78 information 267–8
positivism 154 remuneration (workplace) 406–8 state, definition of 4, 179, 297
precautionary principle 295–7 reoffending see recidivism state courts 48–9
press-ganging 219 reporting crime 33–4 state sovereignty
preventative detention 42, 91–2 rescinding (of a contract) 245–6 human rights and 179–81, 184–5, 456–7
price-fixing 260 residual powers 194, 313 in response to global environmental
prisons see correctional centres resignation 416 protection 298–9, 317–19, 324–5
probation 84, 111 resolutions 182–3 world order and 431–2, 437–8
procedural fairness 257 resources statehood 179–80
proceeds of crime legislation 83 access to, as source of conflict 436–7 states, UN member 180–1, 440–2
product global environmental protection and Status of Children Act 1996 (NSW) 336,
certification 268–9, 271 319–22 340, 344, 367–9
safety and information standards Responsibility to Protect (R2P) 184–5, statute law 196
267–8 456–8 statutory guidelines 72–4
warranties 263 restorative justice 88–9 statutory protection 248–50
property 15, 34, 350 retirement 416 Stockholm Declaration (1972) 166, 308–9
Property (Relationships) Act 1984 (NSW) retrenchment 418, 419 Student Assistance Act 1973 (Cth) 254
338, 362 retribution 75–6 subpoena 42
prosecution (criminal) 5 Rich v Price Waterhouse Coopers 2014 410 Succession Act 2006 (NSW) 337, 338, 345
Prosecutor v Thomas Lubanga Dyilo ICC- right to peace 167–8 suffrage/suffragettes 160–1
01/04-01/06 224–5 right to silence 105–7 Summary Offences Act 1988 (NSW) 18–19,
prosecutors 56 Rio Declaration (1992) (Earth Summit) 22, 105
protective custody 90 166, 294–5, 303, 309 summons 42
Protocol to Prevent, Suppress and Rio+20 Earth Summit (2012) 309–10 superior courts 48–9, 52–3
Punish Trafficking in Persons riots 20 supranational organisation 447
especially Women and Children (2000) robbery 15 Supreme Court of NSW 49, 51–2
208, 211–12 Rome Statute of the International Criminal surety 43
protocols 304–5 Court (1998) 444 surrogacy, family law and 368–71
provocation 11, 63, 65 Australia’s involvement with 135, 193, suspended control orders 111
psychological factors (criminal behavior) 452 suspended sentences 84
23–4 on child soldiers 222
public defenders 57 on crimes against humanity 131–2 Tasmania v Commonwealth (1983) 158
public prosecutors 56 definition 129 CLR 1 315
punishments, sentencing 72, 74–7, 82–8, on environmental rights 167 tax evasion 16
111–13 on extradition 140 technology
see also sentencing on genocide 130 birth 367–8, 371
pyramid selling 253 on ICC jurisdiction 128, 144–5 consumers and 275–7
peace rights and 168 law-enforcement 35–7
questioning of young people 104–5 ratification of 445 Telecommunications Act 1997 (Cth)
on war crimes 132 276–7
R v AEM (Snr); R v KEM; R v MM [2002] Russell v Trustees of the Roman Catholic termination of employment 416–19
NSWCCA 58 13, 76, 81 Church [2007] NSWSC 104 391 territory courts 48–9
R v Camplin [1978] AC 705 63 terrorism 25, 92, 435, 469–70
R v Cortez, CE, ME, IKEA & LT Safe Work Australia 405, 411, 415 Terrorism (Police Powers) Act 2002 (NSW)
(unreported, NSWSC, Dowd J, 3 safety, workplace 411–16 92
October 2002) 106 Sale of Goods Act 1932 (NSW) 247, 263 testator 344
R v GDP (1991) 53 A Crim R 112 114 same-sex relationships 334, 338–9, 355, Toonan v Australia, CCPR/
R v Kirby; Ex parte Boilermakers Society of 361–4, 371, 420 C/50/D/488/1992, UN Human Rights
Australia (1956) 94 CLR 254 387 search and seizure 33, 37–8, 40 Committee (HRC), 4 April 1994 189–90
R v Knowles; ex parte Somersett (1772) 20 searches of young people 105–6, 108 torture, use of 469–70
State Tr 1 156 security classification 90 Trade Practices Act 1974 (Cth) 248, 250–1,
R v LMW [1999] NSWSC 1343 102–3 sedition 14–15 260
R v Pham & Ly (1991) 55 A Crim R 128 self-determination 164–5 trade unions 159, 385–7, 404
113–14 self-interest (criminal behavior) 23, 25 Trade Unions Act 1871 (UK) 159, 386
R v Tang (2008) 237 CLR 1 213 sentencing trafficking, drug 9, 18–19
R v Thomas Sam; R v Manju Sam (No. 18) alternative methods of 88–9 trafficking, human 137, 158, 208–16
[2009] NSWSC 1003 7 appeals 80–1 Trafficking in Persons Report (TIP Report)
R v Wei Tang (2009) 233 FLR 399 213 considerations for young offenders 211, 215–16
R v Whybrow (1951) 35 CAR 141 21 111–14 Trafficking Victims Protection Act of 2000
R v Williamson [1972] 2 NSWLR 281 63 decisions 74–80 (US) 215
R v Zecevic (1987) 162 CLR 645 62–3 guidelines 72–4 Trail Smelter Case (United States v
Racial Discrimination Act 1975 (Cth) 196, mandatory 73–4 Canada) 3 RIAA 1905 (1941) 305
405, 407–8, 451 post-sentencing considerations 90–3 transnational crimes 126, 132–8, 140–3
Ramsar Convention (1971) 324 punishments 72, 74–7, 82–8, 111–13 treason 14
ratification (of treaties) 171–2, 193, types of penalties from 41, 82–93, 111 treaties
289–90 separation of powers 193–4 bilateral 140, 443, 459
Re Michael: Surrogacy Arrangements Sex and Age Discrimination Legislation definition 443
[2009] FamCA 691 369 Amendment Act 2011 (Cth) 410 into domestic law 289–90, 451
Reardon v Morley Ford Pty Ltd (1980) 49 Sex Discrimination Act 1984 (Cth) 196, extradition 139–41
FLR 401 251 361, 405, 407–8, 410–11 framework 302
reasonable force 32–3, 37, 40–1 sexism 408 global interdependence and 431
rebuttal presumption 101 sexual offenders registration 92 human rights 189, 194, 222–3
recidivism 75–6, 86, 89, 117–19 sexual slavery 207–8, 212–13 for international humanitarian law
recklessness 6–7 single-parent families 336–7 467–9
redress, consumer 257–64 situational crime prevention 26–7 multilateral 289, 302, 443, 459
redundancy packages 418 Slave Trade Act 1807 (Great Britain) 156 nuclear threat addressed by 458–9
referral of powers (legislative) 333 slavery 155–8, 207–9, 211–16 ratification of 171–2, 193, 289–90
referral selling 253 social crime prevention 27–8 UN registration requirements for
regulation of professions 255–7 social factors (criminal behavior) 23–5 443–4
rehabilitation 76 soft law 170, 302 Treaty of Rome (1967) 447
release 42 solicitors 56 Treaty on European Union (Maastricht
relinquishing parents (adoption) 346 specific deterrence 74–5 Treaty) (1992) 447
remand 44, 85, 112 standard of proof 5, 59–60 TRIAL (Track Impunity Always) 139
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INDEX
tribunals Mission in East Timor (UNAMET) 464 Workplace Gender Equality Act 2012 (Cth)
ad hoc 305 Mission of Support in East Timor 407–8
consumer-focused 261–2 (UNMISET) 464 workplace law
for global environmental protection Office of the UN High Commissioner awards and agreements 391–8
305 for Human Rights (OHCHR) 182–3 changing nature of 384–8
for human rights 188, 196 organs of the 181–4, 187–8, 299, 440 contemporary issues 407–22
for international crimes 130–1, 138–9, peacekeeping 434, 439, 442–3, 452 contracts 388–91
143–4, 188 postwar record 439–40 courts and tribunals 402–3, 410–11
for workplace law 402, 410–11 role of 181–2 discrimination 407–11
for world order 445–6, 469 Secretariat 182 dispute resolution 400–3
Trusteeship Council 181–2, 440 Security Council (UNSC) 182–3, 184–5, early 384–5
223, 434, 441–2, 455–6, 460–1 employer associations 405
UN Climate Change Conference (2015) structure 440 government organisations 403–4
166 Sustainable Development Goals industrial relations 386–8, 398–400
UN Conference on Environment and (SDGs) 184, 186 Industrial Revolution and 385
Development (UNCED) 309 Transitional Administration in East laissez-faire capitalism and 385–6
UN Conference on the Human Timor (UNTAET) 464–5 leave 419–22
Environment 289 world order and 436, 438–43 media and 405–6
UN Convention against Transnational United States 215, 225, 364, 436, 469–70 in the Middle Ages 384
Organized Crime 142, 208 United States v Libellants and Claimants negotiations between employer and
UN Convention on Biological Diversity of the Schooner Amistad 40 U.S. (15 employee 385–6
(1993) 294–5 Pet.) 518 1841 157 NGOs and 405, 409, 419
UN Convention on International Trade in Universal Declaration of Human Rights regulations within 398–404, 416
Endangered Species of Wild Fauna and (UDHR) 444 remuneration 406–7
Flora (1975) (CITES) 303, 318–19, 319, on the abolition of slavery 155, 157, safety 411–16
323, 324 207 statutory framework 396–8
UN Convention on the Law of the Sea on child vulnerability 218 termination of employment 416–19
(1982) (UNCLOS) 289, 446 creation of 169–71 trade unions and 159, 385–7, 404
UN Convention on the Prevention and influence of 188 Workplace Relations Act 1996 (Cth) 392–3,
Punishment of the Crime of Genocide on labour and trade union rights 158, 402
(1948) 435, 444 160 workplace surveillance 398
UN Convention on the Rights of the Child on the media 192 world order 430
(1989) (CROC) 101, 104, 107–8, 111, on self-determination 164–5 Australia federal government 451–3
222, 340–1, 343, 354, 452 on sexuality-based discrimination 190 conflict within, reasons for 436–7
UN Convention Relating to the Status of on universal education 162–3 contemporary issues 456–71
Refugees (1951) 292, 444 on universal suffrage 160–1 courts and tribunals 444–6, 469
UN Framework Convention on Climate universal education 162–3, 343 development of 431–2
Change (1994) 294, 302, 304, 308–9, 320, universal jurisdiction 127 dispute resolutions and 454–6
324–5 universal suffrage 160–1 IGOs and 446–8
unanimous verdicts 68 unlawful termination 417 interdependence and cooperation in
unconscionable conduct 245–7, 251 unsolicited and unordered goods 253 430–1, 463–7
unfair dismissal 416–17 uranium and nuclear energy 321 international humanitarian law
unilateralism 456 467–71
Unions NSW 404 Vasiljkovic, Dragan 140–1 international instruments 443–4
United Nations verdicts 66, 68 jus cogens 444
Australia and 184, 451–2 vicarious liability 389 media and 453–4
charter see Charter of the United victim (role in sentencing process) 78–9 nature of 430
Nations (1945) victim impact statement 77, 79–80 need for 430–1
Children’s Fund (UNICEF) 227 Victims Rights and Support Act 2013 NGOs and 448–50, 457, 462, 466, 469
Commission on Human Rights 170–1 (NSW) 79 nuclear threat and 458–62
Development Programme (UNDP) 300 Vienna Convention for the Protection of R2P 184–5, 456–8
East Timor and 463–7 the Ozone Layer (1985) 303–4, 317 responses to 437–9
Economic and Social Council violence, domestic see domestic violence state sovereignty and 431–2, 437–9
(ECOSOC) 182–3 voluntary manslaughter 11 treaties contributing to 431, 443–4,
Educational, Scientific and Cultural 458–9, 467–9
Organization (UNESCO) 297, 301–2 Wallace v Kam [2013] HCA 19 8 UN and 436, 438–43
Environment Programme (UNEP) 297, war wars and 432–5
300, 308–9 causes of 436–7 World War I 432, 444, 451
Food and Agriculture Organization crimes 128–9, 132–3, 145, 220, 435 World War II 432
(FAO) 300 international humanitarian law and written and oral contracts 240–1
formation of 167, 432, 439 467–71 wrongful dismissal 416
General Assembly (UNGA) 170, 182, types of 432–5
300 UN Charter on 432–4, 436 young offenders
global environmental protection and War crimes Act 1945 (Cth) 135 age of criminal responsibility 100–4
299–302, 324–5 warnings 115 alternatives to court 82, 114–17, 354–5,
human rights and 182–5, 187–8, 189, warranties 244, 263 360
438 warrants 38–40 criminal justice system’s effectiveness
Human Rights Committee (HRC) Water Act 2007 (Cth) 316 with 117–19
189–90 weights and measures law 240 criminal proceedings for 109–11
Human Rights Council (UNHRC) white-collar crime 15–17 legal approaches to 98, 100
182–4 wildlife smuggling 323 penalties for 111–12
International Court of Justice (ICJ) witnesses 60–1 reoffending of 117–19
182–3, 187–8, 305–7, 444–5, 470–1 Wood v R [2012] NSWCCA 21 61 rights when questioned and arrested
International Maritime Organization Work and Development Order (WDO) 83 104–8
(IMO) 300 Work Health and Safety Act 2011 (Cth) sentencing considerations for 112–14
Intervention and the Responsibility to 413–15 statistics on 98–9, 109–10, 112, 116
Protect (R2P) 184–5, 456–8 WorkCover NSW 413–14 Young Offenders Act 1997 (NSW) 82, 108,
member states 180–1, 440–2 Workers Compensation Act 1987 (NSW) 111, 114–19, 340, 354–5, 360
Millennium Development Goals 163, 413 youth justice conferences 111, 115–16,
184, 186 workplace bargaining 393, 399–400 118
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7
Additional resources
Chapter 7
The nature and development
of human rights
7.10 E
arly development of parliament policies of James II and two earlier kings:
domestic and international Charles I and Charles II. The English Bill of Rights
documents and treaties forbade the king from raising an army or levying taxes
without the consent of parliament. It also guaranteed
Domestic documents and treaties freedom of speech for those who spoke in parliament
Magna Carta (1215) (UK) and ensured that no one would be imprisoned without
trial. This represented an important transfer of power
The Magna Carta is a document that certain rebellious
from the monarchy to parliament.
nobles forced King John of England to sign in 1215,
limiting the king’s power in a number of ways. The
United States Declaration of
king promised that there would be no interference
Independence (1776)
from the king in the running of the Church, that no
The US Declaration of Independence was really a
new taxes would be imposed without agreement, that
declaration of war against the repressive British
no free man would be imprisoned without a trial, that
Government. The most important statement in the
all free men could travel anywhere they wished, and
declaration, which was primarily written by political
that towns would keep all the privileges that they had
philosopher Thomas Jefferson, was that ‘all men are
built up over the years. 2015 was the 800th anniversary
created equal’. The foundation of this declaration
of the Magna Carta.
is the concept that rights are seen to exist because
Habeas Corpus Act 1679 (UK) we all think and feel them. In other words, all
citizens are entitled to basic rights and freedoms.
The Habeas Corpus Act declared that the lawfulness
Furthermore, they should be entitled to fight in order
of detention must be tested quickly by the courts.
to preserve these rights. In short, the Declaration of
This means that people could not be held indefinitely
Independence stipulated that we do not have to be
without being charged or facing trial.
told that we have the right to freedom – instead, we
believe it instinctively.
English Bill of Rights (1688) (UK)
The English Bill of Rights was part of the agreement
United States Constitution (1787)
for reinstating the monarchy in England after the
After winning the War of Independence (1776–83)
popular overthrow and expulsion (from England) of
against Britain, a constitution was written by the
King James II in 1688. In his place, William of Orange
newly independent government of what would become
and his wife, Mary, were invited to take the throne
the United States. The constitution created a federal
of England on the condition that William agree to a
union of the existing 13 states. This union came into
bill of rights. This was to prevent a return to the anti-
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CAMBRIDGE LEGAL STUDIES HSC
existence in 1789 and was called the United States of In 1920 the Nineteenth Amendment was passed.
America. What was then a novel idea was contained It prohibits denying any person the right to vote on
in the constitution: the separation of powers of the the basis of their gender – paving the way for women
three branches of government (legislative, executive being granted the vote.
and judicial). The concept originated from the Many of the rights enshrined in the US Bill of
thinking of the French philosopher Montesquieu and Rights are based on the principles of the historic
was designed to prevent any branch of government documents discussed above, from the Magna Carta
from becoming too powerful. onwards. Therefore, the US Bill of Rights is viewed as
a significant landmark in the development of human
United States Bill of Rights (1789) rights.
The US Bill of Rights is in fact the original 10 It represents the most advanced thinking in the
amendments to the US constitution. Due to concern area of human rights up to that time in history. The
that the new constitution did not provide safeguards US Bill of Rights has become the cornerstone of the
against a future government violating the rights of US legal system, and has heavily influenced later
its citizens, it was amended. These 10 amendments human rights documents all round the world.
included such rights as the freedom of assembly,
speech, religion and the press. Declaration of the Rights of Man (1789)
The Fifth Amendment may be familiar to students. (France)
Part of this amendment states that a defendant In 1789, after the French Revolution, the French
should not be compelled to take the stand in a National Assembly proclaimed the Declaration of
court case and, in so doing, be a witness against the Rights of Man. This declaration is similar to the
themselves. This is popularly referred to as ‘taking US Bill of Rights. In 1791, some of the rights from this
the Fifth’. declaration were written into the short-lived French
Another part of the US Bill of Rights that may be Constitution. However, many of the freedoms stated
known to students is the Second Amendment, which in the Declaration of the Rights of Man were violated in
states ‘[a] well regulated Militia, being necessary to the chaos of the revolutionary years that followed and
the security of a free State, the right of the people were curtailed under the rule of Napoleon Bonaparte
to keep and bear Arms shall not be infringed’. The (1799–1812). Nevertheless, the ideas contained in this
original intention of this amendment was to prevent French document spread to the European states that
any future government from becoming too powerful were conquered by the French during Bonaparte’s
and taking away the rights of its citizens by allowing rule and served to inspire their own political progress
the population to arm itself. Today, however, the and sense of nationalism.
‘right of the people to keep and bear arms’ is used
by powerful US pro-gun lobby groups, such as ‘Four Freedoms’ speech (1941) (US)
the National Rifle Association (NRA), to oppose This speech was given to Congress by US President
limitations on the right of citizens to own or use guns. Franklin Roosevelt on 6 January 1941. World War II
Since 1791 another 17 amendments have been had been raging in Europe for nearly one and a half
added to the constitution. years and it looked as if Hitler’s dream of conquering
One of the most famous amendments is the all Europe to form a Third Reich would come about. At
Thirteenth Amendment, which brought about the this stage the United States was not at war. Despite
abolition of slavery after the Civil War in 1865. the fact that President Roosevelt felt that military
Another interesting amendment was the force was now the only way to stop Nazi aggression,
Eighteenth Amendment. Passed in 1919, it forbade the US Congress would not allow the United States
the sale of alcohol in the United States. However, to join the war. It was in this context that Roosevelt
it is now generally agreed that this legal attempt to made this speech, in which he laid down the values
discourage the use of alcohol backfired, and in fact that the world should hold dear. These values were
encouraged the growth of organised crime. In 1933, incorporated in the Universal Declaration of Human
the Twenty-first Amendment repealed the Eighteenth Rights (UDHR) seven years later:
Amendment.
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7
CHAPTER 7 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS
• freedom of speech Charter, designed to act as a blueprint for the world
• freedom of belief after World War II. At this time, the United States
• freedom from want was still not part of the war. Britain was under threat
• freedom from fear. of being invaded by Germany, which had conquered
most of Europe over the previous two years. Roosevelt
International documents and and Churchill placed issues of human security at the
treaties forefront of plans for a post-war peace, stating that:
Treaty of Versailles (1919) • territorial changes should only occur with the
In 1919, the countries that emerged victorious from ‘freely expressed wishes of the people’
World War I held a peace conference at Versailles in • the ‘right of all peoples to choose the form of
France. The result was the establishment, for the first government under which they live’ should be
time in history, of a world body with the primary aim respected, so that
of preventing war – the League of Nations. • ‘all the men in all lands may live out their lives
This focus on prevention of war can now be in freedom from fear and want’.
described as a collective right to peace. When the The Atlantic Charter was the first official step in
treaty was signed, the concept of individual human the development of an international organisation to
rights was still in its infancy. The framers of the guarantee peace and security. Barely three weeks
League of Nations were more focused on the rights after the attack on Pearl Harbor, on 1 January 1942,
of states and peoples to be able to rule themselves, the United States, Britain, the Soviet Union and
free from the threat of oppression by more powerful 22 other nations allied against Hitler endorsed the
states. This is now called the collective right to Atlantic Charter in the Declaration of the United
self-determination. Concern for the right to self- Nations. This declaration pledged the signature
determination did not extend beyond the continent countries to use their full resources against the
of Europe. In other words, the countries that signed Axis powers and to agree not to make a separate
the Treaty of Versailles were not very interested in peace.
self-determination for those peoples of Africa, Asia Some commentators argue that the Atlantic
and the Pacific who lived in the colonies ruled by the Charter was a visionary document which laid the
imperial powers of Europe. foundations of the United Nations, the European
Union, NATO, the UDHR and all human rights
League of Nations (1920) treaties.
The main aim of the League of Nations was the The two treaties examined below were written
prevention of war. It upheld the notion that all states at about the same time as the UDHR. They have a
have the right not to be threatened or attacked. All different origin from the UDHR, but overlap in their
member nations pledged to stick by the principle of concerns for the welfare of all human beings.
collective security, which meant that all members
would protect any country that was being attacked Genocide Convention (1948)
by an aggressor. However, it was the league’s The Genocide Convention was adopted by the UN
dramatic failure on this very point that led to its General Assembly in 1948 and came into force in 1951.
being discredited and ignored by the international The main reason for the drafting of this convention
community. In the 1930s, the league was ineffective was the widespread condemnation of the war crimes
in preventing the aggression by Germany, Japan and perpetrated against the Jews in the concentration
Italy against weaker nations, which ultimately led to camps of Nazi Germany – particularly information
the outbreak of World War II in 1939. The League of that became available at the trials of the Nazi leaders
Nations was formally dissolved in 1946. in the case USA, France, UK, and USSR v Hermann
Goering et al. (1945–46 IMT, Nuremberg).
Atlantic Charter (1941) This declaration has been described as the ‘high-
In August 1941, President Roosevelt of the United water mark’ for human rights because it was the first
States and Prime Minister Winston Churchill of Great time in history that genocide was officially made a
Britain signed an agreement, known as the Atlantic crime. The treaty was developed at around the same
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CAMBRIDGE LEGAL STUDIES HSC
time as the UDHR, though by a separate committee truck or ship with a red cross on it. Henry Dunant,
and with no collusion between the two committees. It who founded the organisation that was to become
differed from the UDHR in that it is the first piece of the Red Cross in 1863, played a pioneering role in
hard law drawn up by the United Nations. This means the establishment of the rules of war.
that, theoretically, it can be enforced. The Red Cross was one of the first global NGOs
Although the Genocide Convention was effective to be formed. Not only did the Red Cross pioneer
in securing nearly universal condemnation of humanitarian work to alleviate the suffering of
genocide, it failed to motivate politicians and wounded soldiers and prisoners of war, but it also
diplomats to take concrete measures to ensure that championed the development of rules of war, which
these crimes could not occur in the future. Also, by the today we refer to as international humanitarian law.
time the convention was written, the Cold War was The Red Cross sponsored an international
just beginning. During the Cold War (1947–91) there conference in St Petersburg in 1868 and the resulting
was very little cooperation between the superpowers convention outlawed the use of exploding bullets
– including taking steps to give enforceable powers to and poison gas. There was further development
the Genocide Convention. It was not until the creation of the rules of war at the Hague Conferences of
of the International Criminal Court in 2002 that the 1899 and 1907. International humanitarian law was
Genocide Convention was made legally enforceable. also furthered by the Geneva Conventions of 1864,
1906, 1929 and 1949. All the decisions of the earlier
Geneva Conventions (1949) conferences were ratified in 1949 and are now simply
Another major development in human rights that has called the Geneva Conventions.
its origins in the 19th century was the establishment Nearly all states of the world today are signatories
of laws of war. Jus in bello is Latin for ‘law in war’. to the four treaties that make up the Geneva
These laws define the conduct and responsibilities Conventions of 1949 and to the three additional
of warring states in terms of treatment of non- protocols to the Geneva Conventions that were
combatants and civilians in wartime. Examples of added in 1977.
the laws of war include not firing on someone who
is carrying a white flag and not attacking a building,
Review 7.10
1 How did the Magna Carta, the Habeas
Corpus Act and English Bill of Rights limit
the sovereign’s power?
2 What introductory statement in the US
Declaration of Independence is mirrored
in Article 1 of the UDHR?
3 What amendment in the US Bill of Rights
is referred to repeatedly by the US pro-
gun lobby today?
4 What post-war international
organisations, treaties or documents did
the Atlantic Charter lay the foundations
for?
5 What area of international law do the
Geneva Conventions belong to?
Figure 7.16a Nearly all states of the world today
6 How has the Genocide Convention been
are signatories to the four treaties that make up the strengthened in recent years?
Geneva Conventions of 1949.
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Additional resources
Chapter 9
Contemporary human
rights issues
Issue 3
Exploitation of workers
Key terms/vocabulary
award
Bachpan Bachao Andolan
exploit
Fair Work Commission
Human Rights Watch
International Labour Organization (ILO)
union
IMPORTANT LEGISLATION AND TREATIES
Forced Labour Convention, 1930 (No. 29)
Atlanta Agreement 1996
Worst Forms of Child Labour Convention, 1999 (No. 182)
Right to Children to Free and Compulsory Education Act 2009 (India)
Hospitality Industry (General) Award 2010 (Cth)
International Covenant on Economic, Social and Cultural Rights (art 6)
Universal Declaration of Human Rights (art 24)
Trade Unions Act (UK) 1871
SIGNIFICANT CASES
Ex parte H.V. McKay (1907) 2 CAR 1 (Harvester case)
Minister for Immigration v Sahan Enterprises Pty Ltd [2012] FMCA 619
Ram v D&D Indian Fine Food Pty Ltd & Anor [2015] FCCA 389 (27 March 2015)
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CAMBRIDGE LEGAL STUDIES HSC
9.8 D
efining the issue of
exploitation of workers
Although the world has made progress in the
identification and eradication of human rights
problems and abuses, there remains today a range
of issues that need to be addressed. Despite the
best efforts of governments to legislate against
abuse, educate their citizens about equality and
enforce a range of international conventions,
human rights violations such as the exploitation
of workers remain commonplace and widespread.
Organisations such as the United Nations (UN),
Amnesty International and the International
Labour Organization (ILO), to name a few, have
Figure 9.19 Conditions in many factories in early
played an important role in raising awareness of industrial times were not favourable to the health of
human rights concerns. They have also assisted in workers.
creating conventions that pressure governments
to introduce tougher legislation or to ratify
union
conventions that have been negotiated over many a united group of workers who are able to use the power
decades. of numbers to negotiate with their employers, usually for
better wages and conditions
International Labour Organization (ILO)
an international agency of the UN, created with the aim Unions were established during the Industrial
of improving conditions for workers around the world
Revolution in response to exploitation and a sense
that workers were not receiving fair wages or were
not being provided with appropriate conditions.
The nature of work
The ILO was formed in 1919 in response to
What do you do for a living? What do you want
an alarming rise in the exploitation of workers
to be when you grow up? These are questions so
in industrialising nations. Today, the ILO assists
often asked by people when they first meet. The
with creating decent employment opportunities
notion of ‘what we want to be’ when we leave
and promoting workers’ rights and conditions.
school is really about what work, job or career we
The ILO defines forced labour in the Forced Labour
wish to pursue.
Convention, 1930 (No. 29) as ‘all work or service which
For the majority of workers across the globe,
is exacted from any person under the menace of any
‘working’ implies an employer–employee
penalty and for which the said person has not offered
relationship. This concept emerged during the
himself voluntarily’. Forced labour and/or exploitation
time of the Industrial Revolution – the capitalist
of workers may include any or all of the following
ideology was that workers sold their labour to the
combinations:
owner of a factory in exchange for payment or
• abuse of vulnerability
wages. Another aspect of this exchange involves
• deception
the conditions of the workplace. Conditions in
• restriction of movement
many factories in early industrial times were
• isolation
not favourable to the health of workers. There
• physical and sexual violence
was little concern about the safety and physical
• intimidation and threats
health of workers, or entitlements such as sick
• retention of identity documents
leave, annual or recreation leave, and retirement
• withholding of wages
savings. Even today, wages and conditions
• debt bondage
remain the central focus for employers and their
• abusive working and living conditions
associations, and for employees and their unions.
• excessive overtime.
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
Unfortunately, across the globe, many workers
are exposed to unscrupulous employers who attempt 9
to exploit workers, for a host of reasons.
exploit
the act of using another person’s labour without offering
adequate compensation; often the work is not voluntary
and is obtained through the threat (real or perceived) of
violence
Domestic situation
Australia is not immune to worker exploitation. Since
wages represent approximately 70% of costs to most
businesses, whether large or small, employers who
Figure 9.20 A child worker in India. are able to reduce their wages bill can create greater
profits for themselves and/or their shareholders. For
the majority of Australians, wages and conditions
In Australia, the conditions in which the majority
have been negotiated over many years and are set
of workers work and the payment they receive are
in contracts known as awards. Such awards are
protected by law under the Fair Work Act 2009 and
protected by legislation, and serious penalties can
administered by the Fair Work Commission. Punitive
be handed out in the form of fines to employers
action may be taken against employers for failing
that don’t adhere to the terms and conditions of
to provide the negotiated wages and conditions.
the award. The Fair Work Commission (formerly
Overseas, there are millions of workers in a range
Fair Work Australia, and prior to that the Australian
of industries who are being exploited. Usually
Industrial Relations Commission) is the legislative
this involves children or women workers or under-
body that resolves disputes between employers and
educated men who are unaware of international
employees.
conventions or domestic laws and how they may be
enforced. This chapter investigates the nature of
award
the exploitation of workers in Australia, Indonesia, a legal agreement, made between federal and state
Cambodia and India. Legal and non-legal responses industrial commissions, employers and employees,
which sets out the workers’ wages and conditions
are analysed, with judgements made on the
responsiveness of the law in protecting the rights of
In Australia, the hospitality industry has the
workers and eradicating exploitation.
unenviable reputation of exploiting workers in the
form of underpayment, in particular the restaurant
9.9 E
xtent of the issue industry.
Legal Links
Universal Declaration of Human Rights
(1948) In a 2013 article published in the Sydney
Article 23 Morning Herald entitled ‘Wages of sin’,
numerous examples of restaurants
1 Everyone has the right to work, to
underpaying workers were highlighted.
free choice of employment, to just and
Based on the ILO definition, excessive wage
favourable conditions of work and to
reductions based on previous arrangements
protection against unemployment.
is an example of exploitation. You can access
2 Everyone, without any discrimination, has
this article at http://cambridge.edu.au/
the right to equal pay for equal work.
redirect/?id=6296.
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CAMBRIDGE LEGAL STUDIES HSC
Australia, exploitation of workers in India tends to
Review 9.7 overshadow instances that occur here. The most
recent national census of India estimated the total
1 Outline your understanding of the term number of child workers aged 5–14 years to be 29
‘exploitation’. million. Children having to work is not a problem
2 List some of the key reasons employers unique to India; it is estimated that 150 million children
may seek to exploit workers. aged 5–14 worldwide work full-time. More recently,
3 Read the article, ‘Wages of sin’. Describe child worker exploitation has become an issue in
two examples of exploitation of workers. Cambodia, particularly in the garment industry.
The next media article outlines the shocking
conditions experienced by mostly child workers in
International situation sweatshops of Cambodia working for wages that do
Universal access to education until the minimum not provide for basic living needs and comfort. Many
age for employment (which, according to the
Millennium Development Goals (MDGs) of the
United Nations, should be 13 years) is an important Review 9.8
part of the fight against the economic exploitation
of children. The second MDG is to achieve universal 1 Read the article, ‘West’s fashion industry
primary education – that is, education to the end of on sweat of Asia’s teenagers’. Name
Year 6. The UN estimates that there are currently 75 some of the brands associated with the
million primary school-aged children who are not Cambodian workers. Do you wear any of
receiving an education. Many of these are most likely these brands?
being exploited within a workplace. Since education 2 Outline the wages paid to the workers
is important in preventing child labour, and child (including the minimum monthly wage)
labour functions as a hindrance to children attending and compare them to your own part-
school, forcing children to work rather than attend time work or that of a class member who
school is a serious human rights issue. works for an employer.
In many countries, unfortunately conventions, 3 Explain what you think a minimum wage
awards, negotiations and anti-discrimination should provide a worker (see the Ex parte
legislation are not as pronounced or explicit as in H.V. McKay (1907) 2 CAR 1 (Harvester
Australia. Although exploitation clearly occurs in case) discussed below).
4 Why does the term ‘Made in Cambodia’
give consumers of fashion brands reason
to cringe?
5 Describe the conditions that workers in
Cambodian sweatshops must endure.
Why would employers create such
harsh working environments? What do
employer groups such as the Garment
Manufacturers’ Association argue in
their defence of the workers?
6 Describe the union representative
Ath Thorn’s response to the Garment
Manufacturers’ Association’s claims of
Cambodia ‘setting the standard’.
7 Discuss the issues of reducing
exploitation in Cambodia in light of other
Figure 9.21 Access to education is an important part options in countries like Myanmar.
of the fight against economic exploitation of children.
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
West’s fashion industry relies on sweat of Asia’s teenagers
Lindsay Murdoch
Sydney Morning Herald, 14 July 2015
[Below is an edited version of the article.]
Across Asia, millions of children are toiling for long hours, often in stifling conditions, earning barely
enough to live on while they sew garments for fashion brands in the West.
In a stifling hot factory in Phnom Penh supervisors scream abuse at child worker Vien Dyna as she
struggles to stitch clothes for fashion brands sold in Western countries including Australia.
‘My body aches. I cannot do it,’ she says.
To earn 65 cents an hour, Vien is supposed to sew 50 garments every hour – but she can manage only
about 30.
She is one of thousands of under-age children working in Cambodia’s more than 700 factories which
employ an estimated 700,000 mostly young Cambodian women.
Across Asia, millions of poor and desperate garment and footwear workers are toiling for long hours
up to seven days a week for as little as $100 a month.
Buyers of ‘Made in Cambodia’ garments
around the world have reason to cringe about
the conditions forced on Cambodian clothing
makers in an industry that generates $7.8 billion
each year and provides 80% of the country’s
export earnings.
Human Rights Watch has documented the
use of child labour in violation of local and
international laws in at least 11 factories,
including workers as young as 12.
According to the March report, one woman at a
factory supplying H&M clothes ‘estimated that
20 of the 60 workers are children’.
Others told Human Rights Watch that ‘children
work as hard as adults’ and would stitch long
hours into the night.
Figure 9.22 Workers in Cambodian factories
The New York-based organisation has also
produce clothing for brands such as H&M.
documented serious labour rights abuses,
including forced overtime, pregnancy-based
discrimination and anti-union practices that fail to protect workers producing brands such as
Adidas, Armani, Gap, H&M, Joe Fresh, and Marks & Spencer.
Australian retailers that source from Cambodia – including Coles, Kmart, Target, Big W and Pacific
Brands – say they comply with international standards and the number of garments supplied
to Australian brands remains small, compared with other supplier countries such as China and
Bangladesh.
continued …
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CAMBRIDGE LEGAL STUDIES HSC
continued …
In November last year – more than eight months after Cambodian security forces opened fire
on workers to crush industry-wide protests – the government of Prime Minister Hun Sen set a
minimum monthly wage of $167, an amount unions say is not enough to live on.
David Welsh, country director in Cambodia of Solidarity Centre, a Washington-based international
worker rights group, says no worker can survive on the minimum wage without working illegal
overtime hours, effectively meaning long hours, six days a week.
‘The minimum wage should provide a degree of basic needs and comfort,’ he says.
Oem Mom, 33, sleeps on a wooden bench with four others in a tiny room made of scrap timber and
cardboard off a dank alleyway near the Phnom Penh factory where she works sewing designer jeans.
‘Life is very hard … the wage is not enough to live on. I have to keep borrowing from loan sharks,’
she says.
Cambodia’s garment industry, dominated by foreign investments from Hong Kong, China,
Singapore, Malaysia and South Korea, insists that attendance bonuses and housing and transport
allowances make Cambodia’s garment workers some of the best paid in the region.
The Garment Manufacturers’ Association of Cambodia, representing 600 factories, says Cambodia
sets the standards for other countries with an industry that accounts for 15 per cent of the economy.
The government insists its monitoring of the industry is transparent and competent, dismissing
claims of systematic labour law violations and corruption as ‘groundless’.
But Ath Thorn, president of the 100,000-member Cambodian Labour Federation, says many
factories force workers to work Sundays, on weekdays until 9 pm and sometimes overnight until
6 am – all without overtime and with workers in fear of losing their jobs if they do not comply.
He says union representatives and workers who complain face dismissal and threats of legal action
in politicised courts.
In mid-May, workers striking over the dismissal of a union representative at a Phnom Penh factory
were attacked by up to 50 thugs.
‘Cambodia has been painted as a model for the global industry – the claim is that factories are
properly monitored for abuses and conditions,’ he says.
‘But that myth was destroyed in early 2014 when Cambodia security forces shot more than 60
protesting workers, jailed prominent union leaders and sacked hundreds of workers,’ he says.
Welsh says many of the 200 apparel brands that source garments from Cambodia became ‘skittish’
following the turmoil, making the industry vulnerable to companies turning to other cheap labour
markets such as Myanmar.
Myanmar now employs more than 200,000 workers, a tenfold increase since 2010, with an average of
two new factories opening every week.
A garment worker in Yangon is typically paid an average $US80–100 a month, including overtime.
There is no minimum wage.
‘Brands chase jurisdictions where there is extreme poverty, the rule of law is weak and it is easy for
them to skirt labour laws,’ he says.
‘The only way to stop that is for there to be basic global standards that apply in every country.’
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
major global brands are involved from both Australia company – Sunshine Harvester Works. The judge
and the United States, but they often claim they are ruled that Sunshine should pay its employees at 9
not breaking any laws. Indeed, it is extremely difficult a level that ensured adequate standards of living.
to determine reality when both sides of the debate Such standards were best described as paying an
paint such diverse scenarios on the conditions of employee enough to live a simple existence. The
the workers. judgment achieved international significance. It was
10 years prior to the formation of the ILO, and it set a
benchmark for many future decisions on basic wage
9.10 R
esponses to the issue of cases across the globe.
exploitation of workers Throughout the following 60–80 years, awards
began to emerge. Employers could not legally
Legal responses pay their workers below the award rate or provide
One of the first important judicial decisions conditions that did not meet negotiated standards.
addressing the exploitation of workers was the The Hospitality Industry (General) Award 2010 is an
Harvester case of 1907 (Ex parte H.V. McKay (1907) example of an award and can be accessed at http://
2 CAR 1). Judge Higgins ruled on a case brought cambridge.edu.au/redirect/?id=6297.
by the employees of an agricultural machinery
In Court
Ram v D&D Indian Fine Food Pty Ltd & Anor [2015] FCCA 389 (27 March 2015)
In 2015, a restaurant owner in Sydney was ordered to pay one of his ‘workers’ $186 000 in back pay. Mr
Trivedi forced Mr Ram to work for him seven days a week, up to 16 hours per day for approximately
seven years. The Federal Circuit Court ruled that Mr Dam was a ‘slave’ because he was forced to live in
a room next to the kitchen and his bathing facilities consisted of a bucket of water, rather than a bath
or shower. His pay was less than $3 per day.
Mr Ram’s conditions are protected by the Restaurants Employees (State) Award, but his employer
was able to evade authorities for so long by falsifying tax and immigration documents and forcing Mr
Ram to lie to authorities when they came to check on the restaurant. Mr Ram eventually managed to
go to the police and, through legal processes, the court ordered that Mr Trivedi and his company pay
$125 431.22 for wages, superannuation and annual leave, as well as a further $60 607.81 in interest on
the judgment sum.
In Court
Minister for Immigration v Sahan Enterprises Pty Ltd [2012] FMCA 619
According to the evidence presented to the Federal Magistrates’ Court, Mr Azazim should have been
paid $45 000 per year, or $731 per week, for his job as head chef at the Roks restaurant in St Kilda,
Melbourne. The employer, Mr Sahan, was questioned over Mr Azazim’s pay and produced a document
stating that Mr Azazim had in fact been paid this amount for the 2009–10 financial year. The court found
that this document had been falsified. Mr Sahan then claimed that he was unaware of his obligations
in relation to the correct pay for a head chef. Action was taken against this employer in the form of
fines totalling $35 000 plus court costs of $10 000. Mr Azazim was not compensated for unpaid wages
of $14 000 as the fines the company was forced to pay sent the business into bankruptcy. Legally he
could commence a claim for lost wages in a civil court but would be unlikely to receive his payment
since the company no longer exists.
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CAMBRIDGE LEGAL STUDIES HSC
Human Rights Watch (HRW), a United States-
Review 9.9 based non-government organisation, was formed in
1978 to monitor the integrity of various governments
1 Describe the wages and conditions and their treatment of citizens. Its website
experienced by Mr Ram in the case of summarises its mission below as:
Ram v D&D Indian Fine Food Pty Ltd &
Anor [2015] FCCA 389 (27 March 2015). MISSION STATEMENT
2 Evaluate the effectiveness of the law in Human Rights Watch defends the rights of people
achieving fairness for Mr Ram. worldwide. We scrupulously investigate abuses,
expose the facts widely, and pressure those with
power to respect rights and secure justice. Human
Non-legal responses Rights Watch is an independent, international
In 1997, the Atlanta Agreement was formed between organization that works as part of a vibrant movement
the ILO, the Sialkot Chamber of Commerce and to uphold human dignity and advance the cause of
Industry and UNICEF. It was announced at the Sports human rights for all.
Super Show in Atlanta, United States, with the clear
goal of reducing high rates of worker exploitation in HRW has been monitoring working conditions
the football manufacturing industry. In addition, the in the Cambodian garment industry over the
ILO established eight key conventions throughout the past few years. In March 2015, HRW published a
20th century to deal with exploitation of workers and comprehensive report on the exploitation of workers
to gain ratification from all member states. Some entitled Work Faster or Get Out. Over 300 people
of these conventions are listed at the start of this were interviewed, including workers and their
chapter and can easily be found online. Of these bosses, union and government representatives,
eight, the Worst Forms of Child Labour Convention, across 73 different factories. HRW made a series
1999 (No. 182) was ratified by 175 of 183 member of recommendations to a range of stakeholders
countries. India was one country that did not ratify including the Cambodian government, major
this convention until 2013. international brands, and union and employer
representatives. HRW calls for multi-party wage
Atlanta Agreement fixing bodies (as is the case in Australia), the
an agreement between the ILO, the Sialkot Chamber
of Commerce and Industry and UNICEF to abolish disciplining of those responsible for violent attacks
child labour in Sialkot, including the manufacturing of on protesting workers and the disclosure by leading
commercial products for the Pakistani football industry
brands of their use of sweatshops. HRW claim
that boycotting the purchase of leading brands
may hurt the workers of Cambodia by forcing
brand name companies to simply ‘switch
countries’, thus creating unemployment for already
desperate workers struggling for basic wages and
conditions.
Bachpan Bachao Andolan (BBA) translated
means ‘Save the Children Movement’. It is a non-
government organisation based in India with the
Legal Links
The Work Faster or Get Out report is
Figure 9.23 The Atlanta Agreement had the goal available online at http://cambridge.edu.au/
of reducing high rates of worker exploitation in the redirect/?id=6298.
football manufacturing industry.
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CHAPTER 9 CONTEMPORARY HUMAN RIGHTS ISSUES
aim of creating ‘a child-friendly society, where all The Fair Work Ombudsman (http://cambridge.
children are free from exploitation and receive free edu.au/redirect/?id=6297) provides information 9
and quality education’. Through the work of BBA to workers about their rights and obligations. Its
and other non-government organisations pressure most recent comprehensive research, in which 52
has been created and international awareness of the 000 enquiries and complaints were received, was
plight of workers exploited has been raised. conducted in 2011–12. Of these, over 3000 complaints
were dealt with, and led to $2.7 million in underpaid
Bachpan Bachao Andolan wages being directed to exploited workers.
an organisation created by the Indian government to
enforce the criminalisation of child labour and forced The plight of Mr Ram in Ram v D&D Indian Fine
labour Food Pty Ltd clearly demonstrates that workers with
poor English skills who are in desperate situations
are being targeted by unscrupulous employers
Legal Links looking to make higher profits by paying their
workers as little as possible.
The Bachpan Bachao Andolan website
According to Amnesty International, at an
(http://cambridge.edu.au/redirect/?id=6299)
international level it is difficult to see rapid change
details the response of the Indian government
and decline in the exploitation of workers. Three key
to worker exploitation.
reasons for this are:
• lack of resources for government and non-
government organisations to identify and
Research 9.5 expose exploitative employers
• sociocultural factors such as long-held
Choose and then research two conventions of traditions of underpaying workers and a
the ILO. Find out which countries have not yet willingness of people living in poverty to accept
ratified these conventions and explain why whatever wage is offered – in a sense that
you think this is the case. something is better than nothing
• state sovereignty, which implies that nations
can set their own minimum wages that cannot
be legally challenged by other nations.
Effectiveness of responses
Despite awards and legislative protection,
Legal Links
workers continue to face exploitation in Australia.
Many restaurant owners argue that, with intense There have been numerous cases of
competition between restaurants and issues of immigrants being exploited in the workforce.
compliance with workplace safety regulations, Despite the awards system and other
superannuation payments and a host of other costs, legislation enforcing fair pay and working
paying casual and part-time staff the award wage conditions, these problems are still prevalent
is too expensive and risks forcing them to close today. An example of the effectiveness of the
their business. They argue that ‘closing the doors’ legislation is highlighted in the article entitled
of a restaurant would leave all their workers ‘Visa sponsor taken to court for underpaying
unemployed, and that by receiving a rate below the foreign worker’. You can access this article at
award at least workers have employment and an http://cambridge.edu.au/redirect/?id=6301.
adequate wage.
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CAMBRIDGE LEGAL STUDIES HSC
Issue 3 summary
• The exploitation of workers across the globe enforcement agencies have been able to
is a long-standing human rights issue that is prosecute or sanction many employers.
being addressed by organisations such as the • With the exploitation of workers being a
ILO, Amnesty, BBA, Human Rights Watch and centuries-old phenomenon, it is difficult to
UNICEF. see rapid progress being made to completely
• While there has been progress in reducing alleviate the problem in the next few years.
the number of workers being exploited, many Boycotting major clothing labels may not
major global brands continue to use seemingly necessarily be the best strategy to curb the
exploited labour in developing nations. exploitation of workers. Lobbying of national
• Legislative reform, such as international governments and fighting for the rights of
conventions and domestic laws, has created unions to protect worker rights and conditions
hope for millions of workers, and law may be the best strategy.
Issue 3 questions
Multiple-choice questions C lack of conventions and sociocultural factors
1 The exploitation of workers can be defined as: D lack of conventions and resources
A illegal activities carried out by organised
groups, usually for financial gain 5 BBA is an Indian non-government organisation
B legal activities carried out by employers, that stands for:
usually for financial gain A Building Better Agreements
C activities such as rallies and protests B Bilateral Business Arrangements
organised by workers without a permit C Save the Children Movement
D the act of using another person’s labour D Better Businesses Associations
without providing them adequate
compensation Short-answer questions
1 Discuss the problems of exploitation of workers
2 The country with the largest number of in Australia. What consequences are there of
children exploited through work is: enforcing awards and agreements?
A Pakistan 2 Outline the origins of the ILO. Evaluate the
B Australia effectiveness of the ILO in achieving fairness
C India for workers worldwide.
D Cambodia 3 Describe some of the wages and conditions
for workers around the world who have been
3 In Australia, the industry in which most exploited. What are the reasons for this
exploitation appears to be occurring is: occurring?
A Agriculture 4 Describe some of the key legislative reforms
B Media that deal with the exploitation of workers. Are
C Hospitality they effective?
D Education 5 Do you think the ILO should have increased
powers? What would they involve and how
4 Two key reasons for the exploitation of workers could exploitation be reduced?
are: 6 Discuss the tactic of boycotting major brand
A lack of resources and sociocultural factors labels and its impacts on workers in developing
B lack of legislation and conventions nations.
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Additional resources
Chapter 13
Option 4: Indigenous
peoples
25% of course time
Principal focus
By examining current issues and examples, students will gain an understanding of how legal and non-legal
processes attempt to achieve effective justice for indigenous peoples around the world.
Themes and challenges
Themes and challenges to be incorporated throughout this option include:
• how state sovereignty attempts to encourage cooperation and resolve conflict for indigenous peoples
• the problem of non-compliance in the international law sphere
• how changing values and ethical standards affect laws relating to indigenous peoples
• the recognition of the rights of indigenous peoples through law reform
• the role of legal and non-legal responses in effectively achieving justice for indigenous peoples.
Chapter objectives
In this chapter students will:
• identify and apply legal concepts and terminology
• communicate legal information using well-structured and logical arguments
• define what is understood by ‘indigenous peoples’
• detail the loss of rights of indigenous peoples globally
• outline how legal recognition of indigenous people is an effective means of rights protection
• describe the obstacles lying in the way of self-determination for indigenous peoples
• examine how the idea of sovereignty has both assisted and impeded the recognition of the rights of
indigenous peoples
• assess how effective legal and non-legal measures have been in achieving justice for indigenous
peoples
• describe how Australia’s federal structure has responded to the needs of indigenous peoples
• name and research contemporary issues affecting the rights of indigenous peoples and assess the
effectiveness of legal and non-legal responses to these issues.
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Key terms/vocabulary
assimilation pastoral lease
bipartisan point of law
colonisation referendum
customary law self-determination
governance self-identification
historical continuity sovereignty
native title Stolen Generations
negotiation terra nullius
Relevant law
IMPORTANT LEGISLATION
Aboriginals Ordinance 1911 (Cth) Constitutional Alteration (Aboriginals) Act 1967 (Cth)
Universal Declaration of Human Rights (1948) Native Title Act 1993 (Cth)
Declaration on the Granting of Independence to Declaration on the Rights of Indigenous Peoples
Colonial Countries and Peoples (1960) (2001)
International Covenant on Civil and Political Rights Northern Territory National Emergency Response Act
(1966) 2007 (Cth)
International Covenant on Economic, Social and
Cultural Rights (1966)
SIGNIFICANT CASES
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 Wik Peoples v Queensland (1996) 187 CLR 1
Commonwealth v Tasmania (1983) 158 CLR 1 Delgamuukw v British Columbia [1997] 3 S.C.R. 1010
Guerin v the Queen (1984) 2 S.C.R. 335 Sesana and Others v Attorney General (52/2002)
Mabo v Queensland (No. 2) (1992) 175 CLR 1 [2006] BWHC 1
Legal oddity
Kumanjayi Langdon, aged 59, from Yuendumu died in May 2015, three hours after being taken into police
custody under the Northern Territory Government’s paperless arrest system for ‘drinking in a regulated
place’. The paperless arrest system was introduced in 2014 and allows the police to arrest and detain people
for up to four hours for offences such as making too much noise, swearing or drinking in public. In August
2014, coroner Greg Cavanagh said the laws were ‘manifestly unfair’, unduly targeted Aboriginal people and
should be scrapped. However, the High Court has ruled the laws as valid.
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
13.1 D
efinition of indigenous location or occupation, such as hill people, nomads,
peoples hunter-gatherers and peasants. These are also used
to mean the same thing as ‘indigenous peoples’.
The UN Permanent Forum on Indigenous Issues
The United Nations (UN) hasn’t adopted an
recognises that there are indigenous peoples
living in nearly every part of the world. There are
official definition of ‘indigenous’, because of the 13
enormous diversity shown by indigenous groups
the Yanomami tribes of the Amazon jungle; the
worldwide. Instead, it gives the following list of
Chittagong hill tribes of Bangladesh; the First
factors to consider when thinking about indigenous
Nations, Métis and Inuit peoples of Canada; the
groups:
Aboriginal and Torres Strait Islander peoples of
Australia; the Ainu on the island of Hokkaido; the
• Self-identification as indigenous peoples at the
Sámi of Northern Scandinavia and Russia; and the
individual level and accepted by the community
hundreds of peoples indigenous to the rainforested
as their member
highlands of Papua New Guinea, to give just a very
• Historical continuity with pre-colonial and/or pre-
short list. Indigenous peoples form an incredibly
settler societies
vital part of the world’s cultural, historical, moral and
• Strong link to territories and surrounding natural
scientific heritage. The UN Permanent Forum on
resources
Indigenous Issues gives us the following information:
• Distinct social, economic or political systems
It is estimated that there are more than 370 million • Distinct language, culture and beliefs
indigenous people spread across 70 countries • Form non-dominant groups of society
worldwide. Practicing unique traditions, they • Resolve to maintain and reproduce their
retain social, cultural, economic and political ancestral environments and systems as
characteristics that are distinct from those of the distinctive peoples and communities.
dominant societies in which they live. Spread across
the world from the Arctic to the South Pacific, they The last point in the UN document, that an
are the descendants – according to a common indigenous person has ‘resolve to maintain and
definition – of those who inhabited a country or a reproduce their ancestral environments as distinct
geographical region at the time when people of peoples and communities’, has perhaps a more
different cultures or ethnic origins arrived. The new pragmatic importance than any of the other criteria.
arrivals later became dominant through conquest, Without such resolve an indigenous person or
occupation, settlement or other means. people would not be able to pursue any of the legal
Among the indigenous peoples are those of the remedies or redresses available to them.
Americas (for example, the Lakota in the USA, the
Mayas in Guatemala or the Aymaras in Bolivia), the
Inuit and Aleutians of the circumpolar region, the
Sámi of northern Europe, the Aborigines and Torres
Strait Islanders of Australia and the Maˉori of New
Zealand. These and most other indigenous peoples
have retained distinct characteristics which are
clearly different from those of other segments of the
national populations.
The word ‘indigenous’ has been used as a
blanket term for many years. Some countries
tend to use other terms, such as aboriginals, first
nations/peoples, tribes and ethnic groups; or more
specific terms such as adivasi and janajati, referring
to the indigenous populations of India and Nepal
respectively. There are other terms that reflect Figure 13.1 Ainu marriage ceremony.
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CAMBRIDGE LEGAL STUDIES HSC
Australian law means that they are pressured to abandon these
There is no single criterion under Australian law to markers of distinction – and that legal protection and
identify an individual as an indigenous person. In the support become necessary to save the knowledge
early 1980s, the then Commonwealth Department of and history stored within these individual cultures.
Aboriginal Affairs proposed the following definition:
‘An Aboriginal or Torres Strait Islander is a person
of Aboriginal or Torres Strait Islander descent who
13.2 R
ights and legal
identifies as an Aboriginal or Torres Strait Islander
recognition
and is accepted as such by the community in which
he [or she] lives.’ This definition was also followed Loss of rights of indigenous
in a decision of the High Court (Commonwealth v peoples over time
Tasmania (1983) 158 CLR 1). Subsequent judicial Since the beginning of the modern age, the
decisions have posited that all three of these elements rights of indigenous peoples worldwide have
need not be satisfied. They have stressed the been under attack. The rapacious colonisation
inherent problems involved when a body of outsiders, by technologically advanced powers, the
as found in parliament and the courts, make overconsumption of the world’s natural resources
decisions regarding indigenous identity. Ideally, an in the modern economic system, world wars, and the
indigenous body would make these decisions. complicated politics and independence movements
One way to assess who is, and who isn’t, of the decolonisation process have all taken their toll
a member of the dominant group in society is on indigenous peoples globally.
by examining the level of a particular people’s
colonisation
participation in politics, in the media, in business the establishment of settlement and control in a foreign
and in culture. In the case of Indigenous Australians, territory, as in ‘the British colonisation of Australia’
we can see that no Indigenous language is the
dominant language in Australian society (it is To understand what kind of rights they have lost,
obviously English), there are very few Indigenous we should first discuss the concept of sovereignty.
Australians sitting in the parliaments of Australia If a people, a government or a political system holds
(in 2017 there were five Indigenous Australians in sovereignty over a certain area or territory, it means
federal parliament – three in the Senate and two that they hold supreme authority within that area.
in the House of Representatives), and Indigenous In Australia, the Australian system of government
participation in the media and the broader cultural holds sovereignty over the territory of Australia
landscape is very limited. Clearly, an individual who (with powers divided between the federal, state and
does belong to the dominant group in society has far municipal governments, as well as the courts). This
less need for the sort of rights protection offered by means that this system of government has the ability
the UN agreements on indigenous peoples. Sadly, to make laws with respect to all aspects of our lives,
the very fact that indigenous people have a distinct including, but not limited to, schooling, taxation,
culture, a distinct language and distinct beliefs from crime, punishment and terms of doing business. The
the ‘mainstream’ (the majority, dominant population) powers of this system derive from the Constitution,
which in turn derives its power from the tacit
agreement of all citizens of Australia. Importantly,
Review 13.1 there is no body within Australia that can make
laws or regulations that supersede the laws of the
1 Explain why the UN hasn’t adopted an Australian parliaments. Even international treaties
official definition of ‘indigenous’. What operate in Australia only with the permission of the
has it done instead? government and even then only when they have been
2 List reasons that make it clear signed, ratified and enacted into domestic legislation.
Indigenous Australians are not the
dominant group in Australian society. sovereignty
complete legal and political control; supreme authority
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
Prior to contact with settler/colonial cultures,
indigenous peoples maintained sovereignty over
themselves and their land, in many cases coming
to a delicate understanding with the environment
they lived in. For example, the Inuit peoples were 13
able to live by following the migration patterns of
the bowhead whale, the fur seal and the fish species
of the Arctic. Desert peoples, like many of the
Indigenous peoples of Australia and the San people
of the Kalahari Desert, survived by developing a
detailed knowledge of the plants, animals, sources
of water and sources of shade in their territory. Some
of the knowledge of these peoples is only now being
understood and used globally. In the Australian
Figure 13.2 South American indigenous peoples
Capital Territory, Indigenous people are working
were forced off their land to make way for sugar cane
with the fire authorities to carry out hazard-reduction plantations.
burns using Aboriginal burning practices.
Many indigenous peoples developed legal and north, stripping the Indigenous inhabitants of the
political traditions in line with the demands of their ability to hunt and live off the land, and severing
own environment. The Yanomami tribe, in the remotest their cultural and spiritual connection to the land.
reaches of the Amazon, lived in a complexly communal Another example is in South America, where
society; Australian Indigenous peoples possessed their farmers and miners, clearing the vast stretches of the
own legal systems, and their own systems of crime and Amazon for sugar cane plantations and grazing land,
punishment; and the Iroquoian-speaking tribes in the forced indigenous people off their native habitats and
north-east of what is now the United States formed into the most remote reaches of the Amazon. This
intricate inter-tribal alliances and arrangements, both disrupted their food supply and caused inter-
involving the contracting of agreements and treaties, tribal conflict with the established residents of the
as well as the conduct of war with and against other land they were encroaching on, dramatically affecting
tribes. the tribes’ wellbeing. The state of starvation and the
desperation these tribes were reduced to perhaps
Colonisation and loss of land helped settler societies to justify the imposition of
As the colonising powers – first Portugal and Spain, settler culture, religion and law upon indigenous
and then later The Netherlands, the United Kingdom, peoples, seeing the lack of these things as the cause
France and the remaining European powers – spread of the hunger and poverty, rather than the massive
out through South America, North America, South- dislocation caused by the settlement process.
East Asia, India and Africa, many of these pre-existing
legal codes came into conflict with the legal codes Ideological differences
of the Europeans, backed by spear, sword and gun. In addition to environmental destruction or
Predictably, armed with these weapons, pride and appropriation, ideological differences – differences
ignorance, the European settlers typically ignored the in legal, political, commercial and ethical systems –
legal and political traditions of indigenous peoples. have led to conflict and injustice for indigenous
Gradually, in the wake of settlement of the new peoples. The settler/colonial societies were, with
worlds by European governments, European and occasional exceptions, essentially commercially
European-descendant businessmen, explorers, focused, mercantile, capitalist empires. Think of, for
furriers, trappers and miners expanded the European example, the industrialised United Kingdom of the
footprint deeper into the territory of indigenous 19th century, built from the exploitation of foreign
peoples. This accelerated the effective destruction of markets by northern cotton spinners – or the gold-
the sovereignty of indigenous peoples. In Australia, transporting trading empires of Spain and Portugal.
farmers pushed the frontier further and further Their meeting with the traditional tribal societies
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CAMBRIDGE LEGAL STUDIES HSC
led to the clash of two different systems of property The experience of the Greenlandic Inuit in World
ownership, with exploitation and injustice the sadly War II is a good example of these developments. The
predictable result. Inuit settled in Greenland in approximately 1300 CE,
Another example can be found in the early just as a hopeful Scandinavian settlement on the
history of contact between the Maˉori people of New island perished, and continued to live there without
Zealand and European settlers. The Maˉori, living in any contact with Europe for the next 400 years. This
communal organisations known as iwi, owned all was until Denmark once again sent settlers to the
property communally. The British, as they bought island in the middle of the 18th century. Even then,
property or land from the Maˉori owners, sought to the Danish settlers largely confined themselves to
assign property rights by dividing them up among the trading post of Godthaab (modern day Nuuk,
individual members of the iwi, as is customary under the capital of Greenland), and the Inuit population
British law. However, as the iwi weren’t set up for this was left largely undisturbed. However, during
kind of property arrangement, it led to the Maˉori being World War II, secret German outposts were built
in a far worse bargaining position than they would and detected on Greenland. In response the United
have been had the British recognised their system of States itself built a number of outposts there,
property ownership. Consequently, the iwi received flushing the Germans out of the country. Though
far from the proper return for their property. Similar a minor incident in the greater scheme of the war,
impulses to convert traditionally communal societies this highlighted the importance of Greenland as
have occurred in many other places – notably among a waypoint between northern Europe and North
the communally living Yanomami tribe in the America. Not only was it an ideal place due to its
Amazon and among the San of the Kalahari Desert. proximity to the North Pole but it was also excellent
for radar-based missile detection systems, which
Remote regions were to assume great importance in the post-World
In the early history of the interaction between settler War II and Cold War years.
and colonialist societies and indigenous peoples, After making an offer to purchase Greenland,
those peoples who lived in remote regions – for which was rejected by the Danish government, the
example, the Inuit of the High Arctic, particularly United States negotiated to build Thule Air Base, the
Greenland, the indigenous tribes of Northern Russia most northerly air base in the world. The construction
and the highland tribes of New Guinea – were largely of this base in 1953 required the forced relocation of
untouched by the expanding shadow of colonialism. many Inuit from their traditional lands to the urban
Although settler societies knew of the existence of centre, Nuuk. This partly forced urbanisation of
these peoples, the land was too unforgiving for easy the Inuit population led to many farcical results,
settlement, and resource companies were deterred such as the construction of Blok P. Blok P was built
by the enormous expense involved in building mines between 1965 and 1966 and housed approximately
in these areas. This state of affairs continued until 1% of the entire country’s population in the building.
the outbreak of World War II, which could be seen The large communal housing building failed to
as the first truly global conflict. World War II led cater for the needs of its inhabitants, especially the
to an enormously intensive use of resources, such Inuits. The doorways were too narrow to squeeze
as oil and steel, for the construction and operation through wearing the thick clothes needed to survive
of the machinery of war. Nations also felt the in Greenland’s cold climate; there were frequent
imperative need to protect previously disregarded plumbing failures because pipes were clogged
stretches of land from invasion by enemy forces. with blood – caused by fishermen cutting up their
Therefore, marginal borderlands – vast stretches of catch in their bathtubs; and numerous fire exits were
far northern Europe, South-East Asian jungle and blocked because of the storage of their belongings.
the islands north of Japan where native peoples Blok P was demolished on 19 October 2012, a sign
had been allowed to live and govern themselves, of a growing understanding of the damage that the
essentially autonomously – now played host to imposition of settler ideas onto indigenous peoples
troops, armaments and, consequently, the laws and can cause.
regulations of these powerful nations.
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
to maintain their influence and expand their empires.
As these empires added more and more countries to
their portfolios, rules of international law that partly
governed these growing empires developed. These
rules were shaped and formalised by scholars of the 13
day. Examples of such scholars include Emmerich de
Vattel, who wrote The Law of Nations in 1758, and Hugo
Grotius, regarded as the ‘father’ of international law,
as well as the Spanish thinker Francisco de Vitoria,
who wrote at the time of the development of Spain’s
settlement of South America.
De Vattel’s view was that a country could take
possession of another country that was ‘vacant’
and claim both its ‘empire’ and sovereignty, and its
Figure 13.3 Blok P in Nuuk failed to cater for the ‘domain’ or use of land. De Vitoria thought that if
needs of its inhabitants, especially the Inuits. no one held sovereignty, colonisation could be
justified. Applying these ideas, the Europeans
Review 13.2 developed the rule that any discovered land
could be claimed if it was uninhabited. However, even
1 Outline the basic human rights that if it was inhabited, it still could be claimed, provided
indigenous peoples lost during the the original inhabitants were not cultivating the land.
period of colonisation. The philosopher John Locke also was of the
2 Describe some of the ideological view that cultivation of the land was an important
differences between colonising nations condition of a claim to ownership over it. He argued
and indigenous peoples. that cultivation of land was a ‘law of nature’ and a
3 Compare and contrast the effect of precondition to sovereignty. He believed that labour
World War II on indigenous peoples. was needed to establish ownership of land by the
4 Recall what percentage of Greenland’s cultivation of that land, presumably by the farming
population was housed in Blok P. and clearing of it to make way for villages and towns,
as the British were used to doing.
Legal recognition of indigenous
peoples
So far in this chapter, we’ve looked at the various
ways indigenous peoples have been deprived of
their sovereignty through the intervention of settler
societies. In this section, we examine how a legal
discussion has developed around the issue of the loss
of indigenous rights – both initially as a support to the
political and ideological programs of settler cultures,
and, in recent times at least, as a form of protection
for indigenous peoples against further loss of rights.
Views of the early European legal
scholars
From the 16th to the 20th centuries, powerful European
countries such as Spain, Portugal, France, Holland
and England were engaged in extensive voyages of
discovery and the colonisation of new lands in a quest Figure 13.4 The philosopher John Locke, 1632–1704.
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CAMBRIDGE LEGAL STUDIES HSC
A legal issue, however, lay in how cultivation of with his responsibilities concerning British law,
the land was defined. should he discover land that was either occupied or
Additionally, Francisco de Vitoria thought there uninhabited. Should the land be occupied, Cook was
should be limits on the assumption of sovereignty required to negotiate with the indigenous peoples
by an external power. One such limit was that such encountered, before claiming the land in the name
power should be given up once the indigenous of the King.
peoples concerned had shown themselves capable
of self-government. The other limit was that any negotiation
discussion aimed at reaching an agreement
assumption of sovereignty be for the benefit of the
indigenous peoples, not the colonisers.
In other words, if a country was considered Australia
vacant, it could be ‘settled’ and the laws of the The treatment of Australia by the British partially
colonising nation would apply immediately. resulted from a meeting of two very different systems
However, if the indigenous peoples were recognised of land management: one developed on the rainy
as having sovereignty, through self-government or meadows of England, and the other in the much
cultivation of the land, the colonising nation would hotter and drier Australian climate. To the British,
need to ‘conquer’ the country, or at least enter into ‘cultivation’ meant clearing the land to make way for
a treaty with the indigenous peoples. farming and towns based upon ownership of property
and land (property rights). But to the early Indigenous
treaty
Australians, cultivation of the land meant managing
an agreement between two sovereign states that
establishes decision-making processes to allow fair the land in such a way that it was not overused and
negotiations between communities was maintained in trust for future generations. The
nomadic lifestyle of the Indigenous Australians was
Two colonisation case studies part of this process. Their choice to live in a certain
area for only a limited time gave the land a chance to
This legal distinction can be seen in action by
rejuvenate itself and not have lasting damage.
comparing the European powers’ treatment of
The stark difference between this system and
Australian and New Zealand indigenous peoples. In
British farming also explains why the British failed
the 1760s, before Captain James Cook set sail on his
to see the land as being cultivated. De Vattel also
first voyage of discovery to the Pacific, British King
argued that the obligation of inhabitants to cultivate
George III gave specific instructions regarding the
the land in order to claim sovereignty over it might
discovery of land. These instructions provided Cook
not apply to a land in a desert state. In this case, a
country could claim title to its possession only if this
claim was followed by real possession of it. What
can be assumed by what de Vattel said was that
the land should be settled. Grotius was of a similar
view, believing that ‘discovery’ was only possible if
the land discovered was vacant.
Furthermore, the nomadic lifestyle of the
Indigenous Australians was very different from the
British notion of governance and law, leading to an
argument that they were not capable of – or at least
had not enacted – self-government.
governance
a method or system of government
Thus, Captain Cook did not recognise the
Figure 13.5 Portrait of Captain James Cook. Indigenous Australians’ sovereignty over the land,
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
even though he was aware of their presence. On 22 though the invading British failed to recognise the
August 1770 he took possession of the entire eastern sovereignty of Indigenous Australians.
half of the continent, claiming it in the name of King
George III without seeking or obtaining the consent native title
of the Indigenous Australians. This act by Cook was
recognition under Australian law of the traditional laws
and customs of Aboriginal and Torres Strait Islander
people, as they apply to their interests and rights in land
13
followed in 1788 by the settlement of Sydney Cove by
and waters
Captain Arthur Phillip. Ninety years later, the British
colony of Queensland would claim the Torres Strait
Islands. New Zealand
These three land claims by the British represent
Before reaching Australia, Captain Cook had
significant points in the history of Australia. The
mapped the complete coastline of New Zealand,
first dispossessed Indigenous Australians of their
and had also encountered the Maˉori people. To the
land. The second began the British ‘settlement’
European eye, the Maˉori society seemed organised,
of Australia and imposed the laws of the British
unlike that of the nomadic Indigenous Australians.
Government and the King of Great Britain upon all
Thus, in terms of the King’s instructions, Cook could
the inhabitants of the land. The third dispossessed
not simply claim this land for Great Britain.
the Torres Strait Island peoples of their lands.
The initial settlement by Europeans after Captain
At the time of the arrival of Captain Phillip
Cook’s survey of the islands occurred at a very
and the First Fleet, there was no uniform standard
slow pace, and was limited almost completely to
of land law in the new colony, and as the British
rogue soldiers and sailors. However, in 1839, after
colonists spread out from Sydney to other parts
a campaign by an organisation known as the New
of the continent, ad hoc land negotiations were
Zealand Company, the British Captain William
sometimes carried out between the colonists and
Hobson went to New Zealand to convince Maˉori
the Indigenous inhabitants. One famous example
chiefs to grant sovereignty to the British. Spurred
of this is John Batman’s ‘purchase’ of the land
by the desire to protect themselves from other
around Melbourne and the Bellarine Peninsula in
European powers, the Maˉ ori chiefs signed the
exchange for some axes, handkerchiefs, looking
Treaty of Waitangi, which, according to the English-
glasses and other sundry items. Seeking to quash
language version at least, gave Britain sovereignty
these precedents, the governor of New South Wales
over New Zealand in return for protection, the rights
at the time, Richard Bourke, issued a proclamation
of British citizens, and ownership of their own lands
which determined that no one had ownership of the
and possessions.
land before British possession, thus establishing the
However, the pace of settlement was much
notion of terra nullius. This proclamation was later
greater than initially anticipated by the Maˉori chiefs.
followed by a British Colonial Office proclamation to
Nearly half a million Europeans arrived in New
the same effect.
Zealand soon after the signing of the treaty in 1840.
terra nullius
The enormous pressure this rapid population growth
a Latin expression meaning ‘land belonging to no one’, put on the land resources led to a bitter conflict in
which is used in international law to describe territory the North Island known as the Land Wars, which
that has never been subject to the sovereignty of any
state were caused by illicit land grabs made by European
colonialists. Although the Maˉori population suffered
This legal position lasted for over 100 years. But many abuses at the hands of the European settlers
in Mabo v Queensland (No. 2) (1992) 175 CLR 1, the of New Zealand, the very existence of the treaty
High Court finally accepted that native title existed has provided the Maˉori with the ability to access
at the time of European settlement and as a result legal redress and compensation for these wrongs,
ruled that the doctrine used to claim the land – terra which they have been doing since the second half
nullius – was flawed. Therefore, it could be argued of the 20th century. Compensation for breaches of
that an Indigenous Australian legal and governance the treaty has amounted to several hundred million
system was in place when the British arrived, even dollars. The doctrine of terra nullius was not applied
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CAMBRIDGE LEGAL STUDIES HSC
The end of colonisation and global
recognition
Before World War I, many European countries
including Hungary, Bulgaria and the Balkan nations
were incorporated into either the Austro-Hungarian
or the Ottoman Empire. Most of Africa had been
swallowed up by Great Britain, France, Belgium and
Germany; and South-East Asia by The Netherlands,
France, Great Britain and Japan.
During the 20th century, many countries,
whether by military action, political negotiation or
a combination of the two, threw off the rule of these
colonial powers. The initial catalyst for this process
was World War I, which caused the dissolution of the
great European empires – the Hapsburg and Ottoman
empires – and sowed the seed for the fragmentation
of the overseas empire of Great Britain. In the years
after World War I, the British government passed
the Statute of Westminster, which granted formal
independence to Australia, Canada, New Zealand
and the Union of South Africa, as well as granting
independence to Egypt, Afghanistan and Iraq.
However, Great Britain maintained its rule of India,
as well as colonies in the Caribbean, Malaysia and
Africa.
Figure 13.6 The Treaty of Waitangi.
Research 13.1
to New Zealand as it was in Australia. The interesting
1 Research claims of terra nullius in
legal point here is why the British did not also offer
another country of the world. Write a
Indigenous Australians a treaty, instead of deciding
summary of your findings.
to ‘settle’ the continent.
2 Research an example of the end of
colonialism internationally and write a
Review 13.3 report expressing your opinion of this
example.
1 Outline the key purpose of the doctrine
of terra nullius.
2 Examine the reasons why the British
did not recognise the Indigenous The importance of the right to self-
Australians as cultivators of the land. determination
3 Discuss why the Maˉori chiefs signed the Many countries around the world have been
Treaty of Waitangi. colonised, conquered or settled by a foreign
4 Identify what has provided the Maˉori with power. Over the course of the 20th century, a new
the ability to access legal redress and body of international law that asserts the right of
compensation, which they have done peoples within these nations to govern themselves
since the second half of the 20th century. developed.
Self-determination refers to the ability of an
individual, a group of individuals, or a people to
govern themselves. This means that they can make
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
decisions about how they are governed, what legal Norway and Chile, among others), self-determination
system is put in place, and what is the best and is complicated by various factors. The first and most
most effective education system and health system obvious is the sheer diversity of indigenous peoples.
– in short, all of the decisions that a government In Australia, for example, there are many Indigenous
is entrusted with. Control over one’s own future groups that are both culturally and linguistically 13
is an important human right. Therefore, self- distinct. Any law or international agreement made
determination puts the legislative power for good or in relation to these peoples must take into account
ill in the hands of the indigenous peoples. It is for this this diversity. Despite this great variety, what all
reason that in both the Declaration on the Granting of these indigenous peoples have in common is that
Independence to Colonial Countries and Peoples and they existed – and had formed a close relationship
the Declaration on the Rights of Indigenous Peoples, with the environment and their land – prior to the
the UN stresses that the right to self-determination arrival of settler or colonial societies.
is a fundamental right. Two of the UN’s factors to consider with
indigenous groups are particularly pertinent in the
self-determination context of self-determination: self-identification
the right of people to determine how they will be
governed, or political status based on territory or national and historical continuity.
grouping
self-identification historical continuity
the principle that the existence of social,
In 1960, the General Assembly of the UN passed indigenous people cultural, linguistic or
Resolution 1514 (Declaration on the Granting of themselves perform the spiritual links with past
determination of their practices
Independence to Colonial Countries and Peoples), indigenous identity
which declared that the ‘subjection of peoples to
alien subjugation, domination and exploitation The principle of self-identification ensures that
constitutes a denial of fundamental human rights’, those who are most knowledgeable about indigenous
that ‘[a]ll peoples have the right to self-determination peoples – the indigenous peoples themselves – make
… they freely determine their political status and the identification. This principle also has the effect
freely pursue their economic, social and cultural of ensuring that indigenous peoples are not subject
development’, and ‘[a]ny attempt aimed at the to having their identity stripped away by outsiders,
partial or total disruption of the national unity and through prejudice, ignorance or political calculation.
the territorial integrity of a country is incompatible This is particularly important in light of the many
with the purposes and principles of the Charter of assimilation policies that have been put in place
the United Nations’.
Although the UN has declared in both the
International Covenant on Economic, Social and
Cultural Rights (ICESCR) and the International
Covenant on Civil and Political Rights (ICCPR) that self-
determination is a fundamental human right, there
have been a number of political and legal factors,
both practical and ideological, which have limited
the application of this idea to the circumstances of
indigenous peoples. At an international level, there
has been a distinction made between societies in
which the colonised people make up a majority
and those in which they make up a minority of
the population. For example, in the former British
colonies of India and Kenya, it has been much easier
for colonised peoples to achieve self-determination.
Figure 13.7 In Australia, there are many Indigenous
Where the colonising culture is well established, groups that are both culturally and linguistically
as in Australia (also Canada, the United States, distinct.
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throughout the history of indigenous contact with Canada was the High Arctic relocation. This saw
settler/colonial peoples. Inuit families transported to islands far north of
where they had previously lived, taking them away
assimilation from the food sources they had known and into a
a policy based on the idea that the minority group should
adopt the language and traditions of the majority group much harsher environment. Some scholars have
suggested that this relocation was performed to
An assessment of historical continuity requires shore up Canada’s territorial claims in that region,
an understanding of the significant variation among but officials have justified the displacement on
the histories of indigenous peoples. For example, the the basis that the land the Inuit people were then
Indigenous peoples of Australia have been settled occupying was overpopulated and therefore couldn’t
on the continent for tens of thousands of years, but sustain the traditional methods of food collection.
the indigenous people of New Zealand, the Maˉori, Although these relocated people eventually adapted
are estimated to have arrived in that country in only to the difficult conditions, it took them many years.
the 13th century CE. Similarly, the Inuit of northern They had to adapt to the new climate, specifically
Canada and Greenland probably only settled in that much longer and darker winters, which resulted in
area around 1300 CE. The Chittagong hill tribes of much sparser food sources for them.
Bangladesh offer another contrasting experience. The Canadian government eventually felt
They have lived alongside the dominant Bengali compelled to apologise for the displacement and
population, living in the flatlands of the country, for removal of the Inuit peoples. On 18 August 2010
centuries. in Inukjuak, Nunavik, John Duncan apologised
Deliberate or inadvertent attempts to disrupt on behalf of the Government of Canada for the
historical continuity – whether demonstrated relocation of the Inuit to the High Arctic: ‘Today’s
by the continuation of cultural practices and ceremony is an important step towards healing and
indigenous languages, or continued traditions of reconciliation … The relocation of Inuit families
food production – have been made by many settler to the High Arctic is a tragic chapter in Canada’s
societies. One of the most well known of these history that we should not forget, but that we must
policies is the collection of legislation executed by acknowledge, learn from and teach our children.’
Australian state and federal governments referred
to as the ‘Stolen Generation’ policies.
Stolen Generations
Indigenous Australian children who up until the 1960s
were removed from their families and tribal lands by
federal and state governments and church missions
under Acts of the respective parliaments
Another example of this type of policy can be
seen in the attempt of the Canadian and American
governments to seek assimilation of the First
Nations, Inuit and Métis people by establishing
boarding schools. This was an attempt to educate
the indigenous children from those countries.
However, in the attempt to achieve education the
government removed the children from their families
and hindered any chance of cultural continuity in
traditions, language and practices. In some cases,
these residential schools and settlements were
also sites of physical and sexual abuse perpetrated
against indigenous people. Figure 13.8 Monument commemorating the Inuit of
Another prominent example that took place in the High Arctic relocation.
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
Unfortunately, these episodes of the separation and forms their own self-determined government,
of children from their traditional families, and the this poses questions for the territorial integrity of
dislocation of indigenous people from their land the nation. The encompassing nation state provides
and country, have echoes in many global histories administration and services, such as hospitals and
of contact between settler societies and indigenous roads, as well as a legal system that generally does 13
peoples. The world has seen numerous cases of not encompass traditional laws. The nation state will
displacement and forced relocation. It is an all too also have a global presence, such as a seat at the
familiar theme for indigenous peoples. UN General Assembly. Thus, while there may be a
culturally distinct group of people within the nation,
they cannot form their own sovereign state.
Review 13.4
For this reason, the concept of self-determination
1 Define self-determination in a legal for indigenous peoples has come to have a more limited
sense. meaning. Many states have attempted to reconcile
2 Define the principle of self-identification. the competing demands of respecting the rights of
3 Outline what the principle of historical indigenous peoples regarding self-determination
continuity establishes for indigenous and maintaining political stability, by giving greater
peoples. decision-making power to indigenous groups.
4 Examine why the Canadian and In Australia, the autonomy granted to Indigenous
American governments established Australians has waxed and waned since the 1970s,
boarding schools for the First Nations, when many Indigenous people formally petitioned
Inuit and Métis children. Discuss the government for decision-making power over
the effect on the cultural continuity their own communities. This eventually led to the
and suggest steps they could have establishment of the Aboriginal and Torres Strait
implemented instead. Islander Commission (ATSIC), which facilitated
the sharing out of federal funds and coordinated
negotiations between the federal government
and Australia’s Indigenous communities over
funding priorities. However, ATSIC was plagued by
13.3 R
esponses to indigenous difficulties over funding concerns, and the Howard
peoples federal government, responding to this, passed the
Northern Territory National Emergency Response
The role of the nation state and Act 2007, which, among other reasons, has been
state sovereignty criticised because it takes away autonomy, and
As discussed earlier, many indigenous peoples’ therefore the limited level of self-determination that
sovereignty over their lands was taken away from had been available, from Indigenous communities.
them during the period of colonisation. ATSIC was abolished in 2005.
Though it is a highly contestable term, Aside from funding issues, there are other areas
‘sovereignty’ can be taken to mean the absolute legal in which traditional customs may be incorporated
power to make and enforce laws within a certain into other systems (for example, circle sentencing as
territory. This means that, within the boundaries of an alternative court for sentencing adult Indigenous
the nation, the state is able to exclude laws made Australians).
by all other nation states. Thus, there is often a In Norway, Sweden and Finland, Sámi
conflict of interest between a sovereign state and parliaments have been established to represent the
an indigenous community located within that state. indigenous populations of these countries. However,
Even though the importance of the right to self- in each of these countries the effectiveness and
determination is now recognised, it raises issues of powers of these parliaments vary dramatically. In
territorial integrity or sovereignty. If a group of people Norway, home to the largest proportion of the Sámi
residing within the borders of a country effectively population and a country where until World War II the
leaves the political administration of that country Sámi population were subjected to a century-long
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country with a Sámi population, there is no system
for indigenous representation.
In North America, the Canadian Department
of Indian and Northern Affairs introduced self-
government for First Nations people in 1995. This
policy crucially recognised that the form of self-
government should vary according to the needs of
each indigenous people.
The role of the UN and
international instruments
Established after the chaos and devastation of World
War II, the UN developed in its early years a series
of conventions, charters and declarations which
safeguarded the rights of first people as a whole, as
in the Universal Declaration of Human Rights, or of
a group of individuals who had difficulty accessing
Figure 13.9 The Sámi Parliament of Norway in their human rights. Through its legal instruments, the
Karasjok, Norway.
UN has, for example, attempted to protect the rights
of children (United Nations Convention on the Rights
assimilation policy, the parliament has responsibility of the Child), women (United Nations Convention on
for the preservation of the Sámi language and the Elimination of All Forms of Discrimination against
culture. A ballot of the Sámi population elects Women) and refugees (United Nations Convention
members of the parliament. Control of the Finnmark Relating to the Status of Refugees). It wasn’t until
Estate, a large area of land in the northernmost part 2007, however, that the Declaration on the Rights
of Norway (the area where the Sámi population is of Indigenous Peoples was adopted by the General
concentrated), is shared between the Norwegian Assembly of the UN.
Sámi parliament and the Finnmark Council.
The Sámi parliament is also responsible for the International Bill of Human Rights
protection of Sámi heritage sites and the creation The International Bill of Human Rights is the name
and provision of educational materials. In Sweden, given to the fundamental United Nations instruments
a country with a much smaller Sámi population, the on human rights.
Sámi parliament has much more limited powers. The Universal Declaration of Human Rights,
Although the members of the parliament are adopted on 10 December 1948, states that ‘the
elected in much the same way as the members of inherent dignity and of the equal and inalienable
the Norwegian Sámi parliament, its budget is much rights of all members of the human family is the
smaller and it functions simply to advise the Swedish foundation of freedom, justice and peace in the
government, without any autonomous powers of its world’. This declaration is not a treaty, and so it is
own. For this reason, the Swedish government has not legally binding on countries. However, it was the
been criticised for allowing only token representation precursor to a number of treaties, which are legally
of Sámi interests – the Sámi parliament in Sweden binding.
has less power than a municipal council. The Finnish Two legally binding treaties are also components
Sámi parliament also has a relatively low budget of the International Bill of Human Rights:
and limited powers of autonomy. One difference is 1 International Covenant on Civil and Political
that votes in the Finnish Sámi parliament elections Rights (1966)
are cast for individual candidates, not for parties. 2 International Covenant on Economic, Social and
Moreover, the Finnish are obliged to consult with the Cultural Rights (1966).
parliament on any matter that may affect the Sámi’s Both of these treaties have the same text in art 1,
status as an indigenous people. In Russia, the fourth recognising the right of self-determination:
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
1. All peoples have the right of self- and spiritual values, practices and institutions of
determination. By virtue of that right they indigenous peoples; the right to participate freely in
freely determine their political status and the culture of the state; rights to non-discrimination
freely pursue their economic, social and and freedom from oppression; and the right to
cultural development. own land traditionally occupied by the indigenous 13
2. All peoples may, for their own ends, people. However, because this convention doesn’t
freely dispose of their natural wealth recognise a right to self-determination, many
and resources without prejudice to any indigenous groups have argued it should be ignored
obligations arising out of international or repealed. The ILO re-examined the convention
economic co-operation, based upon and concluded that ‘the integrationist approach of
the principle of mutual benefit, and the convention was obsolete and that its application
international law. In no case may a was detrimental in the modern world’. Thus, the
people be deprived of its own means of convention was revised and renamed Indigenous
subsistence. and Tribal Peoples Convention, 1989 (Convention
3. The States Parties to the present Covenant, 169). At present Convention 107 is still in force in 18
including those having responsibility countries.
for the administration of Non-Self- Wide swathes of indigenous peoples’ rights
Governing and Trust Territories, shall have been protected within the articles of the
promote the realization of the right of convention. The most important are the reiteration
self-determination, and shall respect that of the principle that indigenous peoples have the
right, in conformity with the provisions of right to enjoy all of the rights enumerated in the
the Charter of the United Nations. Universal Declaration of Human Rights; the right to
self-determination (political status and economic,
social and cultural development); the right to
The remaining articles in these treaties, however, autonomy and self-government; the right not to
protect the rights of the individual, not the rights of be forced into assimilation or have their culture
groups. Indigenous peoples are able to try to redress destroyed; and the right not to be forcibly removed
perceived wrongs by making a submission to the from their lands.
Committee for the Elimination of All Forms of Racial
Discrimination and the Human Rights Committee. The Working Group on Indigenous
These committees then bring these concerns to the Populations
attention of the nations involved. Gradually, more formal protection for indigenous
peoples began to be developed at an international
ILO Convention 107 level. In 1994, the UN founded the Working Group
Subsequently, the International Labour Organization on Indigenous Populations. This is one of the
(ILO) recognised, for the first time in the area most accessible bodies for indigenous peoples
of international law, that the issues facing the as it enables them to share their concerns and
indigenous peoples of the world were distinct, in experiences with the UN. With the implementation
the Indigenous and Tribal Populations Convention, of the UN Declaration on the Rights of Indigenous
1957 (Convention 107), written in 1957. Peoples in 2007 the Working Group on Indigenous
This ILO response to the needs of indigenous Populations declared that it had achieved its major
peoples was written with its chief focus on work, goal. The Working Group on Indigenous Populations
concerned that indigenous peoples were being used met for the final time in July 2007.
as slave labour or being paid wages not equal to those Coming out of the working group were the First
of the non-indigenous population. However, the ILO and Second International Decades of the World’s
convention didn’t pay any attention to the issues of Indigenous People, the first from 1994 to 2004 and
self-determination, autonomy and self-government. the second lasting from 2005 to 2015, playing a
The ILO later revised this convention to recognise a tremendous role in raising awareness of indigenous
right to the protection of social, cultural, religious issues. During these two decades, the UN initiated
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CAMBRIDGE LEGAL STUDIES HSC
projects that addressed a wide range of concerns,
including education, employment and health. Review 13.5
Declaration of the Rights of Indigenous 1 Discuss why the effectiveness and
Peoples powers of Norway, Sweden, Finland and
These achievements laid the groundwork for the Sámi parliaments vary dramatically.
Declaration of the Rights of Indigenous Peoples. This 2 Explain why ILO Convention 107 was
declaration relates to self-determination, cultural revised and renamed Indigenous and
integrity (the right and the practicalities of preserving Tribal Peoples Convention, 1989 (No 169).
a distinct culture), as well as land and resource
rights. Articles 3 and 4 of the declaration adapt
the principle of self-determination for indigenous The role of courts
people, and art 4 states that indigenous peoples The courts offer an important avenue for indigenous
have the right to self-government in matters relating peoples to attempt to regain rights they have lost.
to their internal and local affairs – and, importantly, In the 1990s, the Botswana government began
the right to be provided with the means with which a campaign to relocate the San people from their
to finance this autonomous governance. long-term home in the Kalahari Desert. Despite
Once again, however, this treaty places firm the fact that the San people (often known as the
limits on the right to self-determination. Article 46 (1) Bushmen) had lived in that area for hundreds, if
states that the declaration should not be ‘construed not thousands, of years, the Botswana government
as authorizing or encouraging any action which stated that the continued habitation of the
would dismember or impair, totally or in part, the central Kalahari threatened the wildlife stocks
territorial integrity, or political unity of sovereign and environmental sustainability of the area. The
and independent States’. Indigenous peoples must Botswana government stated that the San people
therefore still struggle for the kind of negotiated had moved away from a hunter–gatherer lifestyle to
autonomy discussed earlier in the discussion of the a settled agricultural one – a lifestyle inconsistent
Sámi parliaments of Scandinavia. with the current environmental conditions.
The Declaration of the Rights of Indigenous Peoples However, some people, particularly opponents of
was adopted on 13 September 2007. Only four nations the relocation, have suggested that the motivation
voted against the adoption of the declaration – the of the Botswana government was not the protection
United States, New Zealand, Canada and Australia. of the environment, but instead clearing the land for
All four countries have subsequently signed the tourism and diamond mining.
declaration, with the Australian Rudd government In the case heard before the Botswana High
doing so in 2009. Court, Sesana and Others v Attorney General (52/2002)
However, it must be remembered that the [2006] BWHC 1, the applicants – Roy Sesana, Keiwa
declaration is soft international law, not hard Setlhobogwa and others – sought an order stating
international law. The nation states that have signed that the Botswana government’s termination of
it are morally bound, but not legally bound. In the essential services, such as ‘the provision of drinking
future, a good step would be to use this declaration water on a weekly basis’, ‘the maintenance of the
as the basis of a treaty, thus making it legally binding supply of borehole water’, ‘the provision of rations
hard law. to registered destitutes’, ‘the provision of rations
The agreements made by the UN help to limit for registered orphans’, ‘the provision of transport
the power of sovereign nations. Even non-binding for the Applicants’ children to and from school’
agreements, such as the Declaration of the Rights and the ‘provision of healthcare to the Applicants
of Indigenous Peoples, help to create behavioural through mobile clinics and ambulance services’
norms that establish guidelines by which the actions was ‘unlawful and unconstitutional’. After a lengthy
of states towards, for example, indigenous peoples trial of over two years (130 court days!), the court
can be judged, and in this way influence the actions found by a 2:1 majority that the termination of these
of states. services was not unconstitutional, but they did find
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
other San peoples have been denied access to the
Kalahari. And, contrary to the original court order,
no San people have been given hunting permits in
the reserve, an outcome that makes the subsistence
hunting lifestyle of the San impossible. Since 13
this time there has been constant battle with the
Botswana government claiming that the verdict only
applies to the 189 individuals named in the original
case. This is one of the longest ongoing cases for
indigenous peoples worldwide.
The court system of Canada, a common law
country like Australia, has intervened on a number
of occasions to support the rights of Canada’s
indigenous peoples. As Canada was settled,
Figure 13.10 Indigenous people of the Kalahari, the growing settler society made a number of
Botswana. agreements with Canada’s indigenous peoples – the
most important of which was the Royal Proclamation
(by 2:1 majority once again) that they were deprived of 1763, which explicitly preserves the right of
of legal possession of their land by the government Canada’s indigenous peoples to the land not ceded
‘forcibly or wrongly and without their consent’, and to or purchased by the British. As the states came
(by 2:1 majority) that a ‘refusal to issue special game together and Canada was confederated, a further
licenses to the Applicants is unconstitutional’. series of treaties, which guaranteed the continuation
Despite this court decision, the Botswana of hunting and fishing rights, as well as regular
government has been slow to permit the San payments and land reservation, and the supply of
people back into the Kalahari, thereby attracting such bounty as ammunition, was signed. These
criticism from the UN. Furthermore, the San people treaties were ignored in many ways, however. First
have been forced to fight further for their rights, Nations children were taken away from their families
winning another High Court battle in 2011 over to live and be educated in residential schools, and
access to vital wells. In 2013 the San people were land was forcibly occupied. In the 1984 case of Guerin
forced to go back to court to clarify the decision of v the Queen (1984) 2 S.C.R. 335, the Canadian Supreme
the court in the Sesana case. On 12 February there Court found that (1) the Canadian government held
was a formal UN Human Rights Council session the land in trust for the First Nations, Métis and Inuit
to find a resolution. The government has claimed peoples, and (2) reserve land should not be allowed
that the Sesana decision only applied to the original to be used in such a way as would interfere with the
applicants named in that case (189 individuals) – all cultural rights of indigenous peoples.
Sweden’s indigenous Sami people win rights battle against state
David Crouch
The Guardian, 4 February 2016
Sweden’s nomadic reindeer herders have won a 30-year battle for land rights in a court case that
has seen the state accused of racism towards the country’s only indigenous people.
continued …
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CAMBRIDGE LEGAL STUDIES HSC
continued …
A decision in Gällivare district court on Wednesday granted the tiny Sami village of Girjas, inside
the Arctic Circle, exclusive rights to control hunting and fishing in the area, restoring powers
stripped from the Sami people, or Laplanders, by Sweden’s parliament in 1993.
‘It is a symbolic step towards getting Sami rights acknowledged, and we hope that this verdict can
shape policies towards Sami issues in Sweden, that was the main goal,’ said Åsa Larsson Blind,
vice-president of the Sami Council, which represents Sami people in Sweden, Norway, Finland and
Russia.
After a long struggle during which the Swedish Sami Association petitioned the European
Commission and the Court of Human Rights, the case came to court in Sweden last year.
Lawyers for the state claimed that the indigenous status of the Samis was irrelevant to the case.
‘Sweden has in this matter no international obligations to recognise special rights of the Sami
people, whether they are indigenous or not,’ they said.
In an open letter, 59 academic researchers, including ethnographers and anthropologists at the
Sami Research Centre at Umeå University, condemned the lawyers for using the ‘rhetoric of race
biology’ and revealing ‘a surprising ignorance of historical conditions’.
The Sami-Swedish artist and singer Sofia Jannok wrote: ‘The state wants to erase us from history.’
Larsson Blind said she was relieved that the court had seen through the ‘colonial speech’ of state
representatives. ‘By getting this verdict, many Sami individuals will feel strengthened after hearing
the harsh wording used in the court,’ she said.
Although the case concerned only a small geographical area, it came out of a far more general
frustration that Sami issues were getting nowhere in the political arena, where they were debated
endlessly but no decisions were taken, Larsson Blind said.
The attorney general, Anna Skarhed, defended the state’s legal position last year and said there
was ‘no question that the Sami are an indigenous people, but that is not the issue’. Lawyers may yet
appeal, meaning the case could drag on for many more years, Larsson Blind said.
Welcoming the verdict, the chairman of Girjas village, Matti Berg, told Swedish media: ‘It is a long
struggle and we have been victorious, I am so happy and relieved.’ Berg faced threats of violence
after the case was launched last year.
Some local Swedes are suspicious, however. ‘The next step will be restrictions on snowmobiling
and moose hunting,’ said Robert Björk, a hunter from Kiruna.
‘The court’s decision is worrying for the hunters up here, but I assume that the verdict will be
appealed [against],’ Birgitta Isaksson from the Swedish Hunters Association in Kiruna told SVT.
Sweden does not register the ethnicity of its citizens, so exact numbers are not known, but about
20,000 Sami are estimated to live there, with a minority continuing the traditional reindeer-herding
way of life. The Sami language was recognised as an official minority language in 2000.
Sweden’s Sami are also battling plans by Britain’s Beowulf Mining to mine iron ore in the country’s
far north. ‘The verdict has no direct effect on mining plans, but it is one piece of the puzzle to get
Sami land rights acknowledged so we can get more influence on mining,’ Larsson Blind said.
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
The role of intergovernmental The role of the media
organisations The media plays an important role in communicating
There is a substantial number of intergovernmental the often-ignored difficulties that many Indigenous
organisations around the world. Some of these peoples face, particularly those in remote locations.
organisations are members of other organisations. They also play a key role in framing public discussion 13
In Australia, the Department of Foreign Affairs and influencing public perception of indigenous
and Trade (DFAT) provides foreign, trade and peoples and their issues. The manner in which a
development policy advice to the government. In news story is reported can be just as important as
2015 DFAT launched the DFAT Indigenous Peoples the facts which are being told.
Strategy 2015–2019: Another important area is the growth of
indigenous media, such as television programs,
The strategy will be guided by four pillars to achieve community radio, newspapers and entire broadcast
this vision: networks. In Canada, the Aboriginal Peoples
• DFAT will work with its partners to influence Television Network (APTN) began broadcasting in
international policy to advance the interests of 1992; other indigenous broadcasters include Maˉori
indigenous peoples in the international community. Television, NRK Sápmi and Taiwan Indigenous
• DFAT will strive to deliver international programs Television. In 2008 the World Indigenous Television
that improve outcomes for indigenous peoples. Broadcasters Network (WITBN) was formed
• DFAT will encourage Indigenous Australians to to develop collaboration between indigenous
apply for DFAT-funded opportunities to engage broadcasters.
in and develop people-to-people links with the Australian Indigenous media includes National
international community. Indigenous Television (NITV), The Koori Mail and the
• DFAT will ensure an inclusive workplace culture SBS current affairs program, Living Black.
across the department.
Review 13.6
The role of non-government
organisations 1 Evaluate the effectiveness of the
The various state and federal governments and Botswana High Court in its protection
international intergovernmental organisations, of the San people and the rights of
such as the UN, are not the only organisations that indigenous peoples. Make a prediction
have an influence on the conditions of the lives of of what might occur if a similar case
indigenous peoples. There are many organisations were brought before the High Court in
that work outside the apparatus of government, Australia.
attempting to alleviate some of the issues facing 2 Read the news item, ‘Sweden’s
indigenous communities today. Important non- indigenous Sami people win rights battle
government organisations (NGOs) include Native against state’ and consider how the
Planet, First Peoples Worldwide and the Indigenous reporter has chosen to present the story.
People’s Network. Within Australia, some notable
charities and organisations that work closely with
Indigenous communities are Oxfam Australia, the
Research 13.2
Fred Hollows Foundation and the National Heart
Foundation of Australia.
1 Write a report about an international
These organisations carry out valuable work in
government organisation or NGO that
indigenous communities, particularly in the field of
works to protect indigenous rights.
health. Communities may be more receptive to these
2 Find out about an indigenous media
organisations than they would be to government
organisation or association.
organisations working in the community as they
restrict the autonomy of the communities far less.
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CAMBRIDGE LEGAL STUDIES HSC
13.4 A
ustralia’s federal Because Indigenous Australians were exempt
structure from these sections of the Constitution, the federal
government was not able to amend legislation in
The federated nature of Australia’s government
an attempt to improve their situation. The removal
means that legislative power is shared out by
of the two sections in the Constitution also had
the Australian Constitution between the federal
great symbolic importance. It meant there was
government and the governments of the various
now no legislative difference between Indigenous
states and territories. Sovereignty is to some degree
Australians and non-Indigenous Australians. It also
shared out to members of the electorate, who have
drew the attention of the ‘other half’ of Australians
the ability to change the government at elections.
– the majority, European, urban population – to the
The Constitution provides for certain powers
plight of Indigenous Australians.
to be allocated to the federal government, with all
The referendum was greeted with a resounding
legislative power granted to the states. This structure
‘yes’. In fact, it is the highest ‘yes’ vote in any
of government has had enormous ramifications for
Australian referendum held so far, with 90.77% of
Australia’s Indigenous peoples.
people supporting the amendment. The changes
In this section we consider three key events in the
were brought into effect on 10 August 1967 by
history of the Australian Government’s response to
the Constitutional Alteration (Aboriginals) Act 1967
the needs of indigenous peoples.
(Cth), and while the day-to-day lives of Indigenous
Australians were largely unchanged, it was seen as
The 1967 referendum
a symbolic step on the road towards recognition and
In the 1960s, the general public grew increasingly
equality.
aware of the plight of Indigenous Australians, and
activists campaigned determinedly for change.
The Stolen Generations
On 27 May 1967, a federal referendum was held to
It is estimated that approximately 100 000 Indigenous
decide whether two references in the Australian
Australian children were removed from their parents
Constitution, which discriminated against
and traditional lands under state and federal policies
Indigenous Australians, should be removed:
of assimilation. This process did not end in Australia
until the 1960s. Most of these children were placed
in government or church-run institutions while
51. The Parliament shall, subject to this
others were adopted or placed into the care of white
Constitution, have power to make laws for
families. There was an assumption that the children
the peace, order, and good government of the
would be better cared for living in dormitories on
Commonwealth with respect to: (xxvi) The
missions and reserves. But for most, the loss of
people of any race, other than the aboriginal
their culture and identity was worse than poverty
people in any State, for whom it is necessary
and living in substandard housing with their
to make special laws.
families. It can be seen as even more traumatic
127. In reckoning the numbers of the people
when considered within the context of Indigenous
of the Commonwealth, or of a State or other
Australian traditions and kinship ties.
part of the Commonwealth, aboriginal natives
The removal by various governments throughout
should not be counted.
Australia of Indigenous Australian children from
their families, based upon their race and culture,
was allowed under a range of laws that were passed
(See http://cambridge.edu.au/redirect/?id=6482
by the respective parliaments. The Aboriginals
for source information.)
Protection Act 1869 (Vic), for example, gave the
referendum Aborigines Protection Board lawful authority over
the referral of a particular issue to the electorate for a the care and control of any Indigenous Australian
vote
child or child of mixed race, if it was determined to
be in the best interests of that child. The Aboriginal
Protection Amending Act 1915 (NSW) established the
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
The Northern Territory
Intervention
As health, education and crime continue to be major
issues for large numbers of Indigenous Australians,
governments of recent years have introduced and 13
supported legislation that attempts to resolve some
of these issues. One of the most well-known is the
Howard government’s Northern Territory National
Emergency Response Act 2007, commonly referred to
as ‘the Intervention’. This Act introduced measures
such as additional police officers in Indigenous
Australian communities, restrictions on alcohol,
Figure 13.11 The Stolen Generations were deprived
and the provisioning of welfare payments to parents
of relationships with elders.
based on their child’s school attendance.
The changes were a response to Little Children
Board of Protection of Aborigines, which had the Are Sacred, a report commissioned by the Northern
power to assume full control and custody of any child Territory Government to assess child sex abuse
of any Indigenous Australian. The Northern Territory in Indigenous Australian communities. However,
Aborigines Act 1910 (SA) established the Chief only two of the 97 recommendations in the report
Protector as the legal guardian of any Indigenous were implemented. Because of this, some feel that
Australian child in the Northern Territory. Offices launching the Intervention as a response to the report
of the Chief Protector of Aboriginals were also set was disingenuous. Many Indigenous Australian
up in Western Australia and Queensland. The men leaders, the Northern Territory Government and
who held these positions, most notoriously the West the Australian Human Rights Commission have all
Australian A.O. Neville, held extraordinary power expressed criticism of the program, stating concern
over the lives and fates of Indigenous Australians. that it demonstrates further discrimination against
All of these Acts have since been repealed. Indigenous Australians. Action groups like Stop the
In 1997, following an inquiry that had begun NT Intervention work hard to show the true damage
two years earlier, the Human Rights and Equal
Opportunity Commission (now the Australian Human
Rights Commission) released Bringing Them Home:
Report of the National Inquiry into the Separation of
Aboriginal and Torres Strait Islander Children from
their Families. The report documents the issue
commonly referred to as the ‘Stolen Children’ or the
‘Stolen Generations’. It is available in libraries and
on websites such as that of the Australian Human
Rights Commission (see http://cambridge.edu.au/
redirect/?id=6483).
The issue of the Stolen Generations was
presented in the 2002 film Rabbit-Proof Fence, which
was based on the true story of three Aboriginal girls
who in the early 1930s were forcibly removed from
their families in Western Australia.
In 2008, then Prime Minister Kevin Rudd delivered
a national apology for the wrongs of Australia’s past.
Figure 13.12 The Northern Territory Intervention
This apology symbolised the changing values of
purportedly has the improvement of the welfare and
the Australian Government, which had previously future of Indigenous children as one of its primary
refused to accept responsibility for this dark past. goals.
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CAMBRIDGE LEGAL STUDIES HSC
and statistics associated with the government feminine categories like many European languages,
initiative. On the other hand, the Intervention has but also into four separate classes:
received support from some Indigenous Australian 1 most animals, men
leaders and community welfare groups, and the 2 women, water, fire, violence and strange animals
legislation received bipartisan support in federal 3 edible fruit and vegetables
parliament. 4 miscellaneous objects.
These examples give just a mere sketch of the
bipartisan diversity and freshness offered by Indigenous
having the support of the two major political parties
languages. Sadly, the long history of violence
and disease suffered by Indigenous Australians
at the hands of European settlers has had
Review 13.7
devastating effects on the Indigenous languages
1 Identify the legal effect and recognition and the communities of their speakers. Even
given to the Indigenous Australians in more significantly, the forced separation of young
the 1967 referendum. language learners from their best language teachers
2 Evaluate why a compensation scheme (parents, grandparents, elders) as part of Stolen
is necessary for Stolen Generations Generations-era policies has meant that many
victims. Indigenous Australians have lost contact with the
3 Describe what the Intervention is and language, and therefore the culture and history, of
how it came about. their ancestors. Only now are government programs
attempting to preserve Indigenous languages.
Legal Links
13.5 C
ontemporary issue: Loss
of cultural rights including The preservation of Indigenous Australian
language languages is a vital aspect of ensuring
Language is more than just a method of Indigenous Australian culture and
communicating: it links people with their history, linguistics are remembered and passed on
and forms a basis for their emotional, spiritual and to future generations. Follow the link at http://
social wellbeing. Language preserves a vast amount cambridge.edu.au/redirect/?id=6484 and
of cultural and historical information, and presents read the article, ‘Australia tries to halt loss
fresh and vitalising ways of being in the world. It of Aboriginal languages’, which focuses on
is a key element of group identity and vital for the the dangers of letting Indigenous Australian
support of a culture. languages die out and the ways in which
people are trying to preserve them.
Aboriginal and Torres Strait
Islander peoples
When we talk about Australia’s Indigenous peoples,
it is important to remember that we are not talking The Sámi people in Norway
about one unitary people, but an enormous number Many indigenous communities around the world
of cultures, traditions, histories and, indeed, have faced similar challenges. The languages of the
languages. Sámi in Norway were threatened by a long, concerted
Some Indigenous languages include an entirely linguistic assimilation, or ‘Norwegianisation’, policy,
separate set of nouns for use in front of your in-laws. which lasted until the outbreak of World War II. The
Other languages use cardinal directions (north, east, Sámi language was prohibited from being used in
south, west) instead of ‘left’ and ‘right’ – so you might public schools and in churches, and Sámi culture
talk about your ‘east’ hand’ – and the almost extinct was denigrated as inferior. Additionally, Sámi
Dyirbal language from north-eastern Queensland were prevented from claiming agricultural land
classifies its nouns not just into masculine and unless they could prove they spoke Norwegian.
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
After World War II, the nationalism that had fuelled 13.6 C
ontemporary issue: Land
the Norwegianisation policy fell out of favour, and rights
Sámi language broadcasts resumed on the radio.
An article for the exhibition ‘BLAK Design Matters’
However, use of the Sámi language continued not
13
made the point that ‘most of the 24 million people in
to be supported in the contexts of education and
this country live and work on someone else’s Country’.
business. It was not until the 1980s that the Sámi
The initial seizure of Indigenous lands by colonising
School Board, which influenced the government
nations has resulted – decades or centuries later – in
about Sámi education, was established.
the indigenous peoples taking legal actions to regain
From the latter half of the 20th century, the Sámi
rights to their traditional lands.
language has gradually attracted more support
from the Norwegian government. One of the
Aboriginal and Torres Strait
most important of these was the inclusion in the
Islander peoples
Norwegian Constitution of article 110a, which states
When the British settlers first arrived in Port Jackson
‘[i]t is the responsibility of the authorities of the State
in 1788, they did not sign any sort of treaty with the
to create conditions enabling the Sami people to
Indigenous inhabitants of that area. Though the
preserve and develop its language, culture and way
reasons for this are unclear, it may have been because
of life’. Another significant moment was the official
the Indigenous inhabitants of those areas didn’t have
apology to the Sámi people made by King Harald V
a form of government or political administration that
in 1997:
the British settlers could recognise as analogous to
their own. There was, at this stage, no attempt at a
[t]he state of Norway was founded on the territory of
legal legitimisation of British settlement. However,
two peoples – the Sámi people and the Norwegians.
after Batman attempted to ‘purchase’ the land that
Sámi history is closely intertwined with Norwegian
would become Melbourne and the Bellarine Peninsula
history. Today, we express our regret on behalf of the
from the Kulin nation, Governor Bourke and the British
state for the injustice committed against the Sámi
Colonial Office firmly established the notion of terra
people through its harsh policy of Norwegianisation.
nullius, which was developed further by Australian
courts in the early decades of the 19th century. This
Today, in Sweden, Sámi children have the
concept, which can be translated as ‘empty [nullius]
opportunity to attend, up to the ninth grade, one
land [terra]’, derives from the ideas of de Vattel and
of six public educational facilities that offer Sámi
Grotius discussed earlier in the chapter. A series of
language.
cases heard in the Sydney courts in the 1820s and
1830s relied on the idea of terra nullius to establish
Research 13.3 the principle that the Indigenous inhabitants of
Australia were not subject to English law unless they
1 Research another country with a range interacted with the settlers. Interestingly enough, this
of indigenous language groups, such as was because the Indigenous inhabitants were thought
Canada, and explain the extent to which (accurately) to be governed by their own legal systems.
they are surviving in the present day. Later, this notion was used to justify provisions
2 Investigate the role of the Maˉori whereby Indigenous inhabitants could not sell,
Language Commission in New Zealand. transfer or acquire land, except when granted it by
3 Outline the initiatives globally created the Crown. It wasn’t until 1971 that formal land rights
to preserve the indigenous peoples’ litigation by an Indigenous group was pursued in
languages. Make a list of the positive Australian courts. This case, Milirrpum v Nabalco
implications from the preservation for Pty Ltd (1971) 17 FLR 141, otherwise known as the
future generations. Gove land rights case, concerned the Yirrkala people
4 Investigate other indigenous cultural in Arnhem who sued the mining firm Nabalco
rights that have suffered, such as social Corporation in an attempt to prevent bauxite mining
arrangements or spiritual beliefs. taking place on their traditional lands. The presiding
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CAMBRIDGE LEGAL STUDIES HSC
In Court
Mabo v Queensland (No. 2) (1992) 175 CLR 1
Facts: Eddie Koiki Mabo was a Torres Strait Islander man. He and four other Torres Strait Islanders,
who lived on the Murray Islands, took the state of Queensland to court seeking a declaration on
whether they had native title over the Murray Islands. The case was first heard in the Supreme
Court of Queensland and then in the High Court of Australia, where a decision was brought down
in 1992.
Issues: At the time of the arrival of the British, did Indigenous Australians have sovereign power
over their lands? If so, was the doctrine of terra nullius, which had been used to settle the continent,
incorrectly applied? Specifically, was there a
form of Indigenous ownership of the land such
that the Torres Strait Islanders of the Murray
Islands had lawful native title? If so, should that
title be legally recognised by the Australian
courts?
Decision: Ten years after Eddie Mabo
and the four other Torres Strait Islanders
commenced legal proceedings against the state
of Queensland, the High Court of Australia
brought down its judgement. The full court of
seven High Court justices had heard the case.
Six justices ruled that the Murray Islanders did
have a legally recognisable native title over their
lands and that the land was not uninhabited on
settlement. They also ruled that the use of the
doctrine of terra nullius by the British to claim
sovereignty of Australia was flawed and that it
did not extinguish the ownership of the land by
the Murray Islanders. One High Court justice
did not agree. However, because a majority was
achieved and no appeal exists for a decision of
the High Court, the case was won by Eddie Mabo. Figure 13.13 Eddie Koiki Mabo.
judge in that case, Justice Blackburn, found that of native title of Indigenous Australians, and that
native title could not exist because of the principle the doctrine of terra nullius had not extinguished
of terra nullius, which operated in Australian law. that title, it was not until the introduction of the
This position froze the progress of native title for Native Title Act in 1993 that native title was formally
over 20 years, until the momentous case of Mabo v recognised, protected and regulated. The Act sets
Queensland (No 2) (1992) 175 CLR 1. out the content and nature of the rights that may be
Since the Mabo v Queensland (No. 2) (1992) 175 enjoyed by the owners of native title determined by
CLR 1 decision, the process of Indigenous land the traditional laws and customs (customary law)
rights reform has seen many landmarks. The Native observed by the original inhabitants of that land.
Title Act 1993 (Cth) was passed by the federal
parliament one year after the High Court brought customary law
principles and procedures that have developed through
down its judgement in the Mabo case. Whereas general usage according to the customs of a people or
the Mabo decision acknowledged the existence nation
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
In Court
Wik Peoples v Queensland (1996) 187 CLR 1
The Wik people of Cape York in Queensland were able to use the landmark Mabo v Queensland (No.
2) (1992) 175 CLR 1 decision of the High Court as a precedent for claiming native title over the land
13
that had previously been leased by the Queensland Government for pastoral use. The point of law
that needed to be considered was whether the issue of a pastoral lease by the state government
extinguished a claim to native title. The matter was heard in the High Court of Australia and a decision
was brought down in 1996, four and a half years after the Mabo v Queensland (No. 2) (1992) 175 CLR 1
decision.
The High Court of Australia sat as a full court in the Wik case. Four justices decided that the
existence of a pastoral lease did not necessarily extinguish a native title claim to the parcel of land
being contested. Three justices were of the opinion that it did. However, as it was still a majority
decision, the Wik people narrowly won their claim of native title over Cape York. The Wik Peoples v
Queensland (1996) 187 CLR 1 decision meant that, in some cases, the native title rights of Indigenous
Australians could coexist with the rights bestowed upon pastoralists by a pastoral lease. On the other
hand, the decision also meant that native title did not override the rights of pastoralists to the use of the
land granted to them under the pastoral lease. The legal issue now was to decide how the two would
coexist and what form of compensation would apply, if any, for the original owners.
point of law pastoral lease
a question which must be answered by applying the a government lease that allows Crown land to
relevant legal principles and by an interpretation of be used, generally for farming; exists under
the law Australian Commonwealth law and also under
state jurisdictions
For a native title claim to be recognisable
under Australian law, there must be a continuous
acknowledgement and observance of the Indigenous
Australian clan or tribe’s traditional laws and
customs since British sovereignty. Whereas native
title may be surrendered to the Crown voluntarily,
it is not available to people who are not members
of the particular clan or tribe claiming native title
over an area of land – put simply, you must belong
to, and have a kinship tie to, the clan or tribe. The
land claimed must be of traditional and cultural
significance to that clan or tribe.
By 2017, the Native Title Act has been in force
for 24 years. During this time there have been more
that 301 native title determinations. Out of these
determinations, native title has been found to exist
in its entirety in 96. The others have either been
found to be part native title determinations or there Figure 13.14 Pastoral leases allow Crown land to be
are no native title determinations for the area being used, generally for farming.
claimed.
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CAMBRIDGE LEGAL STUDIES HSC
they don’t contradict traditional uses), the Crown
Research 13.4 owes the possessors of the title a fiduciary duty,
and the possessors of the title over the land also
1 Explain the effect the landmark decision have a right to whatever is below the land – giving
in Mabo v Queensland (No. 2) (1992) 175 them an interest in whatever is dug up by resource
CLR 1 had on all Indigenous Australians. companies.
2 Research the Native Title Act 1993 (Cth).
Explain what the introduction of the Act The Mapuche people in Argentina
did for the protection of the Indigenous and Chile
people and their native title claims. The experience of the Mapuche people living in
3 Outline the reasons why the Wik people the southern-most parts of South America makes
challenged the pastoral leases of the an important contrast with that of Australia’s
land in Queensland. Was this challenge Indigenous peoples. Unlike the European settlers
evidence of a growing awareness by of Australia, who did not acquire the land through
Indigenous Australians of how to use the treaty, Spanish colonists actually did contract
Australian legal system to obtain justice an agreement with the Mapuche, who lived in
for their people? Justify your answer with the southern part of the continent. The Treaty of
evidence. Quillian was primarily the result of the Spanish not
4 The High Court of Australia can hear being able to defeat the Mapuche in battle. This
a case before it with one, three, five or treaty (the forerunner of many subsequent treaties)
seven justices. Explain how the court meant that, unique among the indigenous peoples
decides the number of justices hearing of South America, they held sovereignty over their
a case. Why did the High Court decide land. However, when Argentina and Chile became
to hear both Mabo v Queensland (No. independent from Spain in 1810, the situation
2) (1992) 175 CLR 1 and Wik Peoples v reversed quickly. These new governments, eager
Queensland (1996) 187 CLR 1 as a full to expand their territories, launched devastating
court (seven justices)? military campaigns against the Mapuche. By 1885,
Argentina and Chile had taken the Mapuche land,
over 100 000 Mapuche had been killed, their farming
land had been redistributed to Argentinean and
The First Nations people in Chilean farmers, and many Mapuche children were
Canada stolen to be servants for settler families. The attempts
In Canada, the 1995 introduction of self-government to suppress the Mapuche culture have continued
for First Nations people led to the negotiation and to the present, and a strong Mapuche action group
renegotiation of treaties old and new. Crucially, these has developed in response. The persistent refusal of
negotiations recognised that the right to use and the Chilean government, in particular, to grant land
occupy the land held by indigenous people could be rights to the Mapuche, as well as the destruction
updated to modern uses. This was confirmed in 1997 of their territory by large resource companies,
by the court case Delgamuukw v British Columbia has meant that the Mapuche have resorted to
[1997] 3 S.C.R. 1010, which recognised ‘Aboriginal destroying buildings, fields and other facilities –
title’. As with the Mabo case in Australia, the leading the Chilean government to use anti-terrorist
Delgamuukw decision recognised that Aboriginal legislation against them. This situation continues
or native title is not alienable to anyone except despite UN requests for the two parties to negotiate
the Crown (thus the land is prevented from being a settlement.
exploited commercially), that it is fundamentally of
a different nature to private property and that it is
held communally. However, in contrast to the state
of the law in Australia, non-traditional or modern
uses of the land are proof of Aboriginal title (if
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
to the mining operation. The protests and attacks
Review 13.8 have taken place against a background of enormous
profits being made by the mine (approximately
1 Identify the Canadian Supreme Court $4.1 billion in operating profit on a revenue of $6.4
case that recognises Aboriginal title.
Create a case study.
billion). The Free Papua Movement presents the 13
argument that the indigenous peoples of Papua
2 Compare and contrast the differences in are not receiving sufficient compensation for the
the state of native title law in Canada and destruction of their environment. There is also a
Australia. large issue concerning the human rights of all the
3 Consider whether you agree that the innocent victims killed, kidnapped and tortured at
Mapuche had to resort to destroying the hands of the Indonesian security forces.
buildings, fields and other facilities due
to the persistent refusal of the Chilean Aboriginal and Torres Strait
government to grant land rights. Islander peoples
Australia’s strong economy over the past decade
has been driven by strong demand for the natural
Research 13.5 resources lying in the rocks of Western Australia,
the Northern Territory, Queensland and South
New Zealand is another country where land Australia. The enormous mines that are digging up
was acquired by treaty. Research the effect these resources are built on the ancestral lands of
of the Treaty of Waitangi on the land rights of the traditional landowners, Indigenous Australians.
Maˉori people. When the industry first boomed in the 1960s, it had
very poor relations with Indigenous communities,
with no recognition of traditional owners, widespread
racism, exploitation and ignorance. Indigenous
13.7 C
ontemporary issue: Legal workers, if employed (which they usually weren’t)
rights to natural resources were paid far less than their European counterparts,
The principle of historical continuity also relates to and communities were denied any share of profits
the concept that indigenous peoples have a strong that came from the minerals being dug out of their
and traditional link to territories and surrounding land.
natural resources. Many indigenous peoples have
had their connection to the land interrupted by the
exploitation of natural resources by other parties. In
particular, resource companies such as mining and
logging enterprises have destroyed traditional lands
and sacred sites.
Indigenous peoples of Papua
Near the vertiginous heights of Puncak Jaya, the
highest mountain in Papua (formerly known as Irian
Jaya) and also the highest mountain in Oceania, is
the world’s largest goldmine. Puncak is a place of
cultural and spiritual significance for the indigenous
peoples of Papua. Instead of a spiritual and traditional
focus the mine, Grasberg, has become a focal point
for armed resistance to the Indonesian settlement
of Papua by the Free Papua Movement. Attacks by Figure 13.15 Enormous mines in areas such as
this group have cost many lives (an estimated 500 000 Western Australia are built on the ancestral lands of
to date) and tens of millions of dollars in damages the traditional landowners.
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CAMBRIDGE LEGAL STUDIES HSC
However, in recent times – since the Mabo as well as finding ways to compensate indigenous
decision, and particularly since the Wik decision peoples appropriately for the exploitation of their
and the Native Title Act – mining companies have environments, are two pivotal legal challenges
changed their behaviour regarding Indigenous facing the international community today. They
communities and traditional landowners. For will continue to remain a legal concern until global
example, mining companies will pay royalties environmental protection and appropriate resource
to communities, offer training and employment efficiency protocols are enacted. Environmental
opportunities to Indigenous people, and involve issues like climate control and global warming
communities in land-use decisions. will continue to emphasise the need to protect the
However, different companies keep to different indigenous peoples’ environments for many years
standards, and remote Indigenous communities are to come.
ever vulnerable to economic downturn. Any change
in prevailing economic conditions could devastate
Research 13.6
these communities – it is likely that legislation offers
the only hope for long-term stability. 1 Evaluate the current protection
mechanisms for rights to natural
The San people in the Kalahari resources and suggest law reform
Desert initiatives for the government to better
Recognising the importance of the environment in protect the Indigenous peoples.
the traditions of many indigenous peoples is vital 2 Compare and contrast the relationship
in gaining a proper understanding of the legal between mine operators and owners
challenges facing indigenous peoples today. Many and indigenous peoples. Examine the
indigenous peoples possess a unique knowledge nature of the land, usage and damage,
of their environment – a knowledge borne of long and the implications of these for future
acquaintance with the desert, plains, sea and jungle generations.
– and their understanding of medicinal plants,
natural remedies and even energy conservation
techniques is beginning to become very valuable
in many areas of modern life. This is specifically 13.8 Contemporary issue:
evident with medical research and the medicinal Intellectual property rights
strategies used by pharmaceutical companies. A people’s cultural and spiritual identity finds
The San people, living in the Kalahari Desert, expression in a range of artistic forms, such as
reached a profit-sharing agreement with the narrative, dance, music, textiles and artwork. These
pharmaceutical company Phytopharmin in 2003 forms embody the culture, but members of other
over the commercialisation of Hoodia gordonii, cultures may also appreciate them for a variety of
a plant traditionally used to suppress appetite. reasons, and this gives the works value on the open
The agreement meant that the San people would market.
receive 6% of all royalties received by the Council of The Declaration on the Rights of Indigenous
Scientific and Industrial Research, which was the Peoples explicitly recognises indigenous peoples’
governing body overseeing the project. However, in right to intellectual property over traditional cultural
2010 the development was left in question after the expressions:
pharmaceutical company abandoned its research.
Unfortunately, this is one of the first and rare
examples of this type of arrangement. Far more Article 31
commonly, indigenous peoples have not received 1. Indigenous peoples have the right to
appropriate compensation or acknowledgement for maintain, control, protect and develop
the alteration and/or destruction of their environment their cultural heritage, traditional
by settler societies. Protection of the environments knowledge and traditional cultural
that indigenous peoples have relied on for so long, expressions, as well as the manifestations
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
of their sciences, technologies and was besieged at the end of her life by these
cultures, including human and genetic ‘carpetbaggers’. They all came begging for carloads
resources, seeds, medicines, knowledge of paintings.
of the properties of fauna and flora, oral Investigations by media organisations throughout
traditions, literatures, designs, sports the 2000s led in 2007 to a Senate inquiry into the 13
and traditional games and visual and exploitation of Indigenous artists. Recommendations
performing arts. They also have the right coming from this inquiry have led to increased
to maintain, control, protect and develop government funding for community art centres,
their intellectual property over such which act as disinterested collectives for Indigenous
cultural heritage, traditional knowledge, artists, and the shutting out of private dealers
and traditional cultural expressions. from the market. Though some fear that these
2. In conjunction with indigenous peoples, policies will lead to the oversupply and devaluation
States shall take effective measures to of Indigenous art, it may be that this is the only way
recognize and protect the exercise of these to prevent vulnerable Indigenous artists from being
rights. exploited.
Legal Links
There have also been many international
conferences and declarations relating to indigenous Artists in the Black (see http://cambridge.
intellectual property rights, such as the 1993 edu.au/redirect/?id=6485) offers specialist
Mataatua Declaration on Cultural and Intellectual free or low-cost legal support to Aboriginal
Property Rights of Indigenous People. and Torres Strait Islander artists.
As with all intellectual property, international
copyright and patent laws offer some level of
protection of the artists’ rights, with the World
Intellectual Property Organization making particular Counterfeiting
reference to traditional knowledge and traditional When a particular style of art becomes popular,
cultural expressions. people may begin to counterfeit it. In Australia, for
example, paintings which copy the basic style of the
Exploitation of artists famous Western Desert school may be passed off
In recent years, the work of Indigenous artists has as belonging to this school. These counterfeiters
become very popular. Paintings by artists such as not only make unearned profit from the existing
Emily Kngwarreye, Clifford Possum Tjapaltjarri and reputation of Indigenous artists, but also damage
Rover Thomas have become renowned throughout the value of their existing paintings.
the world and have been sold at auction at prices in One method of addressing this is by way of
excess of one million dollars. trademarking. In 2002 the New Zealand Government’s
However, as the prices fetched by paintings arts body, Creative New Zealand, launched the Toi
by these artists (and many others) grow ever Iho trademark. This trademark may be used only by
higher, the issues start to increase for the artists registered Maˉori artists: it signifies the authenticity
themselves. Indigenous artists, who are often and quality of a work.
vulnerable because of their age, remote location
and linguistic difficulties, have been preyed upon Cultural appropriation
by ‘carpetbaggers.’ Carpetbaggers are people who Expressions of an indigenous culture may be
exploit the vulnerability of these artists by offering appropriated by another culture and used to
trivial cash payments, cars (which turn out to be generate revenue. Frequently, the cultural item
wrecks), and food and alcohol in return for work is used in a manner the traditional owners find
which they then on-sell for a much greater amount inappropriate or offensive. A prominent example of
of money, keeping the profits. One of the most this is North American and Canadian sports teams
well-known Indigenous artists, Emily Kngwarreye, using mascots or names that refer to Indigenous
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CAMBRIDGE LEGAL STUDIES HSC
Figure 13.16 ‘Chief Wahoo’ is the logo of the professional baseball team, the Cleveland Indians.
culture, such as professional baseball team the
Cleveland Indians, with their logo ‘Chief Wahoo’. Review 13.9
Challenges to acts of cultural appropriation
may be successful. In 2001, Lego agreed to change 1 Identify and outline three forms of
some of the names in its ‘Bionicle’ line of toys, after intellectual property rights held by
conceding that the names had been appropriated Indigenous peoples.
from the Maˉori culture. 2 Define the term ‘carpetbaggers’.
3 Recall what the World Intellectual
Property Organization makes particular
reference to.
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
Chapter summary
• The UN hasn’t adopted an official definition • In Norway, Sweden and Finland, Sámi
of ‘indigenous’, due to the enormous diversity parliaments have been established to represent
shown by indigenous groups worldwide, but it
gives a list of factors to consider when thinking
the indigenous populations of these countries.
In North America, the Canadian Department of
13
about indigenous groups. Indian and Northern Affairs introduced self-
• Colonisation by European powers took land government for First Nations people in 1995.
away from many indigenous peoples. Examples • Indigenous peoples can use the courts to
include Indigenous Australians, who lost regain rights they have lost. Examples include
their ability to hunt and live off the land, and the Mabo and Wik cases in Australia, Sesana
indigenous people of South America, where and Others v Attorney General (52/2002) [2006]
loss of land disrupted their food supply and BWHC 1 in Botswana and Guerin v the Queen
caused inter-tribal conflict. (1984) 2 S.C.R. 335 in Canada.
• Ideological differences have led to conflict and • Three key events in the history of the Australian
injustice for indigenous peoples, for example, Government’s response to the needs of
the communal property ownership of the Maˉori indigenous peoples are the 1967 referendum,
placed them in a poor bargaining position with the Stolen Generations policy and the Northern
the British, who had a different approach to Territory Intervention.
property ownership. • Many indigenous people have lost contact
• Some remote indigenous peoples such as with the language, and therefore the culture
the Greenlandic Inuit were not affected by and history, of their ancestors. Sometimes
colonisation, but suffered loss of rights later in this was a result of deliberate government
the 20th century. policy, such as the Stolen Generations policy in
• Colonising powers said that an inhabited Australia or the ‘Norwegianisation’ policy. More
country could be declared terra nullius if there recently, we are seeing government programs
was no sign of cultivation or self-government. attempting to preserve indigenous languages.
Australia was declared terra nullius, but New • Many indigenous peoples have taken legal
Zealand was not. actions to regain rights to their traditional
• Self-determination – the ability of an individual, lands, such as the First Nations people in
a group of individuals, or a people to govern Canada, the Mapuche people in Argentina
themselves – is a fundamental right under the and Chile, the Sámi people in Sweden and the
Declaration on the Granting of Independence Maˉori people in New Zealand. In Australia,
to Colonial Countries and Peoples, and is Mabo v Queensland (No. 2) (1992) 175 CLR 1 led
prominently included in a number of other UN to the introduction of the Native Title Act 1993
declarations and covenants. (Cth), and was followed in 1996 by the Wik
• Only in 2007 was the Declaration on the Rights decision.
of Indigenous Peoples adopted by the General • Many indigenous peoples have had their
Assembly of the United Nations. connection to the land interrupted by the
• Deliberate or inadvertent attempts to disrupt exploitation of natural resources by other
historical continuity have been made by many parties. Examples include the Grasberg gold
settler societies. An Australian example is the mine in Papua and the mines built on the
‘Stolen Generations’ policy, and a Canadian ancestral lands of Indigenous Australians.
example is the High Arctic relocation. A contrast is the San people of the Kalahari
• There is often a conflict of interest between a Desert, who reached a profit-sharing
sovereign state and an indigenous community agreement with a pharmaceutical company.
resident within that state, as there are issues of The Declaration on the Rights of Indigenous
territorial integrity. Peoples explicitly recognises indigenous
peoples’ right to intellectual property over
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CAMBRIDGE LEGAL STUDIES HSC
traditional cultural expressions. Some counterfeiting of indigenous work and cultural
issues are exploitation of indigenous artists, appropriation.
Questions
Multiple-choice questions 5 When did Australia sign the Declaration on the
1 For what reason were the Greenland Inuit Rights of Indigenous Peoples?
forcibly relocated in the 1950s? A 2009
A To make way for a United States Air Base B 2010
B To shore up Denmark’s territorial claims in C 2011
the region D 2012
C Because their land was overpopulated and
couldn’t sustain the traditional methods of Extended-response questions
food collection 1 Explain the issues with giving indigenous
D Because they had allowed German outposts people sovereignty when they are resident
to be built during World War II within an existing nation state.
2 What has been the role of the Australian
2 Which of the following is not a reason that Constitution regarding the rights of Indigenous
colonial powers legally allowed themselves to Australians? Should the Australian Constitution
take possession of another country? be amended to include reference to Indigenous
A The land was uninhabited. Australians as the ‘First Australians’?
B The original inhabitants were not cultivating 3 Evaluate the importance of the apology speech.
the land. In your answer, you should consider:
C The indigenous people demonstrated self- a the position of the government and
government. Indigenous Australians
D The original inhabitants refused to negotiate. b the legal ramifications
c future generations.
3 Identical wording stating the right to self- 4 Research one aspect of intellectual property.
determination is used in art 1 of which two Compare and contrast the experiences of two
documents? indigenous peoples in this area.
A Universal Declaration of Human Rights and
International Covenant on Civil and Political
In Section III of the HSC Legal Studies
Rights
examination you will be expected to
B Indigenous and Tribal Peoples Convention
complete an extended response question
and International Covenant on Economic,
for two different options you have studied.
Social and Cultural Rights
There will be a choice of two questions
C International Covenant on Civil and Political
for each option. It is expected that your
Rights and International Covenant on
response will be around 1000 words in
Economic, Social and Cultural Rights
length (approximately eight examination
D Declaration of the Rights of Indigenous Peoples
writing booklet pages). Marking criteria
and Universal Declaration of Human Rights
for extended response questions can
be found at http://cambridge.edu.au/
4 The Treaty of Waitangi was signed with:
redirect/?id=6486. Refer to these criteria
A the Mapuche of South America
when planning and writing your response.
B the Maˉori of New Zealand
C the San of the Kalahari
D the Sámi of Sweden
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CHAPTER 13 OPTION 4: INDIGENOUS PEOPLES
Themes and challenges
The themes and challenges should be integrated law. The nation states that have signed it are
throughout the teaching of this topic. The following morally bound, but not legally bound.
are some suggestions as to how the content covered
is related to themes and challenges. Laws relating to indigenous
13
peoples as a reflection of changing
The role of the law in encouraging values and ethical standards
cooperation and resolving conflict • Pre-20th century colonising powers said that
regarding indigenous peoples an inhabited country could be declared terra
• International law sets international benchmarks nullius, and open for settlement, if there was no
with respect to the rights of indigenous peoples sign of cultivation or self-government.
and encourages states to work proactively in • Even in the 20th century, governments have
providing adequate support and cooperation. implemented policies that are detrimental to
• The legislative framework that exists with indigenous peoples, with children taken from
respect to indigenous peoples is aimed at their families and forced relocations.
encouraging cooperation and resolving conflict. • In Australia, the Aboriginals Ordinance 1911
An emphasis on non-government support (Cth) allowed Indigenous Australian children
encourages greater levels of cooperation. to be forcibly removed from their parents or kin
• The growing awareness of the plight of under the assumption that this was in the best
Indigenous Australians was brought to light interest of the child. In Canada and America,
by the 1967 referendum in which the Australian indigenous children were removed from their
Constitution was amended to reject any form of families and sent to boarding schools.
discrimination against Indigenous Australians. • The ‘Norwegianisation’ policy, which lasted
• International mediation in the form of the UN until the outbreak of World War II, prohibited
Declaration on the Rights of Indigenous Peoples the Sámi language from being used in public
places an emphasis on protecting the rights schools and in churches, and Sámi culture was
and liberties of indigenous peoples. denigrated as inferior.
• In 1953, the Danish government forced many
Issues of compliance and non- Inuit to relocate from their traditional lands, to
compliance make way for the building of a United States air
• The push for self-determination in relation to base. In Canada, the High Arctic relocation saw
indigenous peoples is supported by the UN Inuit families transported to islands far north of
Declaration of the Granting of Independence to where they had previously lived.
Colonial Countries and Peoples. The UN believes • The late 20th and early 21st centuries have seen
that self-determination is a fundamental right governments making attempts to redress the
for indigenous peoples. wrongs of the past.
• Both the International Covenant on Economic, • In 1988, the Norwegian Constitution was
Social and Cultural Rights (ICESCR) and the amended, giving explicit recognition of the
International Covenant on Civil and Political rights of the Sámi people.
Rights (ICCPR) say that self-determination is a • In Australia, indigenous land rights were
fundamental human right. formally recognised in legislation with the
• The UN Declaration on the Rights of Indigenous Native Title Act 1993 (Cth).
Peoples was subject to delay due to the non- • In October 2012, Blok P was demolished – a sign
compliance of Australia and Canada. of a growing understanding of the damage that
• Unlike the two international covenants, the the imposition of settler ideas onto indigenous
Declaration on the Rights of Indigenous Peoples peoples can cause.
is soft international law, not hard international
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CAMBRIDGE LEGAL STUDIES HSC
• A number of governments have made formal The effectiveness of the legal
apologies to indigenous peoples, such as the and non-legal responses in
1997 apology for the Norwegianisation policy, achieving just outcomes regarding
the 2008 apology to the Stolen Generations and indigenous peoples
the 2010 apology for the High Arctic relocation. • Non-legal measures are featured throughout
the indigenous peoples topic. Non-legal
The role of law reform in measures need to be discussed in the light of
protecting the rights of indigenous their ability to pressure governments, highlight
peoples issues, undertake research and publicise
• In Australia, the Mabo v Queensland (No. 2) issues concerning indigenous peoples. These
(1992) 175 CLR 1 case ignited the issue of land measures can promote greater compliance,
claims and initiated land claim reform. It was initiate law reform, educate the wider
followed by the Native Title Act 1993 (Cth), community and promote indigenous rights.
which formally recognised, protected and • Non-legal measures can be ignored, in
regulated native title. particular, if mainstream society is uninterested
• In Norway, the nationalism that had fuelled the in the area of focus they are promoting.
‘Norwegianisation’ policy fell out of favour after Governments are more likely to respond,
World War II, and ultimately the Norwegian depending on how the issue is tracking in the
Constitution was amended to protect the rights electorate.
of the Sámi people. • The media plays an important role in
communicating the often-ignored difficulties
faced by indigenous peoples, particularly those
in remote locations. It also plays a key role in
framing public discussion and influencing
public perception of indigenous peoples and
their issues.
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Additional resources
Chapter 14
Option 5: Shelter
25% of course time
Principal focus
By examining current issues and examples, students will gain an understanding of how shelter is secured
and how the law attempts to achieve justice for those seeking and offering shelter.
Themes and challenges
Themes and challenges to be incorporated throughout this option include:
• how the legal system attempts to encourage cooperation and resolve conflict with respect to shelter
• compliance and non-compliance
• how changes in values and ethical standards cause law reform relating to shelter
• protecting the rights of people in need of shelter through law reform
• the effective and just provision of shelter through legal and non-legal responses.
At the end of this chapter, you will find a summary of the themes and challenges relating to shelter.
The summary draws on key points from the text and links them to each of the themes and challenges. This
summary is designed to help you revise for the external examination.
Chapter objectives
In this chapter, students will:
• identify the key legal concepts and terminology that relate to shelter and its different forms and
purposes
• evaluate contemporary issues such as affordability, discrimination, homelessness and the provision of
social housing that challenge the legal system’s ability to provide justice for all citizens
• explain the different legislation and their roles in renting/leasing and purchasing shelter
• analyse why some people may be less likely to be given accommodation than others and why anti-
discrimination laws exist
• evaluate the effectiveness of social housing in relation to people with housing needs and low incomes,
and the difference between this and community housing
• discuss the process of purchasing property and the use of a mortgage
• describe the interrelationship between the legal system and society in relation to shelter and the
response to issues with housing and shelter in New South Wales.
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Key terms/vocabulary
accommodation bond Crown land mortgage
accommodation charge deed Old System title
auction easement owners’ corporation
chain of title exchange of contract private treaty
common law executive committee residential lease
common property gazump settlement
community housing good root of title social housing
condition report Housing Affordability Index standard contract for sale
conveyancing indefeasible title strata scheme
covenant LEP (Local Environment Plan) Torrens title
Relevant law
IMPORTANT LEGISLATION
Real Property Act 1900 (NSW) Strata Schemes Management Act 1996 (NSW)
Conveyancing Act 1919 (NSW) Aged Care Act 1997 (Cth)
Landlord and Tenant (Amendment) Act 1948 (NSW) Residential Parks Act 1998 (NSW)
Racial Discrimination Act 1975 (Cth) Retirement Villages Act 1999 (NSW)
Anti-Discrimination Act 1977 (NSW) Housing Act 2001 (NSW)
Landlord and Tenant (Rental Bonds) Act 1977 (NSW) Age Discrimination Act 2004 (Cth)
Environmental Planning and Assessment Act 1979 Retirement Villages Amendment Act 2008 (NSW)
(NSW) Commonwealth State Housing Agreement 2009 (Cth)
Sex Discrimination Act 1984 (Cth) National Consumer Credit Protection Act 2009 (Cth)
Australian Human Rights Commission Act 1986 Retirement Villages Regulation 2009 (NSW)
(Cth) Civil and Administrative Tribunal Act 2013 (NSW)
Privacy Act 1988 (Cth) Australian Consumer Law 2010 (Cth)
Community Land Management Act 1989 (NSW) Conveyancing (Sale of Land) Regulation 2010 (NSW)
Crown Lands Act 1989 (NSW) Residential Tenancies Act 2010 (NSW)
Home Building Act 1989 (NSW) Strata Scheme Management Act 2015 (NSW)
Privacy Amendment Act 1990 (Cth) Strata Scheme Development Act 2015 (NSW)
Disability Discrimination Act 1992 (Cth)
SIGNIFICANT CASES
Rowley v Isley [1951] 3 DLR 766 Vasilikopoulos v New South Wales Land and Housing
Gronau v Schlamp Investments (1975) 52 DLR (3d) Corporation [2010] NSWCA 91
631 Doran v Lia, GEN 10/57830, 20 April 2011
Anderson v Daniels (1983) NSW ConvR 55-144 Groth v Kantipudi (Tenancy) [2012] NSWCTTT 410
Barber v Keech (1987) 64 LGRA 116 (10 October 2012)
Legal oddity
A covenant is a legal obligation written into a property deed that allows the seller to force the buyer to do,
or not do, something with that land. Often, these covenants relate to planning guidelines. For example,
the buyer may not be able to erect buildings over a certain height. In the first half of the 20th century,
however, covenants were sometimes used in the United States to enforce racial segregation – buyers could
be forbidden to lease or sell property to African-Americans. Fortunately, in 1948 the US Supreme Court, in
the case of Shelley v Kraemer, found such covenants to be legally unenforceable, and they faded from use.
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CHAPTER 14 OPTION 5: SHELTER
14.1 The nature of shelter
The definition of shelter
The purpose of this option is to explore people’s
legal rights – internationally and domestically – to
acquiring shelter, and the various forms of shelter
that exist within Australia. The legal process that
is available for individuals to acquire ‘adequate
and affordable’ shelter, given their socioeconomic
14
status within the community and the extent to
which governments are responsible for assisting
individuals to achieve, is also examined. At times
the rights of individuals are abused or denied with
respect to various forms of shelter, and the ability
Figure 14.1 Shelter is paramount to ensuring that
of legal and non-legal measures to redress this other essential human rights can be enjoyed.
situation is assessed.
Presently, contemporary issues such as
affordability, discrimination, homelessness and under the law, such as the right to freedom from
the provision of social housing challenge the legal discrimination, the right to social security and the
system’s ability to provide justice for citizens. right to access the legal system when required.
Shelter is a fundamental human right. The People who lack adequate and affordable
importance of all people being able to acquire housing are confronted with many other layers of
‘adequate and affordable’ shelter is paramount disadvantage that make it difficult to escape a cycle
to individuals being able to enjoy and exercise of poverty. An increasing concern within Australia
other basic human rights. The Collins Dictionary is housing affordability, which has been affected
defines shelter as ‘something that provides cover by government policies and a lack of supply of
or protection, as from weather or danger, a place housing, especially in our cities. (This issue is
of refuge’. Adequate and affordable housing is discussed in Section 14.3.) In addition to this, having
more than simply having a roof over your head. For a fixed address is important for a number of state
example, housing that is not secure, is overcrowded and federal government authorities that deliver
and lacks essential facilities such as proper essential services and ensure that the rights and
sanitation and running water poses considerable responsibilities of people who cohabit are being
risks to health and safety. There are many people met. It is also imperative for such requirements as
in the world and in some parts of Australia who are taxation collection, adherence to motor vehicle and
confronted with these challenges every day. traffic regulations, and enforcement of the criminal
law, to name a few. In essence, a socially just and
social housing cohesive society strives to ensure that its citizens
affordable and secure housing provided by Housing
NSW for low to moderate income earners who meet have shelter that is adequate and affordable.
specific eligibility requirements
The extent of laws concerning
As such, shelter is more than a physical entity shelter
to be obtained; it is paramount to ensuring that The majority of laws pertaining to the acquisition
other essential human rights can also be enjoyed. of property and the regulation of the rights and
For example, people who experience homelessness responsibilities of individuals within various types
are generally confronted with many disruptions to of shelter are state-based. The federal government
their rights, such privacy, education, appropriate has no explicit constitutional power to legislate in
health care and an adequate standard of living. It this area. However, it can, through various funding
is also a challenge for people without shelter to stay powers and policy development, influence the types
safe and to maintain other civil liberties afforded of housing policies the states adopt, as seen in the
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CAMBRIDGE LEGAL STUDIES HSC
Table 14.1 The main body of legislation concerning the acquisition of shelter and
related planning matters
Purpose Legislation Provisions
Rental/leasing Residential Tenancies This Act outlines the main rights and responsibilities of tenants
Act 2010 (NSW) and landlords. Also covers residents occupying premises
provided under public and Aboriginal housing. Boarders and
lodgers, in the main, are not covered by this Act. Since 2010,
it provides for the responsibilities of the Rental Bond Board of
Australia.
Landlord and Tenant A small number of ‘protected tenants’ in New South Wales
(Amendment) Act and their premises are not covered under the Residential
1948 (NSW) Tenancies Act 2010 (NSW), although they might be covered by
the Landlord and Tenant (Amendment) Act 1948 (NSW). Most
of these protected tenants are older people who have lived on
the premises for a long time. The rights and responsibilities of
protected tenants are different from those of other tenants.
Residential Parks Act This Act outlines the rights and responsibilities of permanent
1998 (NSW) residents of ‘residential parks’ in New South Wales.
Civil and The tribunal adjudicates on a number of areas that were covered
Administrative by previous tribunals, including the Administrative Decisions
Tribunal Act 2013 Tribunal and the Consumer Trader and Tenancy Tribunal. The
(NSW) Consumer and Commercial division hears matters pertaining
to, among other things, excessive rent increases, breaches of
lease agreements, the ending of lease agreements, and disputes
around the return of rental bonds.
Housing Act 2001 Under this Act the Minister, acting on behalf of the New South
(NSW) Wales Government, can decide on matters pertaining to rental
rebate and eligibility for public housing.
Australian Consumer Incorporated into the Fair Trading Act 1987 (NSW) as a part of
Law 2010 (Cth) making consumer protection consistent across Australia. The
Australian Consumer Law covers many aspects of consumer
protection but has specific sections that relate to residential
tenancies. For example, ‘misleading and deceptive’ conduct
relating to the sale of properties or the renting of properties that
are not ‘fit for the purpose intended’ is in breach of the law.
Crown Lands Act 1989 The current Act passed to ensure the administration and
(NSW) management of Crown land is undertaken with some provisions
for community consultation about this process.
Purchasing Real Property Act This Act establishes registered ownership to Torrens title to
1900 (NSW) land and establishes procedures to be followed concerning
the process of transferring ownership of land. It also outlines
the rights of parties to a mortgage and the legal method of
establishing caveats and covenants. The vast majority of
residential properties in New South Wales are held under Torrens
title registered under this Act.
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CHAPTER 14 OPTION 5: SHELTER
Table 14.1 The main body of legislation concerning the acquisition of shelter and
related planning matters
Purpose Legislation Provisions
Conveyancing Act This Act makes explicit the terms and conditions that must be
1919 (NSW) present and adhered to under a standard contract for sale of
land and outlines the protections that exist for all parties. It also
Conveyancing (Sale
regulates sales by auction and subdivision of land.
These rules replaced the Conveyancing (Sale of Land) Regulation
14
of Land) Regulation 2005 (NSW). Contracts for the sale of land must now include
2010 under the a warning about the obligations of the landowner under the
Conveyancing Act Swimming Pools Act 1992 (NSW). Some of the provisions
1919 (NSW) include the documents that must be attached to the contract,
statements to be made regarding cooling-off periods and
remedies for breaches of vendors’ obligations.
Strata Schemes This Act allows a parcel of land to be subdivided into additional
Management Act lots to be sold as separate titles. Under the strata scheme
1996 (NSW) the airspace above is also subdivided, and areas of common
property must be clearly identified.
Environmental Under this Act, when a contract for sale is prepared it must
Planning and include documents such as a zoning or planning certificate
Assessment Act 1979 relevant to the property in question.
(NSW)
Community Land This Act facilitates the setting up of community title in New
Management Act South Wales. Community title schemes enable lands to be held
1989 (NSW) for community, precinct or neighbourhood use, but still offer
secure title to ownership of the neighbourhood property.
Crown land mortgage Torrens title covenant
land held under permit, a type of loan whereby the the central registration and a restriction on a property
licence or lease; property being purchased transfer of ownership of that is part of the title; an
reserves managed by is used as collateral in case property example is a restriction
the community; lands the borrower fails to meet not to build any structure
of environmental value the repayment obligations or fences above a certain
kept in public ownership; as set out in the home loan height
lands used for Crown contract
public roads; and other
unallocated lands
strata scheme standard contract for auction common property
a detailed pictorial sale a public sale in which the areas in a strata
description of lots within the contract for sale used people bid for goods or scheme building or
a strata complex; this to buy and sell in New property, and the sale is to property that are owned
includes the outlines of the South Wales; contracts the highest bidder jointly by all the lot owners,
buildings, the dimensions of must contain minimum rather than being part of an
each lot, the details of each standard terms individual lot
unit entitlement and the
common property
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CAMBRIDGE LEGAL STUDIES HSC
Commonwealth State Housing Agreement 2009 (Cth). The right to shelter
The external affairs power has been used in the past As mentioned previously, the right to shelter involves
by the Commonwealth to influence or override state more than simply acquiring housing. To conform
laws. with the concept of a human right, the housing
Due to social or economic circumstances, some must be considered ‘adequate’ and, according to
people obtain shelter by becoming a ‘boarder’ or the Australian Human Rights Commission, should
‘lodger’. This type of accommodation offers very satisfy the considerations discussed below.
little protection for those people living in this form Residents should be able to enjoy security
of housing tenure. Other people may reside in of tenure, ensuring that the rights of the people
‘supported’ accommodation such as retirement occupying various forms of housing are clearly
villages and nursing homes. The rights of these outlined. The availability of services and
people are provided for in the Retirement Villages infrastructure is also essential, as housing that is
Amendment Act 2008 (NSW) and the Retirement isolated or not easily accessible can considerably
Villages Regulation 2009 under the Retirement Villages affect occupants’ quality of life. Adequate housing
Act 1999 (NSW). must also be ‘habitable’ and ‘affordable’, to
improve the capacity of people to acquire housing.
Review 14.1 Market conditions and the supply of housing can
significantly affect property prices and the cost of
1 Define shelter, using your own words. renting. It is also important for some people that their
2 Identify five reasons obtaining shelter is housing be located within an area that allows them
considered vital. to enjoy their culture and to retain links to traditional
3 Explain the influence of the ways of life.
Commonwealth’s external affairs power It is in the interest of every community that
in this area. certain members or sections of that community are
4 Outline why the Residential Tenancies Act not excluded from the ability to provide adequate
2010 (NSW) does not apply to all tenants. shelter for themselves and their families. The long-
term costs of increasing numbers of people being
outside the housing market are far greater than the
recurrent costs incurred by intervening to promote
affordability, ensuring discrimination legislation is
effective, reducing homelessness and providing
sufficient social housing to enable the poorest
Australians to acquire shelter and contribute to the
community.
International law
The global community has recognised the right to
shelter through numerous international declarations
and treaties. The ability of nations around the world
to ensure their citizens enjoy adequate housing
varies greatly, as does their commitment to meet
their international obligations. It should be noted
that international declarations are regarded as
‘soft’ international law and hence impose moral
obligations to implement them. International treaties
are considered ‘hard’ international law and confer
Figure 14.2 Market conditions and the supply of legal obligations to put them into effect.
housing can significantly affect property prices and
the cost of renting.
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CHAPTER 14 OPTION 5: SHELTER
Table 14.2 An overview of the right to shelter according to international law
Universal Declaration of Human Rights (UDHR)
Article 25 states:
Everyone has the right to a standard of living adequate for the health and wellbeing of himself and his family,
including food, clothing [and] housing.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
Article 11 states: 14
The States Parties to the present Covenant [including Australia] recognize the right of everyone to an
adequate standard of living for himself and his family, including adequate food, clothing and housing, and to
the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the
realization of this right, recognizing to this effect the essential importance of international co-operation based on
free consent.
Convention on the Rights of the Child (CROC)
Article 27 states:
recognise the right of every child to a standard of living adequate for the child’s physical, mental, spiritual moral
and social development.
Adequate housing is encompassed by these rights.
International Convention on the Elimination of All Forms of Racial Discrimination
Article 5(e)(iii) provides:
States Parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right
of everyone … to equality before the law. [These rights include] the right to housing.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Article 14(2)(h) states:
State Parties shall ensure [that women in rural areas] … enjoy adequate living conditions, particularly in relation
to housing, sanitation, electricity and water supply, transport and communications.
Australian law multilateral treaties that confer shelter as a basic
There is no right to shelter within Australian human right. Being a signatory to these treaties,
domestic law. Most of the legislative framework Australia has an obligation under international law
within Australia is centred on clarifying people’s to ratify these provisions into domestic law. The
rights and responsibilities within various forms of federal government faces constitutional constraints
housing tenure. It also provides avenues of redress that prohibit it from legislating in many areas
for consumers when conflict arises as a result of concerning the provision of shelter and the rights
acquiring shelter. and responsibilities of individuals that flow from this.
Internationally, Australia has signed numerous Through the Council of Australian Governments
Research 14.1
1 Explain why the right to shelter is not provided for in Australia’s domestic law.
2 Summarise the role of the Australian Human Rights Commission.
3 Investigate two policies passed by the federal government that affect the right to shelter in
Australia.
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CAMBRIDGE LEGAL STUDIES HSC
(COAG), the federal government can establish Governments also provide ‘public housing’ for
policy frameworks for a consistent approach to people on low incomes at a rental rate much cheaper
areas of concern nationally. The National Affordable than what they would pay in the marketplace. ‘Rental
Housing Agreement (NAHA), which took effect on 1 assistance’ can also be made available to enable
January 2009, is such an example and is referred to people on low incomes to rent a property on the
later in the chapter. market that they otherwise would not be able to afford.
Other forms of social housing policy are developed
to address the needs of people who are homeless. The
Review 14.2
New South Wales Government includes the reduction
1 Discuss what is meant by ‘soft’ and of youth homelessness as one of its ‘Making it Happen’
‘hard’ international law. Explain how this Premier’s Priorities. A large number of specialist
applies to the right to shelter in respect homelessness services operate across New South
to housing. Wales, providing support to people who are homeless.
2 Summarise the ways in which the The ‘Making it Happen’ priority is to increase by 10%
Universal Declaration of Human Rights the number of young people who move from these
protects the right to shelter. services into long-term accommodation.
Under the National Partnership Agreement
on Homelessness (NPAH) 2015−17, the federal
government provided $115 million per year across
Obligation to provide shelter Australia to help each state support frontline services.
Although there is no responsibility in domestic law Commonwealth funds needed to be matched by funds
to provide shelter, the federal, state and territory from the states and territories, but each state/territory
governments in Australia all acknowledge that there was able to decide for itself which providers, in which
is an obligation to provide shelter if Australia is to areas, would receive funding. A key priority of the
protect the human rights of its citizens and ensure NPAH was domestic violence, as this is recognised to
society is inclusive for all. Nationally, this obligation be a leading cause of homelessness. Homeless youth
is evident in the body of international law to which was also a focus area. The NPAH funded activities
Australia is a signatory. incorporated in the New South Wales Homelessness
Governments at federal, state and territory levels Action Plan. Under this partnership, the New South
recognise that there is a significant number of Wales and Australian governments agreed to add
individuals who for various reasons cannot access an extra $284 million to address homelessness in
adequate and affordable housing. Housing policies, New South Wales over four years. The NPAH was
therefore, are developed to initiate a number of terminated on 30 June 2018, replaced by a new
strategies to assist these people into some form of National Housing and Homelessness Agreement.
housing. Other forms of social policy are developed to
The New South Wales Government, through address ways of building a sense of community in
Housing NSW, has developed numerous housing public housing areas and continually assessing the
policies. Some of these are centred on: suitability of such housing and its social impact in
• public housing the communities in which it is situated.
• housing affordability In essence, governments recognise that they have
• social housing. a responsibility to produce a range of policies that
Governments can provide assistance to first-home assist people into some form of affordable housing
buyers, as has been the case in New South Wales. that, due to a number of factors ranging from poverty to
This makes it easier for people to enter the housing disability and other forms of disadvantage, they would
market. In addition to this, most governments in not otherwise be able to secure. While the objectives
Australia are investigating ways to alleviate ‘housing may be the same, political parties vary somewhat on
affordability’ problems, of which one measure is how they plan to achieve their policy goals.
increasing housing supply through planning powers Conservative parties traditionally have introduced
invested in other government departments. policies to make it easier for people to enter the private
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CHAPTER 14 OPTION 5: SHELTER
14
Figure 14.3 Wesley College offers residential accommodation for 250 students at the University of Sydney.
housing market. Labor governments have tended to that is provided by government (public housing).
put more resources into ensuring there is an adequate Many types of shelter exist, and the variety of
supply of public housing. Today, however, all parties housing types acquired is usually determined by a
rely on a combination of measures that range from person’s socioeconomic status, income, family size,
encouraging entry into the housing market for first- age, disability and portability.
home buyers and increasing the supply of land and According to the Australian Bureau of Statistics,
housing available, to supporting less-advantaged in 2011 approximately 98% of Australians were living
people into some form of adequate and affordable in ‘self-contained’ private homes, such as houses,
housing. This has been particularly evident in Sydney flats and units. Others live in institutional dwellings:
where housing affordability has worsened over the residential colleges, staff accommodation, boarding
last three to five years. houses, hostels, nursing homes and prisons.
Types of shelter Legal protection and remedies
‘Shelter’ can be categorised as housing that is associated with securing shelter
acquired by individuals (private housing) or housing There are a number of avenues available for a person
to secure shelter. As mentioned previously, the type
of shelter secured will usually depend of levels of
Review 14.3 income and personal circumstances. There are
numerous legal and non-legal responses protecting
1 Explain, using examples, why housing the competing interests of those parties involved.
policies are needed. In addition to these, various dispute mechanisms
2 Evaluate the strategies, goals and are available to promote cost-effective and efficient
priorities of the New South Wales conflict resolution between vendors and buyers,
Government’s Homelessness Action Plan. landlords and tenants. The extent to which the law
Which solution do you think will be the achieves justice for people securing shelter continues
most effective? Why? to evolve, but at times the competing interests of the
3 Explain why governments are parties involved can make this difficult.
increasingly recognising their
responsibility to create social housing
policies. 14.2 Purchasing shelter
Shelter will more than likely be the most expensive
acquisition in a person’s life. Decisions that are made
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CAMBRIDGE LEGAL STUDIES HSC
LEP (Local Environment Plan)
a document prepared by a local council, and approved
by the state government, to regulate the use and
development of land within the council’s control
The New South Wales Government established
the Building Services Corporation within the NSW
Fair Trading to provide advice and safeguards for
buyers. There are also a number of protections for
buyers embedded into the conveyancing process;
these are discussed in the section, ‘Protection for
buyers’.
Separate dwelling or shared space
Historically, the ‘Australian dream’ was to own your
own free-standing home on a traditional quarter-
Figure 14.4 Shelter will more than likely be the most acre block of ground. Separate dwellings are homes
expensive acquisition in a person’s life. on individual lots that do not adjoin other buildings.
There is one ‘title’ to the property, but larger lots
as to the types of shelter to be acquired are largely at times can be subdivided into separate titles.
driven by cost, location and family circumstances. Separate titles are usually more expensive than
The legal process for purchasing shelter is called shared space when compared in similar locations.
conveyancing. Conveyancing is the legal process They allow the owner greater options to carry out
followed to transfer title of ownership from one renovations of the existing dwelling, and decide
party to another. This process ensures that the new on landscaping and when to undertake necessary
title is registered at the Land Titles Office and that maintenance of the property.
certain obligations are met by the vendor (seller) and While many Australians still reside in separate
the buyer. In New South Wales the conveyancing dwellings, increasingly Australians are living in
process can be carried out by a solicitor or a para- shared spaces. Usually the dwellings are adjoined,
legal ‘licenced’ conveyancer under the Conveyancing with shared stairwells and other access points; the
Act 1919 (NSW) and the Conveyancing (Sale of Land) most common of these are flats or townhouses.
Regulation 2017 (NSW). Licensed conveyancers must Australian cities faced with urban-sprawl problems
be covered by ‘indemnity insurance’ and it is illegal are looking to increased medium-density housing to
for anyone to carry out conveyancing work without ensure a more cost-effective provision of government
being licensed. infrastructure and services.
Data released by the Australian Bureau of
conveyancing
the legal process used to transfer title of ownership from Statistics in 2011 revealed there had been little
one party to another increase in the number of Australians living in
separate dwellings as opposed to shared space.
A third option is that a person can do the The figures revealed that there were 9 117 033 private
conveyancing of the purchase themselves. Such dwellings in Australia, an increase from the 8 426
buyers must be aware that they will more than likely 559 private dwellings that were counted in the 2006
bear the costs if anything goes wrong during the census.
conveyancing process. For example, the property Between 2006 and 2011, there was a shift
being purchased can be affected by limitations put towards living in units and townhouses, with the
on it by government authorities or local councils proportion of people living in detached houses
through their Local Environment Plans (LEPs). An dropping by 1%. The census also revealed that the
unsuspecting buyer will not find matters affecting number of private dwellings that were separate
a New South Wales property when they do the houses fell from 76.6% in the 2006 to 75.6% in 2011.
required checks at Land and Property Information. The increase in people living in shared space was
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CHAPTER 14 OPTION 5: SHELTER
Table 14.3 Proportions of Australians by type of accommodation
Dwelling structure 2016 % 2011 % 2006 %
Separate house 72.9 75.6 76.6
Semi-detached, row or terrace house, 12.7 9.9 9.2
townhouse, etc.
Flat, unit or apartment 13.1 13.6 13.1
Other dwelling 1.3 0.9 1.1 14
proportional to the decrease of people living in reach the reserve price once the bidding has ceased.
separate houses. If the highest bid does not reach reserve price, the
vendor may wish to enter into negotiations in the
Private treaty or auction form of a private treaty with the highest bidder.
The process of the buying and selling of property If the reserve price is reached, contracts will be
can be carried out in two ways. One is through a exchanged with the highest bidder once the auction
private treaty; the other is through an auction. is over; the successful buyer must hand over 10% of
Both methods are regulated and require a standard the purchase price immediately.
contract for sale to be used in the selling process. There are definite advantages in buying at auction.
A private treaty is when the sale of a property is For example, the buyer will know how the property
carried out directly between the vendor and buyer. fared with respect to reaching the reserve price, and
This is usually completed with the assistance of a at times the bidding process sets a more realistic
registered real estate agent. An auction is a public price when potential buyers understand the nature
sale in which goods or properties are sold to the of the market at that point in time and what a fair
highest bidder. price is.
There are important points that the law does not
private treaty protect against to consider. Potential buyers must
when the sale of a property is carried out directly
between the vendor and buyer; usually completed with ensure they have their finance arranged and need to
the assistance of a registered real estate agent be prepared for the pressure of the bidding process.
It helps if the buyer knows their limit in terms of price
When a property is on sale through private treaty and does not bid above it.
the price of the property will be advertised through The vendor is allowed one bid in the process and
a real estate agency, encouraging potential buyers the auctioneer must state when this bid has occurred.
to make an offer on the property. They may inspect Critics of the process argue that potential vendors
the property, ask a number of pertinent questions, bear costs that may be wasted if the property is not
carry out inspections and peruse the sale of contract sold at auction (real estate agents charge a fee for
before making an offer. Both the vendor and the conducting an auction). Some of the recommended
buyer can haggle over price before agreeing to an checks the buyer may pay for are:
amount, at which time the contracts for sale will be • a property inspection to make sure it is
exchanged. structurally sound
When buying through an auction, the buyer will • a pest inspection to check that it is free of
usually be competing against a number of potential pests
buyers who turn up on the day of the auction to • a strata records inspection if the property is a
bid on the property. The vendor will set a reserve unit.
price, which is the lowest price the vendor is willing A potential buyer may also have a valuation
to sell the property for. The auctioneer or agent is done on the property if they want to check what an
not required to accept the highest offer if it fails to appropriate price would be.
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CAMBRIDGE LEGAL STUDIES HSC
There have been calls for some of these checks to easement
a right of someone other than the property owner to use
be carried by the vendor prior to the auction.
the property for certain purposes
The contract for sale
Also included will be information making the
The contract for sale must be prepared before a
buyer aware of their ‘cooling-off’ rights, which are
residential property can be advertised for sale by
discussed in ‘buyer protections’. If these types of
either private treaty or auction. This was not always
disclosures are not made, the buyer has the right
the case, but the widespread practice of gazumping
to cancel the contract within 14 days of signing as
prompted calls for the contract for sale to be pre-
these disclosures give an overview of the planning
prepared to speed up the process. All contracts for
provisions affecting the property.
sale of land must be in writing under s 54A of the
The buyer must also be made aware if any
Conveyancing Act 1919 (NSW).
variations that favour the vendor have been made to
Some standard requirements contained in
the standard provisions in the contract for sale.
contracts for the sale of property include a number of
Exchange of contracts usually occurs at the
disclosures that must be made by the vendor under
point of sale and is the more critical phase of the
s 52A of the Conveyancing Act 1919 (NSW). Under s
conveyancing process. Once signed copies of the
149 of the Environmental Planning and Assessment
contract are exchanged, both parties are bound by
Act 1979, a zoning certificate, available upon
the terms and it is from this point that a 10% deposit
application to the local council, must be included.
of the purchase price is paid and the ‘cooling-off’
Known as a ‘Section 149 Certificate’, this provides
period applies.
information about planning controls or property
affectations relating to the land. exchange of contracts
The contract must also include a copy of the when the vendor and the buyer of the property exchange
signed copies of the contract for sale
‘property certificate’ that will allow the title to be
searched at Land and Property Information. A
Between exchange and settlement there are a
drainage diagram showing the position of sewer
number of things that need to be completed. The
lines on the site map will be included, as well as
buyer will need to search the title to verify the seller’s
an official plan of the land, which could include a
warranties and compliance with the conditions
‘subdivision plan’ or a ‘strata plan’ depending on the
property being purchased.
Further to this there must be disclosures under
the Conveyancing (Sale of Land) Regulation 2017
(NSW) in relation to easements and covenants
attached to the contract for sale. An easement is
a right of someone other than the property owner
to use the property for certain purposes. It could
include a shared pathway between two properties
or the right to fish in a privately owned pond. A
covenant is a restriction on a property that is part
of the title (for example, not building any structure
or fences above a certain height). Covenants often
apply in cases where property has been subdivided.
If the courts find that a covenant is prejudiced, or
does not afford equal opportunity, then it may be
struck down. However, most reasonable covenants
Figure 14.5 At settlement the balance of the price is
will be enforced.
paid. Unless they are doing their own conveyancing,
the vendor and the buyer do not need to be present at
the settlement – it will be managed by each party’s
conveyancer and financial institution.
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CHAPTER 14 OPTION 5: SHELTER
contained in the contract. The buyer should also land remains, and efforts are underway to convert this
obtain their own zoning certificate (s 149) to ensure to Torrens title.
that it is accurate and that there have been no
changes since the contracts were drawn up. Buyers
may also wish to take out insurance at this point Crown land
as they have an insurable interest once exchange More than half the land in New South Wales is made
occurs; most buyers will have this arranged at up of Crown land. According to Land and Property
settlement. Information, Crown land can comprise:
14
settlement • lands held under lease, licence or permit
when final payment for the purchase of the property is
made to the vendor, and the purchaser receives title • community managed reserves
• lands retained in public ownership for
Settlement will usually occur when answers to environmental purposes
most of the buyers searches have been satisfied; • lands within the Crown public roads network
then the balance of the price of the property will • other unallocated lands.
be paid, comprising the other 90% of the purchase
price. Land and Property Information will need to Many non-tidal waterways across the state also
be notified about the transfer of the property to the comprise Crown land, as does most tidal waterway
buyer and it will pass this information on to the local land.
council and water suppliers. It is also suggested that The Crown Land Act 1989 (NSW) is the main
a final inspection be carried out prior to settlement piece of legislation that regulates the registering
to be sure that the property is still in good order and and managing of Crown land. This Act included
that any inclusions in the contract (such as light mechanisms for community consultation about the
fittings and carpets) are still present. management of Crown land. It also has clarified
and streamlined the system of tenure that exists
Systems of registration concerning the use of Crown land.
According to Land and Property Information, the
land title system can be defined as ‘the means by Old System title (or common law)
which ownership of land is recorded, registered and The Old System title dates back to English common
transferred’. law and was a logical choice of land management
There are three different land titling systems in used the by colonial authorities to register, record
New South Wales: and transfer land ownership. This system was used
1 Crown land in the New South Wales colony until 1863 when it
2 Old System title (or common law) was replaced by Torrens title.
3 Torrens title (or Real Property Act). Under the Old System title each time a vendor
In addition to these, other properties in New sold land to a buyer, there was a need to establish
South Wales may be affected by additional types of a chain of title that established proof of ownership:
title for ‘shared space’ such as: that the vendor was the rightful owner of the property
• company title prior to purchasing. This was demonstrated by a
• strata title series of deeds, one for every time that property was
• community title. sold. Each deed would contain a description of the
Land and Property Information has outlined the property and the identities of the previous vendors
following statistics about the proportion of land in and buyers. If this can be established it is said that
New South Wales registered under each system: a ‘good root of title’ exists as the chain has not
been broken through the loss of one or more of the
Approximately 50 per cent of land in NSW is Crown previous deeds of sale.
land leasehold (Western and Central Division) and
99 per cent of the remainder is Torrens title (mainly
Eastern Division). Only a small residue of Old System
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CAMBRIDGE LEGAL STUDIES HSC
common law (or Old chain of title legal matters to do with land require certainty and
System title) a series of deeds under the
efficiency, which are features of the Torrens title
a system of registration Old System title, used to
and transfer of ownership establish the ownership system. Properties registered under this system are
of property in use in New history of a property assured that the title is recognised by the state and
South Wales; under this
system an unbroken chain hence people can buy and sell under this system
of title is required to be with confidence.
proven to establish title to
Selling and buying land ownership are completed
the property
by transferring the registration of ‘title’ as opposed
to using previous deeds as is done through the
deed good root of title Old Title system. Once title has been transferred
documentary proof when the Old System chain
establishing ownership of a of title has not been broken to the new owner, it is said the buyer now has an
property through the loss of one or ‘indefeasible title’; this means the title is said to be
more of the previous deeds ‘perfect’ and will not be changed except under very
of sale
limited circumstances.
Under the Conveyancing Act 1919 (NSW) ‘good indefeasible title
title that has been transferred to the new owner, and will
root of title’ need only be established as far back as not be changed except under very limited circumstances
30 years ago to allow the sale of the property to go
forward. The reality, however, is that it is advisable The land register is central to the effectiveness
for a potential buyer to ensure that the root of title of the Torrens title system, and in New South Wales
is established even further back to provide greater this is carried out through Land and Property
assurance that they are purchasing from the rightful Information. The state provides a guarantee that
owner. Even so, if any of the documents establishing the register is accurate. If an administrative error
ownership is challenged, this could result in a ‘defect occurs, and someone’s rights are adversely affected,
in title’, so that the vendor is not declared the rightful
owner.
A small percentage of land in New South Wales
(such as properties sold before 1900) is still registered
this way, but there are increasingly fewer people
with the conveyancing skills to confidently carry out
the required title searches on properties registered
under this system. These processes can be time-
consuming and expensive, and ultimately the new
owner may still be vulnerable to the ownership
being contested as errors can occur even tracing
ownership back the statutory period of 30 years.
As the last of these properties are put up for sale,
the New South Wales Government will transfer the
registration of ownership to the Torrens title system.
Torrens title (Real Property Act 1900)
The Old System title method was uncertain and
time-consuming, and there was no guarantee that
the state would back your claims to ownership. The
introduction of the Torrens title system of registering
property ownership in 1863 and the passing of the
Real Property Act 1900 (NSW) greatly improved land
management in New South Wales. Transferring
ownership, leasing and registering any other Figure 14.6 A certificate of title.
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CHAPTER 14 OPTION 5: SHELTER
the state will compensate them. Compensation Strata title
claims are very uncommon. The introduction of the strata scheme management
Title searching and conveyancing are much system in 1961 facilitated the development of
easier under the Torrens title than the Old System, medium- to high-density housing, particularly in
and so are cheaper and more reliable. As well as urban areas. The Strata Schemes Management Act
registering ownership, Torrens title will also include 1996 (NSW) allows a parcel of land to be subdivided
easements affecting the property and any other into lots to be sold separately. An owner of one
interests relevant to the property, such as mortgages
taken out. Instead of a chain of documents, the
of these lots (typically a flat or townhouse) has a
separate title to their property registered under
14
landowner receives a current certificate of title, Torrens title with the advantage of an indefeasible
which shows all of the information – ownership, title. They can live in the property or rent it out,
easements, mortgages and other relevant interests. depending on their circumstances.
As mentioned previously, once any property Under the strata scheme, the airspace above is
is purchased under the Old System title it will be also subdivided, and areas of ‘common property’
automatically converted to the Torrens title system are to be clearly identified. While individual owners
free of charge. However, for the first six years after have a separate title to their dwelling, all residents
conversion, the title is not guaranteed, as there have responsibility for and access to the common
could still be challenges to ownership because of the property. Common property is the areas that are
problems in establishing ‘good root of title’ on some owned jointly by all the lot owners, rather than
properties under the Old System. If the property belonging to any individual lot. They may include
is sold to another buyer within the six-year period, driveways, pools, barbeque areas and green space.
guarantee of ownership is extended to 12 years. A strata plan is a diagram of the strata complex,
showing details of all the individual lots. It includes
Company title the outlines of the buildings, the dimensions
Company title is a system of registration used for of each lot, the details of each unit entitlement,
documenting ownership of shared space such as and the common property. Any notifications and
flats or townhouses and was used prior to the first encumbrances affecting the plan will also be noted.
New South Wales strata title legislation in 1961.
Under company title there was no separate
title registration to ownership of specific flats. The
owners of the building set up a company in which
individual owners possessed shares that allowed
them exclusive possession of a particular part of the
building, such as their flat or townhouse.
The disadvantage of this system of registration is
that a person would have to get the approval of the
other shareholders prior to selling their share in the
company. In addition to this, banks were reluctant
to lend finance to properties registered under this
system because it was seen as a share purchase as
opposed to a mortgage over a particular piece of real
estate, for which it is easier to reclaim money lent in
cases of foreclosure. This also makes it more difficult
to sell these properties due to these restrictions.
An advantage of this system is that the owners
could have some influence over who their neighbours
would be every time a shareholder wanted to offload
their shares and property.
Figure 14.7 A strata plan.
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CAMBRIDGE LEGAL STUDIES HSC
Importantly, it will also contain the certificate of title • Administrative fund – this is a fund to provide
numbers for each lot. for the regular upkeep and recurrent expenses
Under the Strata Schemes Management Act 1996 that are incurred day to day on all strata
(NSW), the owners of the properties make up what is schemes in New South Wales. The fund has to
referred to as the owners’ corporation. The owners contain sufficient money to ensure that these
corporation must elect an executive committee types of expenses are covered as they fall due.
to make decisions about the management of the Expenses may include the upkeep of lawns
common property and other areas of concern that and gardens and other aspects of the common
affect all residents. property. It can also include the payment of
insurance premiums such as building and
owners’ corporation executive committee
a group consisting of all an elected subgroup of public liability policies.
the lot owners within a the owners’ corporation Reforms to strata laws have been introduced
strata scheme which makes decisions
about the management of
through the Strata Scheme Management Act 2015
the common property and (NSW) and Strata Scheme Development Act 2015
other areas of concern that (NSW). The main changes have been introduced to
affect all residents
modernise and make more flexible strata schemes;
introduce more transparency and accountability;
The executive committee has to ensure that
and clarify issues around collective sale and
the residents contribute to the following funds so
renewal, maintaining the building’s condition,
the upkeep of the property is maintained and that
owner renovations, proxy voting, by-laws and tenant
financial and legal requirements are met:
participation. It also updated regulations concerning
• Sinking fund – this is a fund that must be set
levies, capital works funds and dispute resolution.
by the owners’ corporation to ensure there are
sufficient finances to cover the costs of ongoing
capital works on the property. These include Legal Links
things that all properties will have to attend to
For more information on these changes go to:
over the course of time (for example, painting,
• http://cambridge.edu.au/
upkeep of the common property and repairs
redirect/?id=6380
to roofs, gutters, driveways). Amendments to
• http://cambridge.edu.au/
s 75A of the Strata Schemes Management Act
redirect/?id=6376
1996 (NSW) mandated that all strata schemes
Commentary on the effect these changes
registered in New South Wales must have a 10-
will bring to landlords and tenants in strata
year sinking fund to ensure effective planning
schemes can be found at:
and manage the needs of the property. This
• http://cambridge.edu.au/
allows the owners’ corporation to ensure that
redirect/?id=6377
adequate funds are progressively provided for
• http://cambridge.edu.au/
in anticipation of any more expensive capital
redirect/?id=6378
work that will eventually have to happen.
• http://cambridge.edu.au/
The degree of funds required may depend
redirect/?id=6379
on the age of the property as a newer strata
scheme may have fewer capital expenses in
the first 10 years compared to older premises,
which require more regular and extensive
Community title
upkeep. NSW Fair Trading says that a 10-year
Community title allows for the subdivision of
plan must be approved at an annual general
land so that share property can be created within
meeting (AGM) of the owners’ corporation. Any
conventional Torrens title. According to the Urban
necessary review and adjustments to the plan
Development Institute of Australia a community
must happen within the first five years.
title ‘is essentially a horizontal form of strata title.
Community title is common ground’. Community title
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CHAPTER 14 OPTION 5: SHELTER
is regulated under the community titles legislation Sources of finance
enacted in 1989 and is a form of title registration and Mortgages
management that is between the traditional land
Due to the expensive nature of purchasing shelter
(ground surface) subdivision and a strata scheme
the use of mortgages is commonplace to ensure
(air space) subdivision.
financial institutions are willing to lend to buyers. A
This type of title allows the concept of ‘common
mortgage is a type of loan where the property being
property’ to be utilised within a land subdivision to
purchased is used as collateral in case the borrower
include amenities that can be used by the owners
within that subdivision. This can include the shared
fails to meet their repayment obligations as set out 14
in the home loan contract. The financial institution
use of swimming pools, tennis courts, children’s
holds the deed or ownership of the property until the
playgrounds and barbecue areas.
buyer has fully repaid the loan. The buyer occupies
The main types of community title schemes are
the premises as under credit regulation they are
the ‘community association’ and the ‘neighbourhood
considered the owner of the property.
association’. The community association is the
If the owner of the property falls upon financial
highest level and all owners belong to this based on
hardship and cannot make the ongoing repayments,
the proportion of lots owned. The neighbourhood
the financial institution has the option of selling the
association is the lowest tier and the most popular
property to recover outstanding debts. Contrary to
type of community scheme and is formed when the
popular belief, this is the last option that a credit
developer is ready to subdivide and sell the lots in
provider may want to take. For it to maximise its
the area that has been earmarked for subdivision.
profits, it is better for the loan to run its course and
When buying into a community scheme, the buyer
the calculated interest be paid.
should ensure that the contract for sale includes
Historically, many mortgages were fixed interest
the types of amenities that are to be provided and
over 25 to 30 years. The benefits of this were that
the landscaping and architectural design of the
repayments did not change and this provided
scheme. It should also include the type of scheme
some certainty for both parties. Today borrowers
the development will be based on, such as a
have the choice between fixed interest, variable
retirement style or other common interests that
interest or a combination of both. Variable interest
like-minded people may wish to preserve under
loans will go up or down depending on market
the contract. Further to this there should be
conditions and the variable rate set by the Reserve
a visual representation to ensure that potential
Bank of Australia.
buyers get a feel for what the community scheme
Since the Global Financial Crisis in 2008–09,
will look like.
financial institutions have tightened their lending
policies, demanding more consistently that potential
Review 14.4 borrowers provide a 10–20% deposit on the value of
the property.
1 List what happens at each of these People who take out a mortgage are covered by
stages of the purchasing process: consumer credit laws and all mortgage contracts
a exchange of contracts must be in writing. The National Consumer Credit
b between exchange and settlement Protection Act 2009 (Cth) covers a range of credit
c settlement. contracts signed after 1 July 2010 and includes
2 Explain why the introduction of Torrens mortgages and personal loans, to name but two. Any
title improved land management in New contracts signed before 1 July 2010 are covered by
South Wales. uniform state credit code legislation and have similar
3 Summarise the differences between provisions.
company title and strata title. Under these laws all credit providers have to
be licensed and to belong to an external dispute
resolution scheme approved by the Australian
Securities and Investments Commission (ASIC).
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CAMBRIDGE LEGAL STUDIES HSC
Consumers can apply for a variation on a repayment Individuals who are refused finance to buy a home
arrangement on the grounds of financial hardship. because of a problem with their credit history can
Before the lender can take court action or repossess contact Credit Repair Australia (CRA).
the property if the borrower is behind on payments, CRA can, if requested, look at an individual’s
the lender must issue a default notice giving the credit history to ascertain why they may have been
borrower at least 30 days to repay the arrears. refused finance for a home loan and ideally help
In addition to this, the second stage of consumer rectify the situation.
credit reforms that are relevant to home buyers The information collected by credit reporting
include the banning of exit fees after 1 July 2011 and agencies is subject to the Privacy Amendment Act 1990
the provision of key facts that outline rights and (Cth), which commenced operation in September
responsibilities. 1991 and added consumer credit reporting to the
matters covered by the Privacy Act 1988 (Cth). It
Credit reporting specifically deals with information collected by
Once a person has obtained credit from a financial credit reporting agencies and credit providers that
institution, a personal credit history about their is to be used fully or mainly for domestic, family or
ability to meet their obligations in repaying what household purposes. It regulates the collection, use
they owe is created. A credit report compiled about and disclosure of this personal information.
an individual’s credit history generally includes the Under the Act there are limitations on the types
person’s addresses, current and past employment, of information that can be held and for how long. The
and any information on credit applications, overdue Act also limits who can access a person’s credit file
accounts, court judgements, clear-outs, crossed or and restricts the reasons that allow a credit provider
linked files, name changes and bankruptcies, and to access someone’s credit report.
other relevant matters.
The two main credit reporting agencies operating Legal links
are Veda Advantage and Dun and Bradstreet.
To find the 10 things that will appear on your
credit report go to http://cambridge.edu.au/
redirect/?id=6607.
Review 14.5
1 Analyse the purpose of a mortgage.
2 Discuss how the Global Financial Crisis
of 2008–09 affected home-lending
policies.
3 Explain what an individual can do if they
are refused finance due to a problem with
their credit history.
Protection for buyers
There are a number of buyer protections in place
for people purchasing a property. There will always
Figure 14.8 Individuals who are refused finance to buy be an element of caveat emptor – ‘let the buyer
a home because of a problem with their credit history beware’ – because ultimately the law cannot protect
can contact Credit Repair Australia (CRA). consumers from hasty purchases where appropriate
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CHAPTER 14 OPTION 5: SHELTER
searches and checks on properties are not carried There is no obligation for the vendor to reimburse
out before purchasing. the buyer for money lost due to building and pest
Essentially, buyer protections aim to ensure that inspection costs and any other cost such as legal
minimum standards are met, especially with respect fees or establishment costs for loans. The sale is only
to the contract for sale, including cooling-off periods binding upon the exchange of the contract for sale.
and minimising the practice of gazumping.
Cooling-off periods
Exemptions to caveat emptor
There are exemptions to the caveat emptor rule.
Once the contract for sale has been exchanged
between the vendor and buyer, the buyer has a five-
14
According to Tony Cahill in his paper, Vendor day cooling off period to reconsider if they wish to
Disclosure and Warranty, some of these are: go ahead with the purchase. This is because the
• concealed defects such as structural problems purchase of a property is such a large investment and
to ensure the sale goes ahead – see Anderson v once the contract is signed there is little protection
Daniels (1983) NSW ConvR 55-144 where there in place if it was done so in good faith. The cooling-
were papered-over settlement cracks; Gronau off period is provided for under the Conveyancing
v Schlamp Investments (1975) 52 DLR (3d) 631 Act 1919 (NSW) and under s 66 the contract can be
concerning subsidence; and Rowley v Isley set aside if the parties agree. This is usually done to
[1951] 3 DLR 766, which involved a cockroach speed up the purchase.
infestation The exceptions to this can be found in the
• where the contract involved the purchase of a Contracts Review Act 1980 (NSW), which states that
house being constructed with the expectation a contract may be set aside if the court believes
that it would be fit to be inhabited (see Barber v one party may have been in a stronger bargaining
Keech (1987) 64 LGRA 116). position and/or one of the parties may not have fully
understood the nature of the contract or its terms.
Gazumping Whether any coercion or duress by one of the parties
The vendor and seller come to a verbal agreement on the other or any other factors such as language
on the price of a property but at this stage contracts barriers, level of education, and mental capacity
have not been exchanged and the 10% deposit on have affected the fairness of the agreement can also
the sale may not have been paid. It is during this time be examined.
that the vendor may agree to sell to another buyer If the purchaser wishes to withdraw from the
at a higher price and the first buyer is gazumped. contract during the cooling-off period they will have
to pay 0.25% of the purchase price, which will usually
gazump be deducted from the 10% deposit already paid. This
buy a property for which the vendor has already reached
a verbal agreement with someone else, by offering a is to compensate the vendor for having the property
higher price off the market for a period.
Insurance protection
Research 14.2 A number of insurance protections are available to
home purchasers to ensure against loss in the case of
The NSW Fair Trading website has misadventure and changed financial circumstances.
information on gazumping in its section, Some of these are:
‘Tenants & Home Owners’. • Building insurance – this is taken out by the
1 If a prospective purchaser is gazumped, owner of the property to insure the property
what refunds or compensation are they against risks such as fire, landslip and storm
entitled to from the vendor or the agent? damage. Once exchange of contracts has
2 List four things a purchaser can do taken place it often becomes the buyer’s
to protect themselves from being responsibility to insure the property during the
gazumped. conveyancing process. This ensures that the
structure is covered at all times.
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CAMBRIDGE LEGAL STUDIES HSC
Standard contract of sale
The evolution to a standard contract of sale is in itself
a form of protection for the parties involved in the
purchase of a property. The clearly outlined process
from exchange of contracts to settlement ensures
a degree of certainty in the rights and obligations
of both vendor and buyer. (This is discussed in the
section, ‘Private treaty or auction’.)
Review 14.6
1 Explain what a cooling-off period is, and
why it is important.
2 Outline what the following types of
insurance protect against:
Figure 14.9 Building insurance is taken out by the
a building insurance
owner of the property to insure the property against b mortgage protection insurance
risks. c public liability insurance.
• Mortgage protection insurance – this can be
taken out voluntarily or may be requested by
the financial institution lending money for the 14.3 Leasing
purchase of a property. This insurance covers Not everyone can afford to purchase their own
loss of income through a range of factors, such property. They therefore enter into a residential
as economic downturn resulting in fewer hours lease agreement with the owner (landlord) to
worked, redundancy or a death in the family. rent their property under specific conditions,
• Public liability insurance – this is taken out by including the agreed duration and the monthly
home owners to insure against injury or death rent to be paid. Residential leases are also known
to anyone on or around their property. People as ‘residential tenancy agreements’ and the
will come into a property for various reasons basic rights and responsibilities are set out in the
whether invited or not, and all property owners Residential Tenancies Act 2010 (NSW). Leases under
have a duty of care to ensure it is safe for this Act include some standard terms that cannot
people to do so. be altered.
Additional protections residential lease
an agreement between the owner of a property (landlord)
Under the National Consumer Credit Protection and the person who is renting it (tenant)
Act 2009 (Cth) all consumers entering into credit
contracts (including home loans) can expect that
the loan amounts to ‘responsible lending’, there The rights and obligations of
is appropriate time for adjustments to repayment landlords and tenants
schedules to be made in times of financial hardship
The Residential Tenancies Act 2010 (NSW) sets out
and, consistent with the Contracts Review Act, that
the main rights and obligations of landlords and
there are protections against unjust contracts. In
tenants. Some of the standard terms and conditions
addition to this, all disputes around credit contracts
of a residential lease agreement include things such
must be resolved by an external dispute resolution
as:
scheme.
• the right to occupy the premises and have
possession and quiet enjoyment of the
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CHAPTER 14 OPTION 5: SHELTER
Civil and Administrative Tribunal (NCAT) to have
Legal Links the condition report altered.
Go to http://cambridge.edu.au/redirect/ condition report
?id=6380 to download a standard residential an inspection checklist of the state of the premises
signed by both landlord and tenant prior to the tenant
lease agreement. moving in
premises with restrictions on the landlord’s
Rates, water and electricity 14
Under s 39 of the Residential Tenancies Act 2010
access to the property
(NSW), a tenant will have to pay for water usage
• an agreed level of rent and when this can be
only if the premises that they are residing in has a
increased or decreased
separate meter and the property has water efficiency
• agreement around repairs including urgent
measures in place. There must be no leaking taps
repairs, the tenant’s use of the premises and
from the commencement of the tenancy and the
the payment of taxes, water rates and other
flow rate must not exceed 9 litres per minute. The
charges
tenant must also be provided with the metered bill
• alterations and additions to the premises
from the relevant water authority; otherwise, this is
including locks and other security devices
a responsibility of the landlord.
• the right to sub-let and transfer the tenancy
The payment of rates is the responsibility of
• any relevant strata title information.
the landlord whereas most tenants will negotiate
All agreements must be in writing and where
with the local electricity supplier to have the power
an agreement is long term (for more than 20 years)
turned on and an account made out in the tenant’s
some of the mandatory terms may be varied except
name. Where there may be more than one tenant
those around payment of taxes, water, rates and
using electricity of one meter it is the responsibility
some other terms. The landlord must disclose
of the landlord to pay and seek reimbursement.
matters such as if the property is up for sale, if it is
subject to foreclosure by a financial institution or
Bond money
if the premises has been subject to fire or flood in
Tenants will have to pay bond money; this cannot
the previous five years. If the premises poses some
exceed more than four weeks’ rent and is paid by
form of health risk, this also must disclosed, as well
the tenant to the landlord prior to the tenant moving
as if there has been a serious violent crime on the
into the premises.
property. Also of relevance may be if the tenant will
Under the Landlord and Tenant (Rental Bonds)
need a residential parking permit, who will pay for
Act 1977 (NSW), money paid as a rental bond on
that and if there are any easements that may affect
residential property must be lodged with Renting
the tenancy.
Services in NSW Fair Trading, who holds it as
There are a number of notable areas of rights
security. If the tenant does not comply with terms
and obligations of tenants and landlords, discussed
and conditions of their tenancy agreement, this
below.
money can be used to settle a claim by the landlord.
At the end of the tenancy, the bond money can be
Condition reports
claimed back with interest if the landlord is satisfied
A condition report is an inspection checklist of the
with the state of the premises. Once this occurs, the
state of the premises signed by both landlord and
landlord must sign the ‘claim for refund of bond
tenant prior to moving in. Before signing the lease, a
form’ and NSW Fair Trading will transfer the money
condition report must be completed to ascertain the
into an account of the tenant’s choice. When there
state of the premises with respect to cleanliness, any
are disputes in the reclaiming of bond money, the
damage that exists and the condition of fixtures such
tenant may apply to the department to have the bond
as lights and appliances prior to the tenant moving
money returned without the written consent of the
in. If the tenant disagrees, they can have this noted
landlord. NSW Fair Trading will contact the landlord
on the condition report or they can apply to the NSW
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CAMBRIDGE LEGAL STUDIES HSC
obtain the permission of the landlord before
In Court removing or altering fixtures at their own expense.
Groth v Kantipudi (Tenancy) [2012]
Repairs
NSWCTTT 410 (10 October 2012)
Under the Act the landlord has an obligation to
In this case the landlord (applicant) claimed
ensure the premises are habitable, clean, safe and
bond money to be paid for unpaid water rates
secure. They also have a responsibility to ensure it
and cleaning costs due to the generally untidy
stays in this state. When urgent repairs need to be
state of the premises. The applicant also
completed, the landlord should be notified in writing
claimed compensation for carpet cleaning,
if possible, but the repairs should be completed
repair of the kitchen benchtops, removal of
immediately. If the landlord cannot be contacted,
graffiti and replacement of some doors and
the tenant can have the repairs carried out and
locks. Money was also sought to replace the
be reimbursed within 14 days up to costs of $1000.
lino floor in the kitchen and to repair some
For non-urgent repairs the response time will be
holes in the walls.
considerably less, but these will need to be carried
The tribunal was satisfied in this case that
out within an agreed deadline. The tenant can apply
the applicant was owed compensation on all
to have these carried out by the NCAT three months
of these matters and the respondent (tenant)
after the deadline.
was ordered to pay $1458.00. Evidence
presented by the respondent saw the amounts
Rent
originally tendered by the applicant adjusted.
The rent can be increased as many times as the
In this case, the bond money paid at the
landlord wishes. There are, however, limits to when
beginning of the tenancy was required due
this can happen, especially in the case of a fixed-
to the tenant failing to fulfil their obligations
term lease. The rent cannot be increased during a
to the landlord. However, as the bond money
fixed term of less than two years unless otherwise
amounted to only $720.19 it remains an issue
stated in the agreement. For fixed terms of two years
as to how the landlord might receive all of the
and more, the landlord must give 60 days’ written
compensation owed by the respondent.
notice but it cannot be increased more than once
in a 12-month period. If the agreement becomes a
periodic agreement, the rent can be increased with
and give them 14 days to respond. If they do not do written notice every 60 days.
so, the rent money will be returned but if the landlord
does respond it will be up to the tenant to apply to
NCAT for a decision.
Quiet enjoyment of the property
Once the lease agreement has been signed, the
tenant has the right to quiet enjoyment of the
premises like any other householder. This means
that the landlord must not interfere with this privacy
and they, or their agent, must take steps to ensure
that neighbours also do not interfere with this right.
As such, landlords cannot enter the premises
without the tenant’s permission, must give seven
days’ notice to carry out an inspection and can do so
no more than four times a year. If repairs are needed,
two days’ notice must be given if they are not urgent.
Conversely, the tenant must give the landlord Figure 14.10 The landlord has an obligation to ensure
access to the property when permitted and must the premises are habitable, clean, safe and secure.
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CHAPTER 14 OPTION 5: SHELTER
Ending a tenancy
Under a fixed agreement, the tenant must give 14 Research 14.3
days’ notice that they will be ending the tenancy
Do an internet search to answer the following
agreement and the landlord is required to give
questions about tenants’ rights and obligations
30 days’ notice. Once the fixed term is up and the
under the Residential Tenancies Act 2010
agreement is not ended, the agreement becomes an
(NSW). A good starting point is the fact sheet
ongoing one called a ‘periodic agreement’ usually
for up to a month at a time. When the tenant wants
to end this type of arrangement, 21 days’ notice is
on the Tenants’ Union of NSW website.
1 List three tenants’ rights, and explain why 14
they are important.
required to be given, but the landlord must give 90
2 List three tenants’ obligations, and
days’ notice. In this situation, the landlord does not
explain why they are important.
have to give a reason for ending the agreement.
If the tenant believes the landlord has breached
the agreement, they can end the agreement by
providing reasons and 14 days’ notice. They can serves an important social function given the
also apply to NCAT to have the agreement set shortage of housing in many housing markets. They
aside, and the money owed to the landlord would can also experience situations where their properties
be determined. can be extensively damaged or where it becomes
The landlord can end the tenancy if they believe problematic evicting tenants who have breached the
the tenant has breached the agreement and must tenancy agreement, and they may spend time and
give 14 days’ notice and explain the breaches that resources retrieving money owed as a result.
have occurred. The Residential Tenancies Act 2010 (NSW),
If there are goods left on the premises, the which replaced the 1987 Act, essentially attempts to
landlord can sell these after giving the tenant notice balance the protections afforded both landlords and
that this is to happen. Assuming the good are not tenants. Some of the changes include:
perishable, the landlord has to wait 14 days after • When fixed term tenancy expires, the landlord
giving notice to dispose of or sell the goods. The has to give 90 days’ notice to vacate under s 85
tenant may be reimbursed for the goods after the as opposed to 60 days previously.
landlord’s costs are deducted. • The landlord can still issue notice to vacate
It is illegal for a landlord to lock a tenant out of in 14 days if the tenant is 14 days behind in
the premises, but if proper notice is given to end rent under s 88 and s 89. The landlord must
the tenancy and the tenant does not move out in the also inform the tenant that they do not have
specified time then the landlord can apply to NCAT to vacate if they pay the rent and agree to a
within 30 days for an order of termination and an payment plan in the future. NCAT cannot issue
order of possession. a vacate order if the tenant satisfies this unless
they have a history of being behind in their rent.
Protection for tenants, landlords, These sections provide better access to the law
boarders and lodgers for tenants as landlords cannot arbitrarily evict
There are a significant number of tenants who can them if there is no pattern of rent arrears and
be in a vulnerable situation due to poor financial the rent is paid up within the specified time
circumstances and poor access to the law. The frame.
protections outlined above, mainly with regard to • If a tenant wants to sub-let they must have
the residential tenancies agreement, are important the landlord’s permission, but under s 75 the
checks and balances to ensure that adequate Act states that the landlord cannot refuse this
housing and appropriate property rights are afforded permission unreasonably.
to tenants. Critics such as the Property Owners’ Association
Landlords in contrast have outlaid significant of New South Wales have argued that protection
sums of money for the purchase and upkeep of for landlords has been weakened with the balance
residential property available for rent. Tenancy tipped in favour of tenants’ rights, especially in the
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CAMBRIDGE LEGAL STUDIES HSC
area of security of tenure and the terms of the tenancy
agreement. In contrast to this, the Tenants’ Union of Review 14.7
NSW believes the 2010 Act is an improvement on the
1987 legislation, as it has improved the rights of and 1 Explain the purpose of the rental bond
protections for tenants. payment.
There is also a suite of state and federal 2 Outline the landlord’s responsibility for
legislation that outlaws discrimination, especially making repairs to the property.
for those seeking rental accommodation. This is 3 List the notice periods that must be given
examined in the ‘contemporary issue’ sections. by a tenant and a landlord for ending a
tenancy.
Boarders and lodgers 4 Discuss how the Residential Tenancies
Boarders and lodgers comprise some of the most Act 2010 (NSW) improved the protections
vulnerable tenants in Australia. They can take many for tenants.
forms, such as people living in guesthouses, hostels,
motels and private homes. They are not covered by
Residential Tenancies Act 2010 (NSW) and as such
do not sign residential tenancy agreements. They
14.4 S
ecuring other types of
therefore are not afforded the rights and protections
shelter
that normal tenants receive under the standard
residential agreement. Aged care
There have been calls to ensure that this group In Australia, it is projected that by 2025 there will
of people has the benefit of greater government be more people aged 65 years and over than there
regulation to protect them from unsafe and will be children aged 0–14 years. This pattern will
unhygienic premises, harsh rent increases, and give continue and will have significant implications of
them greater privacy and security of tenure within the provision of appropriate aged care for older
the confines of their accommodation. New South Australians. The level of care required will determine
Wales lags behind other states that have improved the type of supported accommodation needed by
legislative protections for these tenants. older people.
At present, boarders and lodgers have to rely on
NCAT to ensure that some basic rights to shelter are Retirement villages
enforced. In the case of Doran v Lia, GEN 10/57830, These are regulated by the Retirement Villages Act
20 April 2011, the Consumer, Trader and Tenancy 1999 (NSW) and the Retirement Villages Regulation
Tribunal found ‘that the accommodation was not 2009 (NSW). According to NSW Fair Trading,
reasonably fit for the purposes of [a boarding house] a retirement village is ‘any residential complex
and thus the money outlaid by the applicant [$600] predominantly occupied by retired persons aged
should be returned by way of compensation’. over 55 years who have entered into some form of
contractual arrangement with the owner or operator
of the village’.
It estimates that there are close to 600 retirement
Legal Links villages across New South Wales, with approximately
36 000 residents. These are operated by church,
To further investigate the poor conditions that charitable, community and private operators. There
exist for many people living in boarding house are three main types of accommodation offered in
go to: retirement villages:
• http://cambridge.edu.au/redirect/ 1 self-contained premises for people who can live
?id=6608 independently
• http://cambridge.edu.au/redirect/ 2 serviced premises (or assisted living
?id=6609 apartments), where cleaning, meals and other
services are provided
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CHAPTER 14 OPTION 5: SHELTER
People in these situations are permanent
residents who have been assessed by an aged care
assessment team to ascertain whether they are
no longer able to live at home unassisted. In ‘low
care’, the resident will be provided with assistance
with day-to-day living such as meals, laundry and
cleaning. Other services such as various treatment
and therapies as needed should be provided.
All residents, depending on their assets, will
14
have to pay an accommodation bond to secure a
place in hostel-style accommodation. Part of this will
be refunded when the resident leaves the home, but
a proportion of the bond will be paid to the home
for services rendered. This is predetermined when
Figure 14.11 As Australia’s population ages, more the resident signs the resident agreement (contract)
supported accommodation will be needed to meet upon entry. Any interest earned on the investment of
older people’s requirements.
the bond by the home is also returned to the resident.
3 a mix of the two, so that residents can transfer if accommodation bond
a payment made by nursing home residents to secure a
it becomes necessary. place, partially refunded when they leave the home
One of the criticisms of retirement villages is
that there is a variety of fee structures and financial In addition, if a resident enters ‘high care’ for
arrangements for entry to and exit from a retirement more than 28 days, they may be asked to pay an
village and that it is hard for people wishing to accommodation charge. This daily amount, which
enter a retirement village to compare services and is asset-tested, is fixed from the day they enter
costs. high care until they are discharged. They cannot
All residents have to sign a contract and some of be required to pay the charge more than a month
these can be lengthy and complex. Each retirement in advance. An aged care home must be certified
village must establish a ‘residents’ committee’ and as meeting minimum building and care standards
a ‘disputes committee’ to allow the residents to have before it is allowed to levy an accommodation charge.
a say in the day-to-day running of the village and to
mediate any disputes that may occur. accommodation charge
All residents have a right of appeal to NCAT. It a daily amount payable by nursing home residents who
require ‘high care’
can make orders with respect to the movement of
residence from a self-care situation to a hostel unit Some residents who cannot afford to pay these
due to deterioration in health. The tribunal can also costs can be subsidised by the federal government
make orders with respect to matters arising from to cover the bond or charge. The resident would pay
village contracts and rules, ongoing charges and the basic daily care fee.
accounts, termination, security and the sale and In addition to residential care, the Aged Care
letting of premises. Act 1997 (Cth) also regulates the following types of
supported aged care:
Nursing homes • community care (CACP)
If an older person doesn’t need to be in a hospital, but • Extended Aged Care at Home (EACH)
requires more care than can be offered at home, they • Extended Aged Care at Home – Dementia
may move to a nursing home. Most nursing homes (EACH-D)
have nurses and aides trained in aged care on hand • transition care.
24 hours a day. These are usually classified into ‘low A constant challenge in nursing homes is the
level’ and ‘high level’ care and are regulated by the quality of care that is afforded to older people.
Aged Care Act 1997 (Cth). Those with the ability to pay can purchase a place
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CAMBRIDGE LEGAL STUDIES HSC
in these circumstances a licence is paid to the park
Legal links owner to occupy a site for the length of the stay.
Alternatively, some residents who wish to
The Charter of Care Recipients’ Rights and
stay long term are classed as being in a landlord
Responsibilities – Residential Care is available
and tenant relationship. As such they are given
on the Department of Social Security website,
protections under the Residential Parks Act 1998
at http://cambridge.edu.au/redirect/?id=6381.
(NSW) concerning security of tenure, especially
once they have signed a residential tenancy
agreement. Long-term residents are also covered
in a privately run nursing home, which may provide by the Landlord and Tenant (Rental Bonds) Act 1977
more comfortable and private accommodation. (NSW) with respect to payment and retrieval of bond
The most vulnerable people requiring this type money.
of shelter have limited choice as to what place they
ultimately acquire and must accept the limited Squats
resources available and the services this can provide Some people occupy properties without the owner’s
from government taxes. In addition to this, there is permission and reside in these premises rent free.
a shortage of nursing care – in particular, training At times, the premises may be abandoned buildings
in aged care, which is fundamental to being able to where the owner is going to redevelop a site and
address the needs of older people, especially those the value of the land may be worth more than the
dependent on ongoing care. value of the premises. Such buildings can remain
Under the Aged Care Act 1997 (Cth), nursing unused for a number of years. This type of situation
home providers must adhere to the Charter of Care is usually more common in urban areas than in the
Recipients’ Rights and Responsibilities – Residential countryside, and in some cities of the world squatting
Care, which lists 21 rights for care recipients, is an accepted practice. The reason for this is that
including personal privacy, quality care, health the site is providing shelter for people who may not
information and personal independence. There is otherwise have it and, as the building is unoccupied,
also the right to be treated with respect and dignity. a social use is being made of the building.
In addition, four responsibilities are listed, including However, residents in these situations have no
respecting the rights of other residents and of staff. tenancy rights as there is no agreement between the
Some criticism has been made over the years owner of the property and themselves. The owner
as to the enforceability of the charter and the may get an order from a court to evict people who
resources dedicated to ensure that aged care trespass.
providers are adhering to the charter. This does not
mean to diminish the providers that provide a quality
service and the dedicated staff that work in what is 14.5 D
ispute resolution
a challenging area of employment. mechanisms
Most disputes that arise from people acquiring or
Residential parks residing in some form of shelter usually result from a
According to NSW Fair Trading, a residential clash of rights and responsibilities between landlord
park includes ‘caravan parks, manufactured home and tenant, or neighbour and neighbour, or they may
estates, mobile home villages and relocatable home emerge during the purchasing of shelter. For most
parks’. Residential parks in New South Wales are people the courts are out of reach due to costs and
regulated under the Residential Parks Act 1998 delays.
(NSW). Alternative dispute resolution and the creation
For many people this is an alternative form of specialist tribunals has proven to be more cost-
of accommodation that has a variety of tenures effective and timely than the courts, given the
associated with it. Some people stay temporarily immediacy of disputes around shelter. Non-legal
overnight or up to a number of weeks. This is usually measures such as non-government organisations
classed as some form of holiday accommodation and and the media are just as important to ensure that
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CHAPTER 14 OPTION 5: SHELTER
all people have the opportunity to acquire adequate tribunals use ADR to resolve matters quickly
and affordable shelter. and efficiently (for example, the Human Rights
Commission and NCAT).
Courts and tribunals NCAT cites conciliation as a method of dispute
Specialist tribunals have improved the accessibility resolution when its states that the conciliation process
of the law for many people with disputes around ‘is closely linked to the hearing process, rather
shelter. Courts will ultimately be an avenue of than [being] a separate step of dispute resolution.
appeal and importantly an avenue of justice in some
matters that require a specialist understanding
Conciliation brings people in dispute together to talk
about their issues in an informal, private meeting
14
of the law. Contractual disputes can arise during and try to reach an agreement. Conciliation is
the conveyancing process. This can occur when also used extensively in matters involving multiple
false and misleading information may have been applications about the same dispute, for example
disclosed in the contract for sale or when a legal in residential parks and retirement village matters.’
representative fails to discover easements or other
factors affecting a property for sale. Government organisations
The evolution of specialist tribunals has been a Various state and federal government organisations
sensible one, especially in the area of landlord and have been established to implement policy that
tenant rights and responsibilities. allows governments to meet their commitments
The NSW Civil and Administrative Tribunal in providing social housing options for those most
(NCAT) was established under Civil and in need. Other government organisations provide
Administrative Tribunal Act 2013 (NSW). It ensures information and research to better inform the
access to the law, particularly for tenants who government and the community around issues
might otherwise be unable to pursue matters affecting the provision of shelter.
arising from their tenancy agreement. NCAT can
hear most disputes revolving around residential Department of Families, Housing,
tenancy agreements involving landlords and Community Services and Indigenous
tenants, including residents of Housing NSW Affairs (FaHCSIA)
(public housing) and residential parks; matters are FaHCSIA is a federal government department that
usually heard within 21 days. Urgent hearings can oversees a number of federal government initiative
be scheduled within two or three days when needed. policies including those on housing affordability,
Legal presentation can be allowed but only when homelessness and social housing.
good reason is given. This is to ensure that the
parties come to the tribunal on a level footing, which Housing NSW
in most cases would be upset by an experienced Housing NSW is an agency of the NSW Department
legal representative advocating a matter. of Family and Community Services (FACS) and is
NCAT can hear and resolve matters relating to one of the largest providers of social housing in
disputes arising from residential tenancy agreements the world. It meets modern community needs by
that are highlighted in the earlier sections, ‘Leasing’ providing various housing solutions. Housing
and ‘Residential parks’. Matters referred to in the NSW partners with the community, industry and
‘contemporary issue’ section on social housing also individuals to provide affordable, safe and decent
make reference to NCAT. housing for those most in need. The aim is to allow
them to live with dignity, find support if needed and
Alternative dispute resolution achieve sustainable futures.
Alternative dispute resolution (ADR) can be the
most effective and inexpensive method of resolving Rental Bond Board
disputes around shelter. The Rental Bond Board is an independent
Mediation and conciliation take various forums to government body. When a tenant pays a rental bond
prevent a court or tribunal from having to adjudicate to their landlord, the landlord must lodge it with this
in some matters. Many government agencies and board, which is the custodian of the money. Daily
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CAMBRIDGE LEGAL STUDIES HSC
Community justice centres
Community justice centres provide free mediation to
people attempting to resolve their disputes. This can
include neighbourhood disputes, which can involve
matters pertaining shelter.
Non-government organisations
There are numerous non-government organisations
(NGOs) that advocate on behalf of people in various
forms of shelter. NGOs are a non-legal measure and
the effectiveness of what they do lies in their ability
to pressure relevant sectors of government into
improving the rights of the people they represent.
They may undertake their own research and
Figure 14.12 Housing NSW is one of the largest produce academic papers that highlight gaps in the
providers of social housing in the world. law or issues concerning the accessibility of the laws
to their members. In addition to this, they may use
the media to draw attention to a particular issue that
functions – bond lodgement, custody, refund and
may force a government minister to reply in public.
information – are administered by NSW Fair Trading.
As a non-legal measure such groups find it difficult
to attract adequate funds to carry out their missions.
Home Building Service
At times they are ignored by government – especially
The Home Building Service is an arm of NSW Fair those groups that represent the more marginalised
Trading. Its main function is to ensure compliance people in society who might not make a significant
with the Home Building Act 1989 (NSW). Under impact at the ballot box.
the Act, builders and tradespeople must have a NGOs include the following:
licence to undertake residential building work. This • The Seniors Rights Service (formerly known as
includes specialist tradespeople, such as plumbers, the Aged-care Rights Service, or TARS) is a
electricians and airconditioning specialists. The Act community legal centre. It provides legal advice
also sets up standards around competence, probity, and advocacy for people living in self-care
contracts, statutory warranties and home warranty retirement villages. It also provides non-legal
insurance to protect people against incomplete or advocacy to people in Commonwealth-funded
faulty work. There has been criticism over the years hostels and nursing homes, and recipients of
that building contracts are too broad and do not in-home aged care in New South Wales. All
provide adequate protection for people building a calls to the service are confidential. Its 2014–15
home. annual report said:
Housing Appeals Committee Our advocates have assisted 920 recipients or
The Housing Appeals Committee is an independent carers with advocacy matters, dealing with issues
agency that can review administrative decisions of of security of tenure in their aged care home,
social housing providers. The aim is to provide a quality of care, specified care and services, staff
dispute resolution system that is fair, informal and skills, fee disputes and communication systems.
quick. Applicants and tenants of public housing This is an increase of 452 advocacy cases from
and community housing organisations can seek a the previous year. Another 1327 people including
review when they believe the housing provider has other family members, ACAT and concerned
made a decision that is not in accordance with its professionals, including aged care managers
own policies. caring for clients, have been assisted to access
information on aged care rights and standards of
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CHAPTER 14 OPTION 5: SHELTER
care. These calls are 572 more than we responded Recent deaths and squalid conditions have been
to last year. exposed in the media and have again put the state
government under increasing pressure to improve
It would seem that NGOs such as the Seniors the rights of these people.
Rights Service are valuable advocates for
older people who need support and advice
Review 14.8
when faced with difficulties in the aged care
system.
• The Council of Social Service NSW (NCOSS)
1 Summarise the differences between
retirement villages and nursing homes,
14
has an important role in coordinating non- in terms of both the level of care and the
government social and community services in fee structures.
New South Wales. It provides informed and 2 Explain why ‘squatters’ have no legal
independent policy development, advice and property rights.
review. At times it develops position papers, 3 Outline the key roles of government
especially on the social housing sector. organisations that deal with shelter.
• The Tenants’ Union of NSW is the key NGO for 4 Explain the areas in which NGOs
the representation of tenants and other renters advocate on behalf of people in various
in New South Wales. It gives advice to tenants forms of shelter.
about their rights and obligations under the
existing residential tenancy law.
• Homelessness Australia is the main national
organisation that offers advocacy for people 14.6 C
ontemporary issue:
experiencing homelessness and those who Affordability
provide services to them. It is involved in The ability of individuals to acquire accessible,
the research, development and promotion affordable and secure housing is the primary
of national policies and action to reduce driver of their participation within their local and
homelessness. It also has a role in educating broader communities. A significant threat to this is
the community about homelessness. the erosion of housing affordability in many of the
housing markets in Australia. Definitions of ‘housing
The media affordability’ can vary depending on the data used,
Complex contractual disputes involving the plight of but ultimately it means a person’s ability to pay for
the most marginalised people in Australian society their own shelter.
often form the basis of public interest stories that Some estimates put the number of Australians
mainstream media want to follow. The power of the paying above the benchmark of 30% of household
media is in the audience they can reach and the income for housing at around 1.5 million people. It is
ability to highlight an issue that might well be swept well established that this puts substantial pressure
aside or ignored within a government department. on family finances, especially for people in rental
The media does not always change government situations where it is becoming increasingly difficult
policy, funding or decision-making, but they are an to find adequate and affordable accommodation
important part of the law reform process. without having to relocate away from essential
The media have the ability to present the views services.
of various stakeholders on an issue that may be in The COAG Reform Council’s comments on the
the public interest. An example of this has been the state of housing in Australia are not encouraging. In
ongoing need to strengthen the protections afforded 2012–13, its report looked at the private rental market,
to people classed as boarders and lodgers. Many and found that up to 42% of low-income households
of the people who live in this form of tenure have were suffering from housing stress – a figure that is
been denied basic rights to safety and privacy, as historically high and continues to rise.
well being the subject to misleading and deceptive According to the Australian Institute of Health
behaviour by some operators of boarding houses. and Welfare in the report, Housing Assistance in
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CAMBRIDGE LEGAL STUDIES HSC
Home prices outpacing earnings: IMF
Clancy Yeates
Sydney Morning Herald, 12 June 2014
Australian homes are among the most expensive
in the world when household incomes and rents
are taken into account, International Monetary
Fund figures show.
As part of a move to push governments to act
against housing bubbles, the fund unveiled
comparative data on Thursday morning
intended to underline the high cost of homes.
It shows rising prices have pushed two key
measures of home values – the ratios of house
prices to incomes and prices to rents – well
above their long-term averages.
With houses selling for more than four times Figure 14.13 House price-to-income ratios around
the average household income, the IMF said the world.
this ratio in Australia was much higher than its
historical average.
A 24-country comparison showed that Australian homes were behind only those of Belgium and
Canada when judged by this measure.
The other metric it used to measure home values was the ratio of prices to rents. This was also
much higher than the long-term average in Australia, which by this criterion ranked fifth most-
expensive behind Belgium, Norway, New Zealand and Canada.
IMF deputy managing director Min Zhu said the fund was publishing the data in an attempt to
ensure governments moved from a policy of ‘benign neglect’ regarding house prices. ‘Our research
indicates that boom-bust patterns in house prices preceded more than two-thirds of the recent 50
systemic banking crises,’ Mr Zhu said in a blog post.
He also noted Australia was among a handful of countries where price-to-income and price-to-rent
ratios were ‘well above’ their historical averages.
The IMF data is the latest indication of the high cost of Australian housing, which some economists
believe has started to deter buyers. In April, Barclays economist Kieran Davies said prices were
‘flashing red’ with prices at 4.3 times household income and 28 times annual rent, both just below
record highs.
In a sign the market might be cooling, however, capital city prices recorded their first monthly fall in
a year during May, according to RP Data-Rismark. Sydney’s median house price fell 1.1 per cent in
the month to $678 500 and Melbourne’s dipped 3.6 per cent to $555 000.
Australian houses have long stood out as expensive when compared with other nations. But Mr
Zhu conceded that detecting overvaluation was ‘more art than science’ and it was important to also
consider factors such as credit growth and household debt.
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CHAPTER 14 OPTION 5: SHELTER
On this front, recent figures have been less dramatic. Latest Reserve Bank of Australia figures show
housing lending growing at its fastest annual pace in three years, but it is still well below the pace
reached before the global financial crisis.
Household debt as a share of disposable income is also at a three-year high, at 148.8 per cent, but
14
remains below record highs.
In order to prevent housing markets from overheating, the IMF recommends governments consider
rules to rein in riskier bank lending, which Australia has so far avoided.
Mr Zhu said more than 20 countries had adopted ‘macroprudential’ policies such as caps on low-
deposit loans or debt-to-income ratios in recent years.
home. For example, in 2016 the Housing Affordability
Legal Links Index in Sydney was 61.5, indicating poor housing
affordability in that city. This was even lower than the
The Numbeo website takes user contributed
national Housing Affordability Index (see Fig. 14.14),
data to present an interactive world map of
which has been under 100 for some time. Figure 14.14
housing price to income ratios – see http://
indicates that housing affordability has increased
cambridge.edu.au/redirect/?id=6373.
since 2011 – this is partly due to the Reserve Bank cuts
to interest rates in 2014–15 in response to economic
Australia 2013, housing stress continues to increase. factors such as growth of the economy. Figures have
It stated: been reasonably steady, with fluctuations of generally
less than 1%, since the end of 2012.
[T]he average cost of housing has increased
Housing Affordability Index
substantially over the past decade. National house a key indicator that reports on the relationship between
prices increased 147% between 2001 and 2011 – from household income, mortgage costs and the price of
housing
$169 000 to $417 500. … The proportion of Australian
households in housing stress has increased, from
14% in 1994–95 to 18% in 2011–12. Of these, 2 in 5
Research 14.4
(42%) were low-income households.
Use the internet to do the following.
In addition to this, the numbers of people on
1 Identify and define the following:
waiting lists for social housing across Australia
a housing affordability
continue to climb.
b housing stress
One of the main measures of housing affordability
c social housing.
is the Housing Affordability Index, which reports
2 Analyse the effect that the Global
on the relationship between household income,
Financial Crisis and subsequent interest
mortgage costs and the price of housing. If the reported
rate cuts had on housing affordability.
index value is 100, this means that the earnings of a
3 Investigate the implementation of the
median-income family is exactly enough to let them
stamp duty tax and evaluate whether
get a mortgage on a median-priced home. If the index
reducing it was effective in providing
is below 100, then a median-income family would not
more affordable housing. Why? Why not?
be able to get a mortgage loan on a median-priced
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CAMBRIDGE LEGAL STUDIES HSC
Figure 14.14 The Housing Affordability Index
Improving housing affordability a reading of 74.9, an increase of 0.8% on the June
A number of government initiatives have been 2017 quarter, which had shown the poorest level of
implemented to improve housing affordability. Some affordability in nearly six years.
of these have been combined programs for first- These results, however, do not indicate whether
home buyers between the federal and New South there has been an improvement in the supply
Wales governments. These were aimed at providing of private rental properties or a levelling off of
funds for first-home buyers so they can afford a increasing rental prices. Sydney is now regarded
deposit on a home and reducing some taxes, such as as one of the most expensive cities in the world, and
stamp duty, to reduce the costs of home ownership. some of our other major cities are not far behind in
Housing NSW has provided funds for mortgage terms of housing affordability. Housing affordability
assistance for low-income earners as well as rental will continue to be a significant challenge for all
assistance schemes such as ‘Rentstart’. The governments and will be integral to long-term social
National Affordable Housing Agreement (NAHA), inclusiveness and cohesion. It is well accepted that
which came into effect in 2009, was signed between prolonged high housing costs and low interest
the state and federal governments. It aims to ensure rates result in a widening of the wealth distribution
that ‘all Australians have access to affordable, between those able to purchase housing and those
safe and sustainable housing that contributes to who cannot.
social and economic participation’. It aims to do The following are some generally recognised
this through better coordination and integration solutions to housing affordability:
of all governmental services and improvements to • increasing the supply of affordable rental
social housing as well as housing for Indigenous housing
Australians. It will also continue to explore ways to • tax reform – many commentators have argued
increase the supply of affordable housing. Ultimately, that negative gearing of investment properties
some of the structural problems associated with for tax benefits has artificially increased
housing affordability will take a number of years to demand and hence property prices
address, especially in the private market, but only • improving rental assistance
with sustained government policies that aim to • setting benchmarks for all levels of
improve market conditions. governments to achieve in housing affordability.
The Housing Industry Association Housing The law can be effective to some degree
Affordability Index released in June 2018 showed in promoting the above conditions, but non-
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CHAPTER 14 OPTION 5: SHELTER
denied accommodation due to prejudiced beliefs
Research 14.5 about a person due to their race, family or financial
situation.
Using the internet, find and read three Some real estate agents believe that by
articles related to housing affordability and discriminating they are protecting the interests
stress (see, for example, http://cambridge. of their landlords, which they have a duty to do.
edu.au/redirect/?id=6374. However, if a person complies with all that is required
of them and produces the necessary documentation,
there is no reason that the person and their family
14
government organisations that deal with the fallout should be denied shelter.
from housing stress continue to lobby government In New South Wales, the Anti-Discrimination Act
to adopt a well-funded, coordinated approach to 1977 (NSW) prohibits discrimination on the basis
housing affordability. Achieving such a coordinated of a broad range of categories. These include race,
approach would seem to be politically challenging. gender, age and marital status. The president of
Groups such as the Salvation Army, Australians the Anti-Discrimination Board can refer complaints
for Affordable Housing, Shelter NSW and many more of unlawful discrimination to NCAT. The tribunal
understand that addressing housing affordability is a has a number of divisions; complaints about
long-term issue that requires political and economic discrimination are heard by the Administrative and
will. Lastly, the media has the ability to highlight the Equal Opportunity Division, which was established
plight of those Australians experiencing housing under the Civil and Administrative Tribunal Act 2013.
stress and the social implications of this. Some of these complaints concern people who
have been discriminated against in the process of
acquiring shelter.
Review 14.9
According to the tribunal’s website, the tribunal
1 Recall the percentage change in median may determine several outcomes. Some of these are
income, rent and mortgage for New to:
South Wales and justify how this makes • find that there has been a breach of the Anti-
Sydney one of the most expensive cities Discrimination Act
in the world. • award compensation of up to $100 000 for loss
2 Explain why the 2014 Housing Industry or damage suffered because of the breach
Association/Commonwealth Bank
housing affordability index revealed
a recent improvement in housing
affordability.
3 Critically evaluate the solutions to
housing affordability and decide which
you believe would be most and least
effective.
14.7 C
ontemporary issue:
Discrimination
State and federal laws make it illegal to discriminate
against a person seeking shelter. The issue of
discrimination is more prevalent in the rental
market, particularly in areas where there is a
Figure 14.15 Some people are judged purely on
shortage of housing supply. Migrants, Indigenous appearance or culture. In some cases, these people
Australians and single mothers are more likely to be are denied rights.
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CAMBRIDGE LEGAL STUDIES HSC
It should be noted that under the current regime
Initial enquiry
of discrimination law at state and federal levels,
discrimination in all areas (including access to
housing) is difficult to establish. In addition to this,
Complaint lodged some argue that the monetary penalties are too
low and hardly entice people to bother making a
complaint.
The federal government drafted the Human
Obtain information Rights and Anti-Discrimination Bill 2012 with an
Complaint
terminated aim of consolidating all federal discrimination
(can apply law into one Act. Another aim was to place the
to court) responsibility on respondents to show why there
Conciliation
was no discrimination. A lack of political will by both
sides of politics has failed to deliver these reforms
that would strengthen the legislative regime that
Resolved Not resolved prohibits discriminatory behaviour.
Discrimination in the housing sector is
commonplace for marginalised people within the
community and will remain difficult to eliminate.
Complaint In essence, some landlords and the real estate
terminated
agents they operate through have predetermined
(can apply
to court) the types of people they do not want renting their
properties in the private market. Where this occurs it
Figure 14.16 The complaints process followed by the
Human Rights Commission.
In Court
• order the person responsible for the
discrimination, harassment, victimisation or Vasilikopoulos v New South Wales
vilification not to continue or repeat the conduct Land and Housing Corporation [2010]
• order the person responsible to take certain NSWCA 91
actions such as reinstating a person to their job Betty Vasilikopoulos sued her landlord after
if they have been dismissed taking a fall in her bathtub. According to Mrs
• order the person to publish an apology or a Vasilikopoulos, she had repeatedly notified
retraction. her landlord of the dangers that might occur
At the federal level there is a range of due to the poor infrastructure and design
discrimination legislation that the Human Rights of her bathtub and shower. The landlord
Commission has the authority to investigate had agreed to investigate this problem at a
and conciliate, such as complaints of alleged later date. Mrs Vasilikopoulos had also just
discrimination and human rights breaches lodged undergone knee surgery and was in an even
under these laws. The main body of federal more vulnerable state due to her restricted
discrimination legislation is the: mobility. The case was dismissed as the court
• Australian Human Rights Commission Act 1986 (Cth) found the landlord had no duty of care for Mrs
• Age Discrimination Act 2004 (Cth) Vasilikopoulos’ condition after her surgery
• Disability Discrimination Act 1992 (Cth) as the landlord was not aware of this. The
• Racial Discrimination Act 1975 (Cth) premises became unsuitable for her and her
• Sex Discrimination Act 1984 (Cth). husband due to their deteriorating health,
Complaints made against being denied and the landlord was found to hold no special
shelter due to certain forms of discrimination are duty for this occurrence.
investigated by the Human Rights Commission.
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CHAPTER 14 OPTION 5: SHELTER
is difficult to establish the real reasons those people 2 people who move between temporary shelters,
are denied housing. While technically equality of the living in boarding houses with no security of
law exists for all people seeking shelter, the reality tenure.
is that discrimination continues to erode people’s There are numerous causes of homelessness, so
fundamental right to secure shelter. reducing the number of people living ‘rough’ or in
very insecure or unsafe housing situations requires
a variety of strategies. According to the Salvation
Review 14.10
1 List the reasons why a person might be
Army, people can end up homeless due to:
• domestic or family violence, relationship
14
discriminated against and detail the breakdown and the subsequent financial
subsequent protection available from the difficulties that may arise from these
law. • rising rental costs and a lack of affordable
2 Analyse why discrimination is such a rental properties
prominent problem for those seeking • mental illness, drug and alcohol abuse
shelter. • the tightening of income support from the
3 Explain why African–Australians government and changes in family structures
often find it difficult to procure over time.
accommodation. It is estimated that approximately 75% of all
people categorised as being homeless are single
without any viable support networks.
In 2008 the federal government released its
white paper on homelessness, The Road Home:
14.8 C
ontemporary issue: A National Approach to Reducing Homelessness,
Homelessness and committed to a target of halving the number
The definition of ‘homelessness’ is broader than of people experiencing homelessness by the year
most Australians realise. Historically, we associated 2020. The paper sets interim targets of reducing
homelessness with a person living on the streets this number by 20% by 2013. It also committed
or in make-shift shelters. Australian federal law to ensuring that all rough sleepers who needed
defines homelessness as ‘inadequate access to safe overnight accommodation would be offered crisis
and secure housing’. Unsafe or inadequate can be accommodation by the same year. Part of this strategy
constituted by the following: was coupled with the NAHA, which commits to more
• It is damaging to a person’s health and/or public and community housing, and renewing and
threatens the person’s safety. building more housing for overcrowded Indigenous
• It marginalises a person or group of people shelters.
through a lack of ‘personal’ amenities or does
not provide economic and social support. community housing
secure and affordable rental properties for people
• It places a person in a situation in which the who earn a low income and who have a housing need;
‘adequacy, safety, security and affordability’ of homes are provided by not-for-profit community housing
organisations
housing are under the threat.
It was estimated that 116 427 people were
Close to $2 billion has been targeted to deliver
homeless on the 2016 census night – up from
improved housing outcomes for Indigenous
102 439 in 2011. In 2014–15, 255 657 people received
Australians who reside in remote areas, and
support and almost seven million nights of
additional funds for social housing maintenance and
accommodation were provided by specialist
new projects.
homelessness services.
As mentioned earlier in Section 14.1, there is
Another way of examining homelessness is to
no legal right to shelter in Australian law. There is
consider the two following categories:
a right clearly outlined in numerous international
1 primary homelessness, which includes people
instruments and, in light of this, state and federal
who live on the streets or in deserted buildings
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CAMBRIDGE LEGAL STUDIES HSC
Table 14.4 Rough sleepers by state and region
Rural Rural
Capital Regional and Capital Regional and Rate per
cities centres remote Total cities centres remote Total 10 000
No. No. No. No. % % % % No.
NSW 1182 547 1986 3715 32 15 53 100 6
Vic 845 245 1114 2204 38 11 51 100 4
QLD 591 792 3782 5165 12 15 73 100 13
WA 767 207 1418 2392 32 9 59 100 12
SA 251 16* 581 848 30 2* 68 100 5
TAS 125 34 226 385 32 9 59 100 7
NT 488 144** 956 1588 31 9** 60 100 3
ACT 78 0 0 78 100 0 0 100 3
Australia 4327 1985 10063 16375 26 12 62 100 8
*Includes Whyalla and Pt Pirie **Includes Palmerston and Alice Springs
governments recognise that there is a social international law, and provide invaluable responses
obligation in a nation as wealthy as Australia to to government position papers from hands-on
ensure its policies provide the maximum opportunity perspectives.
for all Australians to acquire adequate and
affordable housing.
Review 14.11
In 2006, Miloon Kathari, the United Nations
Special Rapporteur on Adequate Housing, advised 1 Analyse and justify why the definition
the United Nations Human Rights Council that of homelessness includes far more than
Australia had ‘failed to implement its legal obligation just someone living on the streets.
to progressively realise the human right to adequate 2 Explain the purpose of the federal
housing ... particularly in view of its responsibilities government’s white paper, The Road
as a rich and prosperous country’. Home: A National Approach to Reducing
It remains to be seen how effective the Homelessness.
government’s white paper on homelessness will be 3 Evaluate and explain why social service
over the long term. As indicated earlier, homelessness groups have a completely different
has increased between 2006 and the present day. On approach from the federal government to
this indicator it is difficult to imagine the ambitious homelessness.
goals of the paper being fulfilled and the criticisms 4 Summarise the suggestions for solutions
made of Australia in 2006 being a catalyst for change. for the lack of safe and affordable
However, the white paper does represent a more housing.
positive political commitment to address what is a
complex and difficult area.
Non-government organisations that interface
with the homeless on a daily basis provide an 14.9 C
ontemporary issue:
invaluable safety net for those most in need of Social housing and
shelter. Groups such as the Salvation Army, the St community housing
Vincent de Paul Society, the Wesley Mission and the
many youth shelter and advocacy groups try to fill Social housing
the gaps where government assistance fails or does Social housing includes public housing and
not reach. They also keep reminding governments Indigenous housing properties managed by
of their obligations under their own policies and Housing NSW. This is a type of secure housing that
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CHAPTER 14 OPTION 5: SHELTER
is provided to low- and very low-income households drug offences; and the premises being vacated for a
at affordable rents. Residents must meet certain long period of time. Some tenants make unauthorised
eligibility requirements and establish that they alterations to the property, which can also result in
have a housing need. Social housing tenancies are the termination of the agreement. Housing NSW will
covered by the Residential Tenancies Act 2010 (NSW). provide a 14-day notice to terminate and will take
They are similar to normal tenancy arrangements; the matter to NCAT for termination and possession
however, some parts of the Act do not apply. orders.
Some of the exemptions that exist for social
housing tenants under the Act reflect the fact the
Residents may take matters concerning their
tenancy to NCAT, but the review of administrative
14
landlord–tenant relationship is not the same as in decisions of Housing NSW is taken to the Housing
the private market and that residents pay subsidised Appeals Committee. This is an independent agency
rent. Some of the exemptions therefore refer to the established to provide cheap, timely and informal
provision of rent receipts and do not recognise the dispute resolution for applicants and tenants of
resident tenants in the same way as private renters public housing. The committee also has jurisdiction
are recognised under the Act, and breaches of the to hear matters pertaining to community housing
agreement may be handled differently. Residents bodies.
may claim their rent is excessive if their rental Housing NSW provides a number of subsidised
assistance is cancelled. programs in addition to housing stock. Some of
In assessing whether an applicant meets the these are:
criteria for social housing, the relevant government • Rentstart – a one-off loan to help residents
minister will determine eligibility and whether rental obtain a private rental agreement. This money
rebates apply under the Housing Act 2001 (NSW). could assist with bond money or other costs
People who apply after 2008 are now subject to associated with moving into a new rental
income limits, which are adjusted annually. Income premise.
limits are calculated according to the make-up of the • Special assistance subsidies, which are rental
family that will be occupying government-provided subsidies to allow someone to rent in the private
housing. For example, from 6 July 2015 the weekly market but only pay the same rent as if they
income limits were $890 for an adult with one child, were living in public housing.
$200 for each additional adult and $100 for each • Property leasing – the department may lease
additional child. Additional levels are also available a property itself from the private market and
for people with disabilities, with varying rates for the then sub-let this to social housing tenants at a
degree of disability. subsidised rate.
Assets are also assessed under the Act. As a
general rule, an applicant is not eligible for social
Review 14.12
housing if they own or have a share in a property and
could live in it or sell the equity in it to provide their 1 Justify the reasons why people must
own housing. There are some exceptions to this rule, meet certain criteria before being
such as if the person is in the process of a property eligible for social housing.
settlement because of a relationship breakdown, 2 Summarise the reasons a social housing
needs to move for particular medical treatment, or agreement may be terminated.
where alternative accommodation must be found 3 Analyse the subsidised programs put in
due to issues such as domestic violence . place by Housing NSW, hypothesising
Housing NSW is obligated to deal with repairs, on their effect on the community.
whether they are urgent or non-urgent, under the
Residential Tenancies Act 2010 (NSW). Residents also
have the right to apply to NCAT to have repairs fixed.
The most common reasons for ending a social
housing agreement are that the rent is in arrears;
for anti-social behaviour or criminal activity such as
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CAMBRIDGE LEGAL STUDIES HSC
Community housing Resources will never be able to sufficiently meet
Community housing is similar to social housing the need for social housing even though waiting lists
in that both provide secure and affordable rental in New South Wales indicate some improvement
housing for people on low or very low incomes who over the previous decade. Creating the conditions
have a housing need. The essential difference is for people to find long-term accommodation in
that community housing is provided by not-for- the private market is always a desirable goal, and
profit community housing organisations instead social housing at times can assist this process.
of Housing NSW. There are a number of these There are many people with varying degrees of
providers around the state and the rationale is that disadvantage, some of their own doing and others
this low-cost housing provides another avenue for due to circumstances out of their control, and they
the provision of housing infrastructure. do not have the financial resources to provide for
Tenants may appeal decisions made by themselves and their families.
community housing providers to the Housing The effect of creating areas of concentrated
Appeals Committee. This includes decisions about disadvantage in communities is well known after the
eligibility for community housing, transfer, offers disastrous public housing experiments of the 1960s.
of housing and rental subsidy calculations. Some Integrating social housing into our neighbourhoods
matters come under the jurisdiction of NCAT, such is not cost-effective but avoids the stigmatisation
as maintenance and leasing issues. that many social housing tenants continue to
The provision of social housing has many benefits experience. However, there remain too many social
to the community. Marginalised and disadvantaged housing precincts that are over-represented in
members of the community who require shelter criminal and adverse health statistics and welfare
should be able to enjoy their human right to dependency. Policy-makers must continue to look
adequate and affordable housing. While this is a for creative solutions, given the ever-increasing
financial burden on the community, governments costs of social and community housing in the
around Australia have recognised for many years the context of diminishing budgets, if we are to meet
obligations they have to ensure all citizens are able our international obligations regarding the provision
to contribute and participate in their communities, of shelter.
and shelter is central to the ability to do this.
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CHAPTER 14 OPTION 5: SHELTER
Chapter summary
• Shelter is more than a physical entity to be • The main source of finance for purchasing a
obtained. property is a mortgage.
• People who lack adequate and affordable • A credit report is compiled on an individual’s
housing are confronted with many other layers credit history and such a report is used to
of disadvantage. assess the type of risk a person might present
• There is no right to shelter within Australian
domestic law. Most of the legislative framework
when borrowing funds.
• Once the contract for sale has been exchanged 14
within Australia is centred on clarifying between the vendor and buyer, the purchaser
people’s rights and responsibilities within has a five-day cooling off period to consider if
various forms of housing tenure. they wish to go ahead with the purchase.
• The right to shelter exists in international law. • A residential lease agreement is a contract
Being a signatory to such treaties, Australia has between a tenant and landlord to pay to occupy
an obligation under international law to ratify (rent) a residential property for an agreed
these provisions into domestic law. length of time for a monthly rental payment.
• State and federal governments acknowledge • The NSW Civil and Administrative Tribunal
that there is an obligation to provide shelter if (NCAT) can hear most disputes involving
Australia is to protect the human rights of its residential tenancy agreements between
citizens and ensure society is inclusive for all. landlords and tenants, including residents of
• Shelter can be categorised into housing that Housing NSW (public housing) and residential
is acquired by individuals (private housing) or parks.
provided by government (public housing). • There are numerous government and non-
• The legal process for purchasing shelter is government organisations that regulate and
called conveyancing. inform the private and public housing sectors.
• The process of buying and selling property can • The long-term costs of increasing numbers of
be carried out in two ways. One is through a people being outside the housing market are
private treaty, whereby the property is put up far greater than the recurrent costs incurred
for sale and advertised for potential buyers to in intervening to promote affordability, ensure
make an offer. The other is through an auction, discrimination legislation is effective, reduce
whereby the property is put up for sale on a homelessness and provide sufficient social
particular day through a bidding process. housing to enable the poorest Australians
• The contract for the sale of property is a to acquire shelter and contribute to the
‘standard form contract’, which contains a community.
number of standard disclosures that must be • One of the main measures of housing
included in the contract. affordability is the Housing Affordability Index.
• The three main steps in the contract process • State and federal law make it illegal to
are exchange, between exchange and discriminate against a person seeking shelter.
settlement, and settlement of the contract. • Homelessness in Australian federal law is
• In New South Wales there are three land defined as being ‘inadequate access to safe
titling systems: Crown land, Old System title and secure housing’.
(or common law) and Torrens title (or the Real • Non-government organisations that interface
Property Act). with the homeless on a daily basis provide an
• Company title is a system of registration used to invaluable safety net for those most in need of
document ownership of shared space such as shelter.
flats or townhouses, and was used prior to the • Social housing includes public housing and
first strata-title legislation in New South Wales Indigenous housing properties managed by
in 1961. Housing NSW. This is a type of secure housing
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CAMBRIDGE LEGAL STUDIES HSC
that is provided to low- and very low-income very low incomes who have a housing need.
households at affordable rents. Community housing is provided by not-for-
• Community housing is rental housing that is profit community housing organisations, rather
secure and affordable for people on a low or than Housing NSW.
Questions
Multiple-choice questions 5 To improve housing affordability the federal
1 Housing Act 2001 (NSW) concerns: government’s white paper, The Road Home: A
A homelessness National Approach to Reducing Homelessness,
B eligibility for public housing dedicates:
C housing affordability A $2 million
D lease agreements B $800 million
C $2 billion
2 Which of the following is not one of the D $10 billion
approaches in the New South Wales
Government Homelessness Action Plan? Chapter summary questions
A Responding effectively to homelessness 1 Discuss how shelter is a legal right despite
B Supporting innovative approaches to there not being a right to shelter under
homelessness Australian domestic law.
C Preventing homelessness 2 Explain why shelter is classified as a human
D Breaking the cycle right.
3 Outline the process of a private treaty,
3 Which of the following says that everyone has including the ‘standard form contract’.
the right to a standard of living? 4 What is NCAT?
A Article 25 of the Universal Declaration of 5 Critically evaluate the difference between
Human Rights needing shelter and being homeless.
B Article 27 of the Convention on the Rights of
the Child Extended-response questions
C Article 5(e)(iii) of the International 1 Using examples, explain how the legal system
Convention on the Elimination of All Forms of protects the right to shelter.
Racial Discrimination 2 Critically analyse the relationship between
D Article 14(2)(h) of the Convention on the recent changes in social attitudes and the
Elimination of All Forms of Discrimination subsequent developments of government
Against Women policies aimed at improving access to shelter.
3 Evaluate why the law includes specific
4 The benchmark percentage of household categories and criteria for those looking to
income to be paid on housing costs is: acquire shelter.
A 10% 4 In an extended paragraph, critically evaluate
B 20% whether you believe the federal and state
C 30% governments or social service groups do more
D 40% to help homeless people and those seeking
shelter. Justify your answer.
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CHAPTER 14 OPTION 5: SHELTER
In Section III of the HSC Legal Studies in length (approximately eight examination
examination you will be expected to complete writing booklet pages). Marking criteria for
an extended response question for two different extended response questions can be found at
options you have studied. There will be a choice http://www.cambridge.edu.au/education. Refer
of two questions for each option. It is expected to these criteria when planning and writing your
that your response will be around 1000 words response.
14
Themes and challenges
The themes and challenges should be integrated opposed to the Old System method still in use
throughout the teaching of this topic. The following for some properties.
are some suggestions as to how the content covered • The Residential Tenancies Act 2010 (NSW),
is related to themes and challenges. which amended the previous legislation,
improved the rights of tenants through what
The role of the law in encouraging some would argue is a better balance of rights
cooperation and resolving conflict between landlords and tenants.
in regard to shelter • NCAT has improved compliance with the law
• International law sets international benchmarks because it makes the law more accessible to all
with respect to the rights of shelter and and makes orders with respect to breaches of
encourages states to work proactively in the Residential Tenancies Act 2010 (NSW).
providing adequate and affordable shelter. • The standard form contract has improved the
• The legislative framework that exists with rights of buyers in the conveyancing process
respect to purchasing shelter and leasing is because of the mandatory disclosures that must
ultimately aimed at encouraging cooperation be made by the vendor.
and resolving conflict. Standard form contracts • Boarders and lodgers lack effective legislative
when purchasing shelter have made clearer protection and as a result are the more
the obligations of all parties. The rights and vulnerable residents in society. There are
obligations of landlords and tenants are clearly many examples of landlords making false
provided for in the Residential Tenancies Act and misleading statements about the state of
2010 (NSW). premises.
• The creation of NCAT provides an accessible • Comparing aged care is problematic and it is
and cost-effective avenue for the resolution of difficult to ensure that resident’s rights are
tenancy disputes. This includes disputes in clear and compliance issues are being met.
relation to social and other forms of housing. • Enforcement of discrimination provisions
• The mediation and conciliation process used in state and federal law is a challenge for
in the resolution of disputes arising from authorities. Proof can be hard to establish and
discrimination in the acquiring of shelter the monetary payout may deem the process not
encourages all parties to come to an agreement worth pursuing.
themselves. • Strata schemes can produce entrenched and
ongoing conflict as a result of people living
Issues of compliance and non- in close proximity to each other. Improved
compliance compliance has resulted from the clearer
• The development of the Torrens title system guidelines established under the Strata
provided greater certainty in establishing the Schemes Management Act 1996 (NSW).
ownership of properties when being sold. This
has strengthened compliance in this area as
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CAMBRIDGE LEGAL STUDIES HSC
Laws relating to shelter as a • The federal government is proposing to
reflection of changing values and consolidate all federal discrimination legislation
ethical standards into a single Act to improve the enforcement of
• Public morality has evolved to the extent that discrimination provisions.
there is universal recognition of a right to • The New South Wales Government has been
shelter in international law. Values and ethics lobbied over the years to improve the rights of
imply that governments in Australia have boarders and lodgers. At present this has not
an obligation to put in place legislation and occurred.
policies to ensure all people have the ability to
acquire adequate and affordable shelter. The effectiveness of the legal and
• The improved rights of tenants are a reflection non-legal responses in achieving
of the acknowledgement that tenants just outcomes in regard to the
traditionally have been in a more powerless provision of shelter
position than landlords. • Non-legal measures are featured throughout
• The Charter of Care Recipients’ Rights and the shelter topic. Non-legal measures need
Responsibilities – Residential Care for all aged to be discussed in the light of their ability
care accommodation is an acceptance that to pressure governments, highlight issues,
older people have a right to quality care and undertake research and publicise issues
accommodation. concerning shelter. These measures can
• The suite of discrimination legislation promote greater compliance, initiate law
reflects that the community accepts that the reform, educate the wider community and
government has a role to play to ensure that the promote values and ethics around shelter for
more marginalised and disadvantaged people the poor and marginalised.
in society have a right not to be discriminated • Non-legal measures can be ignored, in
against when acquiring shelter. particular if mainstream society is uninterested
in the area of focus they are promoting.
The role of law reform in Governments are more likely to respond
protecting the rights of those depending on how the issue is tracking in the
seeking shelter electorate. For example, the need for boarders
• Improved rights for tenants are reflected in the and lodgers to be given greater legislative
reform of the rights of tenants in 2010. protections has been well established but so far
• The evolution of standard form contracts state governments have taken no real action.
has ensured greater protection for buyers of
property with respect to the disclosures that
must be made by the vendor.
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Additional resources
Chapter 16
Option 7: World order
16.1 The nature of world order period of religious war in Europe in which 10 million
people died. The next significant example was the
The development of world order Concert of Europe, an agreement by the victorious
powers in 1815, after the Napoleonic Wars, to prevent
16
over time
future wars between the states of Europe.
State sovereignty
During the 19th century, political leaders became
State sovereignty had its origins in the Treaty of
increasingly aware that new weaponry was highly
Westphalia, the collective name given to the two
destructive, and that this, combined with the
treaties concluded on 2 October 1648 – otherwise
introduction of mass conscription and inflamed
known as the ‘Peace of Westphalia’. The treaties
by imperial rivalry and militarism, could result in a
ended the Thirty Years’ War within the Holy Roman
war of previously unimaginable levels. In addition,
Empire and the Eighty Years’ War between Spain
between 1848 and 1870 there was a violent series of
and the Dutch Republic, and marked the beginning
revolutions and wars, which further increased the
of the modern concept of states and diplomacy.
desire for multilateral cooperation to ensure peace.
As European imperialism, trade and ideas spread
Peace conferences were held at The Hague, Holland
throughout the world, so too did the Westphalian
(now The Netherlands) in 1899 and 1907.
concept of the state. As European empires dissolved,
colonies became states, following the European conscription
model. All international treaties and agreements compulsory enlistment in the military force of a state
are based on states exercising their sovereignty and
working together. Today, states are like the building
blocks of the international system, and international
treaties and agreements are like the cement that
binds them together.
Multilateralism
Multilateral cooperation occurs when states act
together for a common purpose. The reason for its
emergence was, quite simply, survival. From the
17th century, the leaders of Europe gradually began
to find the political will to act together to stop the
cycle of war and violence. Success in this endeavour
was patchy, and repeatedly the desire for peace was
overwhelmed by destructive forces, yet gradually the
hope of multilateral cooperation for mutual benefit and
to prevent war became ingrained in Western Europe.
The first modern instance of multilateral Figure 16.2a Europe in 1648 after the Peace of
cooperation was the Treaty of Westphalia, ending a Westphalia.
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CAMBRIDGE LEGAL STUDIES HSC
The Hague Conferences functioned as a form of unleashed all the horrors of modern warfare on each
global legislature and drew up conventions to limit other. But victory seemed elusive. Meanwhile, there
warfare by various means, such as banning weapons were many people who viewed the war as insanity
of certain kinds. The conferences also resulted and argued for a return to multilateralism through
in an agreement to set up a Permanent Court of the creation of a ‘league of nations’.
Arbitration, which could to settle international The creation of the League of Nations was a
disputes. This court was based in The Hague. substantial act of multilateral cooperation. The
league achieved some notable successes in the
More on World War I and the League of 1920s. However, it was hampered by serious flaws in
Nations its legal framework and a lack of political will on the
The commencement of World War I saw the world part of the world leaders at the time to fully support
become divided into two armed camps, with nations it. Finally, it was blatant military aggression by
choosing to side with the Allies, led by Britain, or the powerful nations, the very thing that the league was
Central Powers, led by Germany. Both armed camps designed to prevent, that sealed its fate. The league
were prepared to fight to the finish and the warring had no answer for Japan’s annexation of Manchuria
nations of Europe bled themselves dry as they in 1931, Italy’s invasion of Abyssinia in 1935, and
finally Nazi Germany’s annexations of Austria and
Czechoslovakia by March 1939. By the time Germany
invaded Poland in September 1939, the league was
nothing but a distant memory, though as a legal
entity it lingered until 1945.
World War II and the United Nations
You might think that the failure of the League of
Nations in the 1930s would have killed off any further
ambitious experiments in multilateral cooperation
to prevent war. However, in the first dark years of
World War II, when the Nazi war machine seemed
unstoppable as it overwhelmed all opposition in
Europe, another blueprint for a world organisation
was placed on the agenda. In August 1941, two
experienced world leaders, both of whom had been in
office during World War I, met on a battleship off the
coast of Canada and drew up a document that was to
become the first step in the creation of a new world
organisation. The document, drafted by US President
Franklin Delano Roosevelt (affectionately known
as ‘FDR’ to his contemporaries) and British Prime
Minister Winston Churchill, has since become known
as the Atlantic Charter. This was an eight-point plan
in which they pledged themselves:
after the final destruction of Nazi tyranny … to see
established a peace which will afford to all nations
the means of dwelling in safety within their own
Figure 16.2b US President Woodrow Wilson was
boundaries, and which will afford assurance that
credited with ensuring that the League of Nations
all the men in all the lands may live out their lives in
was created after World War I. Wilson had made
the establishment of a League of Nations one of freedom from fear and want [6th point]
America’s most important war aims.
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CHAPTER 16 OPTION 7: WORLD ORDER
16.2 R
esponses to world order
The United Nations
The future possibilities for the UN
Peace Building Commission
Realising that regional situations which threaten
peace and security cannot be completely dealt
with by peacekeeping operations, the UN General
Assembly and the Security Council jointly set up a
Peace Building Commission (PBC) at the 2005 World
Summit. The PBC primarily aims to provide a longer
period of assistance to countries when they emerge
from conflict, as this will help stop them from sliding
back into violence. The PBC is an advisory body: it
assembles support and resources for reconstruction,
16
institution-building and sustainable development. It
Figure 16.2c In August 1941, US President Roosevelt also works in partnership with other agencies and
(front left) and Prime Minister Churchill (front right)
organisations. For instance, in March 2012 a UN
wrote the Atlantic Charter, which became a blueprint
for the post-war world. report announced a deepening of the collaboration
between the PBC and the Africa Development Bank
to support the PBC’s priorities in the six post-conflict
and to the ‘abandonment of the use of force’ and the
countries on its agenda – Burundi, the Central
‘the establishment of a wider and permanent system
African Republic (CAR), Guinea, Guinea-Bissau,
of general security’ [8th point].
Liberia and Sierra Leone.
The Atlantic Charter was a visionary attempt to
Peace building is a long process, where success
avoid the mistakes of the past, to formally establish
may not be seen for years, perhaps decades. The new
early in World War II what the Allies’ objectives
PBC hopes to guide the global community into giving
were, and to bring about a peace that would be fair
longer-term attention to the process of recovery from
and enduring, unlike the outcomes from Versailles
conflict.
in 1919. However, FDR was also a realist. He built
bipartisan support within the US political system
Proposals for a United Nations Emergency
for a new world organisation, and he and Churchill
Peace Service (UNEPS)
worked hard with their wartime allies to secure their
Several peace and security NGOs are currently
support. The term ‘United Nations’ was first used
arguing that a permanent UN Emergency Peace
on 1 January 1942, when 26 nations pledged their
Service (UNEPS), which could intervene quickly in a
governments to fight for a common purpose against
crisis, should be established. The World Federation
the Axis powers. Detailed planning for the new world
of UN Associations (WFUNA) is just one of the
organisation proceeded throughout the following
NGOs pushing for the creation of a UNEPS. It takes
three years of the war. The Charter of the United
months for peacekeeping services to respond to
Nations was signed in San Francisco by 50 nations
international crises – a UNEPS would be able to do
on 26 June 1945, and on 24 October 1945 the United
so within 48–72 hours. In developing nations with
Nations (UN) became a legal entity. The second try
urgent issues, such as Darfur, Sudan, infrastructure
at a grand scheme for multilateral cooperation had
could be rebuilt by a combination of military services,
begun.
negotiators and other specialists working full-time
on the issues. The faster reaction times could lead to
a reduction in deaths in international crises.
Under Article 25 of the UN charter, UN member
states are obliged to carry out the decisions of the
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CAMBRIDGE LEGAL STUDIES HSC
Security Council. As former UN weapons inspector known as the ‘Humanitarian Pledge’. In the absence
Hans Blix’s report states: of an agreed plan within the framework of the NPT,
the countries that have signed the Humanitarian
The primary responsibility placed upon the Council Pledge believe that the only way forward now is to
for the maintenance of international peace and proceed to towards the creation of a new treaty, one
security is thus matched by the authority that is given that bans the use nuclear weapons.
to it and that can be exercised to reduce the risk of See the ICAN website for an updated list of the
WMD, whether in the hands of the five permanent countries that have signed the Humanitarian Pledge
members or other members of the United Nations, or (previously known as the Vienna Pledge): http://
non-state actors. cambridge.edu.au/redirect/?id=6422.
As of the end of 2015 the Coalition government in
Australia had not signed the Humanitarian Pledge.
The Coalition is cautious about signing the pledge
16.4 Contemporary issue: because of Australia’s American alliance. Australia
Regional and global situations has as a cornerstone of its defence policy a reliance
on Extended Nuclear Deterrence or END. This means
Legal Links that Australia relies for its defence on America’s
‘nuclear umbrella’ for protection. For Australia to
For further information on UNEPS see the fully embrace a nuclear weapons ban treaty it would
World Federalist Movement’s website (refer to have to let go of its reliance on nuclear weapons for
http://cambridge.edu.au/redirect/?id=6421). its defence. Therefore, the Coalition government
was willing to be involved in the three conferences
on the humanitarian impact of nuclear weapons,
but not willing to join the other 114 nations that were
that threaten peace and security ready to start negotiating a nuclear weapons ban
– the nuclear threat treaty. While the Australian Labor Party expressed
support for a nuclear weapons ban treaty at its July
Non-legal responses 2015 conference, it remains to be seen whether a
The humanitarian impact movement future Labor government will commit Australia to
The Ottawa Convention outlaws anti-personnel mines achieving a treaty banning nuclear weapons.
(APLs). Leadership by Canada, Mauritius and Ireland
led to its creation in 1997 and by 2015 the treaty had Efforts of individuals – Ramesh Thakur
been ratified by 162 countries. Under the terms of the and Gareth Evans
treaty, states agree not to use landmines, to cease Both Ramesh Thakur and Gareth Evans have played
production and transfer of landmines and to destroy an active role in the nuclear disarmament debate for
all stockpiles of landmines. More than 1400 NGOs many years. Gareth Evans is currently Chancellor
had been involved in the International Campaign to of the Australian National University (ANU) in
Ban Landmines coalition (ICBL). ICAN believes that Canberra and Ramesh Thakur is currently the
this is the model to follow in ‘filling the legal gap’ on Director of the Centre for Nuclear Non-Proliferation
nuclear weapons. and Disarmament (CNND) in the Crawford School,
The humanitarian impact movement received a at ANU. In 2006 Gareth Evans was involved with
further boost in May 2015 with the failure of the Non- former UN weapons inspector, Hans Blix, in the
Proliferation Treaty (NPT) Review Conference held at production of a report on nuclear weapons, Weapons
the United Nations building in New York. After weeks of Terror: Freeing the World of Nuclear, Biological and
of deliberations, the NPT Review Conference failed to Chemical Weapons. The report was in the tradition
produce an agreed statement or plan for the eventual of the earlier Canberra Commission (1995) and
elimination of nuclear weapons. As a result, within represented an extremely detailed investigation into
months of the failure of the NPT Review Conference, every conceivable aspect of achieving disarmament.
114 countries had signed what has now become Australia’s Gareth Evans also worked on the report.
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CHAPTER 16 OPTION 7: WORLD ORDER
In 2007, Hans Blix was awarded the Sydney Peace In preparation for the 2015 NPT Review
Prize for his ‘principled and courageous opposition Conference, Gareth Evans, Ramesh Thakur and
to proponents of war in Iraq, for life long advocacy Tanya Ogilvie-White produced a book called Nuclear
of humanitarian law and non violence, and for Weapons: The State of Play 2015. This book surveys
leadership of disarmament programs to rid the world the current situation in regard to nuclear non-
of weapons of terror’. proliferation and disarmament. At the August 2015
In 2008, then Prime Minister Kevin Rudd United Nations of Association of Australia (UNAA)
announced that the Australian Government would conference, Ramesh Thakur stated that after failure
take the lead in setting up a commission to investigate of the 2015 NPT Review Conference that ‘the NPT
nuclear disarmament plans, which would be known may have reached the limit of its potential’ and that
as the International Commission on Nuclear Non- now we need a treaty to ‘fill the legal gap’ and ban
Proliferation and Disarmament. The main goal of the nuclear weapons, followed by the development
commission would be to develop tighter rules for the of a comprehensive nuclear weapons convention
40-year-old NPT when it came up for review in 2010. which would ban the possession of, use of, and
Rudd appointed Gareth Evans to the commission threat to use nuclear weapons. Such a treaty would 16
because of his long track record in working for also have full monitoring and verification procedures
nuclear disarmament, starting with the Canberra in place.
Commission in 1995. The commission’s report was For an electronic copy of the book Nuclear
released in mid-December 2009. Unfortunately, the Weapons: The State of Play 2015, go to http://
report, Eliminating Nuclear Threats: A Practical Guide cambridge.edu.au/redirect/?id=6423.
for Global Policymakers, failed to make an impact at
the NPT Review Conference held in 2010.
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Cases, statutes and media reports (CSM)
In legal studies, it is important that written responses • ‘v’ – most cases will be cited with two parties,
are backed up by cases, statute law and media separated by a ‘v’ which means ‘versus’. When
reports. This means knowing the basic facts about reading aloud, the ‘v’ is read as ‘and’.
certain important cases, learning some key pieces • year – this follows the name and refers to the
of statutory legislation, and being able to cite recent year the report is published (note, this is not
events that relate to certain topics or areas of law always the same year as the case). This is
(media reports). written in either [square brackets] or (round
Always remember the acronym CSM when brackets). Square brackets indicate that the
writing extended responses. Ask yourself, ‘Have I report is compiled sequentially by year, and
included some cases, statutes and media reports?’ no volume number is needed. Round brackets
indicate that the law report uses sequential
volume numbers, and you will need to refer to
Cases the volume to find the particular case.
Legal cases are matters brought before the courts • volume number (where applicable) – as
for decision. As discussed in the textbook, cases referred to above.
in Australia can be heard by a number of different • abbreviation – each law report series has a
courts according to a jurisdiction’s court hierarchy. specific abbreviation, and you will need to
More minor matters might be heard before lower refer to the specific series where the case is
courts, such as the Local Court in NSW, whereas reported. The table below contains some of the
appeals or more significant matters will generally most common abbreviations.
be heard by higher state or federal courts, such as Abbreviation Law report
the Supreme Court of NSW or the High Court of A Crim R Australian Criminal Reports
Australia. Remember, most legal disputes decided
ALR Australian Law Reports
in the courts are a matter of applying the facts of
All ER All England Law Reports
the case to the law that exists. In some legal cases,
CLR Commonwealth Law
there might be some uncertainty as to what the law
Reports
is or should be. These may be important cases in
Australian law – they may help to clarify how the law FCR Federal Court Reports
applies in an area that is otherwise vague or unclear. FLR Federal Law Reports
These cases may then be frequently cited in later KB Law Reports, King’s Bench
cases and discussions about that area of the law. Division
Each case reported in a court will have a unique NSWLR New South Wales Law
citation to identify it. This will identify the name of Reports
the case and its location in the law report in which QB Law Reports, Queen’s
it has been published. As with legislation, there Bench Division
are well-established rules and conventions for
case citations. During your studies you will need to • page number – this is the first page where the
research or refer to legal cases, and you will need to case appears in the report.
use the established citation rules as outlined below.
Case citations are made up of a number of
components. These are: Statutes
• name – this includes the names of the principal Legislation, also known as statute, refers to laws
parties in the case. The name is always written that have been passed through state and federal
in italics. parliaments, and includes acts and regulations. An
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CASES, STATUTES AND MEDIA REPORTS (CSM)
example of this is the Australia Act 1986 (Cth). When and content that you are covering in the course, and
citing legislation, there are four main components to will also give you relevant, up-to-date examples to
consider. These are: use in your written responses. However, be aware
• short title – this is the name of the act or that outrage sells, and sometimes the headline and
regulation (usually specified in the legislation the article have very little in common. Therefore, as
under section 1). This part is written in italics. you regularly peruse the media for reports, evaluate
The short title also includes the year of the the information that is being provided and be alert
legislation, discussed below. for bias and the sales factor.
• year – part of the short title, the citation must Try keeping a media file of relevant articles
include the year that the act or regulation was throughout the year. Set up a folder (either hardcopy
passed (i.e. when it received Royal Assent). or electronically) with three subdivisions: ‘The legal
This part is also written in italics. system’, ‘The individual and the law’ and ‘Law in
• jurisdiction – the citation must specify the practice’. Articles relevant to any of the topics,
jurisdiction that the legislation comes from – even if you have not yet studied them in class,
for example an act from New South Wales will can be placed into plastic sleeves (or files) under
include ‘(NSW)’ after the short title. A Federal, the relevant heading. Make some brief notes and
or Commonwealth, act will include ‘(Cth)’. Note include these with the article. You may wish to use
that this part is not written in italics. Other state the ‘Media report pro forma’ supplied on Cambridge
and territory jurisdictions are written as follows: GO to help you with this. Make sure that you write
(Vic), (Qld), (SA), (WA), (ACT), (Tas) and (NT). down the source and date of each item.
• any section number(s) – if a specific section You can regularly check newspaper websites, as
needs to be referred to, this is usually written they allow you to access their most recent articles
after the legislation name. For a section, this is (e.g. the Sydney Morning Herald allows you access
shortened to ‘s’ (e.g. s 52); for more than one to articles that have appeared in the previous
section, ‘ss’ is used (e.g. ss 5, 14). eight days). When accessing newspaper articles
The rules also apply to bills that have not yet electronically, it is important to do so as soon as
been passed by a parliament – the year cited will be possible, as it is difficult to get old articles without
the year the bill was introduced. The only difference being asked to pay for them. Articles can be copied
is that the bill title does not appear in italics, e.g. into Word for easier manipulation, then placed in
Native Title Amendment Bill 2009 (Cth). the relevant folder. An even better method of
Note that when talking about a specific act, storage is to use a commercially available database
regulation or bill, you should always refer to the such as Procite or Endnote, or to make a database
legislation using a capital letter: e.g. ‘the Act’ or ‘the yourself. However, do not forget to evaluate each
Bill’. When from referring to acts or bills in general, item and its source for reliability, validity, bias and
always use a lower case letter. usefulness.
When writing a research essay, correctly cite
your media reports in a consistent way in footnotes or
Media reports endnotes. For example: Sydney Morning Herald, ‘New
A media report is anything that appears in the news. development in gang torture case’, 9 December 2009.
Media reports most commonly appear in newspapers, When writing in an exam, however, it is not
but media reports also include magazine articles, necessary to remember exact titles and dates of
documentaries and articles/ reports published media reports – simply placing the event or issue
online. The law is a dynamic thing and sparks that has been reported in the media in a timeframe is
much public comment. Luckily for students of legal sufficient. For example, ‘the recent debate on gang
studies, the media is always carrying items, or violence’, ‘in recent months’, ‘earlier this year’ or ‘in
making comments, that are relevant to the law. It is 2013’.
important that you recognise this and remain aware The internet is a valuable source of information
of current events in the legal arena. This will help for legal studies students. However, there is also a
you gain a greater understanding of the concepts lot of misinformation posted online. Some websites
ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press 591
Photocopying is restricted under law and this material must not be transferred to another party.
CAMBRIDGE LEGAL STUDIES HSC
will not be updated for months at a time, so the useful, as they are dynamic and the information
information on them will be old and irrelevant; provided is reliable. The websites of large
some sites are just venues for individuals or groups newspapers, magazines and television networks
to promote their own agendas and views, or for are useful in the same way, although it must be
businesses to sell items; and some have incorrect remembered that most of these are commercial
facts and figures. Therefore, you must check for organisations. So when you surf the internet looking
reliability, validity, bias and usefulness in any for information, it is important that you check the
website you access. provider of the website and the last time it was
Sites provided by government departments are updated.
592 ISBN 978-1-316-60567-7 © Milgate et al. 2016 Cambridge University Press
Photocopying is restricted under law and this material must not be transferred to another party.
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