Legal Textbook

Cambridge
Legal Studies
Stage 6 Year 11
Fifth Edition
Paul Milgate
Kate Dally
Phil Webster
Daryl Le Cornu
ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020
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Contents
About the authors ix

About the cover x
How to use this resource xi
Components of Cambridge Legal Studies Year 11 xiii
Introduction xiv
Glossary of key words xv
PART I – THE LEGAL SYSTEM 01
Chapter 1 – Basic legal concepts 02

1.1 The meaning of law 04
1.2 Customs, rules and law 05
1.3 Values and ethics 07
1.4 Characteristics of just laws 08
1.5 The nature of justice 08
1.6 Procedural fairness and the principles of natural justice 09
1.7 The rule of law 10
1.8 Anarchy and tyranny 13
Chapter summary 17
Multiple-choice questions 17
Chapter 2 – Sources of contemporary Australian law 18

2.1 Australia’s legal heritage 20
2.2 Common law 24
2.3 Court hierarchy 28
2.4 Statute law 32
2.5 The Australian Constitution 36
2.6 Aboriginal and Torres Strait Islander peoples’ customary laws 52
2.7 International law 55
Chapter summary 64
Chapter 3 – Classification of law 66

3.1 Public law 68
3.2 Private law 71
3.3 Criminal and civil court procedures 75
3.4 Common and civil law systems 83
Chapter summary 84
ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020 iii

CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 11
Chapter 4 – Law reform 86

4.1 What is law reform? 88
4.2 Conditions that give rise to law reform 88
4.3 Agencies of reform 98
4.4 Mechanisms of law reform 103
Chapter summary 106
Chapter 5 – Law reform in action 108
Topic 1 – Law reform and native title 110

5.1 Conditions that led to law reform relating to native title 111
5.2 Operation of the legal system relating to native title 114
5.3 Agencies of law reform relating to native title 117
5.4 Effectiveness of law reform relating to native title 123
Topic 1 summary 124
Topic 1 questions 124
Topic 2 – Law reform and sport 126

5.5 Conditions that led to law reform relating to sport 127
5.6 Agencies of law reform relating to sport 134
5.7 Mechanisms of law reform relating to sport 135
5.8 Effectiveness of law reform relating to sport 137
Topic 2 summary 139
Topic 3 – Law reform and sexual assault 140

5.9 Conditions that led to law reform relating to sexual assault 141
5.10 Agencies of law reform relating to sexual assault 143
5.11 Mechanisms of law reform relating to sexual assault 145
5.12 Effectiveness of law reform relating to sexual assault 148
Topic 3 summary 150
Topic 4 – Young drivers and the law 152

5.13 Conditions that led to law reform relating to young drivers 153
5.14 Agencies of law reform relating to young drivers 156
5.15 Mechanisms of law reform relating to young drivers 156
5.16 Effectiveness of law reform relating to young drivers 159
Topic 4 summary 162
PART II – THE INDIVIDUAL AND THE LAW 163
Chapter 6 – Your rights and responsibilities 164

6.1 What are rights and responsibilities? 166
6.2 The nature of individual rights 168
6.3 Individuals’ rights and responsibilities in relation to the state 171
6.4 International protection of rights 177
Chapter summary 180
iv ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020
CONTENTS
Chapter 7 – Resolving disputes 182

7.1 Law enforcement agencies 184
7.2 Disputes between individuals 189
7.3 Disputes with the state 193
Chapter summary 202
Chapter 8 – Contemporary issue: The individual and technology 204

8.1 The impacts of technology on the individual 206
8.2 Legal implications 209
8.3 Difficulties with enforcing rights 216
8.4 Future directions 222
Chapter summary 227
PART III – LAW IN PRACTICE 229

Issue 1 – Groups or individuals suffering disadvantage 230
Chapter 9 – Children and young people 230
9.1 Children, young people and the law 232
9.2 Legal responses 234
9.3 Non-legal responses 245
9.4 Effectiveness of responses 247
Chapter summary 256
Chapter 10 – Women 258

10.1 Women and the law 260
Chapter summary 295
Chapter 11 – Migrants (DIGITAL-ONLY CHAPTER)

This digital-only chapter is located at the end of the book
11.1 Migrating and multiculturalism
11.2 The migration program
11.3 The refugee and humanitarian program
11.4 Unlawful non-citizens
11.5 Consequences of breaching immigration laws
11.6 Issues faced by migrants
11.7 Legal responses
11.8 Non-legal responses
11.9 Effectiveness of responses
Chapter summary
Multiple-choice questions
ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020 v

Chapter 12 – Aboriginal and Torres Strait Islander peoples (DIGITAL-ONLY

CHAPTER)
12.1 Aboriginal and Torres Strait Islander peoples and the law
12.2 Areas of disadvantage for Aboriginal and Torres Strait Islander peoples
Chapter summary
Chapter 13 – People who have a mental illness (DIGITAL-ONLY CHAPTER)

13.1 People with mental illness and the law
Chapter summary
Issue 2 – Events that highlight legal issues 302

Chapter 14 – The Bali Nine 302
14.1 A brief history of the Bali Nine 304
Chapter summary 324
Chapter 15 – Alcohol and violence (DIGITAL-ONLY CHAPTER)

15.1 Violence in the Kings Cross area
Chapter summary
Questions
Chapter 16 – The Port Arthur massacre 326

16.1 A brief history of the Port Arthur massacre 328
Chapter summary 346
vi
CONTENTS
Issue 3 – Individuals or groups in conflict with the state 348

Chapter 17 – Julian Assange 348
17.1 A brief history of the Julian Assange case 350
Chapter summary 365
Chapter 18 – Outlaw motorcycle gangs (DIGITAL-ONLY CHAPTER)

18.1 Outlaw motorcycle gangs in Australia
Chapter summary
Chapter 19 – Behrouz Boochani 368

19.1 From seeking asylum to an Australian detention centre 370
Chapter summary 389
Chapter 20 – Mohamed Haneef (DIGITAL-ONLY CHAPTER)

20.1 The Mohamed Haneef case and terrorism
Chapter summary
Chapter 21 – The Northern Territory National Emergency Response

(DIGITAL-ONLY CHAPTER)
21.1 Background to the Northern Territory National Emergency Response
Chapter summary
ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020 vii

Issue 4 – Criminal or civil cases that raise issues of interest

to students 394
Chapter 22 – The Christchurch Massacre 394
22.1 The crime: Friday 15 March 2019 396
Chapter summary 414
Chapter 23 – Facebook and social media privacy issues 416

23.1 Social media and the law 418
Chapter summary 430
Answers to multiple-choice questions 432

Glossary 433
Acknowledgements 443
Index 445
Chapter 11 – Migrants (DIGITAL-ONLY CHAPTER) 454
Chapter 12 – Aboriginal and Torres Strait Islander peoples 490

Chapter 13 – People who have a mental illness (DIGITAL-ONLY CHAPTER) 520
Chapter 15 – Alcohol and violence (DIGITAL-ONLY CHAPTER) 540
Chapter 18 – Outlaw motorcycle gangs (DIGITAL-ONLY CHAPTER) 558
Chapter 20 – Mohamed Haneef (DIGITAL-ONLY CHAPTER) 580
Chapter 21 – The Northern Territory National Emergency Response 598

Index for digital-only chapters 615
For a list of websites related to this book, go to www.cambridge.edu.au/legal115ed
viii
About the authors
Paul Milgate
DipTeach, BEd, Grad Cert in Theology and Masters in Educational
Leadership and is a Senior Consultant in the Directorate of the Catholic
Schools Office in Lismore. He has had extensive experience in Legal
Studies, having taught it since its inception, and been the principal
author of the Preliminary and HSC textbooks for Edition three and four.
Paul is also the author of Cambridge HSC Checkpoints Legal Studies
(study guide) 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 World
Citizens Association Australia and a member of the Board of ICAN
Australia (International Campaign to Abolish Nuclear Weapons).
Kate Dally
(BA DipEd, Grad Cert Inclusive Education, Grad Cert Asian Studies)
is Head Teacher of Social Sciences at Auburn Girls High School in
Sydney. She has extensive teaching experience, having taught Social
Sciences for the past 29 years as well as teaching education students at
USYD for the last five years. Kate’s experience also covers HSC marking
in both Legal Studies and Business Studies.
Tim Kelly
BA DipEd Dip Law 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.
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.
ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020 ix

About the cover illustrator
Jean-Michel Girard is a Québec City (Canada) based illustrator, who has been working
professionally for the past thirty years for a global clientele. Although proficient in a wide
variety of styles (from hyperrealism to cartoons), he has chosen to specialise in historical
illustrations, being a long-time history enthusiast. Though he does not think of himself
as a digital artist, he works with digital tools, transforming his computer into a genuine
drawing table.
About the cover illustrations
Adored or reviled. Praised as global saviour or denounced as global pest. Classed as friend
or enemy of the state. Speaker of truth or disseminator of lies. Though it may depend on
where you sit on the political spectrum, one thing any mention of Julian Assange or Greta
Thunberg is likely to do is provoke a reaction … and probably an opinion. Their standing on
the world stage and influence on conversations around freedom of information and climate
change is undeniable, transforming them into cultural icons. Their very image encapsulates
an idea and a cause, sparking potential debate and discussion, and it is for this reason these
controversial figures have been selected to appear on the covers.
x
How to use this resource
Part and chapter openers

Each part and chapter of Cambridge
Legal Studies Year 11 begins with an
opener that contains:
Part I Chapter 1
• principal focus and themes and The legal system Basic legal concepts
40% of course time
challenges from the Stage 6 Syllabus

Chapter objectives
In this chapter, students will:
Principal focus • identify and apply legal concepts and terminology
Students develop an understanding of the nature and functions of law through the examination of the • identify the changing nature of the law
law-making processes and institutions. • distinguish between customs, rules, laws, values and ethics
• chapter objectives
• explain the relationship between the legal system and society
Themes and challenges • discuss the nature of justice in terms of equality, fairness and access
The themes and challenges covered in Part I include: • discuss the concept of procedural fairness and the rule of law
• the need for law in the operation of society • discuss the concepts of anarchy and tyranny
• the importance of the rule of law for society • communicate legal information by using well-structured responses.
• the relationship between different legal institutions and jurisdictions
• relevant law (including important

• the development of law as a reflection of society Relevant law
• influences on the Australian legal system.
SIGNIFICANT CASES
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256
Chapters in this part
legislation and significant cases)

Chapter 1 Basic legal concepts 02
Chapter 2 Sources of contemporary Australian law 18
Chapter 3 Classiﬁcation of law 66
Chapter 4 Law reform 86
• legal oddity.
Chapter 5 Law reform in action 108
1 2
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 CHAPTER 1 BASIC LEGAL CONCEPTS

1
CHAPTER 2 SOURCES OF CONTEMPORARY AUSTRALIAN LAW
A range of current media articles is Review 1.3
1
2
Identify why we need laws.
Define the following basic legal concepts. You can choose to use words, pictures or cartoons to
In Court
Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
In this case, the plaintiff (Gutnick) argued that he had been defamed on the internet. The defendant
define the concepts:
provided to help you understand how

(Dow Jones) is the publisher of an online news magazine. An article in that magazine discussed the
a custom business dealings of the plaintiff – who is a prominent Melbourne businessman – and alleged that
b rules he was involved in money laundering and fraud.
c law Even though the article originated in New York, the plaintiff successfully argued that he had
d fairness been defamed in his own city because more than 300 people had accessed the article in Melbourne.
e equality The Supreme Court of Victoria held that publication occurs when an article is downloaded, and
the law operates in real-world situations.

f justice that a plaintiff can bring proceedings in any jurisdiction where the offending statements can be
g values accessed. The High Court of Australia upheld this decision in 2002.
h ethics. This was one of the first legal cases to look at the internet as a source of defamation. It set a
3 Write an explanation of why you obey the law. Assess if there are any laws that you do not follow precedent for defamation claims being brought across jurisdictional boundaries, and sparked
or believe in and why this is so. international interest. The decision shows that internet communication is no different from other
forms of communication and is subject to the same laws.
In 2013, the NSW Government brought in legislation In 2018, this law was widened to include electronic
that banned smoking in public places (e.g. building cigarettes (e-cigarettes). The NSW Parliament passed • obiter dicta – other remarks made by the believes a decision of the higher court is correct.
entrances, bus stops, train stations, swimming pools legislation, the Smoke-free Environment Amendment judge about the conduct of the trial (e.g. about This is known as ‘binding precedent’. For example,
and sporting grounds). The news article below is Bill 2018 (NSW), banning vaping from the same spaces
Glossary terms
the credibility of a witness); these remarks do the New South Wales Local Courts and District
from 2014 and highlights the fact that if people do not in which cigarettes are banned. Under this legislation, not form part of the decision and, thus, do not Court must follow the decisions of the New South
think a law is relevant to them or that a law will not e-cigarette smokers face fines of up to $550 if caught set a precedent. Wales Supreme Court. All state and federal courts
be policed, that law will be very difficult to enforce. smoking in public spaces or on public transport. in Australia are bound by the decisions of the High
ratio decidendi Court of Australia. Only the ratio decidendi of the
(Latin) the legal reason for a judge’s decision
superior court is binding.
obiter dicta The High Court is not strictly bound by its own
(Latin) comments from a judge in a case that are not directly
Glossary terms are bolded in the text,

relevant to the case and, therefore, not legally binding
decisions, though it usually follows them.
(singular: obiter dictum)
Calls to bust smokers in public areas, poll Persuasive precedent
By Damon Cronshaw Superior courts do not have to follow decisions
Newcastle Herald When precedent does not have to made in lower courts. They may, however, use them
be followed
19 May 2014 to help make a decision. This is called ‘persuasive
and defined for you in the margin of

If the facts or relevant points of law are significantly
precedent’. Persuasive precedent may also include
A single fine has been issued in the Hunter under anti-smoking laws the NSW Government different from a previous case, the case may
obiter dicta of a judge in a higher court.
introduced in January last year – sparking calls for tougher enforcement. be distinguished from the earlier one and its
Decisions made in other Australian states or
Many residents are fed up with breathing second-hand smoke outside shopping centres, office ratio decidendi will not have to be followed.
other common law countries, such as the United
buildings and other public places. There are calls for a crackdown and changes in community When a higher court upholds an appeal against
States or the United Kingdom, may influence an
attitudes to ensure smoking is significantly reduced in these areas. a lower court’s decision, the decision of the lower
Australian judgment. The higher the court in its
the print book, or as pop-ups in the

court is reversed.
Coal Point resident, Jim Sullivan, a former council environmental health officer, said the laws were own jurisdiction’s hierarchy, the more persuasive
A court may refuse to follow a decision of another
not being enforced, ‘They’ve got to bump up the education program and the enforcement and not the precedent.
court that is at a lower or equal level in the hierarchy.
put this back on to councils.’
This refusal is called overruling the decision of the jurisdiction
Mr Sullivan said most people were ‘sick of breathing other people’s smoke’. lower court. the powers of a court, depending on its geographic area,
the type of matters that can be decided, and the type of
interactive version. They are also

NSW Health inspectors are authorised to enforce bans and issue up to $550 penalties for those who remedies that can be sought
Rules of precedent
fail to comply. defamation
Binding precedent the act of making statements or suggestions that cause
damage to a person’s reputation in the community
Lower courts are bound to follow decisions of
superior courts, regardless of whether the judge
gathered in the Glossary.

11 27
Review and research activities

Review activities are designed to help
you test your knowledge of key concepts CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 11 CHAPTER 2 SOURCES OF CONTEMPORARY AUSTRALIAN LAW
and skills. Research activities are 1.1 The meaning of law understand why we live in a society. A society is a and Torres Strait Islander people were not allowed president appointed by a two-thirds majority of
group of human beings who are linked by mutual to be included in the national census. both Houses of Parliament, which would require
The law is a dynamic thing – a complex mechanism,
interests, relationships, shared institutions and a Other successful referendums included bipartisan support of the nomination. The proposal
evolving from hundreds of years of tradition, culture
common culture. In earliest history, people usually amending section 72 so that judges in the High was soundly defeated, but the push to make Australia
and values.
banded together for basic survival and would Court and the other federal courts had to retire at a fully independent nation remains.
designed to extend your knowledge by

law agree to live by rules that protected their lives and age 70. This was the last successful referendum;
a set of rules imposed on all members of a community bipartisan
their property. the next nine proposals were all defeated. The
that are officially recognised, binding and enforceable having the support of the two major political parties
by persons or organisations such as the police This tradition has carried on throughout history. last referendum was held on 6 November 1999 and
and/or courts As groups of people formed societies, and cultural involved changing Australia to a republic with a
values groups within these societies, they established and
principles, standards or qualities considered worthwhile or
enforced rules about the conduct of relationships.
researching relevant cases or issues

desirable within a society
Laws today are imposed by the administrative Review 2.4
institutions that govern a society; they cover all
In general terms, the law is a set of enforceable
members of society and there are consequences if 1 Using examples, explain how the Australian Constitution reflects the concerns of the former
rules of conduct that set down guidelines for
they are breached (i.e. broken). colonies.
relationships between people and organisations
2 Australia has six states and two territories. Refer to section 121 of the Constitution and identify
in a society. The law provides methods for ensuring
using source material.

Formative assessment: whether this is the maximum number of states that Australia may have.
the impartial treatment of people and outlines
Assessment for learning 3 Go online to find the current senators from New South Wales and Tasmania. Using each state’s
punishments for those who do not follow the
population, calculate how many people a Tasmanian senator represents compared to a New
agreed rules of conduct. Society is dynamic and The activities in this chapter are designed to assist
South Wales senator. Assess the implication of this difference.
so the law often seems to be playing catch-up, but you to build your understanding of the content
4 Define the term ‘division of power’.
law-makers do make a serious attempt to keep pace covered. You are encouraged to complete the
5 Read the article online ‘High Court strikes down ACT gay marriage law’ (by Lauren Wilson, The
with changes. activities and seek feedback from your teacher on a
Australian, 12 December 2013). Discuss the role section 109 of the Constitution has in deciding
regular basis to check your understanding. You are
rules which level of government has ‘power’ over a certain area.
regulations or principles governing procedure or controlling also encouraged to regularly review the ‘themes and
conduct
6 Discuss how the decision in the Tasmanian dam case gave the federal government power to
challenges’ and the ‘learn to’ statements on pages
make a law over the environment when this is considered a residual power.
10–12 of the syllabus. You can revisit these types of
Legal Links
7 In 1999, a referendum for Australia to become a republic failed. Research this referendum online
To understand how these rules (known in modern activities a number of times to build your knowledge
and then take part in a class discussion. Should Australia become a republic?
society as ‘the law’) came about, we need to and skills of the topic.
8 Class activity – Conduct your own ‘referendum’ (use your class or year level to ‘vote’).
a Decide on an issue (e.g. Is NRL better than AFL? Is a Kit Kat a better chocolate bar than a
Review 1.1 Crunchie?). Create ballot papers with your ‘issue’; voters must answer ‘yes’ or ‘no’.
b Divide the class or year into Australia’s six states and two territories. Use the following
1 You belong to different communities, for example, a school, a sporting team or a religious group. approximate percentages: New South Wales – 30%, Victoria – 20%, Queensland – 20%,
In addition to the activities, there are a

Think of one community you belong to and write down four rules of this group. Outline how Western Australia – 10%, South Australia – 5%, Tasmania – 5%, Australian Capital Territory –
these rules are enforced. Discuss why you think group members follow these rules. 5%, Northern Territory – 5%.
2 Identify at least five other rules. c Give each student one ballot paper and tally the votes. Apply points three and four of the
referendum rules (note that the territories are only counted as part of the Australia-wide vote)
and determine whether your referendum would succeed.
number of suggested links to internet

Legal Links
• The NSW Bar Association’s website has easy-to-read information about the Australian Research 2.1
legal system.
• The State Library of NSW’s website provides information about the history of the legal system Investigate section 127 of the Australian Constitution. Identify what section 127 stated and when was
in Australia. it altered.
resources and activities in each

chapter. These will help you extend
4 43
your knowledge and stay up to date with

changes in the legal system.
ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020 xi
HOW TO USE THIS RESOURCE
Legal Info
1
A number of relevant legal concepts
are explored in order to give context to
CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 12 CHAPTER 1 BASIC LEGAL CONCEPTS
Defences may be complete defences, which mental illness or insanity

Case Study
themes being explored.

result in the complete acquittal of the accused, or mental incapacitation at the time of the act, meaning the
accused cannot have formed the mens rea at the time of
partial defences, which may result in the charge or
the offence Hong Kong protests
sentence being reduced.
On 3 April 2019, a Bill was proposed in the semi-autonomous region of Hong Kong that would allow
Involuntary behaviour or automatism is another
criminal suspects to be extradited to mainland China. This Bill was widely opposed due to concerns
Complete defences defence relating to the mens rea of the accused. In
it could be used to silence criticisms of the Chinese Government; on 9 June 2019, one million people
Complete or absolute defences are used to justify this case, the argument is that the accused’s actions
marched in Hong Kong in protest of the Bill. This was the first of a series of ongoing demonstrations
the defendant’s actions and, if successfully were not voluntary or could not be controlled (for
that expanded to being protests about general concerns over the communist Chinese Government’s
proven, will result either in charges being dropped example, due to some involuntary action, such as
control over Hong Kong.
or, if the defence is presented during a trial, an epileptic fit). If the act was involuntary, the mens
Hong Kong has been a semi-autonomous region since Britain returned the city to China in 1997.
an acquittal. rea element of the offence cannot be established.
Case studies
At this time, China agreed to give a ‘high-level of autonomy’ to Hong Kong for 50 years; this autonomy
involuntary behaviour or automatism included free-speech and the continuation of capitalist markets and democratic principles in Hong
acquittal
a judgment that a person is not guilty of the crime of which an act that cannot be controlled or is not voluntary, such as Kong. However, in recent years there has been widespread concern about the Chinese Government’s
they have been charged an epileptic fit
increasing influence on the Hong Kong Government.
So while the extradition Bill was formally withdrawn after two months of civil unrest, demonstrators
Mental illness or insanity is a defence that is only Mistake is not generally a defence under the continued to take to the streets with a list of other demands including an inquiry into police conduct and
available where the accused can prove that they law and is difficult to prove. However, if it can be an amnesty for arrested protesters. Video footage of increasingly violent clashes between protestors
were in fact mentally incapacitated when they shown that the accused’s action was an honest
Examples, or groups of examples, are

and police officers were shown across the world. Hong Kong’s airport was shut down for periods at
committed the offence. This defence relates to the and reasonable mistake and that the act was not a time, government offices were stormed by protesters, and police sprayed tear gas into crowds of
mens rea of the accused, and requires the accused intended, the relevant mens rea may not be present demonstrators.
to claim that they were not criminally responsible for and the offence may not be able to be established. The movement labelled an ‘era of evolution’ by protesters has no clearly identified leader or
their actions because they could not have formed structures but relies on multiple individuals or small-group organisers. The organisers alert people
mistake
the necessary intent. The defence of insanity is very the defendant acted under an honest and reasonable to ad hoc demonstrations via social media.
examined in more depth to illustrate

difficult to prove but enables the accused to claim mistake and thus could not have formed the mens rea At the time of writing, the future of Hong Kong and its relationship with mainland China remains
that they were not aware of, or able to comprehend, uncertain. The protests are ongoing and the leaderless structure of the movement means that no key
the nature or consequences of their act at the time Self-defence or necessity is sometimes called an players have been identified or arrested. In the meantime, the rest of the world watches closely.
the crime was carried out. Where the defence of ‘all or nothing’ defence in that the accused admits
mental illness succeeds, the accused may be found to committing the act. This defence may be used
not guilty on the grounds of insanity. in certain circumstances if the accused can show Figure 1.6 Riot police hold a blue flag warning protesters to disperse during a protest gathering in Hong Kong on June
particular legal issues.

12 2020 to mark the one-year anniversary of major clashes between police and pro-democracy demonstrators.
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
2022 updates
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
The content in this book was reviewed

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 include 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.
68 15
in 2022, and updated where necessary.
Margin icons show where updated
material is available.
9
CAMBRIDGE LEGAL STUDIES – STAGE 6 YEAR 11 CHAPTER 9 CHILDREN AND YOUNG PEOPLE
Chapter summary 3 Which of the following is not a reason for b Australia can pass whatever laws it
• Historically, children had no legal rights. who have committed summary offences and the law to treat children and young people chooses to, as it is a sovereign state.
This began to change gradually in the some indictable offences. differently? c Australia can pass whatever laws it
nineteenth century, with the introduction of • The United Nations Committee on the Rights a to prevent them from being exploited chooses to, as it is a sovereign state, but
free compulsory education and laws limiting of the Child oversees the implementation of b to protect them from the consequences of it is obliged to pass laws to implement the
children’s labour. the United Nations Convention on the Rights of making uninformed decisions provisions contained in the convention.
c to give them the best chance of finding d Australia will pass laws recommended by
End-of-chapter sections
• The United Nations Convention on the Rights of the Child (1989).
the Child (1989) was an important development • The NSW Advocate for Children and Young appropriate employment the UN General Assembly.
in promoting the rights of children and young People is an independent body that conducts d to protect others from being disadvantaged 5 Which of the following bodies monitors the
people. More countries have signed this research related to children and young people. by dealing with a person who is a minor mandatory screening of applicants for jobs in
convention than any other international treaty. • The Office of the Children’s Guardian monitors 4 Which of the following statements best child care?
• The law generally defines a child as a person out-of-home care in New South Wales and non- describes Australia’s obligations under the a Australian Council of Trade Unions
under the age of 16, and a young person as a government adoption service providers. It also United Nations Convention on the Rights of the b Communities & Justice
Child (1989)? c NSW Office of the Children’s Guardian
At the end of each chapter you will

person aged 16–18. conducts ‘working with children’ checks.
• The status and rights of children under the law • The Children’s Court of New South Wales has a Laws must be passed within Australia d Committee on the Rights of the Child
are contained mainly in legislation in the areas a dual role with respect to children and young to implement all of the convention’s
of work, education, discrimination, medical people. It hears criminal matters relating provisions.
treatment and contracts. to young offenders as well as offer care
• All states in Australia have enacted care and applications for children and young people who
Short-answer questions
find a chapter summary and a set of

protection legislation over the last 30 years. are considered to be at risk of harm. 1 Outline what changed in the treatment of 5 Outline the roles of the NSW Commission for
• Children and young people are given special • Communities & Justice investigates reports of children and young people by the end of the Children and Young People.
consideration in respect to criminal law, which children who are considered at risk of harm. nineteenth century. Explain why this occurred. 6 Discuss some challenges that may confront
takes into account the age of the offender at • Non-legal mechanisms for protecting the 2 Provide examples of contexts where the Communities & Justice in performing its role
the time of the offence. rights of children and young people include criminal justice system treats children and effectively.
young people differently from adults. 7 Identify at least two non-legal mechanisms
questions to help you consolidate your

• The Young Offenders Act 1997 (NSW) provides counselling services and services offered by
diversionary measures for young offenders community organisations. 3 Explain how the Young Offenders Act 1997 that promote the rights of children and
(NSW) is unique and outline some of the young people.
recent criticisms made of the Act.
Questions 4 Comment on the extent to which the United
Nations can regulate the implementation of the
learning from the chapter.

Multiple-choice questions United Nations Convention on the Rights of the
1 Which of the following is a feature of 2 Which of the following is the best definition of Child (1989) throughout Australia and the rest
doli incapax in New South Wales? a ‘young person’? of the world.
a Children and young people are responsible a A young person is a person under the age
for their crimes from the age of 14. of 16.
Extended-response question
b There are certain crimes for which children b A young person is a person between the 1 Critically evaluate how the legal system Marking criteria for extended-response questions
and young people are not responsible. ages of 12–16. responds to the issue of juvenile justice. can be found on the Cambridge GO website. Refer
c Children under the age of 10 are not c A young person is a person aged between Refer to strategies for crime prevention, to these criteria when planning and writing your
responsible for their crimes. 16–18. issues surrounding arrest and detention, responses.
d People with mental disabilities are not d A young person is a person aged between diversionary schemes and court proceedings
responsible for their crimes. 18–25. for young people.
256 257
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.
xii
Components of Cambridge Legal Studies
Year 11
The Cambridge Legal Studies Year 11 — Other extra resources on the

resource package consists of three Cambridge GO website include:
components: – all review, research and chapter
questions in electronic format –
1 Student Book – print marking criteria for the extended-
The Student Book contains all topics in response questions – weblinks –
Part I, Part II (including additional topics additional resources.
under Law Reform in Action) and a range of
contemporary high-interest topics in Part III. 3 Teacher Resource Package
The Teacher Resource Package contains
2 Student Book – digital a wide range of material to support
Your purchase of the print book gives you students and teachers with course, lesson,
access to the following digital resources on teaching plan, assessment and homework
Cambridge GO: preparation
• Downloadable PDF textbook
A PDF of the print textbook, with Statement for the
additional digital-only content, Text Assessment for Learning
including: In ‘Assessment and Reporting in Legal
— Chapter 11 – Migrants Studies Stage 6’ NESA notes that
— Chapter 12 – Aboriginal and Torres ‘assessment is an essential component
Strait Islander peoples of the teaching and learning cycle’.
— Chapter 13 – People who have a ‘Assessment FOR Learning’ activities
mental illness provide opportunities for students to know if
— Chapter 15 – Alcohol and violence their current knowledge and understanding
— Chapter 18 – Outlaw motorcycle of the course work is on track. The review
gangs and research activities provide ‘Assessment
— Chapter 20 – Mohamed Haneef FOR Learning’ opportunities in this chapter.
— Chapter 21 – The Northern Territory Teachers are encouraged to discern which
Emergency Response activities they will use with their students
Online interactive textbook and the type of feedback they will provide as
An online version of the textbook has part of the ongoing teaching and learning
a further host of interactive features cycle. This supports students to further
to enhance the teaching and learning inform the knowledge and skills they are
experience. These include: developing throughout the course. It will
— Video and audio – drag-and-drop also assist them to be able to respond to
activities – auto-marked multiple- the ‘Themes and challenges’ and ‘Learn to’
choice quizzes – additional inquiry questions in each topic.
digital-only chapters from the PDF
textbook.
ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020 xiii

Introduction
To the student Recent student action on climate change

Congratulations on choosing Cambridge and increasingly the polarised state of
Legal Studies Year 11 Fifth Edition. politics and policy making in Australia
Since the introduction of Legal Studies highlights a society undergoing rapid
as a HSC discipline in 1989, the world has change socially and economically with the
undergone incredible change. Predictions gig economy.
of increasingly ‘disruptive’ technologies Cambridge Legal Studies Year 11
will continue to challenge the ability of the Fifth Edition is a comprehensive resource
law to balance the tension of individual that introduces you to a dynamic and
and community rights. Regardless, Legal challenging subject. It brings the law to
Studies continues to contribute to students life for you, both inside and outside the
completing their secondary schooling classroom.
as better informed citizens, able to think You will discover a wealth of material
more critically about the processes and that introduces you to the Australian legal
institutions that shape their lives on a daily system and how the individual interacts
basis. with and is affected by the law, and you
The rights people enjoy within will gain insight into how the law works in
democratic societies have at times been practice in a variety of contexts. You will be
eroded by governments when citizens engaged and stimulated by up-to-date case
become apathetic about their rights, law and recent legislative developments.
freedoms and liberties. Legal Studies will Practically, updated research and review
allow you to explore the power vested in our activities will help you build your research
democratic institutions and wielded by our skills and make sure that you are ready for
elected leaders. It explores issues that will your exam.
change the way you view the world and how We wish you luck and success.
you understand the concept of achieving
Paul Milgate
justice through legal and non-legal means.
xiv
Glossary of key words
Syllabus outcomes, objectives, performance describe

provide characteristics and features
bands and examination questions have key
words that state what students are expected discuss
identify issues and provide points for and/or
to be able to do. against
A glossary of key words has been
distinguish
developed to help provide a common recognise or note/indicate as being distinct or
language and consistent meaning in the different from; note differences between
HSC documents. Using this glossary will evaluate
help students and teachers understand what make a judgement based on criteria; determine
the value of
is expected in responses to examinations
and assessment tasks. examine
inquire into
account
account for; state reasons for; report on; give explain
an account of; narrate a series of events or relate cause and effect; make the relationships
transactions between things evident; provide why and/or how
analyse extract
identify components and the relationship between choose relevant and/or appropriate details
them; draw out and relate implications
extrapolate
apply infer from what is known
use, utilise, employ in a particular situation
identify
appreciate recognise and name
make a judgement about the value of
interpret
assess draw meaning from
make a judgement of value, quality, outcomes,
investigate
results or size
plan, inquire into and draw conclusions about
calculate
justify
ascertain/determine from given facts, figures or
support an argument or conclusion
information
outline
clarify
sketch in general terms; indicate the main
make clear or plain
features of
classify
predict
arrange or include in classes/categories
suggest what may happen based on available
compare information
show how things are similar or different
propose
construct put forward (for example, a point of view, idea,
make; build; put together items or arguments argument, suggestion) for consideration or action
contrast recall
show how things are different or opposite present remembered ideas, facts or experiences
critically (analyse/evaluate) recommend

add a degree or level of accuracy, depth, provide reasons in favour of
knowledge and understanding, logic, questioning,
recount
reflection and quality to
retell a series of events
deduce
summarise
draw conclusions
express the relevant details concisely
define
synthesise
state meaning and identify essential qualities
put together various elements to make a whole
demonstrate
show by example
ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020 xv

Part I
The legal system
40% of course time
Principal focus
Students develop an understanding of the nature and functions of law through the examination of the
law-making processes and institutions.
Themes and challenges

The themes and challenges covered in Part I include:
• the need for law in the operation of society
• the importance of the rule of law for society
• the relationship between different legal institutions and jurisdictions
• the development of law as a reflection of society
• influences on the Australian legal system.

Chapter 1 Basic legal concepts 02
Chapter 2 Sources of contemporary Australian law 18
Chapter 3 Classification of law 66
Chapter 4 Law reform 86
Chapter 5 Law reform in action 108
ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020 1

Chapter 1
Basic legal concepts
Chapter objectives
• identify and apply legal concepts and terminology
• identify the changing nature of the law
• distinguish between customs, rules, laws, values and ethics
• discuss the nature of justice in terms of equality, fairness and access
• discuss the concept of procedural fairness and the rule of law
• discuss the concepts of anarchy and tyranny
• communicate legal information by using well-structured responses.
Relevant law
SIGNIFICANT CASES
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256
2 ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020

Legal oddity
Laws in Australia cover all kinds of human interaction and behaviour. Most of the time, these laws reflect the
common values and beliefs of the majority of people. For instance, it is unsurprising that it is illegal to speed,
steal a TV, or break into a house. But did you know you could receive a fine of $826.10 for flying a kite in Victoria?
Under the Summary Offences Act 1966 (Vic), it is an offence to fly a kite or carry on a game in a public place
to the annoyance of another person. While no-one has yet been charged under this provision, it seems bizarre
that a lovely day in the park could become an incredibly expensive endeavour.

1.1 The meaning of law understand why we live in a society. A society is a

group of human beings who are linked by mutual
The law is a dynamic thing – a complex mechanism,
interests, relationships, shared institutions and a
evolving from hundreds of years of tradition, culture
common culture. In earliest history, people usually
and values.
banded together for basic survival and would
law agree to live by rules that protected their lives and
a set of rules imposed on all members of a community
their property.
that are officially recognised, binding and enforceable
by persons or organisations such as the police This tradition has carried on throughout history.
and/or courts As groups of people formed societies, and cultural
values groups within these societies, they established and
principles, standards or qualities considered worthwhile or enforced rules about the conduct of relationships.
desirable within a society
Laws today are imposed by the administrative
institutions that govern a society; they cover all
In general terms, the law is a set of enforceable
members of society and there are consequences if
rules of conduct that set down guidelines for
they are breached (i.e. broken).
relationships between people and organisations
in a society. The law provides methods for ensuring
the impartial treatment of people and outlines Formative assessment:
punishments for those who do not follow the Assessment for learning
agreed rules of conduct. Society is dynamic and The activities in this chapter are designed to assist
so the law often seems to be playing catch-up, but you to build your understanding of the content
law-makers do make a serious attempt to keep pace covered. You are encouraged to complete the
with changes. activities and seek feedback from your teacher on a
regular basis to check your understanding. You are
rules
regulations or principles governing procedure or controlling also encouraged to regularly review the ‘themes and
conduct challenges’ and the ‘learn to’ statements on pages
10–12 of the syllabus. You can revisit these types of
To understand how these rules (known in modern activities a number of times to build your knowledge
society as ‘the law’) came about, we need to and skills of the topic.
Review 1.1
1 You belong to different communities, for example, a school, a sporting team or a religious group.
Think of one community you belong to and write down four rules of this group. Outline how
these rules are enforced. Discuss why you think group members follow these rules.
2 Identify at least five other rules.
Legal Links
• The NSW Bar Association’s website has easy-to-read information about the Australian
legal system.
• The State Library of NSW’s website provides information about the history of the legal system
in Australia.

1
Chapter 1 Basic legal concepts
1.2 Customs, rules and law Rules

If you were to look in a dictionary or on the internet,
Customs you would find many definitions of the word ‘rules’.
Put simply, customs are established patterns of Generally, rules are prescribed directions for conduct
behaviour among people in a society or group. in certain situations. Rules are generally made by
Customs vary depending on the culture, religion groups and only affect people within those groups.
and history of a group of people, society or country. These rules often vary between groups and are not
For example, in Australia it is customary to shake enforceable by the state. For example, there are rules
hands when greeting a friend, whereas in Europe for playing games and for behaviour in a classroom.
this greeting may be in the form of a kiss on each If these rules are broken, there is some form of
cheek. punishment attached that is enforceable by those
Where a custom is followed by most of the involved in the making of the rules (e.g. suspension or
population over time, it may become part of the detention). Rules can also be altered by these people to
laws of that society; however, because of differences deal with changes in situations. This usually happens
between societies, not all customs become law. after consultation with the members of the group.
Customary law refers to established patterns of In a legal sense, rules form the basis of laws.
behaviour that are accepted within a particular However, rules can be changed quite quickly
social or commercial setting and are of sufficient with the agreement of those involved. Laws, as
importance to be enforced. These principles you will discover, are more difficult to change and
and procedures develop through general usage punishment is not always a simple process.
according to the customs of a people, state or group
of states. Customs arose to deal with problems in the
most harmonious ways. Over time, these customs
become accepted as legal requirements. Three
types of customary law that have influenced the
Australian legal system are:
• Aboriginal and Torres Strait Islander
customary law
• English customary law
• international customary law.
customs
collective habits or traditions that have developed in a
society over a long period of time
customary law
principles and procedures that have developed through
general usage according to the customs of a people or
nation, or groups of nations, and are treated as obligatory
state
a politically independent country
In many societies, most customary law is never

written down, as is the case with some Aboriginal
and Torres Strait Islander peoples’ customary laws.
In other societies, customary law is eventually
recorded and transferred into written law in formal
legal systems.
Figure 1.1 A sign in Hyde Park contains information
and rules.

Law to outweigh the costs or drawbacks of the

The law, as we know it, is made up of the formal rules government’s involvement in enforcing the laws.
of society. These ‘legal rules’ have been agreed upon 6 Laws reflect rights and duties. This means
by the majority of those in the group and govern their that everyone in society has responsibilities to
behaviour and activities. others (e.g. duty to drive safely) and that everyone
Laws are different from rules. For example, at the has the right to be treated in a certain way.
shopping centre, a sign on the escalator requests In Australia today, the laws have been, and still
that you stand to the left and do not take strollers are, mainly decided by elected government officials
on it. These rules exist for the safety and comfort of at local, state and federal government levels. Judges
shoppers. However, they are just rules, and that is also have the power to make laws in certain cases
why you will still see people standing on the right when they set a precedent. This will be discussed
and taking their prams on the escalator. There are in greater detail in the following chapters.
also signs telling you that you cannot smoke in It is expected by society that the law looks after
shopping centres. This is a law, and if someone did all members of the group and that laws are fair, just
‘light up’, they would be asked to leave the shopping and equitable. It is also expected that laws reflect
centre by a security or police officer, and the smoker traditional and current ethics and values. Although
might incur a fine. The consequences of breaking this represents the ideal situation, what is actually
rules are comparatively minor. attainable may be another matter.
Laws allow and prohibit a whole variety of
ethics
activities, from where rubbish should be placed (1) rules or standards directing the behaviour of a person
to how we should treat our fellow human beings. or the members of a profession; (2) a major branch of
philosophy that investigates the nature of values and of right
Failure to follow laws incurs penalties ranging from and wrong conduct
a fine to imprisonment.
Laws have certain characteristics that make
them different from rules:
1 Laws are binding on the whole community.
This means that they apply to all members
of society.
2 Laws can be enforced. This means that
penalties apply if a law is broken.
3 Laws are officially recognised. This means
that governments and courts recognise laws
and enforce them.
4 Laws are accessible (or discoverable).
This means that people can find out which law
applies to a particular situation.
5 Laws relate to public interest. This means
that laws exist for things that concern the
whole of society, and that interest is considered Figure 1.2 A no smoking sign at Bondi Beach.
TABLE 1.1 Differences between laws and rules

Laws Rules
to be obeyed by all citizens of a society to be obeyed by specific individuals or groups
made by a law-making body made by individuals or groups
enforced through the courts enforced by leaders of a group
a breach results in a prescribed sanction imposed consequences of a breach at the discretion of the
by the courts leader of a group

1
Relationship between customs, • These rules were based on the traditions,

rules and laws customs and values of the group.
As people have joined together in communities, • These rules have penalties attached if members
a relationship has developed between rules, laws of the group fail to follow them.
and customs: • Groups usually put someone, or a small group,
• Whenever people have lived together in in charge to enforce these rules and the
groups, they have developed rules to govern associated penalties; in modern times, this
their behaviour and, thus, maintain the smooth became the government.
running of activities. • Over time, these rules became formalised laws,
known in society as ‘the law’.
Review 1.2
1 Identify a custom that exists in your day-to-day life. This may be within your favourite sport or at
your school. Describe the custom and share it with the class.
2 Explain how laws are different from rules.
3 Describe the relationship between customs and rules and the process that may occur when
rules transform into laws.
1.3 Values and ethics that legalised abortion for pregnancies up to

22 weeks’ gestation and with the approval of
We all have values by which we try to live. Living
two doctors. This legislation was the result of
according to our ethics means that we do things that
decades of campaigning by advocates (such
we consider to be morally right.
as the Women’s Abortion Action Campaign)
Law-makers try to incorporate these values
that wanted the law changed. However, the
and ethics into laws. However, it is very difficult to
changes have been criticised and remain
make rules and, thus laws, about everyone’s values,
controversial.
especially as there are often groups in society that
have different standards of what is morally right
or wrong. For this reason, laws can only cover the What is meant by ethical
ethical values that are common to the majority or the behaviour?
dominant group. ‘Ethics’ and ‘ethical behaviour’ are difficult things
Over time, many groups have voiced their values to define, especially since different people have
and ethics in a public manner to try to influence the different ethical standards. Simply put, ethics is
law and the legal system. Two recent examples (that doing the right thing; that is, making a judgment
had varying degrees of success) are: about what is the best thing to do in certain
• School Strike 4 Climate: In 2019, students situations, and what would be the wrong thing
from across the world took time off school to to do. For example, the law does not say that you
demand political action on climate change. should open a door for someone whose hands are
Swedish student, Greta Thunberg – who full of packages, or to help a parent with a stroller
protested outside the Swedish Parliament in down a flight of stairs, but many people carry out
2018 – inspired the protests. The strikes had these actions, as they are the right thing to do. Often
varying responses from politicians, ethical behaviour affects our integrity; that is, how
community leaders and schools. we feel about ourselves and how others see us. For
• Abortion: On 2 October 2019 in News these reasons, most people behave in an ethical (or
South Wales, legislation – the Abortion Law moral) way and so laws do not have to be put in place
Reform Act 2019 (NSW) – came into effect to ensure people’s behaviour is ethical.

1.4 Characteristics of just laws social and civil rights, and opportunities; and that
no-one enjoys unfair advantage or suffers unfair
The concept of justice involves the fair and impartial
disadvantage. Although we would like to think that
treatment of all persons, especially under the law.
equality applies to everyone, our society tolerates
In simple terms, justice is the continued effort to
many levels of equality and inequality. For example,
do the fair thing by everyone. When it comes to
depending on the situation, a 10-year-old child will
making laws in a democratic society, justice involves
be treated differently from a 17-year-old teenager or a
consulting the people, and carrying out the decisions
40-year-old adult. The law takes into account people’s
of the majority, while ensuring that the minority has
different capacities (e.g. maturity) and recognises
the opportunity to put forward their point of view.
that some people are more vulnerable than others
A just law is one that allows everyone to receive fair
and so provides protection for them. For example,
treatment and outcomes, as well as ensuring that
children under 10 years of age cannot be held legally
human rights are recognised and respected. This
accountable for their actions and therefore cannot
is not always an easy thing to do, as you will learn
be convicted of a criminal offence. This presumption
throughout the Legal Studies course.
is known as doli incapax. In the case of 10–14-year-
justice olds, the court will make an assessment about
the legal principle of upholding generally accepted whether the child can tell the difference between
rights and enforcing responsibilities, ensuring that equal
outcomes are achieved for those involved right and wrong, and this will influence the way in
which the matter is handled (this is studied in greater
detail in the Year 12 Legal Studies course).
1.5 The nature of justice doli incapax

(Latin) ‘incapable of wrong’; the presumption that a child
The interpretation and enforcement of laws by a under 10 years of age cannot be held legally responsible
country’s system of courts (and those who work within for his or her actions and cannot be guilty of a criminal or
civil offence
the courts such as judges and legal practitioners,
prosecutors and police officers) is known as the legal
system. It is the task of the legal system to ensure
Fairness
that all citizens have equal access to the law and that
Fairness and justice are usually associated with
the law provides equality, fairness and justice to all
each other. The difference is that ‘fairness’ applies
members of society. Equality, fairness and justice
to everyday life, whereas ‘justice’ has more legal
are central concepts that allow us to distinguish good
connotations. People may have different opinions
law from bad law. However, if not all citizens have
about what is fair.
full and equal access to the legal system, equality,
For example, suppose one team wins a sport
fairness and justice are just empty concepts. It is only
competition because all of its players, randomly
by combining all of these principles that a legal system
selected, happen to be taller than the players on
can provide justifiable and appropriate outcomes.
the other team. If the rules of the competition do
legal system not specify that both teams must have players of the
the system of courts, prosecutors and police within a country same size, it may seem unfair to the losing team, but
equality there is no ‘fact of the matter’. If Ann places a bet
the state or quality of being equal; that is, of having the same on the team she knows has the taller players and
rights or status
none of the other people who placed bets knows
fairness anything about the teams or how tall the players
freedom from bias, dishonesty or injustice; a concept
commonly related to everyday activities are, Ann’s winning of the bet may also be regarded
as unfair – as a result of her having knowledge the
others lacked. In other words, even if an opinion
Equality about what is fair is justified or mistaken, there is no
Equality means that all people in a society are single social mechanism for deciding what fair is or
treated in the same way with respect to political, for ensuring fairness occurs.

1
Figure 1.3 Teuila Fotu-Moala – a professional rugby player – attends the National Rugby League’s judiciary at Rugby
League Central on 17 September 2019 in Sydney.
When rules are made, the expectation is that they However, in reality, the legal system is not accessible
will be fair to those covered by them. In the same to everybody in an equal way. Such things as income,
way, when a rule is translated into law, it is expected education and English-language skills can affect
that it will be fair to all members of society. Justice is people’s access to the law. In particular, women,
more specific than fairness, as the term is applied to financially disadvantaged people, people from non-
situations covered by the law, which tries to ensure English speaking backgrounds, people living with
that everyone has the same opportunities. disability, Aboriginal and Torres Strait Islander
peoples, and those who are institutionalised may
Access have trouble finding appropriate legal solutions.
In a democratic society such as Australia, protecting
the rights of all citizens is the ultimate goal of the
law. However, for the legal system to meet this goal, 1.6 P
rocedural fairness and the
all people must have the same level of access to principles of natural justice
the institutions and agencies of the law. Access is Procedural fairness refers to the idea that there must
the ability to obtain or make use of something. The be fairness in the processes that resolve disputes. It
concept of justice suggests that everyone who is is closely linked to the concept of natural justice; the
covered by a legal system and its laws should have two terms are often used interchangeably.
equal access to that system. This includes ensuring
that citizens are aware of the laws that affect them and procedural fairness/natural justice
understand their rights and responsibilities under the body of principles used to ensure the fairness and justice
of the decision-making procedures of courts; in Australia,
these laws. it generally refers to the right to know the case against you
and to present your case, the right to freedom from bias
access by decision-makers and the right to a decision based on
the right or opportunity to make use of something relevant evidence

Natural justice refers to the fact that everyone should

be treated fairly in legal situations. There are two
main principles of natural justice. These are:
• the right to be heard – this includes the right to
a fair hearing
• the right to have a decision made by an unbiased
decision-maker – even an appearance of bias is
enough to constitute a breach of natural justice.
The assertion that ‘justice should not only be done but

should be seen to be done’ comes from the English
case of R v Sussex Justices; Ex parte McCarthy [1924]
1 KB 256. During this criminal trial – which resulted
in McCarthy being convicted of dangerous driving –
it was discovered that a clerk to the magistrates was Figure 1.4 People sometimes disobey laws if they do not
also a solicitor who had represented the person suing consider the penalty to be sufficiently harsh.
McCarthy in a separate civil case arising out of the they can expect from others. As the law is based on
accident. Although the magistrates did not consult customs, it also helps to reinforce the values of most
the clerk for his opinion, and the clerk gave them no members of society. In principle, the law embodies
advice on the matter, McCarthy’s conviction was the concept that what each individual believes has
overturned based on the possibility of bias. the same importance to the larger group.
Laws also function to protect all members of
society. They tell society which actions are allowed
1.7 The rule of law and which actions are not allowed. Laws apply
The principle of the rule of law is that no-one is sanctions to those found guilty of a crime and may
above the law, including those who make the law. act as a deterrent to those who might otherwise
This means that all the groups and individuals commit a crime. Laws enable the resolution of
who are involved in the legal system – such as the disputes, as they empower police officers and the
legislators and judges who make, administer and courts to carry out and administer the law.
interpret the laws, the police officers who enforce
the law and the lawyers who represent and advise sanction
a penalty imposed on those who break the law, usually in the
people about the law – are answerable to the same form of a fine or punishment
laws as every other citizen. Thus, the rule of law
means that everyone is subject to the same laws. People will not follow rules if they do not agree with
Obvious breaches of the rule of law occur when them or feel that the rules have no connection to
officials make favourable decisions for relatives and them. This is especially so if the penalty attached
friends but apply the law fully for everyone else. to the rule is seen as inadequate. For example, think
about the penalties for riding your bike or skateboard
rule of law
in areas where it is not permitted, or talking on a
the principle that nobody is above the law; this can be seen
in the requirement that governmental authority must be mobile phone when driving. While many people
used in line with written, publicly disclosed laws, for which obey these rules and laws, others do not, as they
established procedural steps (due process) have been taken
in the adoption and enforcement do not consider the penalty (e.g. a fine or demerit
points) to be enough of a deterrent. Some people
believe that the law does not apply to them, or that
Why do people obey the law? they will not be caught, and so do not comply with
Generally, people within a society like to have rules the law. As would be expected, laws against more
and laws because they create order. Laws help each serious offences carry a range of stricter penalties,
person to feel a sense of security – the law is clear which are intended to make people think seriously
about what is expected of them as a citizen and what about the consequences before breaking the law.

1
Review 1.3
1 Identify why we need laws.

2 Define the following basic legal concepts. You can choose to use words, pictures or cartoons to
define the concepts:
a custom
b rules
c law
d fairness
e equality
f justice
g values
h ethics.
3 Write an explanation of why you obey the law. Assess if there are any laws that you do not follow
or believe in and why this is so.
In 2013, the NSW Government brought in legislation In 2018, this law was widened to include electronic
that banned smoking in public places (e.g. building cigarettes (e-cigarettes). The NSW Parliament passed
entrances, bus stops, train stations, swimming pools legislation, the Smoke-free Environment Amendment
and sporting grounds). The news article below is Bill 2018 (NSW), banning vaping from the same spaces
from 2014 and highlights the fact that if people do not in which cigarettes are banned. Under this legislation,
think a law is relevant to them or that a law will not e-cigarette smokers face fines of up to $550 if caught
be policed, that law will be very difficult to enforce. smoking in public spaces or on public transport.
Calls to bust smokers in public areas, poll

By Damon Cronshaw
Newcastle Herald
19 May 2014
A single fine has been issued in the Hunter under anti-smoking laws the NSW Government
introduced in January last year – sparking calls for tougher enforcement.
Many residents are fed up with breathing second-hand smoke outside shopping centres, office
buildings and other public places. There are calls for a crackdown and changes in community
attitudes to ensure smoking is significantly reduced in these areas.
Coal Point resident, Jim Sullivan, a former council environmental health officer, said the laws were
not being enforced, ‘They’ve got to bump up the education program and the enforcement and not
put this back on to councils.’
Mr Sullivan said most people were ‘sick of breathing other people’s smoke’.
NSW Health inspectors are authorised to enforce bans and issue up to $550 penalties for those who
fail to comply.

News (continued)
A Health Department spokeswoman said about 30 NSW Health inspectors worked ‘across the state’.
Mr Sullivan said health officers ‘have enough on their plate’ and many weren’t employed to be
‘smoking policemen’.
‘It’d be one of their lowest priorities,’ he said.
He said the ‘best people to enforce it would be parking rangers’.
‘They’re used to booking people – they’re tough bastards,’ he said.
‘They’d book people as quick as lightning.’
The NSW Health Department said the first priority in enforcing the laws had been ‘educating the
community to provide the opportunity for smokers to adjust their behaviour’.
‘This has included regular compliance monitoring at all public outdoor sites covered by the legislation
and the issuing of cautionary notices to people seen to be in breach,’ a spokeswoman said.
Monitoring done last year showed ‘a high level of compliance with the new rules on smoking in
public places,’ she said.
The laws ban smoking ‘within four metres of a pedestrian entrance or exit’ at public buildings,
including shopping centres and offices.
Additionally, the bans apply to sportsground spectator areas, railway platforms, bus stops, taxi
ranks and within 10 metres of children’s play equipment.
One in five Hunter people smoke, state figures show.
NSW Health said 35 fines had been issued in New South Wales under the new laws since January 2013.
‘This includes one fine in the Hunter region,’ it said.
The department said compliance with the laws was high when people were ‘aware of where they
cannot smoke’.
It said a Cancer Institute NSW survey found 85 per cent of respondents were ‘aware of the new
smoking bans in certain outdoor public places’.
University of Newcastle Public Health Professor, Kypros Kypri, said laws with ‘relatively low
enforcement’ could produce improvement because many people obey the law.
‘They can be substantially enhanced with good enforcement and governments should be telling us
what they’re doing to enforce the new laws,’ Professor Kypri said.
NSW Health said the second stage of managing the laws, which was in force now, involved
‘strengthening compliance and enforcement’.
The ban will apply in outdoor dining areas from July 2015.
Also from that date, smoking will be illegal within four metres of an entry to a licensed premises,
restaurant and café.
Cancer Council NSW regional manager, Shayne Connell, said his organisation advocated for a
community-led push to change behaviour.

1
News (continued)
Mr Connell urged people to complain to owners of places where people smoke.
This included places like Hunter Stadium and shopping centres, where ‘people have to walk
through a wall of smoke to get through the automatic doors’.
In total, NSW Health said it issued 4453 smoking fines in New South Wales from January 2013 to
March 2014.
‘During this period, 319 fines were issued in the Hunter region for smoking offences,’ the NSW
Health spokeswoman said.
Most of these fines were not issued under the new smoking laws, but public transport laws – which
police and transport officials enforce.
When the government announced the new laws it said there was ‘no safe level of exposure to
second-hand tobacco smoke’.
‘In adults, breathing second-hand tobacco smoke can heighten the risk of cardiovascular disease
and lung cancer and worsen the effects of other illnesses such as bronchitis and asthma.
‘It is even more dangerous for children, as their airways are smaller and their immune systems
less developed.’
Mr Sullivan questioned why the government does not ban smoking ‘across the board’.
‘We all know it’s killing people and costing taxpayers a fortune,’ he said.
‘I guess they say prohibition doesn’t work.’
It’s time for action to clear the air for everyone.
Review 1.4
Read the article above, ‘Calls to bust smokers in public areas, poll’, and then answer the following
questions.
1 Explain why councils may not actually prosecute anyone for breaching these anti-smoking laws.
2 Discuss why you think people may not obey this law.
3 Analyse if you think society needs a stronger type of legislation. Write two paragraphs, one
arguing in favour of the legislation and the other arguing against it.
4 Carry out some research to see if you can find a more recent media item about whether this law
is working.
1.8 Anarchy and tyranny Rules are needed to ensure that our behaviour
The rules and laws that have evolved for different is regulated to meet the common expectations of
societies are based on the customs, values and society. The absence of laws and the
ethics that are part of these traditions. Most inability to enforce laws, or the unfair
people want and accept rules as a necessary part and unequal application of laws, can
of everyday life due to the belief that all people result in states of anarchy or tyranny.
should be treated equally and with fairness. Video

Anarchy A state of anarchy may break out during a revolution

When people believe that the law has let them or after a natural disaster because the law-
down in some way, they may declare, ‘We live in a enforcement agencies no longer exist or are unable
state of anarchy!’ What exactly do they mean by to enforce the laws. Violence and widespread looting
this? The word ‘anarchy’ is derived from anarchia, are two early indicators that a society or group is on
the Greek word for ‘without a ruler’. Anarchy, the verge of anarchy.
therefore, is a term used to describe a state of While the majority of people believe that an
chaos and disorder resulting from the absence of absence of rules and laws leads to a disorganised
rules and laws. and chaotic society, certain philosophers, theorists
and anarchist movements believe that anarchy does
anarchy not imply chaos, but rather a ruler-free society with
the absence of laws and government
voluntary social harmony.
Research 1.1
Prepare a report that analyses anarchy and modern-day anarchist organisations. In your report
include the following:
• a definition of anarchy
• a history of anarchy
• information about two anarchist organisations and their beliefs
• modern-day anarchists and their activities.
Two possible anarchist organisations are the Anarchist Federation and the Melbourne Anarchist
Club; search online for information about these organisations. Alternatively, you may choose your
own group to research.
Anarchist organisations often protest at:
• G8 summits
• European Union meetings
• World Trade Organization meetings.
Figure 1.5 Injured protesters wrapped in emergency thermal blankets leave the Hong Kong Polytechnic University on
19 November 2019 in Hong Kong.

1
Case Study
Hong Kong protests

On 3 April 2019, a Bill was proposed in the semi-autonomous region of Hong Kong that would allow
criminal suspects to be extradited to mainland China. This Bill was widely opposed due to concerns
it could be used to silence criticisms of the Chinese Government; on 9 June 2019, one million people
marched in Hong Kong in protest of the Bill. This was the first of a series of ongoing demonstrations
that expanded to being protests about general concerns over the communist Chinese Government’s
control over Hong Kong.
Hong Kong has been a semi-autonomous region since Britain returned the city to China in 1997.
At this time, China agreed to give a ‘high-level of autonomy’ to Hong Kong for 50 years; this autonomy
included free-speech and the continuation of capitalist markets and democratic principles in Hong
Kong. However, in recent years there has been widespread concern about the Chinese Government’s
increasing influence on the Hong Kong Government.
So while the extradition Bill was formally withdrawn after two months of civil unrest, demonstrators
continued to take to the streets with a list of other demands including an inquiry into police conduct and
an amnesty for arrested protesters. Video footage of increasingly violent clashes between protestors
and police officers were shown across the world. Hong Kong’s airport was shut down for periods at
a time, government offices were stormed by protesters, and police sprayed tear gas into crowds of
demonstrators.
The movement labelled an ‘era of evolution’ by protesters has no clearly identified leader or
structures but relies on multiple individuals or small-group organisers. The organisers alert people
to ad hoc demonstrations via social media.
At the time of writing, the future of Hong Kong and its relationship with mainland China remains
uncertain. The protests are ongoing and the leaderless structure of the movement means that no key
players have been identified or arrested. In the meantime, the rest of the world watches closely.
Figure 1.6 Riot police hold a blue flag warning protesters to disperse during a protest gathering in Hong Kong on June
12 2020 to mark the one-year anniversary of major clashes between police and pro-democracy demonstrators.

Tyranny
If anarchy is the absence of laws and law- Hussein’s rule in Iraq before his arrest in 2003,
enforcement agencies, then tyranny is the Bashar al-Assad’s presidency in Syria, Robert
opposite. By definition, a tyrant is a single leader Mugabe’s 30-year control of power in Zimbabwe,
who has unlimited power over the people in a before his overthrow in 2017, and Kim Jong-un, the
country or state. Generally, tyrannical power president of North Korea.
involves severe punishment for any infringements
of the law. Some modern-day examples of tyranny
rule by a single leader holding absolute power in a state
tyrannical power in action include Saddam
Figure 1.7 National Guard members deployed near the White House (Washington, DC) on June 6 2020 in response to
the outbreak of Black Lives Matter protests in the wake of the death of George Floyd.

1
Chapter summary
• The law of a country develops from the rules of • The law is based on the notions of fairness,
the dominant community. equality and justice.
• These rules are based on the customs, values • The law covers all members of society and
and ethics of that community. there are penalties for infringements of the law.
• Rules and laws have different characteristics. • People follow the law because it provides them
• The term for the absence of government with protection against wrongful behaviour.
is ‘anarchy’.
Questions
1 Which of these statements about the 4 A police officer charges a man for crossing
difference between a rule and a law is true? the road against the lights, but does not book
a Rules are not binding on the whole a woman doing the same thing. Why is this
community. unjust?
b Rules are not enforceable. a The police officer should concentrate on
c Rules have nothing to do with ethics. serious crimes.
d Rules do not involve rights and b Studies show that women are better at
responsibilities. crossing roads.
2 What is anarchy? c The police officer has not treated all
a Anarchy is constant violence and disorder. pedestrians equally.
b Anarchy is the absence of law. d You should be allowed to cross the road
c Anarchy is wearing black clothes and wherever you want.
breaking the rules. 5 What is the purpose of the law?
d Anarchy is rebellion against the a The purpose of the law is to divide power
government. among all the different groups in society.
3 What are ethics? b The purpose of the law is to provide
a Ethics allow people to be different. stability for the ruling government.
b Ethics are a mix of equality and fairness. c The purpose of the law is to maintain order
c Ethics are the principles that help us make in society.
decisions about right and wrong behaviour. d The purpose of the law is to make people
d Ethics are different people’s perceptions of do things that no-one wants to do.
the law.
1 Describe the difference between anarchy and 4 Compare and contrast ‘rules’ and ‘laws’.
the law. 5 Explain the relationship between fairness,
2 Explain how anarchy and a structured system equality and justice.
of law are not compatible. 6 Critically analyse whether laws are necessary.
3 Describe the relationship between rules, laws 7 Assess why people have different perceptions
and customs. about the law. Explain your answer.

Chapter 2
Sources of contemporary
Australian law
Chapter objectives
• describe the key features and operation of the Australian and international legal systems
• discuss the effectiveness of the legal system in dealing with relevant issues
• describe the role of the law in conflict resolution and its ability to respond to and initiate change
• locate, select and organise legal information from a variety of sources
Relevant law
IMPORTANT LEGISLATION
Commonwealth of Australia Constitution Act 1900 (UK)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australia Act 1986 (Cth)
SIGNIFICANT CASES
R v Brislan [1935] HCA 78
South Australia v Commonwealth [1942] HCA 14 (‘first uniform tax case’)
Murphyores Inc Pty Ltd v Commonwealth [1976] HCA 20 (‘Fraser Island case’)
Commonwealth v Tasmania [1983] HCA 21 (‘Tasmanian dam case’)
Osland v R [1998] HCA 75
Roper v Simmons (2005) 543 US 551
Google Inc v Australian Competition and Consumer Commission [2013] HCA 1
Wilkie v Commonwealth; Australian Marriage Equality Ltd v Cormann [2017] HCA 40
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45
(‘citizenship seven case’)
Nathanson v Minister for Home Affairs [2019] FCA 1709

Legal oddity
Laws in Australia are the result of legislation passed in state and federal parliaments or because of legal
precedents established in the courts. This will be explored in this topic. However, there are many odd laws
that exist, some dating back from as far as the 1800s. Some laws make sense at the time they are enacted but
as society changes they might not fit with the current times. For example, in 2016, a Sydney cab driver was
fined $100 for wearing brown shoes. The charging officer relied on regulations made under the Passenger
Transport Act 1990 (NSW) that stated network uniforms must be provided for network taxi-cab drivers. While
the regulations did not cover the colour of the shoe, the wording was flexible enough to allow the police
officer to give a hefty fashion fine. Since that time, the regulations on taxis has been largely modified to
accommodate the rise of ride-sharing services such as Uber and this bizarre provision has been removed.

2.1 Australia’s legal heritage adversarial system

a system of resolving legal conflicts – used in common law
Legal processes and practices used in Australia countries such as England and Australia – that relies on
today are based on the model developed in England. the skill of representatives for each side (e.g.defence and
prosecution lawyers) who present their cases to an impartial
When the British came to Australia in 1788, they
decision-maker
brought with them the law that applied in Britain,
known as common law. Contemporary Australian
An impartial judge (and sometimes a jury) will
law has evolved from both common law and statute
listen to the evidence presented by both parties
law. Common law refers to laws created in court;
and make a decision as to which side has proved
that is, decisions made by judges. Statute law refers
their case and, thus, disproved the other side’s
to laws made by parliament. These concepts are
case. It is up to the defendant and their legal team
discussed in further detail below.
to decide if they want to be heard by only a judge
common law
or a judge and jury.
law made by courts; historically, law common to England Juries are made up of a random selection of the
statute law public and there is a good chance that one day you,
law made by parliament or someone you know, will be called for jury duty.
The article below explains the purpose of juries,
how juries are selected, and what happens in the
The adversarial system of trial courtroom.
The English system of law has heavily influenced
Australian law and practice, including the way
court cases are conducted. Australia inherited the
adversarial system as part of both criminal and
civil court proceedings. The word ‘adversary’ means
‘opponent’. In a trial, the two sides involved in the
case try to prove their version of the facts and disprove
the other side’s version. In theory, the defendant in
a criminal trial does not have to prove anything, as
he or she is assumed innocent until proven guilty.
However, the opposing sides to a trial, either civil
or criminal, will have the opportunity to present
arguments and both have the right to challenge the
arguments each side is presenting. Most people
involved in a trial will usually retain the services of a
legal team to present and argue their case. Figure 2.1 The Moss Vale Courthouse.
Jury duty explained: From allowances to exemptions, here’s what you need to know
ABC News
16 October 2019
If you’re an Australian citizen and you’re enrolled to vote, there’s a good chance that one day you’ll
open your mailbox to find a fancy letter requiring you to attend your local court for jury duty.
If you haven’t the faintest clue how the legal system works and your courtroom knowledge is limited
to the storylines of TV legal dramas, you’ll likely have a lot of questions.

Chapter 2 Sources of contemporary Australian law
2
News (continued)
For starters, what exactly does a juror do? If you’ve got to work, can you skip jury duty? What if you
have family to look after or live far away from the court?
The good news is we’ve done the hard yards for you – so here’s what you need to know.
WHAT DO JURIES DO? AND WHY DO WE HAVE THEM?
Juries are a key part of our legal system. They’re generally made up of 12 people who are tasked with
hearing evidence presented in a trial and returning a verdict of guilty or not guilty.
SO WHY DO WE HAVE JURIES? AND WHY DON’T WE LET JUDGES DECIDE EVERYTHING?
The key reason is that juries help people trust the justice system. Without juries, trials would be
decided by a single judge (who might not be representative of the broader population) instead of a
group of people representing a cross-section of society.
Think about someone who is particularly biased or prejudiced: if they were deciding on a case
themselves, the outcome could be very different than if they had to reach agreement with 11 other
people in a jury room.
Having a jury also forces lawyers to explain things in terms an average person can understand,
rather than a bunch of legal mumbo jumbo.
After all, we need to understand the law if we’re going to avoid breaking it, says Jacqui Horan, a
jury researcher and associate professor at Monash University.
HOW CAN YOU GET EXCUSED FROM JURY DUTY?
Look, I get it. You saw the jury duty letter and thought, ‘How I am going to get out of this?’
We all have busy lives and jury duty can be a major inconvenience. But, like voting, it’s an important
civic duty that we shouldn’t take for granted. (I’ll get to this shortly.)
All that said, sometimes jury duty is going to be impractical or impossible, which is why courts
allow people to be exempted or excused in certain circumstances.
Here’s a short and abridged list of some of the reasons you might be excused, courtesy of David
Tait, a professor of justice research at Western Sydney University:
• if you are self-employed or run a small business that would be affected by your absence
• if you are a student or apprentice
• if you have a health issue or live with a disability that would make jury service difficult
• if you aren’t living in the state where you have been summoned to attend court, or if you have
transport difficulties (e.g. you live very far from the court)
• some professions may exempt you from serving on a jury; this usually covers criminal lawyers, police
officers and other people who work in the criminal justice system, but each jurisdiction is different.
For most people though, simply having to work is not going to be a good enough reason to avoid
jury service.
For a case in point, consider the chief financial officer who tried to dodge jury duty in Victoria
because he had meetings to attend. For his indiscretion, he was fined $2000 and ordered to do
80 hours of community service.

News (continued)
HOW ARE JURIES SELECTED?
If you’re called to court, it’s not a given that you’ll be put on a jury immediately.
For one, lawyers have an opportunity to veto potential jurors by using what’s called a ‘peremptory
challenge’.
The reasoning for these challenges tend to be based on little more than superstition or folklore, says
Professor Horan.
In Victoria, for instance, teachers and nurses are often challenged because of pervasive stereotypes
that they have ‘strong views’ or are overly sympathetic to victims.
In many cases, lawyers will challenge potential jurors simply because of the way they look,
Professor Horan adds.
If you are excused, challenged or otherwise exempted, you might be required to come back to court
another time.
WHAT DOES JURY DUTY PAY?
Jurors are paid allowances by the court for their time (and sometimes travel), which can range from
$40 per day to more than $100 depending on the state.
In longer trials, jurors are typically paid more to make up for the inconvenience.
Your work may also pay you while you’re on jury duty.
Under the National Employer Standards, all employers are required to top up their staff’s jury pay to
their normal wage for the first 10 days of jury service, but this does not cover casual workers.
Some states like Victoria require employers to keep paying their staff at full pay. Some lucky
employees (often public servants) will get full pay even when it isn’t required by law.
But, if you don’t have access to these generous perks, you’re a casual worker, or if you’re assigned to a
particularly long trial, there’s a real chance you could be left worse off financially for serving on a jury.
HOW LONG DO PEOPLE SERVE ON JURIES?
Jurors typically serve on trials that take between seven and 12 days, though more involved matters –
such as those for alleged terrorists – can take months or even a year or more, says Professor Tait.
Jurors are often asked about their availability in advance if they could be selected for a particularly
long trial.
WHAT HAPPENS IN THE COURT ROOM?
In court, the role of the juror is to be a ‘fact finder’, Professor Horan says. In a jury trial, jurors are asked
to decide upon the key facts of the case and return a verdict of guilty or not guilty. (In judge-only trials,
the judge also takes on this responsibility.)
Consider someone on trial for allegedly driving a getaway car in a robbery: the jurors have to decide
whether the accused intended to rob something, the extent of their involvement and whether they
were acting in concert or alone, Professor Tait says.

2
News (continued)
The judge’s role in jury trials, by comparison, is to deal with questions of law, such as what
evidence can be presented to the court.
JURIES IN THE INTERNET AND SOCIAL MEDIA AGE
When jurors are empanelled, they are usually given stern instructions not to talk to anyone about
the case or to look up information online.
The reason is fairness, Professor Tait says. In a court room, the defence lawyers have an
opportunity to explain or question any evidence that’s presented to the jury.
When a juror is searching around online in their private time, they might be reading something
mistaken or misleading with knowing it. The defence doesn’t have an opportunity to point this out,
which could lead to a miscarriage of justice.
Similarly, jurors are often warned to keep off social media. The fear is that jurors could become
aware of information that wasn’t heard in court, that they contact people involved in the trial, or that
they use social media to discuss the trial with others.
Judges take this stuff very seriously, and have even dismissed jurors who have researched online or
posted about their cases on social media.
WHAT’S THE EXPERIENCE LIKE?
While most people are initially apprehensive about serving on a jury, those who have gone through
it often value the experience.
‘What we have learnt from surveying jurors is that although jurors are often initially nervous and
hesitant … after they’ve been on a jury, they’re far more inclined to do it again because they really
appreciate what an amazing experience it can be,’ Professor Horan says.
‘You get to see what it’s like being a judge for a week or two.’
For some people though, jury duty can be confronting and even traumatic.
If you’re serving on a sexual assault or murder trial, you are likely to encounter confronting
evidence. Jurors also feel pressure to make the right decision, which can be difficult when evidence
is conflicting or confusing.
Sometimes, there are disagreements in the jury room. (In Australia, juries often have to come to an
unanimous verdict, though in some circumstances judges will still accept verdicts of juries with one
dissenting vote.)
It’s a lot to deal with, so it’s no surprise that one study found that 70% of Australian jurors found
the experience stressful in some way. Today, many courts offer jurors counselling services to help
manage this problem.
While it is not always going to be pleasant, jury duty can be a great experience – and one that we
shouldn’t necessarily shy away from.
‘This is one of the most interesting experiences as a citizen you could possibly have,’ Professor Tait says.
‘You will meet people you would never meet otherwise, and you will have really momentous
decisions resting on your shoulders. It’s not just a duty, it’s an opportunity.’

The inquisitorial system • law developed by the courts of common law, as

In an inquisitorial system, the court is actively distinct from the courts of equity
involved in determining the way in which the • the system of court-based law used in the
competing claims are presented. It is different from United Kingdom and many of its former
the adversarial system, where the court is required colonies, including Australia, New Zealand,
to act impartially, like a referee. Canada and the United States.
inquisitorial system Development of the common law

a legal system where the court or a part of the court
The British legal system itself developed from a number
(e.g. the judge) is actively involved in conducting the trial
and determining what questions to ask; used in some of sources. In Anglo-Saxon England, for example,
countries that have civil legal systems rather than common questions about rights and obligations were decided
law systems
based on local custom, and disputes were resolved by
local courts. After the Normans invaded England in
The inquisitorial system derives from the Roman and
the eleventh century, they began a system of travelling
Napoleonic codes. It is found in Europe, as well as
judges who applied a common set of laws to all areas
Japan and some other countries. In this system, called
of England. These judges, also known as magistrates,
the civil law system, a judge (or group of judges) has
dealt with petitions from people who felt that the local
the task of investigating the case before him or her.
courts had been unjust. They used the premise that
Indonesia uses an inquisitorial system for criminal
similar cases should be treated in a similar way. The
trials. This means that the judges will conduct an
decisions made by the judges provided the standards,
inquiry into the truth of what occurred; that is, the
or precedents, for later cases, and the laws they
facts behind the legal issues in dispute. They are
applied became the basis of the British legal system.
able to admit evidence that might not be admitted
This system was the one brought over to Australia
in an Australian court. Judges are empowered to
with the First Fleet, but gradually Australia has
decide which witnesses will be called, and could
developed a legal system based on its own statute
even call for outside testimony that had not been
law and common law; however, many British legal
requested by either side.
principles have been retained in the Australian
system. These include the principles of natural justice.
2.2 Common law From about the sixth to the eleventh century in
England, the law was enforced by local administrative
The term ‘common law’ has many different uses, and
bodies. The king’s appointees, the church and local
can be used in the following contexts:
landlords all had a role in court resolution of legal
• court-made law (as opposed to laws made by
matters. Crimes were treated as wrongs for which the
parliament or statute law)
Figure 2.2 Guido Torres Morales from Peru (centre) attends his trial at a courtroom in Denpasar, Indonesia, on 18
November 2019.

2
offender had to compensate the victim. If the court Development of equity
accepted a case, both the person against whom the The procedure for bringing a case before the court
illegal act was allegedly committed (the plaintiff) was rigidly formal. In Anglo-Saxon times, if a party
and the person who was said to have committed it failed to follow the prescribed steps, he could lose
(the defendant) had to swear an oath. The defendant his case. Even later, the common law would hold that
might have the help of ‘oath-helpers’ – people a person was bound by a contract, even if he had
willing to swear to his innocence. If the court found made a mistake or been tricked into signing it. By
the defendant’s oath believable, he or she could the fifteenth century, people were bringing petitions
simply walk away. If, however, the plaintiff had to the king claiming that the common law courts
witnesses who would swear that the defendant had had made unjust decisions. It became the job of the
committed the act, the defendant might be required Chancellor to deal with these petitions.
to participate in a ‘trial by ordeal’. For many years, the Chancellor was a priest
Before the ordeal, the defendant had to fast for as well as a judge. Chancellors did not base their
three days and attend a special Mass. He was then judgments on precedent and form; instead, they
given a painful task to complete or to bear such as were influenced by Christian principles. This body
carrying a red-hot iron bar a certain distance in of law, which developed to deal with the injustices
his bare hands, retrieving a stone from a cauldron that had crept into the common law and was set up
of boiling water, putting his hand into a flame, or to hear these petitions, became known as equity.
being thrown into a river or pond. If the defendant
completed the task without injury or death, if the equity
the body of law that supplements the common law and
wound healed within a prescribed period, or if the
corrects injustices by judging each case on its merits and
defendant sank, he or she was considered innocent applying principles of fairness
and set free; if not, execution usually followed.
Trial by ordeal continued after the Norman As a court of equity, the Court of Chancery looked at
Conquest, though there were new requirements the features of each case to decide what was fair or just
imposed by the church; for example, that no one could in the particular circumstances. The moral principles
be made to undergo an ordeal without the bishop’s on which equitable decisions were based were called
permission. It was eventually condemned by the the rules (or maxims) of equity, and are still used today.
church in 1215 and abolished by royal decree in 1219. The systems of common law and equity
In order to consolidate his hold on the country, co-existed, but not always peacefully. In the
in the eleventh century, William the Conqueror sent early seventeenth century, a dispute between
judges (or justices) around the country with three the Chancellor and the Chief Justice of the
main tasks to carry out: King’s Bench was resolved through the personal
• administer a common set of laws throughout intervention of the king, James I, who called a
the country conference of judges. They concluded that in the
• report on any threats to the throne case of conflict between the common law and
• assess the wealth of the country so that taxes equity, equity should prevail. As a result, rules of
could be levied. equity always override common law.
There are equitable remedies for wrongs not
When Henry II came to the throne in 1154, there was recognised by the common law. Some of these
a well-established practice of sending royal justices remedies are non-financial; for example, the court
throughout the countryside to listen to disputes, work may order someone to do what he or she promised but
out solutions, apply punishments, and ensure that then failed to do, or may set aside an unfair contract.
common rulings were made overall. These judges In the 1870s, the British parliament passed
also had authority to make decisions when they heard legislation merging the courts of common law
new cases. In this way, a set of uniform laws developed and the courts of equity, allowing judges to apply
throughout England. Thus, common law as we know the rules of common law or equity (or both) in a
it today has evolved from judicial decisions that were particular case. The Australian colonies followed
based in tradition, custom and precedent. suit with similar legislation.

The doctrine of precedent must use principles of the existing common law
As stated above, the common law (or case law) is the and statute law to make its decision. The judge/s
law developed by judges when deciding cases. In will also pay attention to social developments and
addition to rules on the presentation of evidence and common sense. This new decision creates a new
the running of the case, judges must resolve disputes precedent.
by considering previous decisions made in similar Another way in which precedents are created is
cases. A previous judgment on similar circumstances in the interpretation of legislation. Where there is a
is called a precedent, and it provides the authority dispute about the meaning or application of a section
for the legal principle contained in the decision. The of an act, or about the meaning of a word, a court
concept that like cases must be treated alike is called may have to resolve the question. For example, if a
the doctrine of precedent or stare decisis. statute requires that the local council must approve
the removal of trees from any land, a developer might
precedent not agree that the term ‘trees’ includes dead trees.
a judgment that is authority for a legal principle and that
Judicial interpretation of the legislation might be
serves to provide guidance for deciding cases that have
similar facts needed to determine whether council approval must
be sought for the removal of dead trees just as for
stare decisis
(Latin) ‘the decision stands’; the doctrine that a decision live ones.
must be followed by all lower courts While courts are not bound to follow other courts’
interpretations of statutes, they are usually expected
The purpose of precedent is to ensure that people are to do so. This is because, if a court decision has not
treated fairly and that the law develops in a consistent resulted in parliament changing the wording of
and coherent fashion. It means that old cases retain legislation, it suggests that parliament is satisfied
an authority, which allow their decisions to be used as with the court’s interpretation.
the basis for decisions in newer court cases. Thus, the When a judge gives a decision in a case, it usually
doctrine of precedent works to limit a judge’s ability is made up of two parts:
to be too creative when it comes to making a decision. • the ratio decidendi – the essential legal reason
why a judge came to a particular decision;
Making and following precedent a decidendi in a higher court sets a binding
When there has been no previous decision to precedent on lower courts
provide guidance for determining a case, a court
Figure 2.3 When a judge gives a decision in a case, it is usually made up of two parts: the ratio decidendi and the
obiter dicta.

2
In Court
In this case, the plaintiff (Gutnick) argued that he had been defamed on the internet. The defendant
(Dow Jones) is the publisher of an online news magazine. An article in that magazine discussed the
business dealings of the plaintiff – who is a prominent Melbourne businessman – and alleged that
he was involved in money laundering and fraud.
Even though the article originated in New York, the plaintiff successfully argued that he had
been defamed in his own city because more than 300 people had accessed the article in Melbourne.
The Supreme Court of Victoria held that publication occurs when an article is downloaded, and
that a plaintiff can bring proceedings in any jurisdiction where the offending statements can be
accessed. The High Court of Australia upheld this decision in 2002.
This was one of the first legal cases to look at the internet as a source of defamation. It set a
precedent for defamation claims being brought across jurisdictional boundaries, and sparked
international interest. The decision shows that internet communication is no different from other
forms of communication and is subject to the same laws.
• obiter dicta – other remarks made by the believes a decision of the higher court is correct.
judge about the conduct of the trial (e.g. about This is known as ‘binding precedent’. For example,
the credibility of a witness); these remarks do the New South Wales Local Courts and District
not form part of the decision and, thus, do not Court must follow the decisions of the New South
set a precedent. Wales Supreme Court. All state and federal courts
in Australia are bound by the decisions of the High
ratio decidendi Court of Australia. Only the ratio decidendi of the
(Latin) the legal reason for a judge’s decision
superior court is binding.
obiter dicta The High Court is not strictly bound by its own
(Latin) comments from a judge in a case that are not directly
relevant to the case and, therefore, not legally binding
decisions, though it usually follows them.
(singular: obiter dictum)
Persuasive precedent
Superior courts do not have to follow decisions
When precedent does not have to made in lower courts. They may, however, use them
be followed
to help make a decision. This is called ‘persuasive
If the facts or relevant points of law are significantly
precedent’. Persuasive precedent may also include
different from a previous case, the case may
obiter dicta of a judge in a higher court.
be distinguished from the earlier one and its
Decisions made in other Australian states or
ratio decidendi will not have to be followed.
other common law countries, such as the United
When a higher court upholds an appeal against
States or the United Kingdom, may influence an
a lower court’s decision, the decision of the lower
Australian judgment. The higher the court in its
court is reversed.
own jurisdiction’s hierarchy, the more persuasive
A court may refuse to follow a decision of another
the precedent.
court that is at a lower or equal level in the hierarchy.
This refusal is called overruling the decision of the jurisdiction
lower court. the powers of a court, depending on its geographic area,
the type of matters that can be decided, and the type of
remedies that can be sought
Rules of precedent
defamation
Binding precedent the act of making statements or suggestions that cause
Lower courts are bound to follow decisions of
superior courts, regardless of whether the judge

Formative assessment: a regular basis to check your understanding. You

Assessment for learning are also encouraged to regularly review the ‘themes
The activities in this chapter are designed to assist and challenges’ and the ‘learn to’ statements on
you to build your understanding of the content pages 10–12 of the syllabus. You can revisit these
covered. You are encouraged to complete the types of activities a number of times to continue to
activities and seek feedback from your teacher on build your knowledge and skills of the topic.
Review 2.1
1 Describe how common law originated.

2 Outline how people were tried for crimes in medieval England. Discuss the problems with
this system.
3 Define equity law and explain how it differs from common law.
4 Describe how the principle of precedent is used in court decisions.
5 Explain why Australian law is based on common law principles.
6 Evaluate the importance of Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575.
2.3 Court hierarchy appeal

an application to have a higher court reconsider a lower
Australia has two overlapping jurisdictions of law: court’s decision, on the basis of an error of law
state and federal. As a result, there are separate
state and federal jurisdictions, each of which has
its own court structure. State and territory courts
All courts have the power to hear a case for the The state court system in New South Wales operates
first time. Some courts can also hear appeals from under the following hierarchy:
lower courts. This means they can reconsider the 1 lower courts
decision of a lower court, where the losing party 2 intermediate courts
believes there has been an error in the lower 3 superior courts.
court’s legal reasoning. Figure 2.4 shows the
structure of state courts in New South Wales, and The Australian Capital Territory does not have the
federal courts in Australia. The arrows show the intermediate level but is otherwise similar. Each
specific courts that can hear appeals from each of court has its own jurisdiction, or area over which
the lower courts. it has authority. Minor matters are dealt with lower
High Court of Australia
Federal superior courts State and territory superior courts

Federal Court of Australia Land and Environmental Court of NSW
New South Wales Supreme Court
Court of Criminal Appeal & Court of Appeal
Federal specialists courts State intermediate courts

Family Court of Australia District Court of NSW
Non-family Family law

law matters State lower courts
Local Court of NSW
Federal lower courts Coroner’s Court of NSW
Federal Circuit Court of Australia Children’s Court of NSW
Figure 2.4 Australia’s court hierarchy; showing courts at the federal and state (or territory) levels.

2
in the court hierarchy, and the higher courts are • a limited range of family law matters (e.g.
reserved for more serious matters and appeals from property settlements and residence orders for
the lower courts. children); for these matters, the Local Court has
In criminal cases, minor offences such as federal jurisdiction and is essentially part of the
loitering and obstructing traffic are called summary Federal Court hierarchy.
offences – these are dealt with in the lower courts.
More serious criminal offences, such as assault and The Magistrates’ Court of the Australian Capital
murder, are called indictable offences – these are Territory has similar jurisdiction, although it can
dealt with in the higher courts. hear and decide civil matters with a maximum
monetary value of $250 000.
summary offence
a criminal offence that can be dealt with by a single judge
Coroner’s Court
without a jury and does not require a preliminary hearing
In New South Wales and the Australian Capital
indictable offence Territory, the role of the Coroner’s Court is to ensure
a serious criminal offence that requires an indictment (a
that unexplained or suspicious deaths (or suspected
formal, written charge) and a preliminary hearing; it is
typically tried before a judge and jury and is subject to deaths), fires and explosions are properly investigated.
greater penalties than non-indictable offences If necessary, coronial inquests are carried out
and cases are handed to a higher court for trial if
the inquest finds evidence of criminal action/s. For
Lower courts example, in March 2015, a visiting Brazilian student
Roberto Laudisio Curti died in Sydney after police
Local Court and Magistrates’ Court
fired tasers at him 14 times. The coronial inquest
In New South Wales, the Local Court deals with recommended that charges be laid against the police
minor criminal matters and minor civil disputes. officers for using unnecessary and excessive force in
In this court, a magistrate will hear and decide the arrest. The matter proceeded to trial, and one of
the case and will set the punishment for criminal the four police officers involved was found
offences. The Local Court is also known as the guilty of assault.
Magistrates’ Court. In the Australian Capital
Territory, the court that has this role is called the coronial inquest
Magistrates’ Court. an investigation into a death that has occurred in unusual
circumstances, held in the Coroner’s Court and overseen by
Most criminal matters are heard in the Local or
a magistrate called the coroner
Magistrates’ Court, as only very serious crimes are
referred to the District or Supreme Courts. In the
Children’s Court
case of indictable offences, the magistrate will listen
to an outline of the evidence to determine whether In New South Wales and in the Australian Capital
the prosecution has a strong enough case to be Territory, the Children’s Court deals with civil
able to try the defendant in the District Court or matters concerning the protection and care of
Supreme Court. This preliminary hearing is called children and young people. It also deals with
a committal hearing. criminal cases involving persons under the age of
18 at the time of the offence, or (in New South Wales)
committal hearing under the age of 21 when charged with a crime they
an inquiry held in the Local Court or Magistrate’s Court to
committed while under the age of 18.
determine whether there is enough evidence against the
defendant to warrant a trial in a higher court (this is called
establishing a prima facie case) Land and Environment Court
The Land and Environment Court is a specialist
The Local Court in New South Wales has jurisdiction court responsible for interpreting and enforcing
to deal with the following areas: environmental law in New South Wales. It has a
• minor criminal and summary offences wide jurisdiction and deals with matters related to
• civil matters with a monetary value of up to environmental planning (e.g. zoning of park lands),
$100 000 environmental offences (e.g. illegal polluting or
• committal hearings dumping) and appeals against local council rulings.
Intermediate courts jurisdiction) and most cases where an equitable

remedy is sought. It also deals with appeals from
District Court of New South Wales the lower courts in that state or territory.
The District Court of New South Wales deals The Supreme Court has criminal jurisdiction
with more serious criminal matters. These range over the most serious indictable offences such
from charges of larceny up to charges such as as manslaughter and murder, attempted murder,
manslaughter, sexual assault and large-scale drug kidnapping, major conspiracy and drug-related
importation. The only charges the District Court charges. It also deals with Commonwealth
cannot deal with are murder, treason and piracy: prosecutions for major breaches of the
these need to be dealt with by the Supreme Court. corporations law.
larceny corporations law

taking another person’s property with the intention of legislation that regulates corporations and the securities
permanently depriving them of it; also known as stealing and futures industry in Australia; it is administered by the
Australian Securities and Investments Commission
A judge, and sometimes a jury, will hear cases tried

In civil matters, there is no upper limit to monetary
in a District Court. The District Court deals with
damages that can be awarded in the Supreme Court.
criminal offences such as:
This court hears matters on claims for damages for
• manslaughter, malicious wounding and
personal injury, professional negligence, breach
dangerous driving
of contract, defamation and possession of land. A
• assaults
judge alone deals with most civil matters, but a jury
• sexual assaults
is used in some limited circumstances.
• offences relating to property, including
The Supreme Court also hears appeals. The
robbery, breaking and entering, larceny and
Court of Appeal is the highest court in each state and
embezzlement
territory, for both civil and criminal matters; in New
• importing, supplying or possessing
South Wales, there is also a Court of Criminal Appeal,
prohibited drugs
which is constituted separately from the Court of
• offences involving fraud, including forgery,
Appeal. It also makes decisions about procedural
obtaining money by deception and passing
fairness in lower courts. Appeals are usually heard
valueless cheques.
by three judges, but in some cases there are only two
and, in special cases, more than three may hear them.
The District Court’s jurisdiction is unlimited in cases
If the judges cannot agree, a majority view is taken.
of claims for damages for personal injuries arising
It is possible to appeal from the Court of Appeal or
out of a motor vehicle accident. It also handles civil
Court of Criminal Appeal to the High Court, but only
cases where the amount claimed is below $750 000,
with special permission from the High Court.
or larger amounts if both parties agree. It also has
appellate jurisdiction.
appellate jurisdiction
the ability or power of a court to hear appeals of the
decisions of lower courts and to reject, affirm or modify
those decisions
Superior courts
Supreme Court of New South Wales

The Supreme Court is the highest court in the state
or territory hierarchy. It deals with the most serious
criminal matters and civil cases involving large sums Figure 2.5 Actor Geoffrey Rush at the Federal Court of
of money (there are no monetary limits on its civil Australia in Sydney on 9 November 2018.

2
Federal courts criminal offences. The Federal Court’s position in
The federal court system has a hierarchy in much the federal court hierarchy is equivalent to that of
the same way as the state court system does. the Supreme Courts in the states and territories.
In terms of the federal court hierarchy, it is equal
Federal Circuit Court of Australia to the Family Court of Australia, and above the
The Federal Circuit Court of Australia was Federal Circuit Court.
established as the Federal Magistrates Court by An example of the court’s work can be seen
the Commonwealth Parliament towards the end of where an application to review a migration decision
1999 and conducted its first sittings in July 2000. of the Administrative Appeals Tribunal (AAT) was
In November 2012, the federal parliament passed dismissed. The Federal Court did not accept the
legislation changing the name of the Federal applicant’s argument that the AAT had not afforded
Magistrates Court of Australia to the Federal Circuit them procedural fairness in the conduct of their
Court of Australia. The title of ‘federal magistrate’ case: Nathanson v Minister for Home Affairs [2019]
was changed to ‘judge’. FCA 1709.
The Federal Circuit Court was established
to relieve some of the caseload of the Federal
Family Court of Australia
and Family Courts and reduce the cost and time The Family Court of Australia is a superior federal
required to deal with more minor federal matters. court that deals with the most complex family law
The Federal Circuit Court has jurisdiction over matters. The Australian Parliament established it
areas such as family law and child support, in 1975. Its main function is to rule on cases related
human rights, copyright, bankruptcy, migration, to specialised areas in family law such as divorce,
consumer protection and trade practices, privacy, parenting orders, the division of property and
administrative law and industrial law. It does not spousal maintenance. In its appellate jurisdiction,
deal with criminal matters. It shares its original it can hear appeals from a decision of a federal
jurisdiction with the Family Court of Australia magistrate or a single Family Court judge.
and the Federal Court of Australia; matters can
be transferred between these courts, depending High Court of Australia
on the complexity of the legal issues. The High Court of Australia was established in
The Federal Circuit Court plays a strong role 1901 under section 71 of the Australian Constitution.
in settling disputes in regard to trade practices, It is the highest court in the Australian judicial
human rights, copyright, industrial law, privacy system, and deals with appeals from the Federal
and migration. It currently deals with over 90% of Court of Australia, the Family Court of Australia,
migration and bankruptcy applications. In many and the state and territory Supreme Courts. It also
of its recent cases, the court has dealt with issues deals with cases concerning the interpretation of
for Fair Work Australia, where workers have been the Australian Constitution and the constitutional
underpaid. validity of laws.
In a recent case, the High Court had to make
Federal Court of Australia a decision about the validity of the Australian
The Federal Court of Australia was established Marriage Law Postal Survey when two challenges
by the Federal Court of Australia Act 1976 (Cth). were raised about the validity of using the
It assumed some of the jurisdiction previously Australian Bureau of Statistics and the Australian
managed by the High Court of Australia and the Electoral Commission in assisting to conduct
entire jurisdiction of two courts that had dealt with this vote. The High Court ruled in favour of the
industrial matters and bankruptcy. It deals with government and the survey went ahead (Wilkie v
civil disputes governed by federal law (except Commonwealth; Australian Marriage Equality Ltd v
for family law matters), as well as some summary Cormann [2017] HCA 40).

Legal Links
• The Legal Access Services website was set up to provide legal advice to ordinary Australians. It
provides information on the Australian legal system.
• The NSW Department of Justice has information on its website about the state and federal
courts in New South Wales.
• The ACT Law Courts and Tribunals website provides information on that territory’s courts
and tribunals.
• The Attorney-General’s website has information about the federal legal system and courts.
Review 2.2
1 Outline the need for courts in society.

2 Explain what ‘court hierarchy’ means.
3 Identify the highest court in Australia.
4 Describe the types of cases that are dealt with in the New South Wales District Court. Identify
who decides these cases.
5 Describe the role of the New South Wales Supreme Court.
6 Explain the importance of the High Court of Australia.
7 Identify which court would likely hear the following matters:
a a murder trial
b an appeal from the New South Wales Supreme Court
c a hearing for the offence of using offensive language in public
d an investigation into a suspicious death
e an armed robbery trial
f the preliminary hearing for a kidnapping case
g a civil dispute between business partners involving $100 million
h a case dealing with an aspect of the Australian Constitution.
2.4 Statute law The role and structure

Statute law is the law made by parliament. It is also of parliament
known as ‘legislation’ or ‘Acts of Parliament’. In A parliament is a body of elected representatives.
Australia, any parliament has the power to make It debates proposed legislation, passes or rejects
statute law. This means that state, territory and it, and amends legislation. Apart from Queensland
federal governments all have the right to make laws. and the territories, all state parliaments and the
The Australian Constitution sets out the powers of federal parliament are bicameral. This means that
the state and federal parliaments with respect to they have two houses, an upper house and a lower
making law. house. The Australian Capital Territory’s parliament
Legal Links
The Legal Information Access Centre, at the State Library of NSW, contains an 11-minute video
explaining how our laws are made.

2
is unicameral: it only has a lower house, called the offers their positions (or portfolio) to them and these
Legislative Assembly. In New South Wales, the lower ministers usually form the Cabinet, or the ‘front
house is known as the Legislative Assembly and the bench’ as they sit at the front in parliament sittings.
upper house is called the Legislative Council. Cabinet makes decisions on policy and laws to be
drafted for consideration by parliament.
bicameral
containing two chambers or Houses of Parliament Non-ministerial members of parliament are
known as the ‘back bench’. When changes are
In federal parliament, the upper house is the Senate made to the front bench positions, this is known as
and the lower house is the House of Representatives. ‘reshuffling the Cabinet’.
The political party that wins the majority of seats in The opposition party appoints shadow ministers
the lower house forms the government. Sometimes who are responsible for forming and promoting the
different parties will unite to form a government opposition’s position on such areas as defence,
(such as the Liberal–National Coalition). The leader health and education.
of the winning party becomes the prime minister The Executive Council is made up of the Governor
and, hence, is the leader of the government. The or Governor-General and selected ministers. It is the
political party or parties who have the remaining body that enables legislation to be put into operation.
seats in the lower house form the opposition. The British monarchy still plays a role in parliament
Ministers are those members of the government in Australia.
who have a special responsibility for particular The Queen must assent to laws. At the federal
departments; for example, Minister for Education, level, she is represented by the Governor-General
Minister for the Environment. The prime minister and at the state level by a governor in each state.
Figure 2.6 Prime Minister Scott Morrison on 18 September 2019. The Coalition government announced an inquiry into
the family law system. Morrison announced that the new joint parliamentary committee would conduct a wide-ranging
review of the family law system, with Victorian MP Kevin Andrews to chair the inquiry.

The Queen
(represented by the Governor-General)
Government
members of
parliament
Executive
members of
parliament
Non-government
members of
parliament
House of Representatives Senate
Figure 2.7 The Parliament of Australia – the number of members of parliament in each house is determined at the
conclusion of each election.
Legal Links
For information about the Commonwealth Parliament, go to the Australian Parliament’s website.
The legislative process groups and members of the public can influence
parliamentarians’ opinions.
Passing legislation As members of parliament are subject to
elections every few years, they are well aware of the
One of the most important functions of parliament is
consequences of passing unpopular legislation. This
the passing of laws. The party that holds government
means that proposed legislation often undergoes
introduces most laws. A proposed new law is known
much discussion in parliament and may be redrafted
as a Bill. Ministers, who are responsible for their
many times.
preparation, usually introduce Bills. Any Member
Before a Bill passes and becomes federal law, it
of Parliament can introduce a Bill; however, if a
requires the approval of both Houses of Parliament
member introduces a Bill who is not a minister
and the Governor-General. It then becomes an
(called a backbencher), the Bill is known as a private
Act of Parliament.
member’s Bill.
Act of Parliament
Bill statute law, resulting from a Bill successfully passing
a drafted law that has not yet been passed by parliament through parliament and gaining royal assent
The making of a law can be time-consuming The process for passing laws through the New
and difficult. The process is open to public South Wales Parliament (as well as other states
scrutiny and, as a result, well-organised pressure with bicameral parliaments) is generally the same

2
as passing laws through federal parliament. This fewer steps, as there is only one legislative chamber.
process is outlined in Figure 2.8. Bills of the Australian Capital Territory are not given
The process for passing laws in the Legislative royal assent by the Governor-General, and this
Assembly of the Australian Capital Territory has territory has no governor or administrator.
The process of passing a Bill through parliament
Influences on governments to make laws come from many and varied sources.
These include:
• community interest/lobby groups
Need for new law • electoral mandate
is identified • the need to continue or enhance existing laws
• party policy
• national/international events
• proposals put forward during election campaigns.
Cabinet approves the drafting of a Bill.

The proposed Bill is drafted by parliamentary clerks and timetabled
Draft Bill
for its first reading in the lower house. The Bill is presented by the
minister, ready for its first reading.
The first ‘formal’ reading of the Bill takes place: the Clerk of the
First reading Parliament reads out the title of the Bill. Each member receives
a copy of the proposed Act.
The minister then speaks about the proposed Act, elaborating on its
Second reading general aims. Debate over the Bill takes place. This stage is completed
by the clerk, who reads the title of the Bill for the second time.
The Bill is examined and debated in detail and changes (known as

Committee stage
amendments) are made if necessary.
During the third reading, a vote is taken on the Bill. If the Bill passes,
Third reading
it moves to the upper house.
In the upper house, the process is repeated. If the Bill does not pass
Upper house in the upper house, it may be returned to the lower house for
amendments or may be rejected.
If the Bill is passed in the upper house, it is presented to the Governor

(in the case of New South Wales legislation) or Governor-General (in the
Royal assent
case of federal legislation) for formal approval. The Bill now becomes an
Act of Parliament and is law as of the date specified in the Act.
Figure 2.8 The passage of a Bill through parliament.

Delegated legislation 2.5 The Australian Constitution

Delegated legislation is legislation made by non- A constitution is a set of rules or principles that may
parliamentary bodies. It involves ‘less important’ apply to a social club, a large-scale organisation
laws that parliament does not have time to draft, or even a nation. A constitution provides the
consider and pass, and so delegates (passes on) framework, or guidelines, which outlines how these
the responsibility to ‘subordinate’ bodies such as institutions function. On 1 January 1901, Australia
government departments or local councils. The Act gained a Commonwealth Constitution, which
that authorises a body to make delegated legislation outlined the legal framework and rules that apply to
is called an ‘enabling Act’. the governance of Australia.
Prior to the Australian Constitution coming into
delegated legislation
laws made by authorities other than parliament, which are
force, Australia consisted of six colonies, which
delegated the power to do this by an Act of parliament were independent of each other with the right to
govern within their own borders. These six colonies
Types of delegated legislation include: were not answerable to any authority in Australia,
• Regulations – laws made by the Governor- but rather to the British Government. Throughout
General, state governors or members of the the 1800s, many groups and individuals began to
Executive Council promote the concept that Australia would be better
• Ordinances – laws made for Australian off if the six colonies amalgamated into one nation,
territories (e.g. Norfolk Island and the under one centralised government. An emotional
Australian Antarctic Territory) and sometimes bitter debate raged for the two
• Rules – legislation made for government decades in the lead up to Federation in 1901.
departments, usually by the department involved
federation
• By-laws – laws made by local councils,
the process of uniting several states to form a single national
which are restricted to the area governed by government
that council.
TABLE 2.1 The advantages and disadvantages of delegated legislation

Advantages Disadvantages
Elected members of parliament do not have the
The people making the legislation are usually
time or expertise to fully check the delegated
experts in that field.
legislation.
With many different bodies involved in
Delegation of minor legislation frees up
making delegated legislation, there can be
parliamentary time for very serious issues.
inconsistencies.
Little publicity surrounds delegated legislation
It is easier to amend delegated legislation and,
and, thus, the public usually cannot voice their
thus, it is more flexible.
views.
Review 2.3
1 Describe the differences between court-made law and statute law.

2 Explain how an Act of parliament is made. You may wish to use a diagram, a series of cartoons
or a storyboard.
3 Using examples, explain the need for delegated legislation. Describe the extent to which
delegated legislation can be undemocratic.

2
The different viewpoints and the fears of the smaller • There was a bicameral federal parliament
colonies of being ‘consumed’ by New South Wales (House of Representatives and Senate).
and Victoria played a substantial role in shaping the • A High Court of Australia was established to
final constitution document. As with any democratic oversee any other courts and provide ‘final and
process, politicians have to persuade the public to conclusive’ judgments upon any appeals it
vote for their proposals, and sometimes they have to hears (s 73 Australian Constitution).
make trade-offs to gain voter confidence. This was • It outlined both the division of power (s 51) and
essential to get the necessary votes in each of the the separation of powers as they would apply in
Federation referendums. Australia.
• It enabled the Constitution to be altered by a
referendum referendum (s 128 Australian Constitution).
the referral of a particular issue to the electorate for a vote
It is interesting to note that there was considerable

After a series of referendums in 1898, 1899 and 1900,
pressure for New Zealand to join Australia; in fact,
the colonies eventually found a compromise position
Walter Burley Griffin in 1912 when there was still
on a proposed constitution, but, before it could
hope that New Zealand may become part of Australia
take effect, approval from the British Parliament
named the Canberra suburb of Manuka after a native
was required. The Commonwealth of Australia
New Zealand tea tree.
Constitution Act 1900 (UK) was passed and Australia
The Constitution itself is section 9 of the
came into existence as a nation on 1 January 1901.
Commonwealth of Australia Constitution Act 1900
The following are the key features of this British Act:
(UK). Although the Constitution came into force
• Australia was a federated nation consisting of
through an Act of the British Parliament, the Act
six states (Western Australia joined shortly after
brought the Commonwealth of Australia into
the other states). The Northern Territory gained
existence as a nation, and the Constitution can be
self-government in 1978 and the Australian
changed only by a referendum of Australian voters.
Capital Territory in 1988.
TABLE 2.2 Arguments for and against Federation in 1901

Arguments for Federation Arguments against Federation
Economics: the removal of trade barriers between
Trade: tariffs could be used to protect industries in
the colonies would promote a more efficient
certain colonies from competition in other colonies
economy
Transport: a national rail network would overcome Fear: smaller states believed that the more
problems caused by the colonies having different populous and ‘richer’ states would override their
rail gauges interests
Defence: as the colonies were far from Britain
Apathy: many people felt that Federation was
and from Britain’s ability to assist in the event of
irrelevant to their daily lives; this was compounded
an attack, a unified military force would reduce
by the severe economic depression of the 1890s
vulnerability
Nationalism: there was a desire to foster a unique
Expense: a Federation would be expensive to
Australian identity and culture distinct from
achieve and a national government would be
the ‘mother country’ of England (in 1900, 96% of
expensive to run
Australians were of British origin)
Racial ‘purity’: implementing national policies Cheap labour: Queensland was determined to
restricting immigration would ‘keep Australia protect its sugar industry by allowing Pacific
white’ (the White Australia Policy) Islander ‘kanakas’ to work on the sugar plantations

tariff
a tax that must be paid on imports or exports
rail gauge
the distance between the inner sides of the two rails of a
train track
White Australia Policy

the government policy of allowing only Europeans and
English-speaking people to immigrate to Australia;
so-called ‘undesirables’ were kept out by use of the
infamous ‘Dictation Test’
The ‘founding fathers’ were also very wary of

foreign interference in the functioning of the new
parliament of Australia and inserted sections which
have had lasting, and a surprising, impact. Britain,
the United States, Canada nor New Zealand exclude
dual citizens from becoming a member of parliament
but section 44 of the Australian Parliament states:
44. Any person who -

(i.) Is under any acknowledgement of
allegiance, obedience, or adherence
to a foreign power, or is a subject or Figure 2.10 Promotional material for the White Australia
policy.
a citizen or entitled to the rights or
privileges of a subject or citizen of a eligibility crisis. Several parliamentarians were ruled
foreign power … ineligible by the High Court and many more referred
shall be incapable of being chosen or themselves to seek clarification of their status. The
of sitting as a senator or a member of High Court’s role in this will be examined later in
the House of Representatives. the chapter.
The Australian Constitution contains certain
‘checks and balances’ as a result of debate and
discussion during the Federation process:
Throughout the latter half of 2017, this section of the
• The Senate provides a ‘check’ (restraint) on
Constitution had a dramatic impact on the makeup of
the power of the House of Representatives.
parliament with the development of a parliamentary
The Senate is sometimes called the ‘states’
house’, since all states have the same number
of senators (12) regardless of population. Each
territory has two senators.
• Section 128, which covers the process for altering
the Constitution, specifies that a majority of
states need to vote ‘yes’ on a proposal for it to
succeed; that is, four out of six states. In addition,
an absolute majority of voters Australia-wide
must vote ‘yes’; that is, 50% of voters plus one. It
should be noted that this strict requirement has
made constitutional change very difficult: no
referendum has succeeded since 1977.
• The ‘division of power’ outlined in section 51 ensures
Figure 2.9 A ‘how to vote’ card for the South Australian that the states have control over the ‘residual
referendum on the proposed Australian Constitution.

2
powers’; that is, those not listed in section 51. This
will be examined in detail later in this chapter. the peace, order, and good government of
the Commonwealth with respect to:
Division of power (i) trade and commerce with other
The actual makeup of the Australian Constitution countries, and among the States;
clearly reflects the chief concerns of the Federation (ii) taxation; but so as not to
process as outlined in Table 2.2. The reluctance discriminate between States or
of the states to hand over complete control to the parts of States;
Commonwealth is evident in Chapter I, Part V of the […]
Constitution, in sections 51 to 60. These sections (v) postal, telegraphic, telephonic,
provided the split (or division) of powers between and other like services;
the Commonwealth and the states. (vi) the naval and military defence of
Section 51 of the Constitution specifies the the Commonwealth and of the
legislative powers of the federal parliament. The several States, and the control of
federal parliament has the power to make laws with the forces to execute and maintain
respect to all of the matters listed in section 51. These the laws of the Commonwealth;
are sometimes referred to as the ‘enumerated powers’. […]
It is important to realise that the states can also (xii) currency, coinage, and legal
make laws in many of the areas listed in section 51; tender;
namely, those areas over which the federal and state […]
governments have concurrent powers. (xv) weights and measures;
[…]
legislative power (xix) naturalization and aliens;
the legal power or capacity to make laws
[…]
concurrent powers (xxi) marriage;
existing at the same time; powers held by both state and
federal parliaments (xxii) divorce and matrimonial causes;
and in relation thereto, parental
Section 52 outlines the exclusive powers of the rights, and the custody and
federal government; that is, only the Commonwealth guardianship of infants;
(federal) Parliament can legislate on: (xxiiiA) the provision of maternity
i the seat of government of the Commonwealth, allowances, widows’
and all places acquired by the Commonwealth pensions, child endowment,
for public purposes unemployment, pharmaceutical,
ii matters relating to any department of the public sickness and hospital benefits,
service [controlled by the Commonwealth, medical and dental services (but
according to the Constitution] not so as to authorize any form
iii other matters declared by the Constitution to be of civil conscription), benefits to
within the exclusive power of the parliament. students and family allowances;
[…]
exclusive powers (xxvi) the people of any race, for
powers that can be exercised only by the federal parliament
whom it is deemed necessary to
make special laws;
(xxvii) immigration and emigration;
Commonwealth government legislative (xxviii) the influx of criminals;
powers (xxix) external affairs;
Section 51. […]
The Parliament shall, subject to this
Constitution, have power to make laws for

(xxxi) the acquisition of property

on just terms from any State
or person for any purpose in
respect of which the Parliament
has power to make laws;
(xxxii) the control of railways with
respect to transport for the
naval and military purposes of
the Commonwealth;
(xxxiii) the acquisition, with the consent
of a State, of any railways of
the State on terms arranged
between the Commonwealth
and the State;
(xxxiv) railway construction and
extension in any State with the
consent of that State;
(xxxv) conciliation and arbitration for
the prevention and settlement
of industrial disputes extending
beyond the limits of any one
State; Figure 2.11 The Australian Defence Force is the
[…] responsibility of the Commonwealth Government as
national defence is an exclusive power and section 114 of
(xxxvii) matters referred to
the Australian Constitution forbids the states from raising
the Parliament of the their own military forces.
Commonwealth by the
Parliament or Parliaments of in a contemporary context (see High Court cases
any State or States, but so that later in this chapter).
the law shall extend only to Obviously there needs to be a conflict-resolution
States by whose Parliaments mechanism in place if a state and the Commonwealth
the matter is referred, or which make contradictory laws. This is found in section 109:
afterwards adopt the law; ‘When a law of a state is inconsistent with a law of
the Commonwealth, the latter shall prevail, and the
former shall, to the extent of the inconsistency, be
invalid.’ This will be discussed later in this chapter.
The exclusive powers of the federal government Those powers that belong solely to the states
include the areas of trade and commerce with other are known as the residual powers; that is, all the
countries, foreign relations (‘external affairs’) and powers left over that are not otherwise given to the
national defence. While section 90, for example, Commonwealth exclusively. Each state has its own
states clearly that the federal government has constitution, which enables the state to make laws
exclusive power over customs, and section 114 in various areas, but excludes any area directly
forbids the states from raising or maintaining any denied to the states by the Australian Constitution.
military force, determining how the Constitution Chapter V of the Constitution outlines some of these
applies to a real-life question or dispute is not always
clear-cut. As society, technology, and values and residual powers
ethics have evolved over time, it has fallen to the those matters on which the states can legislate, as they are
not referred to in the Australian Constitution
High Court to interpret how the Constitution applies

2
In Court
Commonwealth v Tasmania [1983] HCA 21 (‘Tasmanian dam case’)

If either the Commonwealth Government or a state government passes a law that contravenes
the Australian Constitution, that law is unconstitutional and invalid. Technically, the government
passing the contravening law is acting ultra vires (beyond legal authority). But what happens if the
state and Commonwealth laws are both valid, as can often be the case with a concurrent power?
This situation arose in the case of Commonwealth v Tasmania [1983] HCA 21, known more commonly
as the ‘Tasmanian dam case’.
ultra vires
(Latin) beyond the power or authority legally held by a person, institution or statute to perform an act
Tasmania wanted to build a hydroelectric dam on the Franklin and Gordon river system. A group
of environmentalists began a campaign against this proposal, and the Wilderness Society and the
Australian Conservation Foundation got 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 Tasmanian 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 Tasmania continued to build the dam.
The federal government recognised the Wild Rivers area in Tasmania as a region of special
significance, and it was listed under the World Heritage Convention. The federal government also
passed the World Heritage Properties Conservation Act 1983 (Cth), which specified that such areas of
special significance should be protected. The Franklin River was included as one such area. Now
there was a state law allowing the construction of the dam and a federal law that demanded it be
stopped. The case went to the High Court.
There are seven judges on the full bench of the High Court. In a 4–3 decision, the court ruled that
the federal government was validly using the external affairs power of the Constitution (s 51(xxix)),
which gives it the authority to legislate on any matter of ‘international concern’. Although the
Tasmanian Government argued that the construction of the
dam and the regulation of that area were purely internal or
domestic affairs, the High Court held that the Commonwealth
had the power to make laws with respect to international
obligations that also govern conduct within Australia. Under
section 109 of the Constitution, the federal law overrides the
state law; section 109 states that ‘when a law of a state is
inconsistent with a law of the Commonwealth, the latter shall
prevail, and the former shall, to the extent of the inconsistency,
be invalid’. The construction of the dam was stopped and the
Franklin River was ultimately preserved for future generations.
external affairs power

the power of the Commonwealth to legislate on international matters
involving Australia; interpreted by the High Court to mean that when the
Commonwealth signs an international treaty or convention, it has the
authority to enact laws to give effect to this international law within Australia
Figure 2.12 Franklin River, Tasmania.

prohibitions. Some of the key residual powers are than six months’ after going through both
in the areas of de facto relationships (in New South houses.
Wales this now includes same-sex relationships), iii There must be an absolute majority of voters
crime, hospitals and public transport. Environmental Australia-wide who approve the change;
protection is another obvious area that was not that is, 50% of voters plus one.
a consideration at the time the Constitution was iv There must be a majority of states that
drafted and is thus considered a ‘residual power’. approve the change; that is, four of the six
In the HSC unit ‘Global Environmental Protection’, states must vote for the change.
how the federal government has gained some power v The alteration must go to the Governor-
over this is explained in detail and is also referred to General for royal assent.
in the Tasmanian dam case, above.
It should be noted that there is a provision In 1967, the most successful referendum in
in section 51(xxxvii) that allows for a ‘referral of Australian history (90.77% vote in favour) altered
powers’, whereby states are able to ‘give’ power section 51(xxvi) and deleted section 127, which
to the Commonwealth to make laws with regard to enabled the Commonwealth Government to pass
a specific matter (e.g. in 2009, New South Wales laws in relation to Aboriginal and Torres Strait
referred some industrial relations matters to the Islander peoples. This ensured consistency of laws,
Commonwealth under the Industrial Relations as some states had discriminatory laws and were
(Commonwealth Powers) Act 2009 (NSW)). reluctant to change them. Prior to this Aboriginal
Amending the Australian

Constitution
The law and the legal system must be dynamic
to be effective. Mechanisms must be in place
to change ineffective, obsolete or unfair laws.
Statutes (Acts of Parliament) can be changed
through the parliamentary process. Common law
can be changed through the courts when a judge
sets a new precedent. The Australian Constitution,
while technically a statute, has a unique alteration
process contained within it. This process is found
in section 128 under Chapter VII, ‘Alteration of the
Constitution’, and is known as a referendum.
Once again the fear of the smaller colonies of
being made irrelevant by Federation resulted in a
process that makes constitutional change difficult.
Of the 44 proposed amendments to the Constitution,
only eight have been successful. In some published
copies of the Australian Constitution, these successful
amendments are often shown in bold type or by
having deleted parts ruled through (see s 51(xxvi)).
The margin notes also indicate alterations made
to the Constitution after a successful referendum.
The specifics of successfully altering the Australian
Constitution, as set out in section 128, are:
i The proposed change must pass Figure 2.13 Voting in the 1967 referendum at a polling
both houses (Senate and House of booth at Sydney Town Hall. A sweeping majority of
Representatives) with an absolute majority. Australians voted in favour of the referendum.
ii The proposed change must be put to the
electors ‘not less than two months nor more
2
and Torres Strait Islander people were not allowed president appointed by a two-thirds majority of
to be included in the national census. both Houses of Parliament, which would require
Other successful referendums included bipartisan support of the nomination. The proposal
amending section 72 so that judges in the High was soundly defeated, but the push to make Australia
Court and the other federal courts had to retire at a fully independent nation remains.
age 70. This was the last successful referendum;
the next nine proposals were all defeated. The bipartisan
having the support of the two major political parties
last referendum was held on 6 November 1999 and
involved changing Australia to a republic with a
Review 2.4
1 Using examples, explain how the Australian Constitution reflects the concerns of the former
colonies.
2 Australia has six states and two territories. Refer to section 121 of the Constitution and identify
whether this is the maximum number of states that Australia may have.
3 Go online to find the current senators from New South Wales and Tasmania. Using each state’s
population, calculate how many people a Tasmanian senator represents compared to a New
South Wales senator. Assess the implication of this difference.
4 Define the term ‘division of power’.
5 Read the article online ‘High Court strikes down ACT gay marriage law’ (by Lauren Wilson, The
Australian, 12 December 2013). Discuss the role section 109 of the Constitution has in deciding
which level of government has ‘power’ over a certain area.
6 Discuss how the decision in the Tasmanian dam case gave the federal government power to
make a law over the environment when this is considered a residual power.
7 In 1999, a referendum for Australia to become a republic failed. Research this referendum online
and then take part in a class discussion. Should Australia become a republic?
8 Class activity – Conduct your own ‘referendum’ (use your class or year level to ‘vote’).
a Decide on an issue (e.g. Is NRL better than AFL? Is a Kit Kat a better chocolate bar than a
Crunchie?). Create ballot papers with your ‘issue’; voters must answer ‘yes’ or ‘no’.
b Divide the class or year into Australia’s six states and two territories. Use the following
approximate percentages: New South Wales – 30%, Victoria – 20%, Queensland – 20%,
Western Australia – 10%, South Australia – 5%, Tasmania – 5%, Australian Capital Territory –
5%, Northern Territory – 5%.
c Give each student one ballot paper and tally the votes. Apply points three and four of the
referendum rules (note that the territories are only counted as part of the Australia-wide vote)
and determine whether your referendum would succeed.
Research 2.1
Investigate section 127 of the Australian Constitution. Identify what section 127 stated and when was
it altered.

Separation of powers a check on the others, ensuring that no branch has

In 1887 Lord Acton, an English historian, writer and absolute power and that civil liberties are protected.
member of the British House of Commons, famously
civil liberties
stated: Power tends to corrupt, and absolute power basic rights of individuals that are protected by law; for
corrupts absolutely. example, freedom of religion and freedom of speech
This well-known quote is often attributed with
outlining the fundamental reasoning behind the Australia’s founders certainly wanted the doctrine of
separation of powers doctrine that underpins the separation of powers to apply upon Federation.
modern democracies. It was developed by the The first three chapters of the Constitution are set
eighteenth century French political philosopher out in accordance with the doctrine:
Charles de Secondat Montesquieu. He believed • Chapter I – The Parliament (ss 1–60)
that the civil liberties of society were at risk if the • Chapter II – The Executive (ss 61–70)
key organs of government were controlled by one • Chapter III – The Judicature (ss–71–80).
person or group.
Montesquieu identified these key organs of In theory, Australia has adopted the doctrine of the
government as: separation of powers but, in fact, the Australian
• the legislature – the law-makers (in Constitution only partially realised this because
Australia this is the parliament: the House of some members of the executive are also members
Representatives and the Senate) of the legislature; that is, the ministers and the prime
• the executive – the ministers and government minister are members of both the executive and the
departments who administer the laws made by legislature – the separation of powers does not exist
parliament (in Australia the Governor-General, in its pure form in Australia.
the prime minister and Cabinet are members of The key feature of the separation of powers in
the executive) Australia in regards the functioning of democracy
• the judiciary – the courts which interpret and is that there is a clear distinction between the
apply the law. judiciary and the other arms of government. For a true
democracy to operate and in the interests of justice,
If one person or group controls all three organs or it is imperative that there be no overlap between
arms of government, then that person or group has the judicial and non-judicial arms of government.
unfettered power and the risk of dictatorship is very Protecting the independence of the judiciary is one
real. If the three arms are independent, each acts as of the cornerstones of our democracy. This becomes
Review 2.5
1 Outline the role of the three ‘arms’ of government. Explain how the separation of powers
operates in Australia.
2 Outline the significance of the separation of powers for the functioning of a democracy.
Research 2.2
1 Investigate the concept of mandatory sentencing and discuss how this may come into conflict
with the independence of the judiciary when determining punishments. Go online to identify
current New South Wales crimes that have mandatory sentencing provisions.
2 Conduct an internet search to identify modern day dictatorships and identify which aspects of
their rule breach the separation of powers.

2
evident when a court makes a decision that is not in
(iv) between States, or between
accordance with government policy.
residents of different States, or
Role of the High Court between a State and a resident of
another State;
Chapter III of the Australian Constitution is titled
(v) in which a writ of mandamus or
‘The Judicature’ and it is within this chapter that
prohibition or an injunction is
the judicial system of the Commonwealth is created.
sought against an officer of the
Section 71 creates the High Court of Australia and
Commonwealth; the High Court
specifies that it must contain one Chief Justice and
shall have original jurisdiction.
at least two other judges.
Section 76
The first sitting of the High Court was on
The Parliament may make laws
6 October 1903, with three judges. In 1906 the
conferring original jurisdiction on the
number of judges was increased to five and in 1912
High Court in any matter –
the number of judges was further increased to its
(i) arising under this Constitution, or
current number, seven.
involving its interpretation;
Section 71 also allows the Commonwealth
(ii) arising under any laws made by
Parliament to create other courts. Over time,
the Parliament;
parliament has created the Federal Court, the Family
(iii) of Admiralty and maritime
Court and the Federal Circuit Court of Australia,
jurisdiction;
which are all under federal jurisdiction.
(iv) relating to the same subject
Section 72 outlines how High Court judges are
matter claimed under the laws of
appointed, and as a result of a successful referendum
different States.
in 1977, specifies that they must retire when they reach
the age of 70. Most High Court judges come from the
bench of the state Supreme Courts or the Federal
Court. They are chosen by the ‘Governor-General in
Council’, which essentially means they are chosen Cases that come under original jurisdiction begin in the
by the government of the day. While most sittings are High Court itself. Matters relating to the interpretation
in Canberra, cases can be heard in the other capital of the Constitution fall under section 76(i), and this
cities and even by video link if it is warranted. role of the High Court has, at times, had an enormous
influence on determining the division of power
High Court jurisdiction between the states and the Commonwealth.
The High Court has both original and appellate
mandamus
jurisdiction. The original jurisdiction of the High a court order compelling a government official or
Court is outlined in sections 75 and 76. organisation to perform a particular task
prohibition
original jurisdiction a court order that forbids a lower level court from hearing or
the ability or power of a court to hear a case in the first instance taking further action in a case or matter
injunction
a court order requiring an individual or organisation to perform,
or (more commonly) not to perform, a particular action
Section 75
In all matters – As community conditions, standards and attitudes
(i) arising under any treaty; evolve, they should be reflected in the views and
(ii) affecting consuls or other decisions of the judiciary. This is another way in
representatives of other countries; which the law maintains its relevance, effectiveness
(iii) in which the Commonwealth, or a and acceptance by the community.
person suing or being sued on behalf When a case concerning the interpretation
of the Commonwealth, is a party; of the Constitution comes before the High Court,

generally all seven judges hear and decide the matter Constitution involves stipulating what areas the
(in some cases, a panel of five of the judges decides Commonwealth can legislate on and what areas
the case). This ensures a final decision, even though belong to the states. In association with such decisions,
decisions need not be unanimous. The High Court the High Court makes statements on how each level
is the highest court in the Australian judicial system of government can use its powers and outlines any
and, since 1986, there are no other avenues of appeal limits on such powers. For example, in the Tasmanian
available. Prior to this time, appeals from the Australian Dam case, the High Court said in obiter dicta that the
judicial system could go to the Privy Council in England Commonwealth can only use the external affairs
for final determination, however the Australia Act 1986 power when entering legitimate international treaties
(Cth) severed this judicial link with England. or conventions. In other words, the Commonwealth
Government could not enter a treaty with another
The influence of the High Court: country simply to gain legitimacy to override a
Interpreting the Constitution state law that it disagreed with. Initially High Court
While the High Court has various roles, such as decisions favoured the states but, over time, a broader
determining whether a particular body has the approach to interpreting the Constitution has seen
jurisdiction to exercise judicial power, one of its a shift in the legislative balance between the states
fundamental duties is to make final determinations and the Commonwealth. The ‘In Court’ cases below
about how the Constitution is to be interpreted. are examples of the High Court exercising its original
Invariably, the High Court’s interpretation of the jurisdiction to interpret the Constitution.
In Court
Love v Commonwealth of Australia [2020] HCA 3

In February 2020, the High Court of Australia – in a 4 to 3 decision – held that indigenous people
cannot be considered to be ‘aliens’ even if they were born overseas and do not have Australian
citizenship. The case was brought by lawyers on behalf of two Aboriginal men, Brendan Thoms and
Daniel Love, both who were born overseas but have indigenous heritage. Both men live in Australia
and – due to their criminal convictions – faced deportation to the country of their birth under the
Migration Act 1958 (Cth).
Justice James Edelman noted this about the Aboriginal men’s claim:
The sense of identity that ties Aboriginal people to Australia is an underlying fundamental
truth that cannot be altered or deemed not to exist by legislation.
Justice Virginia Bell determined that an indigenous person cannot be considered to be an alien
because ‘an Aboriginal Australian cannot be said to belong to another place’.
In his article, ‘The High Court has widened the horizon on what it is to be indigenous and belong
to Australia’ (ABC News, 15 February 2020), indigenous commentator, Stan Grant, emphasised the
High Court’s obiter dictum that:
Indigenous Australians don’t enjoy the same political sovereignty as Native Americans or
New Zealand Māori.
Grant notes that while Mabo provided Native Title in 1992, how this decision confirmed that indigenous
peoples cannot be aliens under the Migration Act 1958 (Cth) had not yet been resolved. The Uluru
Statement has called for a constitutional voice to finally acknowledge that ‘Aboriginal people have an
antiquity, cultural and spiritual connection to this land that no other Australian can have’.

2
(In Court continued)
Murphyores Inc Pty Ltd v Commonwealth [1976] HCA 20 (‘Fraser Island case’)
The Murphyores mining company extracted certain minerals from sands on Fraser Island under
a lease granted by the Queensland Government. Such a lease was constitutionally valid, and the
environmental consequences were also a state concern.
The Commonwealth Government disagreed with the mining project, partly on environmental
grounds, but had no constitutional power to shut down the operations on Fraser Island.
Instead, the Commonwealth Government relied on one of its legislative powers – specifically,
section 51(i) of the Constitution, over trade and
commerce – to prohibit the export of the minerals.
Also, under section 112 of the Customs Act 1901
(Cth), the Commonwealth Government can
prohibit the export of any goods from Australia,
either absolutely or unless certain conditions are
complied with.
The financial viability of Murphyores’ mine relied
on being able to export the minerals to overseas
markets, so Murphyores took the matter to the High
Court. Murphyores argued that the Commonwealth
Government had acted outside its constitutional power.
However, the High Court noted that – while the effect
of using section 51 of the Constitution may well be to
override a traditional state power – the Commonwealth
Government was within its rights to prohibit the export Figure 2.14 A dingo on the site that was
of the minerals. The motivation for the Commonwealth’s to be mined on Fraser Island, situated off the
use of the power (e.g. a concern about the environmental south-east coast of Queensland. Fraser Island is
effects of the mine) was irrelevant. now a World Heritage site.
R v Brislan [1935] HCA 78

In 1935, Dulcie Williams was convicted of receiving messages by ‘wireless telegraphy’ without
proper authorisation. Williams was receiving the messages via a ‘wireless broadcasting receiving
set’ (that is, a radio). In the appeal, it was argued that the Commonwealth had acted ultra vires by
charging her under the Wireless Telegraphy Act 1905 (Cth) (now repealed). It was argued that the
section of the Act Williams was charged under does not extend to radio sets. Furthermore, Williams
argued that if the section had extended to radio sets, it would have been invalid anyway because
section 51(v) of the Australian Constitution covers ‘postal, telegraphic, telephonic and other like
services’ but not broadcasting.
The High Court ruled that ‘upon its true interpretation’ the Commonwealth is able to legislate
about any broadcasting services. Consequently, it has been accepted that the Commonwealth has
constitutional power to make laws about new developments in communications technology, and is
thus responsible for the roll-out of the National Broadband Network.
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash;

Re Xenophon [2017] HCA 45 (‘citizenship seven case’)
While challenges to parliamentarians’ eligibility have been a feature of Australian politics for over
50 years, the crisis that emerged in 2017 once again shone a spotlight on the binding nature of the
specific wording of the Australian Constitution (in this case, section 44 – see earlier in this chapter).

In Court (continued)
In 1950, Henry William Crittenden took legal action in the High Court against Gordon Anderson
(the successful candidate for the seat of Kingsford Smith) on the grounds that since Anderson was
a Catholic he would be under allegiance to a foreign power, namely the Vatican. Crittenden lost
the case and was ordered to pay costs. The court ruled that excluding Catholics from public office
would breach section 116 of the Constitution as it would, in effect, place a religious test on any
person applying for public office.
A series of disclosures throughout 2017 highlighted that many members of parliament had dual
citizenship. Some parliamentarians were completely unaware of this as often their ‘citizenship’ was
automatically inherited from parents and grandparents when they were born. The ‘citizenship seven’
case was actually a number of cases heard in the one sitting by the High Court to clarify the situation.
In October 2017, the High Court handed down a unanimous decision on its interpretation
of section 44 of the Constitution. This section provides that a person will be disqualified from
parliament if they are a dual citizen unless they have taken ‘all steps that are reasonably required’
to renounce any other citizenship than Australian. On the ABC’s Q&A, then Prime Minister
Malcolm Turnbull stated:
‘The reality is that the courts adopted a very literal meaning of section 44.1 … Yes, I think
the section 44.1 should be amended but how it should be amended is something that is
going to be considered by the joint standing committee on electoral matters. But in the
meantime, we have to live with the section as it is and as the High Court has interpreted it.’
Even the Deputy Prime Minister, Barnaby Joyce, was deemed to be ineligible to sit in parliament
and had to recontest his seat late in a by-election in December 2017, after relinquishing his
New Zealand citizenship that he had unknowingly inherited from his father. (Joyce won the
by-election, although in February 2018 he resigned his ministerial and leadership roles following
events unrelated to section 44.)
In an attempt to restore public confidence in the parliamentary system, all members of
parliament had to disclose their family heritage on a register; Turnbull noted, ‘The only creatures
in Australia that have more of their pedigree published than Australian politicians now are
thoroughbred race horses’.
Research 2.3
1 Investigate the outcome for each of the ‘citizenship seven’.

2 Divide the class into pairs and choose one month from the last year. View the summary of
High Court decisions for each year as outlined in the monthly bulletins. Each pair is to select one
case and prepare a presentation that includes:
a an outline of a case ‘handed down’ by the High Court
b a brief overview of the facts of the case and the decision.

2
In Court
Google Inc v Australian Competition and Consumer Commission [2013] HCA 1

This case involved four businesses (STA Travel, Carsales, AusDog and the Trading Post) sponsoring
links on Google that would appear when certain key words were entered – specifically, if you used
Google to search for the name of a company that was in competition with, for example, STA Travel,
then a link to STA Travel would appear prominently, rather than a link to the rival company. The aim
of the sponsored links was to divert web traffic away from rivals. Some people wrongly assumed that
the ‘results’ of their searches were organic but in fact they were sponsored links.
The High Court held Google responsible for the misleading and deceptive conduct of the
four businesses, which means that Google is no different from any other medium that hosts
advertisements. In obiter dicta, the court noted that if Google (or any publisher) is aware that
material is misleading or deceptive, they can be held liable as per section 251 of the Australian
Consumer Law.
Appeals to the High Court from question of law

lower courts a disputed legal contention that is left for the judge to
decide; for example, whether certain evidence is admissible
Section 73 outlines the appellate jurisdiction of the
High Court. It stipulates that the High Court has
jurisdiction to ‘hear and determine all judgments’
Judicial review
from any cases emanating from:
The system of judicial review involves review of the
• the High Court exercising its original
actions of a government official or department by a court
jurisdiction
of law. Generally, the system involves investigating
• any Federal Court exercising federal
the legality of a decision or action. The High Court
jurisdiction
exercises judicial review whenever it makes a decision
• the Supreme Court of any state.
about whether a particular law is constitutionally valid
Section 73 also states that ‘the judgment of the High or not. It has almost unlimited jurisdiction to review
Court in all such cases shall be final and conclusive’. Commonwealth administrative decisions.
Currently, all appeal cases must be granted special The Federal Court undertakes most judicial
leave before the case will be heard by the High reviews by applying the Administrative Decisions
Court. Chapter 4 of the High Court Rules 2004, which (Judicial Review) Act 1977 (Cth). It is important to
became effective on 1 January 2005, deals with the understand that this Act applies strict rules and
practice and procedure of the High Court in its does not give the Federal Court the power to review
appellate jurisdiction. a decision on its merits. Appeals can go to the High
Court, by leave.
special leave
A far more effective and efficient way for individuals
where the High Court grants approval for the case to come
before it in its appellate jurisdiction to appeal the decision of a government official or body
is through non-judicial review of administrative action
Generally, appeals relate to questions of law, or a in the Administrative Appeals Tribunal, which has
matter that is of such significance as to warrant the jurisdiction to review the merits, that is, decide the
attention of the High Court, or a dispute between case again. As it states on its website:
the opinions of various courts that requires a final
adjudication. The workload of the High Court has
built up over the decades and there are numerous The AAT aims to provide fair, impartial,
examples of the High Court deciding matters in its high quality and prompt review with as
appellate jurisdiction. little formality and technicality as possible.

Figure 2.15 This map attempts to represent the language, social or nation groups of Aboriginal Australia. It shows only
the general locations of larger groupings of people, which may include clans, dialects or individual languages in a group.
It used published resources from 1988–1994 and is not intended to be exact, nor the boundaries fixed. It is not suitable for
native title or other land claims. David R. Horton (creator), © Aboriginal Studies Press, AIATSIS, 1996. No reproduction
without permission. To purchase a print version, visit the AIATSIS website.


Courts other than federal courts may also review A main difference between Aboriginal and
decisions on the merits, if they have statutory Torres Strait Islander customary law and the British
authority to do so. legal tradition can be seen in the area of land
Generally, judicial review involves the court ownership. The right to possess property is a key
with appropriate jurisdiction investigating whether principle of English and European law; but to many
a government official or department has acted Aboriginal and Torres Strait Islander peoples, land is
ultra vires, or whether he, she or it has followed the not ‘owned’ in the same way as under European law.
rules of natural justice (procedural fairness). These Instead, people are custodians of the land, looking
concepts are covered in the HSC course. after it for future generations. This is not to say that
there were not defined areas of land occupied by
various groups. This collective guardianship is a
2.6 Aboriginal and Torres key feature of customary law; however, the lack of
Strait Islander peoples’ tangible ownership is one reason why the British
customary laws people felt that they could settle and impose British
Aboriginal and Torres Strait Islander peoples have property law in Australia. The British considered
the oldest living cultures in the world. For tens of Australia to be an unoccupied land, as they could not
thousands of years, Aboriginal and Torres Strait see things like fences that indicated land ownership
Islander peoples have occupied this continent as many in their system. The British incorrectly declared the
different societies with diverse cultural relationships land terra nullius, a Latin expression meaning ‘land
linking them to their own particular lands. More than belonging to no one’.
200 distinct languages, and countless dialects of them,
were in use when European colonisation began. While terra nullius
(Latin) ‘land belonging to no-one’; the idea and legal concept
people in some communities continue to speak their that when the first Europeans came to Australia, the land
own languages, many others are seeking to record and was owned by no-one and thus was open to settlement; this
concept has been judged to be legally invalid
revive threatened ones. Aboriginal and Torres Strait
Islander peoples retain their connection to their
Although today federal and state legislation and the
traditional lands regardless of where they live.
common law govern Australia, many Aboriginal and
There is growing evidence that Aboriginal and
Torres Strait Islander peoples still follow their own
Torres Strait Islander peoples had sophisticated
customary law as well.
systems of agriculture, domesticated plants,
irrigation, and harvesting and storing processes.
These systems varied between different Aboriginal Diversity of Aboriginal and Torres
and Torres Strait Islander communities across the Strait Islander societies
continent and were dependent on local conditions Different Aboriginal and Torres Strait Islander
and seasons. groups have their own variations of customary
There is no single system of Aboriginal and law. Australia is a large land mass and, as a
Torres Strait Islander law. The separate Aboriginal result, different languages and modes of conduct
and Torres Strait Islander communities developed developed. However, the similarities in customary
their own laws, but there were also common aspects law outweigh the differences.
among groups. There is still much we are learning For example, under traditional law, the majority
about Aboriginal and Torres Strait Islander law prior of Aboriginal and Torres Strait Islander communities
to colonisation. Aboriginal and Torres Strait Islander will generally see that disputes are not restricted to
law is based on tradition, ritual and socially acceptable individuals. The resolution of the dispute, involving
conduct. For this reason, it is known in Australia’s negotiation, mediation and conciliation, will involve
current Western system as ‘customary law’. everyone in the community. There are also offences
that are not recognised by non-customary law but are
customary law
principles and procedures that have developed through punishable under traditional law. Examples include
general usage according to the customs of a people or
nation, or groups of nations, and are treated as obligatory

2
insulting an elder and the singing of sacred songs evolved from The Dreaming and are concerned with
in public. These are offences in most Aboriginal and the treatment of the land and those who live on it.
Torres Strait Islander societies, regardless of where Since 1788, many Aboriginal and Torres Strait
they are located in Australia. Islander peoples have lived under two legal systems:
the common law system derived from Britain and
elders Aboriginal and Torres Strait Islander customary law.
older men and women of recognised wisdom and authority,
who are the keepers of traditional knowledge within As more than two-thirds of Aboriginal and Torres
Aboriginal and Torres Strait Islander communities; they are Strait Islanders live in remote areas, they are more
responsible for such things as initiations and the handing
down of punishments when community laws are broken
likely to use customary law to settle a dispute.
The significance of land and

The spiritual nature of Aboriginal bodies of water to Aboriginal and
and Torres Strait Islander Torres Strait Islander societies
customary law The idea of individual land ownership is alien to
The Dreaming is the basis of much Aboriginal Aboriginal and Torres Strait Islander thought. Being
peoples law. The Dreaming is the history of Aboriginal a member of a group means that a person is able to
peoples: their creation and teaching stories. It live on and use the resources of certain lands. Thus,
explains how the land, animals, plants and sky were the land belongs to the group and loss of this land
created and has a very strong religious element. means losing the group’s culture and history. In the
same way, Aboriginal and Torres Strait Islander
The Dreaming peoples have links with the sea, lakes, rivers and all
the source of Aboriginal peoples customary law bodies of water. These are not owned by individuals,
but are cared for by the group under customary law.
Due to the secrecy that covers many of the traditional Each group has distinct responsibilities
laws, and the cultural role played by oral history governing the way that they look after their land and
in contrast to written documentation, it is hard to bodies of water. These responsibilities are tied into
describe these laws and their links to The Dreaming. their traditional laws and the stories and rituals that
In addition, laws will differ from community to pass on these laws and responsibilities. Failure to
community. follow the traditional laws can be seen as a failure
However, it can be agreed that law and religion to show respect for the land and traditional values.
are very closely related, and that many laws have
Figure 2.16 On 27 October 2019, a celebration was held at sunset to mark the closure of the tourist walking track up to
the summit of Uluru in the Northern Territory. The Anganu, Uluru’s traditional owners, lobbied for the closure of the track
because it undermined the landmark’s spiritual significance.

Ritual and oral traditions within laws. As a result, mediation has an important role
Aboriginal and Torres Strait in dispute resolution.
Islander societies
mediation
Aboriginal and Torres Strait Islander law is part of a form of alternative dispute resolution designed to help two
everyday life. The law is an integral part of the values, (or more) parties, in the presence of a neutral third party, to
reach an agreement
customs and ethics of Aboriginal and Torres Strait
Islander peoples and has developed over many
thousands of years. Most laws relate to marriage,
child-rearing, religion, family and kinship. Customary
Enforcement and sanction within
laws have been passed from generation to generation
Aboriginal and Torres Strait
by word of mouth and through ritual. Stories, songs
Islander societies
and dances are used to help people remember the It is expected that everyone in the community will
laws of their group. Different people in the group know follow and reinforce the traditional laws. In traditional
different laws. For example, women have knowledge societies, order is maintained through self-regulation
of some laws that they pass on to girls at a certain age. and consensus among family heads. Elders play
an important role in guiding decisions related to
kinship enforcing the law, intervening as necessary.
family relationships, including all extended family Offences under traditional law may be breaches
relationships; an important part of Aboriginal and Torres
Strait Islander cultures and values, which dictate how all of sacred law or offences against property or persons.
people in the group behave towards each other There is not always a clear line between these
categories. Where sacred law has been broken, elders
During ceremonial meetings at communal gathering are often directly involved in applying sanctions.
places, laws are passed on by, and to, the appropriate
people and reinforced often through dance and sanction
storytelling. Many of these ceremonies are sacred form of a fine or punishment
and people from outside the community are not
permitted to participate nor, in some instances, Sanctions vary from place to place. The relatives of
watch. The stories have been handed down for the wronged party, ceremonial leaders, or both may
thousands of years and explain concepts such as be involved in the punishment, the form of which
the creation of all things, why events happen, tribal may be determined through negotiations and/or
boundaries, family relationships, cultural practices kinship relationships. For the most serious offences,
and forbidden acts. elders may need to ensure that the punishment is
appropriately carried out and restraint is exercised.
Dispute resolution within Punishments range from ridicule and shaming
Aboriginal and Torres Strait to exile, spearing or death. Punishment by death is
Islander societies much less frequent today than in it was in the past,
When customary laws are broken or disputes possibly because of conflict with Australian law.
arise within traditional Aboriginal and Torres Strait The justification for physical punishments such
Islander groups, the family and the community as spearing or beatings is sometimes expressed to
are involved. Discussions or meetings, rather than ‘restore balance’ for the parties and their families.
formal judicial processes, would be held during
ceremonial times. Elders and influential members The relevance of customary
of the community might meet with those in conflict law today
and use discussion and dialogue in an attempt to In the past 20 years, there has been greater legal
settle the dispute. recognition of Aboriginal and Torres Strait Islanders’
Relationships and their maintenance are very rights as the traditional landholders of Australia.
important in Aboriginal and Torres Strait Islander Many aspects of customary law are embodied in
communities. It is through these relationships that Australian law today. The practice of sustainable
people are able to pass on and follow traditional development, for example, is the basis for current

2
environmental laws. Conciliation and mediation are mitigation
increasingly used to resolve disputes in criminal, making the severity of an offence or a sentence milder or less
severe
consumer and employment law.
Customary laws are also sometimes taken into
account when an Aboriginal and Torres Strait Islander In some places where there are a large number of people
person is charged with a crime. For example, where an living a traditional lifestyle, elders will be consulted
act has been done because Aboriginal customary law by those involved in maintaining and enforcing the
requires it, but the act amounts to an offence under law. However, there is much debate about the role of
Australian law, this may be raised in mitigation of customary law in prosecuting, defending and punishing
the offence. Evidence that a criminal offence was offenders, and those in the legal system are always
provoked by the victim’s breaking customary law wary of being accused of unfairness if everyone is not
may also be a mitigating factor, and evidence that an treated equally by the law. As a result, legislatures have
offender is to receive traditional punishment may be been reluctant to formally incorporate customary laws
submitted in the modifying of a sentence. into Australian law.
Review 2.6
1 Describe the importance of tradition in Aboriginal and Torres Strait Islander customary law.
2 Discuss the different relationships that Europeans and Aboriginal and Torres Strait Islander
peoples have with the land.
3 Outline why it is not possible to refer to a uniform Aboriginal and Torres Strait Islander
customary law.
4 Identify what the laws of Aboriginal and Torres Strait Islander peoples have in common.
5 Explain some ways in which customary law is relevant to the Australian contemporary legal system.
6 Using examples, describe where customary law has been incorporated into the Australian
legal system.
Research 2.4
Go to the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) website
and complete the following activities.
1 Identify who provides this website and what type of information it contains.
2 Explain the importance of The Dreaming to Aboriginal peoples.
3 Describe the different ways that Aboriginal and Torres Strait Islander peoples reflect their
history and culture.
4 Discuss how this history and culture is shared in modern day Australia.
2.7 International law domestic law

the law of a state
States and sovereignty:

A state, in the legal sense, is an independent entity
The differences between
that is recognised by other states on an international
domestic and international law
basis. In order to be a state, a place must have:
Each country has laws for its own people, known
• a defined territory
as domestic law. A country can make these laws
• a permanent population
because it is an autonomous (independent) state that
• an effective government
has sovereignty (meaning the authority to rule itself).
• the capacity to enter into international negotiations.

Sovereignty means the state has authority to make Customary international law
rules for its population and power to enforce these Customary international law is not contained
rules. The term ‘state’ can refer to a political division within a written document. Instead it is based on
within a Federation, such as New South Wales or long-established traditions or common practices
Tasmania, or (in an international context) to an followed by many states to the point that they are
autonomous state such as a nation. accepted as being fair and right by the international
International law governs the relationships community. For example, customary international
between nation states. International law enables law regulating war had been in existence for a
states to participate in trade and commerce and long time before The Hague (1989) and Geneva
provides mechanisms for the maintenance of Conventions (1864, 1906, 1929, 1949) explicitly
peace and security and the reduction of conflict. outlined rules governing the conduct of states in
International law also covers fundamental human conflict such as the manner in which prisoners of
rights, making it illegal to do such things as torture war and civilians were to be treated.
political prisoners or commit genocide. This form of international law develops over
One of the main criticisms of international law time, as it requires ‘constant and uniform’ practice
is that it lacks the power to enforce the constraints of states in order to be accepted as law. It should
contained in this law. There are many examples be noted that, even if there is constant and uniform
around the world of states breaching international practice, it is still not considered law unless the
law, especially in the area of human rights. states accept that the practice is binding upon
International law could not prevent genocide in them. This principle is termed opinio juris sive
Rwanda in the 1990s and has not prevented crimes necessitatis (shortened to opinio juris).
against humanity committed in the Darfur region
of Sudan since 2003 or those of the Syrian civil war opinio juris sive necessitatis
(Latin) ‘opinion that an act is necessary by rule of law’; the
(which is still continuing at the time of writing).
principle that for the practice of a state to be customary
In this sense, international law is different from international law, the state must believe that international
domestic law. States are powerful entities and to law requires it
force another state to take a particular course of

action can have far-reaching implications for the Critics of customary international law point out that
international community. As a result, international it can be difficult to establish that it exists, and the
law relies on countries consenting to cooperate in time lag involved in its being accepted as law has
the enforcement of these laws. rendered it secondary to treaties and conventions
A further point of difference is that law is as a source of international obligations. The
adhered to not simply because it can be enforced, number of nations in existence since the end of
but because it is generally accepted by the whole World War I (1918) has also grown considerably, so
community. As the world is made up of diverse getting consensus has become more problematic.
cultures with different values, not all countries will In addition, the rate of change in the world today
agree with all international laws and may ignore a is rapid and at times requires a more immediate
law if they feel that it is not in their national interest response. For example, what is the most effective
to do so. means of limiting damage from the economic crisis
However, states are interdependent in many ways of 2008? Would customary law or treaties be the
and the recognition of this global interdependence, more appropriate way of regulating global financial
creating a world community, provides one of the markets?
motivating forces for following international law. Most of the laws prohibiting crimes against
humanity originated as customary international law.
Sources of international law Important examples include the condemnation of
The main sources of international law are customs, slavery and genocide.
declarations, treaties, legal decisions and legal
writings.

2
Convention on the Law of Treaties (1969), a treaty is
‘an international agreement concluded between
states in written form and governed by international
law’. Another way of looking at it is that a treaty is
an agreement between legal equals and may cover
any sphere of international relations between the
parties.
Treaties can be either:
• bilateral – between two nations; for example,
the Agreement between the Republic of
Indonesia and Australia on the Framework for
Security Cooperation (the ‘Lombok Treaty,
2006’), concerning their common security and
respective national security or
Figure 2.17 The International Criminal Court’s Assembly • multilateral – between many states; for
of States Parties were held in The Hague, Netherlands, on example, the Charter of the United Nations (1945),
2 December 2019. which established the United Nations and its
organs and agencies. Each country that is a
Declarations signatory to this treaty has a seat in the General
Declarations are international instruments that state Assembly and participates in UN processes.
and clarify the parties’ position on particular issues,
The more states that sign a treaty , the more
but do not impose legally binding provisions that
powerful that treaty will be. Treaties are used to
must be followed. A famous example is the Universal
make specific laws and to control conduct and
Declaration of Human Rights (1948) – the first universal
cooperation between and within states. A treaty
statement on the basic principles of human rights.
may also establish an international organisation;
The United Nations Commission on Human Rights
for example, the Rome Statute of the International
was established to draft the declaration following
Criminal Court (2002). There is no set way of making
World War II and the Holocaust. Among its chief
a treaty, but most treaties are made through direct
purposes was to define the terms used in the UN
negotiations between states. If all parties involved
Charter: ‘human rights’ and ‘fundamental freedoms’.
agree, the treaty will be signed. A document will only
declaration become a treaty if all parties have the intention of
a formal statement of a party’s position on a particular being bound by its provisions and obligations at the
issue; a declaration is not legally binding under
international law time of signing. The treaty only becomes binding on
a state when that state ratifies it; that is, confirms
In 1948 the declaration was ratified by a proclamation that it intends to be bound by the conditions placed
by the United Nations General Assembly. Forty-eight on it by the treaty.
countries voted in favour of it, with none voting
against it and only eight abstaining (not voting). treaty
defined by Vienna Convention on the Law of Treaties (1969)
The declaration is the basis for two binding UN as ‘an international agreement concluded between states in
human rights covenants: the International Covenant written form and governed by international law’; treaties may
also be referred to as conventions or covenants
on Economic, Social and Cultural Rights (ICESCR)
and the International Covenant on Civil and Political ratify
to formally confirm that the country intends to be bound by
Rights (ICCPR). Its principles are contained in other the treaty
treaties as well.
For some countries, such as France, treaties that

Treaties
the country has ratified automatically become
Treaties are the most commonly used source
part of the domestic law. Other countries require
of international law. According to the Vienna

Case Study
Child executions
There are still a handful of countries in the world today that execute offenders for crimes committed
when they were under the age of 18.
It is evident that child executions breach international treaties. Article 6 of the International
Covenant on Civil and Political Rights (1966) says that a ‘sentence of death shall not be imposed for
crimes committed by persons below 18 years of age’.
Article 37 of the United Nations Convention on the Rights of the Child (1989) provides that ‘neither
capital punishment nor life imprisonment without possibility of release shall be imposed for offences
committed by persons below 18 years of age’.
In Roper v Simmons (2005) 543 US 551, the US Supreme Court found that executing offenders who
were minors when they committed the crime violates the Eighth Amendment, which prohibits ‘cruel
and unusual punishments’. In 1989, the same court had held that it was within the US Constitution to
execute 16- and 17-year-old offenders, but it found that standards of decency had evolved since the
US Constitution had been written. There was now a national consensus that death is disproportionate
punishment for juveniles. In addition to state legislation and practice, the court also considered
international trends.
Bodies, including the Inter-American Commission on Human Rights and Amnesty International,
believe that ‘the exclusion of child offenders from the death penalty is now so widely accepted in law
and practice that it has become a rule of customary international law’.
However, the practice continues in some parts of the world with Amnesty International recording
the execution of 145 juvenile offenders in 10 different countries since 1990, with six occurring in 2017
and eight in 2018.
domestic legislation to be passed in order for the the Statute of the International Court of Justice, a
treaty to be implemented into their law. In other decision of this court only binds the parties to the
cases, whether domestic legislation is required particular dispute. However, the court considers
will depend on the type of treaty. In Australia, past rulings in its decisions, and ICJ decisions may
human rights treaties such the International help to shape the content of treaties.
Covenant on Civil and Political Rights (1966) have There are other international courts and
been ratified through the passing of a number of tribunals whose judgments contribute to
pieces of legislation such as the Sex Discrimination establishing international law. The International
Act 1984 (Cth). Criminal Court (ICC) and the European Court of
Human Rights (ECHR) are two examples. The ICC
Legal decisions was set up to prosecute the most serious crimes
The International Court of Justice (ICJ), which is part concerning the worldwide community; the ECHR
of the United Nations (UN), is the judicial body that is a regional court that rules on violations of the
deals with disputes between states. Many treaties European Convention on Human Rights. Specialised
designate the ICJ as the means of resolving disputes courts have also been set up for particular
that arise under the treaty. purposes and timeframes such as to deal with
war crimes committed during a specific conflict.
United Nations (UN) Examples of this type of court are the International
a world organisation dedicated to world peace and the
sovereignty and equality of all its members Criminal Tribunal for the Former Yugoslavia and
the International Criminal Tribunal for Rwanda.
Stare decisis (or precedent) does not apply to
decisions of the ICJ. According to Article 59 of

2
Legal writings
Review 2.7
Due to the changing international political landscape
and the developing nature of international law, the
1 Explain two different ways that the word
writings of respected international lawyers, judges
‘state’ can be used.
and academics have an important part to play in
2 Identify what is meant by the term
guiding decision-making and treaty formation.
‘international law’. Outline the different
Along with judicial decisions, scholarly writings are
ways in which international law is made.
mentioned in Article 38(1)(d) of the Statute of the ICJ
3 Outline some of the strengths and
as a means of determining the rules of international
weaknesses of the enforcement of
law. Scholarly legal writings may be drawn upon for
international law.
the purpose of interpreting treaties or determining
their application in international disputes.
Governments may also seek the advice of experts International organisations
on matters of international law. For example, in 2007
the Sydney Panel of Independent International The United Nations
Legal Experts provided advice to the Australian
The United Nations (UN) is the chief organisation
Government on whether the legality of Japan’s
involved in international law. The Charter of the
‘scientific’ whaling program could be challenged
United Nations established it in 1945. At its first
under the Antarctic Treaty System, the International
meetings, 51 countries were represented; in 2019,
Convention for the Regulation of Whaling (1946) and
there were 193 members. The UN’s main objectives
two other treaties. Although commercial whaling
are to maintain global peace and security; to develop
has been prohibited since 1986 for all members of
good relations between states based on recognition
the International Whaling Commission, Japan has
of equal rights and each state’s right to govern its
relied on an exemption in the whaling treaty that
own political, economic and social development;
permits killing whales for scientific research.
and to promote cooperation in solving international
Figure 2.18 Ambassadors to the UN from six European countries announce a joint statement following a UN Security
Council meeting on North Korean issues on 4 December 2019.

problems. The UN has been central to the protection the General Assembly. The Security Council consists
of human rights and to developing a legal framework of five permanent members: the United Kingdom, the
to address terrorism, drug trafficking, the clearing of United States, Russia, China and France (countries
landmines, and protection of the environment. It has that were victorious in World War II). There are
also been active in concrete efforts to also 10 non-permanent members who serve for two
fight disease, reduce poverty, provide years each. Australia has been a member of the
emergency relief in natural disasters, UN Security Council on five occasions: 1946–1947,
and many other humanitarian 1956–1957, 1973–1974, 1985–1986 and 2013–2014.
operations. Video
Security Council
The UN’s International Law Commission is
the arm of the United Nations responsible for maintaining
the body primarily responsible for codifying and world peace and security
developing international law. The UN General
Assembly’s Legal Committee (Sixth Committee) Under the Charter of the UN, the Security Council has
receives the Commission’s reports and considers primary responsibility for maintaining international
its recommendations. It may then organise a peace and security. As such, it is able to investigate
conference to draw up a convention based on those disputes that could lead to conflict. It can issue
recommendations that the member states vote upon. economic sanctions against nation-states to persuade
Critics of the UN believe that reform is necessary them to change their policies, or to prevent or stop
for its continued relevance. State sovereignty aggression. It can also send ‘peacekeeping’ troops
often poses a challenge to the authority of the UN, from member states into areas where there is conflict,
especially in situations involving peace and security. to separate opposing forces and to reduce tension. It
It has also been suggested that the structure of the may also authorise collective military action. Security
Security Council should be re-examined (this will be Council resolutions require a unanimous vote of all five
discussed later). As the UN has no powers to make permanent members of the Security Council. If one of
states enact its resolutions into domestic law or to the permanent members votes against the resolution
follow a particular course of action, its effectiveness then it is not carried. This is called the ‘veto power’
is very much dependent on the political will of states. and is considered one of the fundamental weaknesses
of the current structure of the Security Council. For
The General Assembly
example, in 2004, the Security Council held continuing
The General Assembly is made up of representatives
discussions to address the humanitarian crisis in the
from all member states and is the main forum for
Darfur region of Sudan. There, Arab militias with
multilateral discussion on all international matters
Sudanese Government backing were engaged in a
covered by the UN Charter. It discusses and makes
horrific campaign of forcible relocation of certain
recommendations on the operation of the UN, on
groups (‘ethnic cleansing’) involving rape, murder
conflicts between states, and on practical questions
and torture. China and Russia, which had significant
regarding political cooperation, human rights and
oil interests in Sudan, threatened to veto any Security
international law. It appoints the non-permanent
Council resolution involving economic sanctions.
members of the Security Council and oversees
Resolution 1564, passed in September, disappointed
the UN budget. It has established a number of
many human rights groups due to the absence of
committees, commissions and working groups for
stronger measures such as an immediate oil embargo
particular purposes. The General Assembly meets
and targeted sanctions against government officials.
every year and can meet more often if required.
Currently (2019), the UN has imposed economic
General Assembly sanctions on North Korea as it has been increasing
the main body of the United Nations, made up of all of the its nuclear testing. These sanctions include bans on
member states
such things as coal exports and limiting the number
of North Koreans who can work in foreign countries.
The Security Council A criticism of the Security Council is that, having
The Security Council is the most powerful part of been set up over 60 years ago, it does not reflect a broad
the UN. It is the executive of the UN and has the final spectrum of cultural values evident in the world today.
say about the security and peacekeeping activities of For example, it could be argued that the inclusion of a
2
Muslim nation as a permanent member would make Other UN organs may request advisory opinions, but
the Security Council a more representative body. only with respect to their own activities. Advisory
The other main organs of the UN are the opinions often concern particular controversies
Economic and Social Council, the Trusteeship between states, although they do not have to do so.
Council, the Secretariat and the International Court Cases heard by the ICJ can be seen at its website.
of Justice (discussed below).
Intergovernmental organisations
Courts and tribunals Intergovernmental organisations (IGOs) are organised
groups of states, established to pursue mutual interests
The International Court of Justice
in a wide variety of areas. Many IGOs are subsidiary
The International Court of Justice (ICJ) is the
agencies of the UN; others have been formed to make
primary judicial body of the United Nations. It was
collective decisions about international issues such as
established in 1945 and its principal activities are to
refugees, tariffs or wealth. The International Labour
settle disputes submitted to it by states and to give
Organization is a UN agency whose aim is to ensure
advisory opinions on legal questions submitted by
the safe and fair treatment of workers.
the General Assembly, the Security Council, or other
Regional organisations also play an important
bodies as permitted by the General Assembly. The
role in international decision-making. For example,
ICJ can only hear disputes if the nations involved
the European Union is an economic and political
accept the jurisdiction of the court.
partnership of European nations that have agreed
The court may rule on two separate types of cases.
to cooperate for the common good. It has regulatory
The first type is legal disputes (contentious issues)
powers covering areas such as human rights, the
between states, on which the court produces binding
environment, economic policies and trade.
rulings. For example, Australia initiated action against
Japan and whaling in the ICJ. The court ruled that
Non-government organisations
Japan had to cease whaling in Southern Ocean waters.
Non-government organisations (NGOs) are
The second type of case is advisory proceedings,
associations based on common interests and aims,
in which the General Assembly or the Security Council
and which have no connection with any government.
requests the court’s opinion on any legal question.
Legal Links
For more information about the United Nations bodies, view the United Nations’ website.
Review 2.8
1 Identify why the United Nations was established.

2 Describe the functions of the UN General Assembly.
3 Explain the importance of the UN Security Council.
4 Outline the role of the International Court of Justice. Discuss its limitations.
Research 2.5
View the United Nations’ website. Choose one of the issues that the United Nations deals with
(e.g. human rights) and answer the following questions.
1 Investigate and explain some of the recent initiatives taken by the United Nations in this area.
2 Outline any problems that you see the United Nations facing as it undertakes these initiatives.

Figure 2.19 The Prime Minister of Russia, Dmitry Medvedev, speaks at the International Labour Organization
Conference on 11 June 2019 in Geneva, Switzerland.
They contribute in a wide range of areas, from world Relevance of international law to
peace, disaster relief and environmental protection Australian law
to promoting education and alleviating poverty. As discussed earlier, in some countries ratification of
They do this by informing the public and lobbying a treaty automatically makes it part of that country’s
governments to take action on issues of concern. domestic law. This is not the case in Australia.
Examples of international NGOs include the Red For some treaties, new legislation may be required
Cross, Greenpeace and World Vision. to implement it in Australian law. For others, existing
Well-known human rights NGO is Amnesty federal or state/territory legislation is sufficient (in
International, a ‘global movement of over other words, domestic law is already satisfying the
seven million people committed to defending terms of the convention).
those who are denied justice or freedom’. It is To pass new legislation implementing a treaty,
independent of any national government; that the federal government may rely on the external
is, it does not rely on funding from any national affairs power in section 51(xxix) of the Constitution.
government. It campaigns on a wide range of It may also rely on other powers such as the trade
issues, including the rights of women, refugees and commerce power in section 51(i) if the subject
and indigenous peoples, regulation of the global matter involves shipping.
sale of weapons, and the abolition of International law does not dictate the way in
torture and the death penalty. which Australia implements the obligations it has

2
under treaties. The preferred method of giving Act 2004 (ACT); Charter of Human Rights and
effect to most treaty obligations is by incorporating Responsibilities Act 2006 (Vic); Human Rights Act
the actual text of the treaty provisions into domestic 2019 (Qld)
legislation. For example, the Space Activities Act 1998 • United Nations Convention on the Rights of the
(Cth) contains provisions from several UN treaties Child (1989) – see, for example, Family Law Act
regulating the exploration and use of outer space. 1975 (Cth), in particular section 67ZC
Treaties also influence Australian law in the • Convention on the Elimination of All Forms of
development of the common law, in judicial review of Discrimination against Women (1979) – Sex
decisions, and in the judicial interpretation of statutes. Discrimination Act 1984 (Cth)
Examples of human rights treaties that have • Convention against Torture and Other
some of their provisions reflected in state or territory Cruel, Inhuman or Degrading Treatment
and/or federal legislation include: or Punishment (1984) – Division 274 of the
• International Covenant on Civil and Political Criminal Code Act 1995 (Cth).
Rights (1966) – see, for example, Human Rights
Review 2.9
1 Discuss the limitations of international law.

2 Identify and outline the role of some of the main organisations that influence international law.
Figure 2.20 A group of Sri Lankan Women rights activists held banners in silent protest in Colombo on February 19,
2020. The group was protesting against grievous sexual assault, abuse and rape cases that have been reported but yet
to be investigated. Earlier that year, it was reported that 142 rapes, 42 serious sexual offenses, and 54 child abuse cases
happened around the country within the first month of this year.

Chapter summary
• The Australian Constitution took shape during • Contemporary Australian law is based on
the Federation process. English common law and has been adapted
• The constitutional division of powers outlines over time to suit modern Australian society.
the responsibilities of the Commonwealth and • The Australian Constitution sets out the
the states by reference to concurrent, exclusive fundamental rules of the Australian legal and
and residual powers. political systems, including the roles of the
• The High Court has the ultimate responsibility state governments and the federal government.
for interpreting the Australian Constitution. It shows the division of powers among the
• The High Court is the final court of appeal in levels of government to make laws.
Australia (its appellate jurisdiction) but it also • Parliament has the power to make changes to
has original jurisdiction for some matters, these laws as long as the correct processes
notably constitutional law. are followed.
• The Australian Constitution indicates how the • The doctrine of precedent is an element of
separation of powers operates in Australia. It common law that requires judges to follow
is important to note that only the judiciary is rulings made in previous court cases, unless
truly independent in Australia. they are inconsistent with a higher court’s
• The separation of powers ensures that individual decision or are wrong in law.
rights and the democratic system are protected. • Australia is recognised internationally as a
• The law in Australia, prior to European sovereign state with the authority to make its
settlement, was customary law based on own laws.
Aboriginal and Torres Strait Islander • Australia also takes part in international
traditions, rituals and acceptable conduct. law-making through its membership of the
• Customary law is still relevant in Australia today United Nations and by being a signatory of
and elements of it have been incorporated into international treaties.
dispute resolution procedures.
Questions
1 What section of the Australian Constitution 3 A government minister contacts a judge in
outlines the referendum process for amending the Federal Court and directs her to make a
the Constitution? decision that is favourable to the government’s
a section 51 interests. Why would this decision be
b section 73 overturned by the legal system?
c section 109 a It offends the division of powers.
d section 128 b It offends the separation of powers.
2 When is a binding precedent set? c It would be ultra vires.
a A binding precedent is set when a d It is not allowed under the referendum
precedent is established by a higher provisions of section 128.
court. 4 What is the main purpose of equity?
b A binding precedent is set when a judge a The main purpose of equity is to achieve
has determined that the facts of a case are justice.
similar to another case. b The main purpose of equity is to achieve
c A binding precedent is set when a judge fairness.
accepts the advice from a judge in a higher c The main purpose of equity is to achieve
court. equality.
d A binding precedent is set when parliament d The main purpose of equity is to achieve
passes a law about a case. damages.
64
2
5 Which United Nations body is primarily b General Assembly’s Legal Committee
responsible for codifying and developing c International Law Commission
international law? d International Court of Justice
a UN Security Council
1 Describe the different ‘checks and balances’ 6 Discuss the relationship between the
provided by the Australian Constitution. government and the whole parliament when
2 Explain the difference between the ‘division of it comes to making new laws or amending
power’ and the ‘separation of powers’ under current laws.
the Constitution. 7 Critically analyse the ways that Aboriginal
3 Use examples to describe the various roles of and Torres Strait Islander customary law
the High Court. has been, and can be, incorporated into the
4 Explain the difference between common law contemporary Australian legal system.
and statute law. Analyse their relationship.
5 Describe the distinguishing features of
Aboriginal and Torres Strait Islander
customary law.

Chapter 3
Classification of law
Chapter objectives
• describe the key features and operation of the Australian and international legal systems
• discuss the effectiveness of the legal system in dealing with relevant issues
• describe the role of the law in conflict resolution and its ability to respond to and initiate change
• locate, select and organise legal information from a variety of sources
Relevant law
Crimes Act 1900 (ACT)
Crimes Act 1900 (NSW)
Judiciary Act 1903 (Cth)
Criminal Code 2002 (ACT)
SIGNIFICANT CASES
Donoghue v Stevenson [1932] AC 562
Roach v Electoral Commissioner [2007] HCA 43
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45

Legal oddity
You could be fined for not bowing when entering or leaving a courtroom. Courtroom etiquette rules exist
in all Australian states to foster respect for the legal system. In New South Wales (and in most states and
territories), this includes bowing your head to the judicial officers (judges or magistrates) as you enter
and leave a courtroom. It is also customary to stand as judicial officers enter and leave a courtroom and
to address them as ‘Your Honour’. This respect is given to the judge or magistrate as the representative
of the legal system, rather than as an individual. Failing to show such respect in a courtroom could, in
serious cases, be considered to be contempt of court and land you with a fine or even jail time.

3.1 Public law Public law deals with the powers and obligations
of government and citizens, and the relationships
There are many different ways of classifying law.
between persons and the state. Three main areas
One is to separate the law into two main categories:
of public law are criminal, administrative and
public law and private law.
constitutional law.
public law
the body of law governing relationships between Criminal law
individuals and the state, and the structure and operation of
government itself; for example, criminal, administrative and Criminal law is the body of rules under which
constitutional law certain acts or omissions are punished by the state.
private law The function of criminal law is to maintain public
the body of law governing relationships between individuals; safety and order for the whole of society. The state
for example, contract law, torts, family law and property law
is responsible for criminal law because a criminal
Figure 3.1a Detective Chief Inspector Wayne Hoffman speaks to the media at a press conference on
August 8, 2017, as guns previously seized from criminals are seen behind him.
Figure 3.1 On 13 November 2019, police officers arrest offence is considered to be an offence against the
a man (right) who is suspected of looting as bushfires whole community – even if only one individual is
impacted houses and farmland near the small town of
affected. This is because a criminal offence is seen
Glenreagh in New South Wales.
to damage the moral order of society; that is, the
safety of people and property.
In Australia, criminal law is the responsibility
of each state and territory. The actions and
punishments covered by criminal law are the same,
or similar, in all the states and territories, as it would
be too confusing for everyone involved if what was a
major crime in one state was not in another. The way
the criminal justice system operates is also similar in
the states and territories.

Chapter 3 Classification of law
• Internal review – When a member or officer

Legal Links of an agency has made a decision, that 3
decision can be reviewed by someone else
The following Acts are available in full online:
within the agency. Sometimes there are formal
• Crimes Act 1900 (ACT)
mechanisms laying down set procedures
• Crimes Act 1900 (NSW)
for seeking an internal review; if this is not
• Criminal Code 2002 (ACT).
the case, a person can simply request that a
decision be reconsidered.
In New South Wales, the main criminal statute is • External review – This is a more formal
the Crimes Act 1900 (NSW). The Australian Capital system, where a person or body outside the
Territory has its own Crimes Act 1900 (ACT) and the agency (such as the Administrative Appeals
Criminal Code 2002 (ACT). This code is the result of Tribunal) reviews the merits of a decision made
the Australian Capital Territory adopting provisions by an agency.
of the Model Criminal Code, a cooperative project • Judicial review – Only courts can provide
between the Commonwealth, state and territory judicial review of administrative decisions.
governments to develop more uniform legislation. The only area a court can consider is whether
Over the years, parts of these Acts have been a decision was lawfully, fairly and rationally
reviewed and changed to reflect changes in society. made. The High Court has the power, under
For example, the Crimes Acts have been amended to the Australian Constitution, to give specified
cover automobile and computer crimes. As with all remedies against unlawful action by federal
areas of law, sections of Acts will always lag behind government officers. Similarly, in section 39B
changes in society due to the speed of change and of the Judiciary Act 1903 (Cth), parliament gave
the slower procedures and processes involved in similar jurisdiction to the Federal Court.
changing laws. For this reason, changes to law tend The avenue of review taken depends on the nature
to be reactive rather than proactive. of the complaint and whether the complaint is made
against a federal or state decision. Government
Administrative law departments place information about appealing
Administrative law looks after government powers decisions on their websites. In New South Wales and
and the decisions of government organisations. in the Australian Capital Territory, appeals against
It is based on the English model. Administrative government decisions are heard by, respectively, the
law exists to ensure the accountability of the NSW Civil and Administrative Tribunal and the ACT
administrative decisions and actions made by the Civil and Administrative Tribunal.
government and its departments.
Administrative law cannot be used to challenge all Constitutional law
government dealings; for example, policy decisions Constitutional law is the branch of public law that
and the giving of advice. An example of a decision focuses on the rules governing the executive,
that cannot be challenged is an increase in taxes. legislative and judicial functions of government. In
However, the actions of the government departments Australia, legislative power is divided between the
that administer policy decisions can be challenged Commonwealth and the states, as the Australian
under administrative law. In this way, a taxpayer Constitution has given the Commonwealth
could challenge his or her tax assessment under Parliament power to make laws with respect to
administrative law, on certain specific grounds. particular areas (e.g. defence). The Australian
In Australia, administrative law is complicated Constitution also specifies that Commonwealth law
due to the different levels of government. An prevails when there are inconsistencies between
individual must be aware of which government state and Commonwealth legislation.
body was responsible for the action before they can If a law violates the rules in the Australian
challenge it. Constitution, the case must go to the High Court of
A person can seek a review of a decision made by Australia. The High Court has the role of deciding
a government agency in three ways. These ways are: cases of special federal significance, such as

In Court
Roach v Electoral Commissioner [2007] HCA 43

This case challenged the constitutionality of a statute. Before the 2006 amendment of the
Commonwealth Electoral Act 1918 (Cth), prisoners serving a sentence of less than three years were
entitled to vote in elections. The 2006 amendments took away the right to vote for all prisoners
serving a sentence.
Vickie Lee Roach, a serving prisoner, took the case to the High Court on the ground that the Act
as amended was unconstitutional. Her team of lawyers argued that the new law breached her implied
constitutional freedoms of political participation and political communication. After hearing the
case, the majority of the court found the amended law to be invalid, but accepted the validity of the
previous law, which banned prisoners from voting if they were serving a term of three years or more.
Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re

Xenophon [2017] HCA 45
In 2017, the High Court heard the high-profile case of the ‘citizenship seven’. The High Court had
to determine whether several politicians who had dual citizenship should be allowed to remain as
serving members of parliament. This was discussed in an ‘In Court’ box in Chapter 2.
challenges to the constitutional validity of laws. • High Court decisions are binding on all courts
Procedures in the High Court are similar to those in Australia.
of other courts in that they are very formal and the
two sides argue their cases, usually represented by
highly respected barristers. However, the procedures Formative assessment:
in the High Court differ in the following ways: Assessment for learning
• cases in the High Court are heard by one or The activities in this chapter are designed to assist
more judges (called justices); cases involving you to build your understanding of the content
interpretation of the Australian Constitution and covered. You are encouraged to complete the
those of great public importance are heard by activities and seek feedback from your teacher on a
all seven justices regular basis to check your understanding. You are
• decisions are not given at the end of the hearing; also encouraged to regularly review the ‘themes and
they are only delivered after much deliberation challenges’ and the ‘learn to’ statements on pages
• each justice makes an independent decision on 10–12 of the syllabus. You can revisit these types of
cases; when a decision is not unanimous, the activities a number of times to continue to build your
majority decision prevails knowledge and skills of the topic.
Review 3.1
1 Outline the differences between private law and public law.

2 Assess why it is important for Australia’s states and territories to have similar criminal laws.
3 Describe the role of administrative law. Outline how an administrative decision of a government
body can be challenged.
4 Identify the courts that can decide questions of constitutional law. What types of questions are
included in this category?

3.2 Private law he or she would have had if the defendant had kept
Private law regulates the relationships between

the agreement. Damages are not intended to punish 3
the defendant.
persons, companies and organisations. Rights are
protected by both statute and common law. When damages
seeking to bring court action against an individual monetary compensation for harm or loss suffered
for infringement of one’s private rights, it must be plaintiff
in a court exercising civil jurisdiction; the action the person who initiates a civil action
is known as a civil proceeding. Three major areas of
civil law are contract law, tort law and property law. The plaintiff may also seek one of the following
remedies:
civil jurisdiction • an injunction – this is an order usually directing
the power of a court to hear matters involving disputes
between private individuals and to award civil remedies a party not to do something
(e.g. ordering the defendant to cease the
conduct breaching the contract); in some
Contract law cases, an injunction may require the party to do
A contract is an agreement, or promise, between something (e.g. require a telephone customer to
two or more parties that is recognised by law. remove wiring that he or she installed and that
Contract law is concerned with the recognition of was not authorised by the telephone company)
this agreement and the actions taken to enforce it. • specific performance – this is an order in
When one of the parties to a contract believes which the court specifies the way in which
that all or part of the contract has been breached, the breaching party is to perform the contract;
he or she can bring a legal action in a civil court. specific performance is only ordered if the amount
Damages are most often the common law remedy of damages provides insufficient compensation.
available for breach of contract. Damages are viewed injunction
as a substitute for performance of the contract; that a court order requiring an individual or organisation
is, for the other party doing what he or she agreed to perform, or (more commonly) not to perform,
a particular action
to do by signing the contract. Thus, damages are
specific performance
designed to put the plaintiff in the position he or
an order requiring the defendant to perform the acts that the
she would have been in if the contract had been contract obliged him or her to perform
performed properly; that is, to compensate him
or her. The amount of compensatory damages is In each instance, civil court case procedures are
intended to provide the plaintiff with the benefits that followed; that is, the offended party must argue that
Figure 3.2 Former Channel 10 newsreader, Jessica Rowe, with her husband, Peter Overton, and legal representatives
outside the New South Wales Supreme Court. Rowe and Channel Ten were in court over a contractual dispute.

a breach of contract has occurred. The level of court with situations in which someone (or an organisation)
where the case is heard depends on the amount of has done something to interfere with the rights of
damages sought. someone else. Another way of putting it is that a tort
occurs when someone breaches or fails to fulfil a
Tort law duty that he or she owes to someone.
Torts are ‘civil wrongs’. The word ‘tort’ comes from Breach of contract is also a civil wrong. Where
the French word meaning ‘wrong’. Tort cases deal there is a contract or agreement, there is already a
Coles to pay $300 000 to woman after supermarket slip

By Emma Partridge
The Sydney Morning Herald
22 February 2016
Margaret Hill was wearing thongs when she walked past a refrigerated cabinet filled with fruit and
vegetables at a Coles supermarket in western Sydney.
She was with her eight-year-old son and it was just after 7 am in the Kings Langley store.
Next thing she remembers was ‘doing the splits’ and ending up on the floor.
‘I just remember being flung off my feet and seeing my keys and wallet go flying across the room
and then I’ve just hit the ground with a thud,’ Ms Hill said.
She has now been awarded $292 335 in damages in the NSW District Court.
Ms Hill suffered a serious injury to her left ankle, which required surgery, and was on crutches for
several weeks. She now walks with a limp.
‘The plaintiff was an active woman prior to the accident, and has suffered a severe injury to her left
ankle,’ Judge Phillip Mahony said.
‘This has affected her mobility and her ability to carry out all of her domestic, recreational, social
and even some of her working tasks,’ he said.
‘It has had a severe impact on her life’s activities and her ability to enjoy those activities.’
Coles argued Ms Hill suffered the injury because of her own negligence in failing to keep a proper
lookout and avoid an obvious hazard.
But Judge Mahony found the supermarket had a responsibility to make sure the store was safe for
customers and that there should have been a mat in front of the refrigerated fruit and vegetables.
‘In this case, I am satisfied that there was a breach by the defendant of its duty of care to the plaintiff,
and that “but for” such breach, the plaintiff would not have suffered the injury she did,’ he said.
In deciding the total sum of damages, Judge Mahony noted that Ms Hill’s husband was disabled
and unable to help her with domestic chores.
‘[Her counsel submitted] she was forced, by her injuries, to live in conditions which she described
as akin to a “pigsty”.’
For domestic help, she was awarded $144 320.

legal relationship between the parties at the time in the evidence for making any award of damages
of the wrong; whereas in torts, there is no legal for economic loss’. The actor’s legal team took this 3
relationship prior to the wrong. The law of torts tries decision to the High Court who upheld the
to restore the plaintiff to the position he or she was decision made by the Court of Appeal.
in before the wrong was committed. For example, There are many different types of torts, all of which
someone who slipped on the floor of a supermarket are regulated by statute and common law. Torts arise
might sue the supermarket for medical costs. from different types of activity and include:
All torts entitle the alleged victim to take legal • negligence
action against the alleged perpetrator in a civil court • nuisance – public and private
and claim compensation. However, court action can • trespass (on land)
be expensive and time-consuming, so it is important • false imprisonment
that plaintiffs consider this when deciding whether • defamation.
a wrongdoing is worth bringing a case. This issue is
The case that established the modern tort of
illustrated in the following news article.
negligence and that clearly shows the difference
In 2015, in a high-profile (and expensive and
between tort law and contract law is ‘the snail in the
lengthy) case, the actor Rebel Wilson successfully
bottle’ case (Donoghue v Stevenson [1932] AC 562)
sued Bauer Media for defamation; Wilson claimed
(see ‘In Court’ below).
that articles published by Bauer Media about her
led to her losing work opportunities. Wilson was
Property law
awarded more than $4.7 million in compensation,
Property law is a wide area of law that governs relations
which was the largest defamation damages payout
involving things and interests that can be owned and
ever ordered by an Australian court. However,
that have a commercial value. These include objects
capable of being possessed physically, but also less
tangible interests such as shares in a company. The
products of creative effort – including text, images,
designs, inventions, computer programs and other
intangible objects – are protected by statute and
common law governing intellectual property.
intellectual property
intangible property that has commercial value and can
be protected by law; for example, text, images, designs,
inventions and computer programs
One of the most important types of property dealt

with under property law is real property. Real
property is actual land and anything attached to
that land, as opposed to personal property, which
includes everything else.
Figure 3.3 Rebel Wilson outside the Supreme Court Property rights are legal rights to possess, use
of Victoria ahead of her defamation trial against the
or benefit from property. A violation of such rights
magazine publisher, Bauer Media.
often involves breaking the terms of a contract. Legal
Bauer Media appealed the decision and the Court action for breaches of property law can take place in
of Appeal ordered Wilson to pay back $4.1 million of either the criminal court or civil court, depending on
those damages and 80% of the magazine publisher’s the offending action.
legal costs. The court found that ‘there was no basis

In Court

A friend bought May Donoghue some ginger beer in a dark glass bottle, which prevented Donoghue
from seeing the contents. Some ginger beer was poured into a glass for her, which she drank.
When the ginger beer was poured into the glass, a decomposing snail came out of the bottle. This
made Donoghue feel quite ill, and later she suffered from severe gastroenteritis. She sued David
Stevenson (the respondent), who was the manufacturer of the ginger beer.
This case was an appeal by Donoghue, the plaintiff in the original decision. The defendant’s appeal
had succeeded; Donoghue then appealed to the House of Lords.
Donoghue alleged that Stevenson had failed in his duty of care to provide:
• a system of working his business that would prevent snails from getting into ginger beer bottles
• an efficient system of inspection of the bottles before they were sold to consumers, including
clear bottles that would make it easier to inspect the bottles.
The court held that a manufacturer is under a legal duty to the consumer to take reasonable care
that the article will not cause injury to health.
Lord Atkin, one of the presiding judges, referred to the precedent case of Heaven v Pender (1883)
11 QBD 503, which established that ‘under certain circumstances, one man may owe a duty to
another, even though there is no contract between them’. However, Lord Atkin went further than the
narrow decision in the Heaven case, citing obiter dicta (comments other than the main legal tenant of
the case) of the dissenting judge, Brett MR, who extended the notion of a duty of care to anyone in a
position where failing to use ‘care and skill in his conduct … would cause danger of injury’.
Until Donoghue v Stevenson, individuals had no rights against suppliers with whom they didn’t have
a contract. As Donoghue did not actually buy the ginger beer and, thus, had no contractual relationship
with the manufacturer, in previous times she would not have been able to sue.
Donoghue v Stevenson became a landmark decision and formed the basis of the tort of negligence
worldwide. This occurred not only because of the judgment relating to non-contractual duty of care but
also because of Lord Atkin’s ‘neighbour principle’:
[T]here must be, and is, some general conception of relations giving rise to a duty of care,
of which the particular cases found in the books are but instances … The rule that you are
to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s
question: Who is my neighbour? receives a restricted reply. You must take reasonable
care to avoid acts or omissions which you can reasonably foresee would be likely to injure
your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons
who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions
that are called in question.
Review 3.2
1 Describe contract law and what it is concerned with.

2 Outline the types of remedies that can be sought by the plaintiff if a contract is breached.
3 Describe tort law. Outline the types of activities that tort law seeks to address.
4 Identify the different types of property that are protected by property law.

3.3 C
riminal and civil
court procedures
jury
a group of people who listen to all of the evidence in a court
case and decide on the verdict
3
There are many differences between criminal and
civil law court cases. Before discussing criminal and
civil court procedures in more depth, it is necessary Criminal procedure
to be familiar with some of the key differences and Criminal law proceedings are the legal processes in
the relevant terminology. which a person accused of a crime is prosecuted. If a
There can be an overlap between criminal and person is found guilty of a crime, usually a conviction
civil law. The victim in a case that has been heard in a and punishment is handed down, such as a fine
criminal court may also wish to gain compensation for or imprisonment. The two main types of criminal
injuries caused by the defendant. They can, therefore, hearings are summary hearings and trial by jury. The
take the case to a civil court as well. In both cases, the type of hearing depends on the seriousness of the
adversarial system of trial will be used to decide the offence the accused is alleged to have committed;
legal outcome. That is, representatives of the parties that is, whether it is a summary or an indictable
involved will put forward both sides of the case to offence.
a judge or magistrate, and sometimes to a jury. The Summary offences are relatively minor and
judge or magistrate will consider the evidence and include certain traffic offences and offensive
make a decision in favour of one of the parties.
TABLE 3.1 Key differences between criminal and civil court

proceedings
Criminal Civil
People A prosecutor and a defendant A plaintiff and a defendant
Who brings the case to court The state An individual or organisation
Onus to prove the case On the prosecutor On the plaintiff
The prosecutor must prove the The plaintiff must meet the
case beyond reasonable doubt. balance of probabilities.
Standard of proof
(This is a higher standard of proof (This is a lower standard of proof
than is required in civil cases.) than is needed in criminal cases.)
prosecutor beyond reasonable doubt

the person formally conducting legal proceedings against the standard of proof required in a criminal case for the
someone accused of a criminal offence; the prosecutor acts prosecution (the state) to obtain a conviction against the
on behalf of the state or the Crown accused
defendant balance of probabilities

the person who is accused of a crime or a civil wrong; in a the standard of proof required in a civil case for a plaintiff to
criminal case, the defendant is also referred to as ‘the accused’ succeed in proving the case against the defendant
the state
a term that is used to refer to the government and the people
behaviour. They are heard and decided by a
that it governs
magistrate or judge without a jury.
onus
the burden or duty of proving a case to a court
Indictable offences are serious criminal
offences and may be heard by a judge and a jury.
standard of proof
the degree or level of proof required for the plaintiff (in a Crimes in this category include murder, sexual
civil case) or the prosecution (in a criminal case) to prove assault and malicious wounding.
their case

Figure 3.4 Police officers collect eyewitness accounts near the scene of a knife rampage in Sydney on 13 August 2019.
Legislation has been passed to allow some indictable there is sufficient evidence that the accused has
offences to be prosecuted summarily (that is, as committed the indictable offence.
summary proceedings) in the Local Court (NSW) Trials of indictable matters take place in the
or Magistrates Court (ACT). These offences involve District Court or Supreme Court in New South Wales
crimes that have a penalty of less than 10 years’ jail (depending on the seriousness of the offence) and
time. The defendant and the magistrate must agree in the Supreme Court in the Australian Capital
for an indictable crime to be prosecuted summarily. Territory. Criminal trials are heard before a jury of
In New South Wales, the police may prosecute 12 people, unless the accused elects to have his or
summary matters in the Local Court. Not only do her case heard before a judge alone. The jury’s job
the police investigate crimes and arrest suspects, is to consider whether there is enough evidence to
but they also have specially trained police officers, convict the accused. The judge presides over the
called police prosecutors, who represent the case, advising the jury and dealing with questions
state in court. The Office of the Director of Public of law. The jury considers the evidence provided in
Prosecutions (DPP), who employ lawyers who court and makes decisions on issues of fact on the
represent the DPP in court, prosecutes serious basis of this evidence.
crimes. In the Australian Capital Territory, the DPP In both New South Wales and the Australian
is responsible for prosecuting all criminal matters in Capital Territory, the jury must come to a common
both the Magistrates Court and the Supreme Court. verdict. In New South Wales, juries used to have to
The accused, known as ‘the defendant’, will usually reach an unanimous verdict (all jurors agree) but in
employ a lawyer to represent him or her. Some people 2006, new legislation allowed for the following:
may choose to represent themselves, depending on • if there are 12 jurors and if after at least eight
the seriousness of the charges. The case that the hours they cannot all agree, then the verdict is
accused puts forward is called ‘the defence’. allowed to be agreed on by 11 jurors or
Before an accused person can be tried for an • if there are 11 jurors and after at least eight
indictable offence, there must be a committal hours they cannot all agree, the verdict can be
hearing. To have the matter put before a jury, the agreed on by 10 jurors.
prosecutor must convince the magistrate that

Criminal trial process the other side. The judge then ‘sums up’ the case and
At the start of a trial, the indictment is read to the instructs the jury (if applicable) on how to go about 3
accused, who may plead guilty or not guilty. The the task of reaching a verdict. The jury goes to another
prosecution begins with an opening address, setting room to deliberate until a verdict is reached. If the jury
out the facts of the case and the evidence that they returns a verdict of ‘guilty’, sentencing occurs either
will present to prove the defendant’s guilt. at that time, or at a later date determined by the court.
Each side then calls witnesses and ‘examines’
them by asking them questions. This is called the Burden and standard of proof in
examination in chief. Its purpose, for the prosecution, criminal cases
is to establish facts to prove their case. For the defence, In criminal cases, the defendant is presumed to be
its purpose is to disprove the prosecution’s case. innocent until proven guilty. The burden of proof
Cross-examination allows each side to examine the (i.e. the onus) rests on the prosecution, which must
witnesses of its opponent, to question the opponent’s prove beyond reasonable doubt that the accused
version of the facts or a witness’s credibility. has committed the offence with which he or she is
charged. The prosecution needs to convince the
examination in chief
questioning of a witness by the barrister who called that
judge/jury to find the defendant guilty of committing
witness the crime. It is the job of the defence to disprove the
cross-examination prosecution’s case and to provide evidence to show
questioning of a witness called by the other side to produce the innocence of their client.
information relevant to one’s case or to call the witness’s
credibility into question
burden of proof
credibility the responsibility of a party to prove a case in court
trustworthiness, reliability, believability
The standard of proof is the level of proof required
After all the evidence has been given, each side gives for the party that has the burden of proof to succeed.
a closing address where they sum up their case. This In a criminal case, the standard of proof is ‘beyond
final speech draws together the evidence and provides reasonable doubt’. This means that to return a guilty
an argument for that side’s position. A closing address verdict, no more than one jury member can have any
may also answer arguments that could be made by doubt that the crime was committed by the accused.
Figure 3.5 A Suffolk Superior Court judge sentenced Hearings in the different courts
a drain company owner (Kevin Otto) to two years in jail
for failing to take safety precautions at a job site where a Local and Magistrates’ Courts
trench collapse killed two of his workers in 2016. The Local Court or Magistrates’ Court deals with
most criminal cases. These courts do not have
juries and judges. Rather, a magistrate determines
each case. Matters are generally handled quickly,
efficiently and cost-effectively.
In the Local Court and Magistrates’ Court, the
proceedings are less formal than in the higher
courts (e.g. lawyers and magistrates do not wear
traditional robes). Also, it is solicitors rather than
barristers who carry out most of the legal work.
In these lower courts, many defendants choose
to represent themselves and so argue their case
without the help of a lawyer.
Coronial inquests
A coronial inquest occurs when there is an unnatural
death or an unexplained fire or explosion. The

proceedings are more inquisitorial than in normal has been committed, the coroner will recommend that
court proceedings, as the coroner’s office gathers all of an indictment be issued and the accused will be tried
the evidence. If there is evidence that a serious crime in a court of law in the usual way.
Review 3.3
1 Identify the differences and similarities between civil and criminal court cases.
2 Outline the differences between an indictable offence and a summary offence.
3 Describe the task of the prosecution in a criminal trial and how the prosecution goes about
carrying out this task.
4 Compare and contrast the roles of the prosecution and the defence in a criminal trial.
5 Describe the role played by a jury and how members of a jury are selected.
6 Describe a coronial inquest.
7 Outline the ways in which children who are charged with a crime are protected. Account for this
protection. Assess if you think this protection is reasonable.
Research 3.1
View the NSW Department of Justice’s website.

1 Identify who hosts this website and why it was set up.
2 View the ‘Courts and tribunals’ section of the site. Imagine you are doing work experience at the
local primary school and have to teach a Year 6 class about the local court. Develop an internet
activity based on the information on the website.
Children’s Court hearings are initiated by individuals or organisations, rather

Most charges against people under 18 years of age than the state. Civil proceedings manage matters
are heard in a special Children’s Court hearing. such as breach of contract, property disputes and
Children charged with a crime are treated differently negligence. The person who brought the civil action,
by the legal system, as children are considered to called ‘the plaintiff’, begins proceedings by issuing a
have a lower level of responsibility than adults. statement of claim or a summons to ‘the defendant’,
Conviction by a Children’s Court, even for a serious who is the individual or organisation that committed
crime, has less severe consequences than conviction the breach or wrong.
in an ordinary criminal court.
Cases before the Children’s Court are usually The process in a civil claim
heard before a magistrate who specialises in A statement of claim outlines the facts of a dispute
children’s cases and who takes reasonable measures and the parties involved in the dispute. There are
to ensure the child understands the proceedings. strict rules for the way in which a statement of claim
Cases at the Children’s Court are heard in a closed must be ‘served’ on the defendant. As discussed
court, which means the public are not allowed in Chapter 2, which court has the jurisdiction (i.e.
to attend. If journalists are present, they are not authority) to decide a civil matter depends on the
permitted to publish the identity of the offender. In type of claim and the monetary amount involved.
New South Wales, if the child is under 16 years of The documents that the defendant and plaintiff
age, no conviction is recorded. exchange and file with the court (these documents
set out the issues to be decided by the court) are
Civil procedure called pleadings. Therefore, the statement of claim
Civil proceedings are court actions that occur due or originating application is the first pleading in the
to disputes between individuals. Civil proceedings sequence of the case. There may be many pleadings,

alternating between the parties, over the course of Burden and standard of proof in
a case. civil cases 3
In a civil case, the burden of proof is on the injured
pleadings
written statements of the parties to a civil dispute that set party (the plaintiff) to prove his or her allegations. The
out the issues to be decided by the court rules of civil procedure give the defendant the chance
to provide evidence that rebuts the case made by the
The defendant responds with a statement of plaintiff. To disprove a statement or evidence presented
defence. This statement may deny or challenge by another is generally referred to as a rebuttal.
the plaintiff’s allegations, or admit them but plead In civil cases, the standard of proof is ‘on the
additional facts to counter the effect of admitting balance of probabilities’. This means that the
to them. A defendant may also file a counterclaim plaintiff, who has the burden of proof, must prove
against the plaintiff. that it was more probable than not that he or she
At this stage, the parties can obtain more suffered injury or loss because of the defendant’s
information about each other’s arguments through a actions or that ‘his or her claim is correct in law’.
process called ‘discovery’. This process allows each
party to obtain information to assist them to respond to Understanding criminal and
the other party’s claims and allegations. Interrogatories civil cases
are written questions submitted to the other party, There are a number of ways in which you can gain
which must be answered. They must be relevant to a a better understanding and appreciation of the
matter in question. At this point, many civil disputes operation of criminal and civil law. This can be done
are resolved as a settlement can be agreed on. In most by completing the following tasks.
cases, legal practitioners prepare the documents, as • Compiling a media file – Keeping a record
they have an understanding of the processes and can of specific cases that are reported in the media
give appropriate and timely advice on legal matters. is an excellent method for building a sound
If a dispute cannot be settled, the matter is understanding of criminal and civil cases. To
referred to trial. During a trial, each side has the help you record and summarise your findings,
right to produce evidence, call witnesses and carry a ‘media file proforma’ is provided on the
out cross-examinations. When both sides have Cambridge GO website. It is recommended that
presented all their evidence, the judge makes a ruling. you print a number of copies of this proforma,
If the plaintiff is successful, the judge determines the make notes specific to each case and attach
amount of relief (or compensation) to be given to the them to each article you collect.
plaintiff by the defendant. This compensation usually • Reading about cases online – Accessing
takes the form of damages in a monetary form or an cases online is one of the most time-efficient
injunction, which is a court order prohibiting specified ways of collecting information about criminal
activities. Sometimes a specific performance is and civil cases. Two reliable websites to visit
required under the judgment. are NSW Caselaw and the Australasian Legal
Review 3.4
1 Draw a diagram that shows the steps taken in civil legal action.
2 Describe how you would decide whether or not to make a personal injury claim for negligence
that resulted in medical bills of $100 000. Identify the court that would hear this case.
3 Outline the facts that might be sought in a case involving a debt that was not paid.
4 Discuss if it is more difficult to prove a case in criminal law or civil law. Explain your answer.
5 With a classmate, create a poster that shows as many civil wrongs and criminal acts as you can.
Draw up a table that lists these wrongs and acts and the respective courts in which cases about
these wrongdoings would be heard.

Figure 3.6 Nathan Carman arriving at the US District Court for his federal civil trial in Providence, Rhode Island, on
21 August 2019. Carman supplied a detailed written account to insurers of his sunken vessel, which was admitted into
evidence in the pitched dispute over his $85 000 claim for the loss of his boat. Carman told authorities he had been
drifting in a life raft for a week when he was rescued about 115 miles off Martha’s Vineyard by a passing freighter on
25 September 2016. His mother, Linda, who was alone with him on the boat, is presumed dead. Carman is at the centre
of investigations into the deaths of his mother and his grandfather, who was shot in his Connecticut home in 2013.
Carman has not been charged criminally.
Information Institute (AustLII). These sites have proceedings, while others play an unofficial role.
information about rulings on a wide variety of The official and unofficial participants of most court
court cases. cases are outlined next.
• Observation – Observing a court case in action
is an important way of reinforcing and extending Judges and magistrates
your knowledge of criminal and civil law. The Judges and magistrates preside over court cases: they
NSW Department of Justice website lists all the make sure the rules are followed and that the trial is
courts in New South Wales, and information fair. These officials are legally qualified professionals
about Australian Capital Territory courts can be with a great deal of experience in the law.
found on the ACT Courts and Tribunals website. Judges sit in intermediate and superior courts
Students can visit most courts that are open to (District and Supreme Courts) and adjudicate cases.
the public. However, if a school group is thinking The judge makes decisions about points of law and
about attending a court hearing, it is important gives instructions to the jury to make sure that they
to contact the court to ensure that correct understand the proceedings and the evidence
protocols and etiquette are followed. presented. The judge is required to hand down
sentences and rulings. In civil cases, the judge sits
Personnel without a jury and therefore is responsible for the
Court cases involve a number of participants. Some final decision.
of these people play an official legal role in the court A magistrate is in charge of a lower court.
After hearing both sides of the case, a magistrate

decides whether a person is guilty or innocent. A Barristers often specialise in one area of law (e.g.
magistrate decides on the punishment in criminal family law), which allows them to develop a depth of 3
cases, and the amount of money awarded in civil knowledge and expertise in the area.
cases. A solicitor will generally approach a barrister on
Magistrates refer very serious criminal offences behalf of their client. The barrister will then represent
to the District Court (in NSW) or to the Supreme the client in either a criminal or civil court proceeding.
Court (in the ACT). Magistrates hear some indictable Barristers have two main roles in court proceedings:
matters to determine whether they should go to trial. • to provide legal advice on the likely outcome
If there is enough evidence to establish a prima of a court case, based on the facts provided to
facie case, and thus justify the expense of a trial, them by their client; this allows the client to
the case is referred to a higher court. decide which course of action is best
• to present their client’s case in court.
prima facie
(Latin) ‘on the face’; at first sight, having sufficient evidence
established against a defendant to warrant a trial in a higher Witness
court of law A witness gives evidence regarding the case in
court. Both parties can call witnesses to support
their claims. A witness cannot enter
Judge’s associate
the courtroom until his or her name is
A judge’s associate is a confidential secretary to the
called. Once called, the witness must
judge and performs clerical duties for the court in
take the stand and swear an oath or
which the judge is presiding. Judges’ associates
make an affirmation to tell the truth. Video
usually have a law degree.
Tipstaff Court officer

A tipstaff supports the judge in matters of procedure A court officer is responsible for the court lists
and organisation when court is in session. When and calls witnesses into the courtroom. He or she
court is not in session, a tipstaff may provide administers the oath or affirmation, ensures the
research and administrative support. public are seated in the right area, and announces
the arrival and departure of the judge(s). A court
Barristers and solicitors officer communicates questions from jurors to the
People seeking legal advice usually contact a solicitor judge and passes documents from the bar table to
first. Solicitors give legal advice to people on a wide the judge’s associate: the associate then gives these
range of legal issues. Solicitors have completed documents to the judge, jury or to witnesses. A court
a law degree and have carried out relevant work officer also advises the judge’s associate when the
experience to achieve their qualification. jury is ready to return a verdict, operates audio-visual
Solicitors may work in a number of practice areas. equipment where necessary, gives instructions
Some of the main areas solicitors work in are family to the jury, answers questions from jurors, and
law, conveyancing for real estate transactions, and manages the jury room and the comfort of the jurors.
the preparation of wills and contracts. Traditionally,
only barristers can represent parties in court. Court reporter
Solicitors usually prepare a brief for a barrister All court proceedings must be recorded. This recording
when a case must go before a court, as well as doing may be written (in shorthand or using a shorthand
research and providing legal advice. However, in the machine) or it may be in an audio and/or visual format.
Local Court or Magistrates’ Court, it is more common A transcript of the proceedings is an accurate written
to see solicitors appearing on behalf of clients. record of what has been said in the courtroom.
For each state and territory, there are separate
associations for solicitors and barristers, and in New Corrective services officer
South Wales, barristers and solicitors are issued In a criminal case, a corrective services officer, who
different practising certificates. also escorts the accused to and from the courtroom,
guards the accused.

Figure 3.7 On 20 June 2019 in Madrid, Spain, the former Spanish Government Minister of Defence, María Dolores de
Cospedal (fourth from the left), arrives at court to testify as a witness in the trial of the destruction of the computers of
the former treasurer of the People’s Party, Luis Bárcenas.
Review 3.5
1 Outline the role of a judge or magistrate in court proceedings.

2 Identify the types of legal representation available to a person who is having legal problems.
3 Describe the roles of the judge and the jury in a court case.
Jury Before a court case begins, members of the

A jury is a panel of citizens who consider the jury are sworn in. In a criminal trial, both the
evidence presented and decide on questions raised prosecution and the defence are entitled to
in a case. Their job can be described as ‘fact-finding’; challenge the selection of individual jurors, or the
a jury’s decision is called a verdict. The members of panel as a whole. ‘Challenges for cause’ must have
a jury are ordinary people, randomly selected from a reason; for example, the person is not qualified to
the jury list, which is compiled from the electoral serve on a jury, they are ineligible or disqualified,
roll. In most cases, a criminal trial involves a jury of or they are suspected of bias. Both sides also
12 people. Civil cases may be heard by a judge alone have the right to a certain number of ‘peremptory
or sometimes (in NSW) with a jury of four people. challenges’ of prospective jurors, without having

to give a reason. However, the only thing they defend his or her actions is called the defendant. In
know in advance about the jurors is their names, a criminal trial, the defendant is the person accused 3
so peremptory challenges are usually based on of the crime, and there is no plaintiff.
nothing more than the juror’s name or appearance
(e.g. age, gender, race, clothing or physique). Media
Journalists often attend high-profile court cases to
Plaintiffs and defendants report on them. Generally, representatives from the
The person who brings a civil action against someone media sit in the media gallery or wait outside the
else is called the plaintiff. The person who must court to interview people.
Figure 3.8 The media often publicise stories which are topical, or that they believe are in the public interest.
3.4 C
ommon and civil law In countries that have a legal system based on
systems common law, the term ‘civil law’ refers to the area
of law that governs relationships between private
Many countries have a system of law that is based
individuals (which differs from criminal law).
on the common and civil principles of law, or a
combination of both.
Civil law systems in other
Civil law has its origins in Roman law. It is a
countries
codified system that uses a set of rules (known as
The term ‘civil law’ can be confusing. Within
the code of law) that are applied and interpreted
Australia’s legal system, civil law means private law;
by judges. This form of legal system is still used in
that is, disputes between individuals. However, the
many countries.
term is also used to describe the legal systems of
Common law, on the other hand, was developed
countries that have developed from the Roman law
by custom. It began long before there were any
system and not the English common law system; for
written laws but continued to be applied by courts
example, France, Germany and Italy.
long after written laws came into use.
Whereas common law countries like Australia
The main difference between the two systems
have an adversarial system, civil law countries usually
of law is that in civil law, judges apply the rules in
have an inquisitorial system. This means that the
the code of law to the various cases before them;
judge collects the evidence for both sides in a dispute
whereas in common law, the rules are derived in part
and so is actively involved in the fact-finding task.
from specific court rulings.

Chapter summary
• There are two main categories of law: public the amount of damages sought in civil cases.
law and private law. There are differences Cases involving issues of equity are mainly
in the ways that infringements of public and considered by the Supreme Court.
private law are dealt with by the courts. • Criminal and civil court procedures are
• Public law deals with the interactions between different in a number of ways. In a criminal
people and the state. Public law includes trial, the burden of proof is on the prosecution.
criminal, administrative and constitutional law. In a civil matter, the burden of proof is on
• The Australian Constitution sets out the plaintiff.
the foundational rules of the Australian • The standard of proof in a criminal trial is
Government. Constitutional law governs any beyond reasonable doubt. In a civil hearing, the
changes made to these rules. standard of proof is on the balance
• Private law governs the relationships of probabilities.
between individuals or between individuals • Contemporary Australian law is based on
and organisations or companies. Private law English common law. Many other countries
includes contract, tort and property law. use the civil law system, which is based on a
• Which court hears a case depends on the statutory code rather than on precedence.
severity of the crime in criminal cases and
Questions
1 Why is criminal law prosecuted by the state 3 What is the High Court’s role in relation to the
rather than by individual citizens? laws made by parliament?
a Victims of crime are usually unable to a The High Court decides whether laws
afford legal representation. are consistent with the Australian
b Crime is considered a wrong against us all Constitution.
and thus a matter of public law. b The High Court exercises veto power,
c Crime is often due to government if necessary, when a Bill comes before
decisions or policy and the state must take parliament.
responsibility for it. c The High Court ensures that laws are
d It is a matter of organisation and thus is a consistent with international treaties that
subset of administrative law. Australia has signed.
2 What is the main purpose of administrative law? d The High Court advises the minor political
a The main purpose of administrative law is parties on how they can get laws passed.
to achieve justice in civil cases. 4 What can a plaintiff expect from a successful
b The main purpose of administrative law is tort claim?
to ensure government decisions are fair. a A plaintiff can expect compensation from
c The main purpose of administrative law is the defendant in the form of damages.
to allow people to bring criminal charges b A plaintiff can expect compensation from
against government departments. the state.
d The main purpose of administrative law c A plaintiff can expect an injunction to
is to allow people to receive damages in prevent the defendant from approaching the
civil cases. plaintiff’s solicitor.
d A plaintiff can expect an order of specific
performance.

5 Which of these statements about the burden c The plaintiff in a civil trial must prove his or
and standard of proof is true? her case on the balance of probabilities. 3
a The defence in a criminal trial must prove d The plaintiff in a civil trial must prove that
that the defendant is innocent, beyond the defendant is guilty beyond reasonable
reasonable doubt. doubt.
b The defendant in a civil trial must prove that
the plaintiff’s case is flawed, on the balance
of probabilities.
1 Outline the main ways that a person can seek a 5 Discuss the notion that tort law has turned us
remedy if a government decision is unfair. into a society that sues each other when things
2 Assess if many people seek justice if a go wrong.
government decision is unfair. 6 Explain the roles of the prosecution and the
3 Describe the remedies available when you defence in a criminal case.
have a contract for services and the other party 7 Compare and contrast the features of criminal
fails to do what they agreed to do. and civil law.
4 Identify tort law.

Chapter 4
Law reform
Chapter objectives
• discuss legal concepts and terminology with respect to law reform
• debate the legal system’s ability to address issues in society that may contribute to law reform
• discuss the relationship that exists between the legal system and the society in which it operates
• discuss the place of the law in addressing and responding to change
• identify and assess the conditions in society that contribute to law reform
• describe and evaluate the role and operation of agencies and agents involved in law reform.
Relevant law
Marriage Act 1961 (Cth)
Law Reform Commission Act 1967 (NSW)
Family Law Act 1975 (Cth)
Jury Act 1977 (NSW)
Property (Relationships) Act 1984 (NSW)
Australian Law Reform Commission Act 1996 (Cth)
Young Offenders Act 1997 (NSW)
Crimes (Forensic Procedures) Act 2000 (NSW)
Succession Act 2006 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Legal oddity
In June 2010, a man was given a 30-day jail sentence for blowing bubble gum! A magistrate found the man
was ‘in contempt of court’ when he blew the bubble inside the courtroom. After spending 12 hours in jail,
the man’s lawyer lodged an appeal with the Supreme Court and he was released on bail. The Supreme Court
found the magistrate had not followed procedural fairness requirements and the sentence was overturned.

4.1 What is law reform? and are influenced by individuals’ judgment. Both
individual and social values and ethics are shaped
Australian society is constantly evolving and
by various cultural factors, often including religion.
changing. Given the speed at which social values
change, the law can sometimes seem anachronistic, social values
or slow to respond. The saying often quoted is ethical standards that guide people in their thinking about
‘society moves ahead and the law limps behind’. aspects of their society
As suggested in previous chapters, the law needs

to be dynamic for the community to respect and When the majority of people within a society hold
follow it. But mere change is not enough to constitute similar views about an issue, the views can be said
‘reform’. As the Hon. Justice Michael Kirby, a former to reflect public morality. The law must reflect the
member of the High Court bench, wrote: social values of the majority of the community if it
is to stay relevant and be assured of a high rate of
compliance. As Australia is a diverse multicultural
In our language, the word ‘reform’ tends to society, it can sometimes be difficult to gauge if there
connote an improvement, an advance: not is anything approaching consensus on an issue.
just for change, a change for the better.
(M.D. Kirby, Reform the Law: Essays on public morality
standards of behaviour generally agreed upon by the
the renewal of the Australian legal system community
(Oxford University Press, Melbourne,
1983), p. 7) The problem for law-makers is that public morality
is not static; it continues to evolve. These changing
social values are an impetus for law reform. There
are many examples of legislation that have been
Changes to laws should not only recognise the introduced, repealed or amended after courts have
changes taking place in society, but should also handed down decisions. Judicial decisions are one
reflect the changes that have produced better way in which legislators and others recognise that the
circumstances for significant portions of society, as existing law no longer reflects the community’s social
well as providing protections against harm. values. In most cases, as indicated above, the law
However, law reform is not always smooth or usually lags behind changes in social values. This is
easy, as not all members of society may agree with not always a negative feature of the law, as deliberate
particular changes to the law or see the need for and well-thought-out changes to our laws take time.
them. The extent of disagreement often depends on The following example demonstrates how law
the conditions that gave rise to law reform: in other reform has been a direct response to changing
words, on what is driving the need to reform the law. social values.
This chapter examines the conditions that give
rise to law reform, and the agents and mechanisms Example: Same-sex relationships
that can bring it about once the reform needed has
Many of Australia’s social values have been
been identified.
influenced by its Christian traditions, including the
belief that the family is one of the cornerstones of a
stable society. Part of this traditional belief has been
4.2 Conditions that give rise to the understanding that a family must have a mother
law reform and a father in a heterosexual relationship that has
Changing social values been recognised formally by a religious ceremony
Social values are standards or principles that and legally by marriage legislation – currently the
guide people in their thinking about aspects of their Marriage Act 1961 (Cth).
society and are underpinned by beliefs about right Over the past 40 years, the idea of what constitutes
and wrong. Social values are not necessarily the a family has evolved to the point where the definition
same as individual values, but they both influence above no longer reflects the social values of a

Chapter 4 Law reform
significant number of Australians. Moreover, many Under the De Facto Relationships Act 1984 (NSW),
Australians in same-sex relationships were living factors for a court to consider when determining
together without the legal protections afforded to whether a couple are in a de facto relationship include
people living in heterosexual relationships. This the duration of the relationship, how long they have
meant that they had few rights – especially property lived together, whether it is a sexual relationship, 4
rights – if the relationship ended. and their financial dependence or interdependence.
In 1984, the NSW Government passed the Importantly, these factors also include the degree of
De Facto Relationships Act 1984 (NSW), which mutual commitment to a shared bond and whether
established certain rights for people living in they are publicly recognised as a couple. This Act
de facto relationships. At this time, there were gave couples in these relationships certain property
calls to recognise same-sex couples in the same rights, and recognised the legitimacy and value of
way. After some impassioned speeches in both their relationship.
Houses of Parliament in New South Wales, the Further legislative change occurred with the
De Facto Relationships Act 1984 (NSW) was amended Property (Relationships) Legislation Amendment Act
to include same-sex couples and was renamed the 1999 (NSW), which amended 25 other Acts whose
Property (Relationships) Act 1984 (NSW). (For people provisions excluded same-sex couples. For example,
separating now, these matters are dealt with under it amended the Probate and Administration Act 1898
the Family Law Act 1975 (Cth); this Act now deals with (NSW) to give a de facto spouse of a person who died
matters regarding property and children in relation without a will the same rights as a husband or wife
to de facto couples as well as married couples.) with respect to the deceased person’s estate. The
Succession Act 2006 (NSW) now covers this, as the
de facto relationship Wills, Probate and Administration (Amendment) Act
(Latin) ‘existing in fact’; a relationship between two adults
who are not married but are living together as a couple 1989 (NSW) has been repealed.
estate
Figure 4.1 Australians voted in favour of marriage all of the property that a person leaves upon death
equality via a postal survey. On 9 December 2017, the
Marriage Act 1961 (Cth) was amended by the Marriage
In 2008, the Rudd government acted on the Australian
Amendment (Definition and Religious Freedoms) Act
2017 (Cth). The amending Act revised the definition of
Human Rights Commission’s report, Same-Sex:
marriage to ‘the union of two people to the exclusion of Same Entitlements, and conducted an audit of
all others, voluntarily entered into for life’. Therefore, the Commonwealth legislation to remove discrimination
right to marry in Australia is no longer determined by sex and to enable same-sex couples and their children
or gender. to be recognised by Commonwealth law. These
changes were legislated to ensure that Australia
remains a fair and just community by allowing same-
sex couples and their families to enjoy the same
entitlements as opposite-sex de facto couples. The
legislation that enacted these changes are the:
• Same-Sex Relationships (Equal Treatment in
Commonwealth Laws – General Law Reform) Act
2008 (Cth)
• Same-Sex Relationships (Equal Treatment in
Commonwealth Laws – Superannuation) Act
2008 (Cth).
This legislation removed discrimination from 85

pieces of federal legislation in areas such as taxation,
superannuation, social security, the Pharmaceutical
Benefits Scheme (PBS), Medicare safety nets and

aged care. It also amended legislation that did not the federal government took a new approach
recognise same-sex couples for the purposes of child to assessing popular opinion: the Australian
support, immigration, veterans affairs and citizenship. Marriage Law Postal Survey. The Australian
Over the past few years, there has been much Bureau of Statistics, rather than the
debate about amending the Marriage Act 1961 (Cth) Australian Electoral Commission, ran this
to allow same-sex couples to marry. The Turnbull survey. While everyone on the federal electoral
government had pledged to hold a plebiscite on roll received the survey, voting on the matter was
this issue in 2016 – a plebiscite is when Australians not compulsory. The vote was 61.1% in favour of
on the electoral roll vote directly on a particular same-sex marriage. As a result, in December 2017
issue. The Labor Party advocated that parliament the Marriage Act was amended to change the
should act to amend the Marriage Act given, they definition of marriage to ‘the union of two people’
argued, that the majority of Australians supported who meet all the other requirements of the Act.
the change. Following unsuccessful attempts to This ended a 40-year struggle for full equality of
pass legislation allowing a plebiscite, in 2017 the rights of same-sex couples.
Case Study
Whose social values should prevail?

In the United States state of California in May 2008, same-sex marriages were recognised when the
Supreme Court of California ruled that legislation banning same-sex marriages was discriminatory and
violated the state’s Constitution. After this decision, in California, many same-sex couples legitimised
their relationships in the eyes of the law through marriage.
In November 2008, Californian voters overturned the Supreme Court’s ruling by agreeing, via a
referendum, to change the state’s Constitution in a ballot called ‘Proposition 8’. In an article titled,
‘California bans same-sex marriage’, the BBC reported that, ‘The referendum called for the California
constitution to be amended by adding the phrase: “Only marriage between a man and a woman is valid
or recognised in California.” ’ The state’s Attorney-General has stated that the marriages conducted
after the court ruling remain valid.
More recently on 26 June 2015, the Supreme Court of the United States legalised same-sex marriage
in a decision that applies nationwide (Obergefell v Hodges). The court held that the Fourteenth
Amendment of the US Constitution requires states to offer same-sex marriage and to recognise
same-sex marriages performed in another jurisdiction.
Public morality is not clear-cut on this issue in the United States even if the law supports marriage
equality. There are certain sections of the American public that are opposed to any such changes.

Review 4.1
1 Outline the sequence of events that led to the reform of the Marriage Act 1961 (Cth) in 2017.
Recall what the reform accomplished.
2 Identify other types of social change that might lead to law reform and how the reform might
be accomplished.

New concepts of justice

When the law is unable to deliver just outcomes
to individuals and the community, there may be
a need for law reform. For example, if criminal
law is failing victims, the community and/or the 4
accused, new concepts of justice may need to
be formulated.
Example: Abolition of capital

punishment
In the past, capital punishment for particular
murder offences was seen as the most effective
way of dealing with the most heinous crimes. This
punishment was a case of society delivering pure
retribution for a crime: ‘a life for a life’. It was also
suggested that capital punishment provided a
strong deterrent to those who might commit murder.
However, in a significant number of homicides,
the offender and the victim knew each other and
many involved extreme breakdowns of family
relationships. Many murderers could be described
as one-time killers who are unlikely to re-offend.
When capital punishment was abolished in each
of the Australian states, the murder rate remained
relatively unchanged, suggesting this punishment
had little effect as a deterrent.
capital punishment
the practice of sentencing a person to death by judicial
process; also referred to as the ‘death penalty’
Not only does executing a person completely

remove the possibility of rehabilitation, but
there are also very strong arguments that capital Figure 4.2 In this photo provided by the California
punishment violates prohibitions of cruel, inhuman Department of Corrections and Rehabilitation, staff
members dismantle the lethal injection facility at San
and degrading punishments in international
Quentin State Prison in California, on 13 March 2019.
human rights treaties. In addition, where capital California Governor, Gavin Newsom, has announced
punishment exists, it is imposed more often on a moratorium on California’s death penalty. California
poor, uneducated and otherwise vulnerable people. has 737 people on death row, the largest death-row
There is also the risk of killing an innocent person population in the United States.
who has been wrongly convicted.
These moral arguments and practical Example: Youth Justice Conferences
considerations shifted social attitudes about capital Another notable example of a change in the way the
punishment and it is no longer permitted in any law punishes offenders is the introduction of Youth
Australian jurisdiction. Due to a greater emphasis Justice Conferences, which were established
on rehabilitation as a means of achieving justice, by the Young Offenders Act 1997 (NSW). (This is
and the recognition that capital punishment is not discussed in more detail in Chapter 9.) Youth Justice
an effective deterrent, this method of punishment no Conferences try to divert young, first-time offenders
longer serves the community’s purposes. away from the court system – and help these young

offenders avoid getting a criminal record. The aim of experiences and rebutting questions about their
these conferences is to act as a ‘circuit breaker’ in a credibility. There is a concern that such questioning
young person’s behaviour trajectory. A conference may deter victims from reporting a crime. It is a
may be attended by members of the community, the challenge to find the balance between ensuring the
offender’s family, the victim and their family, and accused can pursue a defence fairly, while avoiding
relevant professionals (e.g. a social worker). re-victimising a victim. A specialist court may be
Youth Justice Conferences have enjoyed support better placed to achieve this.
from the community as they have achieved positive
results for young, first-time offenders. Some people Example: Combating domestic
have argued that these conferences should be used violence
for a wider range of offences because attending a Overview
conferences makes a young person consider the Domestic violence is different from violence
consequences of their actions, especially the harm perpetrated on the street, in schools or in the
they have caused the victim. workplace. The Domestic Violence Resource Centre
defines domestic violence as:
Youth Justice Conference
a meeting of all the people who may be affected by a crime
committed by a young offender; used to help the offender
to accept responsibility for their actions while avoiding the Domestic and family violence is when
court system someone intentionally uses violence,
threats, force or intimidation to control
Other law reform initiatives that involve new or manipulate a partner, former partner
procedures to deal with offenders include circle or family member.
sentencing for Aboriginal and Torres Strait Islander
offenders, the New South Wales Drug Court, and the
enforcement of parenting orders in the Family Court.
These reforms are attempts to deal with issues that Domestic violence can manifest sexually, physically,
the current laws were failing to address. verbally or financially and in most cases causes
psychological harm to the victim. Victims of domestic
Example: Sexual assault court violence are usually isolated socially and often stay
There has also been some speculation over the in abusive relationships for many reasons, including
years about the introduction of a specialist court to fear of reprisal.
deal with sexual assault matters. This has been put In the past, victims of domestic violence had to
forward because of a new depth of understanding report incidences of violence to the local police.
about sexual assault, including: In many cases, the victim was told that domestic
• a recognition that victims should be dealt with violence was a private matter more appropriately
sensitivity during the legal process sorted out within the family. Research has indicated
• a better understanding of the context of sexual that the initial response of the police to a victim’s
assault and what that means with respect to the report of domestic violence determines whether that
physical collection of evidence from victims victim proceeds further with the complaint.
• the recognition of the complexity of the task of The victim also had to rely on assault provisions
proving that consent was not given. under the relevant criminal legislation. Not only
were there often delays in bringing the matter
Our legal system is based on an adversarial system to court, but the necessity of proving the charge
in which witnesses for the prosecution can be beyond reasonable doubt could also be a high
subject to robust questioning by the defence. This hurdle when the evidence was essentially one
is considered to be an important part of ensuring person’s word against another’s. Victims of
people are not wrongly convicted. However, being domestic violence had inadequate protection
a witness can be a traumatic experience for victims under the law and it was clear that the legislation
of sexual assault as it involves re-telling their was not sufficient.

Legislation After 30 years of amendments to various legislation,

In New South Wales, the Crimes (Domestic Violence) especially to the Crimes Act 1990 (NSW), it was felt
Amendment Act 1982 (NSW) inserted new provisions that the crime of domestic violence deserved a
into the Crimes Act 1900 (NSW), introducing the stand-alone Act of parliament. Hence, the Crimes
concept of an Apprehended Domestic Violence (Domestic and Personal Violence) Act 2007 (NSW) was 4
Order (ADVO). Victims can obtain ADVOs through passed and took effect in 2008.
the Local Court or the police. The court must be This Act repealed Part 15A of the Crimes Act
satisfied ‘on the balance of probabilities’ that the 1990 (NSW), which dealt with apprehended violence
person has reasonable grounds for fear – a lower orders, and re-enacted those provisions as a new Act,
standard of proof than ‘beyond reasonable doubt’. An with some modifications and additional provisions. It
ADVO can be tailored to suit the victim’s situation; was also felt that domestic violence was treated as a
for example, it can forbid the accused from coming lesser crime, hidden in the Crimes Act 1990 (NSW).
close to the victim’s children, residence, place of Under the new Act, a person may be charged
work or another specified place that the victim with a ‘domestic violence offence’. While the acts
frequents. It is a criminal offence to breach an ADVO, constituting such an offence are not new, being
but the ADVO is not itself a criminal conviction. charged with the criminal acts under the new name
has significant implications for bail, the offender’s
Apprehended Domestic Violence Order criminal record, and any future convictions.
a court order used for the protection of a person involved in
an intimate, spousal or de facto relationship
Figure 4.3 A protester at the Women’s March on 20
January 2019 in Sydney. The Women’s March event aims
As the community’s understanding of the
to draw attention to the domestic violence perpetrated
perpetrators and circumstances of domestic violence
against women in Australia and to drive cultural change.
developed, significant law reform continued to
unfold. Some of these developments include:
• The Crimes (Domestic Violence) Amendment Act
1993 (NSW) allows police to apply for interim
ADVOs after hours by telephone, and has made
it an offence to ‘stalk’ or ‘intimidate’ a person.
• The Crimes Amendment (Apprehended Violence)
Act 1999 (NSW) distinguishes between orders
taken out for domestic violence and those
relating to ‘personal violence’ in other situations
(e.g. disputes between neighbours). In addition,
this Act introduced the requirement that police
officers record in writing why they did not
proceed with criminal charges for a breach of
an ADVO.
• Amendments to the Bail Act 2013 (NSW) have
removed the presumption that bail will be
granted for perpetrators of domestic violence
and for those who have breached an ADVO,
where the defendant has a history of violence.
• Amendments to the Firearms Act 1996 (NSW) allow
police to seize any firearms present when called to
the scene of a domestic violence incident.
• Amendments to the Crimes Act 1990 (NSW) in
2018 introduced a new offence of strangulation
with a lower proof threshold.

Under section 38, an ADVO made to protect an • police officers have the power to collect video
adult must automatically include any children living and photographic evidence at the time of
with that adult, unless sufficient reasons are given responding to incidents of domestic violence.
as to why the children should not be protected by
the ADVO. The 2019 federal budget committed $328 million to
domestic violence support, including the counselling
Additional domestic violence initiatives service 1800RESPECT, training for community
Governments around Australia have recognised that frontline workers, and specific support and prevention
there is still room for improvement in the way they strategies for Aboriginal and Torres Strait Islander
tackle domestic violence. To this day, on average, communities. State government funding is even
one woman is killed each week in Australia as a result more significant in this area: in 2017, the Victorian
of domestic violence. New approaches to justice Government allocated $1.9 billion to implement
continue to be implemented to complement the recommendations of the Royal Commission into
legislative provisions in place to protect victims. Since Family Violence, while the NSW Government has
2015, the following initiatives have been introduced: committed over $300 million to family violence
• in domestic violence cases in New South support services.
Wales, women and children can give evidence
via audio or video link
Figure 4.3a A woman and child stand for a minute's silence against domestic violence in Hyde Park during the Sydney
International Women's Day march on March 7, 2020.

New technology sample is obtained can determine its admissibility

Advances in technology always put the law under in court. In 2007, several amendments to this Act
pressure to remain current. New technology took place. Among other changes, section 11 was
contributes to changes that may be either radical revised to allow DNA samples to be collected from
and sweeping or subtle and incremental. For suspects in an increased range of offences, which 4
instance, the invention of the petrol-powered motor include some indictable offences and a number of
vehicle changed the way people in industrialised summary offences.
countries lived over the course of the twentieth Another major change concerns the period of
century, and required the introduction of new laws time that a suspect’s DNA material can be kept for
for safety, ownership and licensing, and (eventually) forensic use. Under the Crimes (Forensic Procedures)
environmental protection. Act 2000 (NSW) prior to the 2007 amendments, DNA
The development of life-support devices and material had to be destroyed after 12 months if the
treatments since the 1960s has meant that the criminal case against the person did not proceed.
legal definition of death had to be changed. As it However, under the amended section 88(2)(c), where
is now possible to keep a person’s heart and lungs DNA has been collected from a suspect who ends
operating for a significant period of time, but with up being convicted of a different crime as a result of
no brain function, most jurisdictions now define an investigation of the same acts, the DNA material
death as the irreversible cessation of all functions does not have to be destroyed.
of the entire brain, rather than just referring to the forensic
cessation of respiration and heartbeat. relating to the detection and investigation of crime
More recently, the progress made in ‘birth
technologies’ has also seen changes made to laws at Such provisions are intended to increase conviction
both state and federal levels to resolve issues about rates. However, some have argued that without
parentage, inheritance and financial maintenance. sufficient legislative protections relating to the use
As children can now be conceived from donated of this technology, there could be an erosion of the
biological material, the law had to clarify and rights of accused persons. For example, the wait time
differentiate biological rights and obligations for the results of a DNA test can be up to 180 days.
from ‘social’ rights and obligations deriving from This raises serious issues if the prosecution case
the family roles and relationships in which people is dependent on that evidence, especially if the
actually live. accused has been refused bail.
The use of DNA evidence in criminal matters To speed up the process, in 2008 the NSW
has led to convictions where previously, without Government decided to outsource some DNA
other physical evidence, there would have been no testing to private laboratories. Such delegation of
conviction. As technology has improved, so have the responsibility generally requires further safeguards
chances of solving ‘cold cases’. In New South Wales, to ensure the privacy, confidentiality and integrity
there are more than 400 unsolved homicides, dating of the testing procedures. However, in 2010 delays
back as far as 1975. Because DNA is very stable over had not improved despite the state government
a significant period, biological material collected saying that resources had been boosted in this
can be used decades later to create DNA profiles area. In 2011, 67 innocent people spent an average
for analysis. Many cold cases are being reopened of 239 days in custody before being exonerated by
for police investigation, with DNA evidence and the District Court. Such delays are still a challenge
analysis being a key factor. for the criminal justice system in most states in
The Crimes (Forensic Procedures) Act 2000 (NSW) Australia today.
was introduced to set guidelines for the DNA The Law Society of NSW has a criminal law
testing of criminal suspects. The Act sets out who committee that believes delays in DNA analysis are
may be tested and who may order the test, as well still common. The committee has predicted that
as detailed requirements for how the procedures the adverse impact on the criminal justice system
may be conducted. The manner in which a DNA caused by backlogs at the laboratory will worsen.

Example: Identity theft evading the payment of taxes; money laundering;

In more recent years there has been an increase drug smuggling; people smuggling; or stalking or
in what is known as ‘identity theft’ or ‘identity intimidating someone.
fraud’. With the development of more sophisticated The theft or assumption of another person’s
computers, scanning devices and software identity – or the use of his or her personal
applications, this type of crime has become easier. information – is not itself a criminal offence under
It is also attractive, as it can yield significant rewards Australian federal law, or in most states (except in
with a high probability of not being caught. South Australia and Queensland, which enacted
legislation specifically criminalising identity theft in
identity theft 2003 and 2007, respectively). Rather, it is what is done
obtaining or using the identity of another person in order
with the stolen identity that could be considered to
to commit a range of fraudulent activities, usually to obtain
financial gain be criminal conduct. Because assuming another
person’s identity is often a preparatory step in the
fraud
a dishonest act, done intentionally in order to deceive commission of offences such as fraud or theft, such
offences can be used to prosecute the identity theft.
Identity theft has the potential to cause immediate However, that requires the prosecution to prove the
financial loss as well as damage to a victim’s associated offence.
credit rating and reputation. It can also be It can be difficult to adapt specific theft, fraud
psychologically distressing to know that someone and forgery offences to fit the facts of identity crime.
else is using your identity to engage in serious Most existing legislation, including the Model
criminal activities. Those activities could include Criminal Code referred to in Chapter 3, requires at
using credit card numbers; fraudulently obtaining least proof that the accused had the intent to use the
loans, government benefits or employment benefits; information to obtain a financial benefit. However,
identities can be assumed for other reasons; for
Review 4.2
1 Identify some of the challenges new technologies can create for the criminal justice system.
Assess how law reform has attempted to mitigate these challenges.
2 Outline some scientific advances (other than DNA testing) that have led, or may lead, to
legislative changes. Construct a list of some of the factors that need to be considered or
balanced when making changes.
Research 4.1
Using the internet, research the types of criminal activities that can be carried out under the
following topics:
• terrorism
• unlawful immigration
• fraud involving email and the internet
• dissemination of obscene materials electronically
• funds transfer fraud
• health benefits fraud
• social security fraud.
However, please be careful to only access legitimate websites as these topics are fraught with the
possibility of inappropriate material being presented online.

identify him or her; possessing such information

with intent to commit or facilitate an indictable
offence; and possessing equipment to create such
information.
Legislative provisions for identity theft in

4
New South Wales
Section 192E of the Crimes Act 1900 (NSW) is the
provision most directly relevant to identity theft.
Subsection(1) states:
A person who, by any deception,

dishonestly:
a) obtains property belonging to
another, or
b) obtains any financial advantage or
causes any financial disadvantage,
is guilty of the offence of fraud.
Maximum penalty: Imprisonment
for 10 years.
Section 192E is contained in the new Part 4AA, which

deals with fraud. Also enacted were Part 4AB, which
deals with identity offences specifically, and Part 4AC,
which deals with money laundering. Specific sections
within these parts defined such terms as ‘deception’,
‘obtaining financial advantage or causing financial
disadvantage’ and ‘identification information’.
Other sections in these parts of the Crimes Act
1900 (NSW) that could be used to prosecute identity
Figure 4.4 In 2007, Denver Police officers mistakenly crime include:
arrested Stephen Tendell for identity theft. In actuality, • dealing with identification information (s 192J)
he was the victim of identity theft.
• possession of identification information (s 192K)
• possession of equipment to make identification
example, to cross national borders for the purposes
documents or things (s 192L)
of organised crime or terrorism.
• intention to defraud by false or misleading
Law reform in this area could include enacting
statement (s 192G)
state and federal legislation that creates one or
• intention to defraud by destroying or
more general identity crime offences. In 2008, this
concealing accounting records (s 192F).
was the recommendation of the Model Criminal Law
Officers’ Committee of the Standing Committee
Unauthorised access to and modification of
of Attorneys-General. The model offences could
computer data are covered in Part 6 of the Crimes
include making, supplying or using information
Act 1900 (NSW), and these also might be used to
about a person that is capable of being used to
prosecute identity crime.

4.3 Agencies of reform bring about harmonisation of Commonwealth,

state and territory laws where possible. The
As discussed, there are various reasons why the
ALRC must ensure that laws, proposals and
law may become dated or no longer able to regulate
recommendations do not trespass on personal
society in a fair and just manner. The extent to
rights and are consistent with Australia’s
which the law may need to be reformed is usually
international obligations, particularly in the area
investigated and reported on by one or more of the
of human rights.
following organisations or groups.
harmonisation
Law reform commissions agreement among the laws of different jurisdictions
Law reform commissions have been established by
various parliaments within their own jurisdictions to An inquiry involves a process of research and
report on matters referred to them under what is called consultation. Once the ALRC has completed an
the terms of reference for a particular inquiry. The inquiry and report, it makes recommendations
reports may contain recommendations for ways to to the federal government through the Attorney-
modernise or simplify the law, or to eliminate defects. General. The government can accept all or some
of the recommendations or can ignore the report
terms of reference altogether. Sometimes the political climate at
a set of guidelines used to define the purpose and scope of
an inquiry the time may determine whether the ALRC’s
recommendations become enacted into law.
An essential feature of law reform commissions In its annual reports, the ALRC publishes
is that they are independent of the parliament a summary of the implementation status of its
that established them. This is important because recommendations. More than 80% of the ALRC’s
political interference in the research and reporting recommendations have been either substantially or
process can skew the findings. It has also been partially implemented by the government. Some of
said that when a government provides the terms of the areas of law recently examined by the ALRC are
reference for an inquiry into an area of law reform, it the federal laws affecting elder abuse, the family
should not already know the answer. In other words, law system, and the incarceration rates of Aboriginal
the government should not know what the end result and Torres Strait Islander peoples.
or recommendations will be.
elder abuse
For the purposes of our area of study, the two an act or failure to act to the disadvantage of an older person
law reform commissions to be examined are the occurring in a relationship of trust
Australian Law Reform Commission and the NSW
Law Reform Commission.
NSW Law Reform Commission
Australian Law Reform Commission The NSW Law Reform Commission was set up under
The Australian Law Reform Commission (ALRC) the Law Reform Commission Act 1967 (NSW). It was
was established in 1975 and operates under the the first of its kind in Australia. It has a similar role to
Australian Law Reform Commission Act 1996 (Cth). that of the ALRC, but at the state level: to consider the
It is an independent statutory body (i.e. it was laws of New South Wales with a view to eliminating
established by an Act of parliament). aspects of the law that are out-of-date, unnecessary,
The main role of the ALRC is to review too complex, or defective. The commission’s role
Commonwealth laws relevant to matters referred to includes consolidating overlapping legislation,
it by the Attorney-General, to conduct inquiries into hence simplifying the law. The NSW Government
areas of law reform in these areas, and to advise refers issues to the commission for investigation
the government on how the law can be changed as to what, if any, law reform is necessary. In its
to meet current needs. The ALRC also works to research, the commission will generally consult with
the public.

Example: Unanimous vs majority

jury decisions simply do not know enough about how
In 2005, the NSW Law Reform Commission actual juries really deliberate and why
investigated changing the requirement that verdicts they reach the decisions they do … Until
by juries be unanimous to verdicts being majority more information is uncovered as to the 4
decisions of 11 or 10 jurors. Prior to this inquiry, problems that need to be addressed, the
research in 2002 by the NSW Bureau of Crime introduction of majority verdicts would
Statistics and Research showed that 8% of trials in be of limited value.
the District Court between 1998 and 2001 resulted in
a hung jury. This research also showed that in over
90% of these hung juries, the vote was 7–5 or 8–4.
Given these statistics, there did not appear to be a Despite this advice, the NSW Government passed
strong basis for changing the system. There were the Jury Amendment (Verdicts) Act 2006 (NSW). It
not many cases in which a jury was unable to return amends the Jury Act 1977 (NSW) to allow majority
a verdict because of one juror. Other arguments verdicts of 11–1 or 10–1 after a reasonable time for
put forward in favour of majority verdicts were deliberation has passed (not less than eight hours)
that they would make verdicts quicker and easier, and where the court is satisfied that it is unlikely the
would create less pressure on jurors, and would be jury will reach a unanimous verdict.
consistent with most other Australian jurisdictions. This case study, although historical, clearly
illustrates that the changes may have been politically
hung jury
a jury that is unable to reach agreement
motivated, rather than to reform a law that was not
working. An appeal to the ‘law and order’ vote has
Arguments put forward for retaining unanimous jury been a common feature of the political landscape
verdicts included: since the late 1980s in New South Wales. A reason
• unanimity accords with the principle of ‘beyond given for the introduction of the law was to protect
reasonable doubt’; arguably, if one or two jurors the victims of crime from the anguish of a lengthy
are not confident that the accused is guilty, that retrial. The extent to which this law will compromise
is enough to constitute reasonable doubt the right of the accused to a trial with the highest
• unanimity allows for greater deliberation of standard of proof remains to be seen.
the issues The extent to which New South Wales adopts
• juries may disagree for good reasons recommendations of the NSW Law Reform
• unanimity promotes community confidence in Commission usually depends on economic and
the justice system political considerations at the time. Further, the work
• unanimity is consistent with the requirement of of law reform commissions may provide evidence-
unanimity in trials for Commonwealth offences based advice for governments that can be ignored
• the number of hung juries is relatively small. subject to the political agenda of the government.
Parliamentary committees
In its conclusions, the commission stated:
Parliamentary committees can be established by
both Houses of Parliament. For example, at the
We believe that until a comprehensive federal level, the House of Representatives and/or the
study is conducted in New South Wales Senate may not have sufficient time in parliamentary
to determine the existing practices in sitting sessions to discuss issues that arise from a
New South Wales jury trials, and what particular piece of legislation. There may be flaws
improvements need to be made, no in the effectiveness of a law or the legislation may
major overhaul of the jury system should be particularly complex, requiring greater scrutiny.
be attempted … The facts are that we Committees scrutinise government activity,
including policy and administrative decisions, and
oversee the expenditure of public money.

Research 4.2
View the website of the Australasian Legal Information Institute (AustLII) and select one of the NSW
Law Reform Commission’s completed reports. Provide a brief outline of the following:
1 the purpose of the report
2 the findings of the report.
Ask your teacher for some assistance as you review the report you have chosen.
A ‘standing committee’ is a committee that is

permanent during the life of the body that appointed
it. Standing committees inquire into and report on
matters referred to them by the Senate or House of
Representatives, including estimates of expenditure,
Bills, and the performance of departments allocated
to them. An example of such a committee is the
Senate Standing Committee on Finance and Public
Administration.
‘Select committees’ are small committees
appointed for a particular purpose, or a once-only task.
Once a committee has been asked to undertake
an inquiry, the terms of reference are drawn up.
Members of the public and experts in a field may
be asked to give submissions. The committee hears
witnesses, examines evidence and formulates
conclusions. The media usually attends and reports
on committee proceedings.
As the hearings are conducted in public, every
submission is recorded in Hansard and is available
on the internet. At the end of an inquiry, the
committee writes and tables a report in parliament.
Hansard
a full account of what is said in parliament or in
parliamentary inquiries; named after the English printer,
T. C. Hansard (1776–1833), who first printed a parliamentary
transcript
table
to place on the table for discussion
Figure 4.5 Natural Disasters Minister, David Littleproud,

during question time in the House of Representatives The media
in Canberra on 18 September 2019. The Coalition
One of the hallmarks of a sound working democracy
government announced an inquiry into the family law
is a ‘free’ and ‘fair’ press. This means that the
system in 2019.
government is not able to influence what is reported
A vote is usually taken to take something to and how it is reported, so stories that reach the public
committee. A committee may involve only senators are an accurate account of what is really happening.
or only members of the House of Representatives. Another essential feature of a working democracy is
A ‘joint committee’ has both members and senators. diversity of media ownership to dilute the influence

of individuals or media companies that may have a

particular ideological view to push.
Because of their large audience and geographical
reach, current affairs programs like the ABC’s 7.30
Report are able to interview important political 4
figures, such as the prime minister, state premiers
and cabinet ministers, about contentious issues.
Keeping citizens informed allows members of the
public to apply pressure on governments to address
injustice, incompetence or corruption. Thus,
the media can be a powerful vehicle for holding
governments accountable.
The effectiveness of non-legal mechanisms in
influencing law reform can depend on the politics of
the day. For example, an issue that affects voters in
a hotly contested electorate, or an electorate that is
part of the government’s key support base, is more
likely to be addressed than one that affects voters
in a safe seat. If votes in an electorate do not pose a
threat to seats in parliament, then the issue may be
ignored in the hope that it will eventually fade from
public attention.
The modern media can promote law reform
simply by reporting the stories of individuals who
suffer discrimination, persecution or financial loss
due to a poorly framed law. For example, the plight
of victims of sexual assault has received significant
Figure 4.6 The Australian newspaper on 21 October
attention by all forms of mass media over the past
2019. Media outlets across Australia ran blacked-out
few years. The resulting law reform recognised that front pages as part of a campaign calling for reforms to
sexual assault is a ‘special crime’, which cannot be protect public-interest journalism in Australia. The Right
treated as all other crimes and requires additional to Know coalition – made up of Australia’s top media
legal responses. This will be examined in detail companies and industry organisations – advocates
for stronger protections for media freedom following
in Chapter 5.
moves by successive federal governments to penalise
whistleblowing and, in some cases, to criminalise
Non-government organisations journalism. The campaign followed raids on the ABC’s
Non-government organisations (NGOs) are are Sydney headquarters and the home of a News Corp
independent of governments. They are under no journalist in June 2019.
obligation to conform to any government policy and
therefore can be a source of objective information goals of the organisation, though it may also
about various issues around the world. This is be used to produce information and pay for
particularly important for people who live in expenses such as utilities, publications and
countries with repressive governments that restrict paid employees
freedom of speech. • the aim of NGOs is to improve people’s
According to Ball and Dunn, the common circumstances and prospects, within the
characteristics of NGOs are: scope of their mission. (C. Ball and L. Dunn,
• NGOs are formed voluntarily by individuals Non-Governmental Organisations in the
• NGOs are independent of government Commonwealth: Guidelines for Good Policy
• NGOs are not for private personal gain or and Practice, The Commonwealth Foundation,
profit; money generated goes towards the London, 1994.)

NGOs can work with governments where there are non-court-based services to deal with relationship
shared goals. difficulties and separation, and to ensure that
As a mechanism for law reform, the effectiveness children have meaningful relationships with both
of NGOs can vary. Some NGOs, such as Amnesty parents after a separation or divorce. A number of
International and Greenpeace, have developed a organisations – including the Women’s Community
formidable reputation in their pursuit of goals such Shelters, the Family Law Director of Legal Aid
as human rights and combatting environmental NSW, and the Women’s Legal Service NSW – made
threats. Consequently, they now have the resources submissions to a state inquiry into the effects of
and the tactics, developed over many years, to put
pressure on government.
However, due to NGOs’ independent status,
governments and other institutions can ignore
them and continue to carry out practices that are
contrary to the NGOs’ goals. The Royal Society for
the Prevention of Cruelty to Animals (RSPCA) has
campaigned for an end to live animal exports to
other countries, but the Australian Government is
reluctant to stop this profitable trade.
Lobby groups
A lobby group is an organised group of people who try
to influence government ministers or other members
of parliament to advance their social or political
agenda. The goal may be to change the law, to keep
a particular, existing law, or to introduce new laws.
Lobby groups target members of parliament,
parliamentary committees, the media and the
public as well as governmental inquiries. They may
do this by writing letters, requesting a meeting
with a representative or senator, making policy
submissions, writing letters to the editor or calling
talkback radio. A lobby group may also be a NGO, an
industry group or other interest group.
For example, the Lone Fathers Association of
Australia has been a strong advocate for ‘shared
equal parenting’. This association is a national peak
body for separated parents and states on its website
that it is a non-sexist, non-sectarian, non-profit and
self-help educational and welfare organisation
Figure 4.7 Former Sex Discrimination Commissioner,
devoted to the interests of lone fathers and their Pru Goward, speaking at the Lone Fathers Association
children, as well as their friends, extended family Australia national conference at Parliament House in
and carers. Membership is open to all separated Canberra on 23 June 2005.
parents – with the proviso that members must be
willing to help financially support their children. the amendments, expressing concern that they
Thirty-five per cent of the association’s membership not only subordinated children’s best interests
are women. to the interests of the parents, but also offered
Amendments made to the Family Law Act 1975 reduced protections for victims of family violence.
(Cth) in 2006 were intended to encourage the use of A former Chief Justice of the Family Court, Alastair

Review 4.3
1 Compare and contrast the aims and methods of the following law reform agencies:
a law reform commissions and lobby groups
b parliamentary committees and law reform commissions
4
c lobby groups and the media
d lobby groups and non-government organisations.
2 Identify ways individuals can contribute to an inquiry by a law reform commission or a
parliamentary committee on an issue that concerns them.
Nicholson, commented that the amendments were Although changes to the law do occur because
‘ill-researched, unduly influenced by fathers’ groups of judicial decisions, they do so over an extended
and did little to reform family law’. period of time.
Further reform to the Family Law Act 1975 Even so, it is well recognised that courts,
(Cth), to attempt to address the adverse fall-out especially the High Court of Australia, have
of the previous reforms, came into effect in June delivered and will continue to deliver decisions
2012. Lobby groups can be important agents of that revolutionise the legal landscape in Australia.
law reform as long as some groups’ interests are An obvious example is the 1992 Mabo decision
not favoured over others simply because they (Mabo v Queensland (No 2) [1992] HCA 23) declaring
are better organised and can more effectively that native title still existed within Australia and
articulate their views. that the concept of terra nullius was a legal lie
perpetuated by the British at the time of settlement.
4.4 Mechanisms of law reform Parliaments

The mechanisms of law reform are the ‘machinery’ Parliaments today are the institution where most law
that actually brings about changes. These include reform is realised. The process of changing the law
judicial and legislative branches of government and occurs through the passage of Bills.
international organisations. However, the impetus for this type of change
usually comes from other sources: namely the
Courts conditions that lead to law reform and the agents of
The manner in which courts make law through reform. Detailed knowledge of the subject matter is
precedent (as outlined in Chapter 2) can be often required to report and comment accurately on
considered to be a means of law reform. Precedents areas where reform is needed, and parliamentarians’
made in higher courts clarify what the law should expertise does not always extend to this level.
be in cases where the law is in an early stage of The parliament is still a place, though, where
development or where there is a need to clarify the proposed laws are debated. This can be a rigorous
meaning of words contained in legislation. and intense process, especially if a proposed law is
controversial or is a radical departure from previous
precedent laws. If a political party holds government, it obviously
a judgment that is authority for a legal principle and that
provides guidance for deciding cases that have similar facts has a greater chance of its Bills being passed.
A Bill’s fate, however, may depend on which party
Sometimes, matters come before a court before or parties hold the balance of power in the Senate
they have been considered by parliament. However, or, in New South Wales, in the Legislative Council.
courts do not consciously set out to reform the law.
balance of power
The role of judges is to apply the law to the situation
the power held by the political party whose vote is needed
presented to them, and as such, law reform in the to pass legislation; under the Westminster system of
courts comes about in an ad hoc or piecemeal way. government in Australia, usually determined in the upper
House of Parliament

Government (2016) makes the passage of legislation

a smoother process.
As parliament is the branch of government that
makes law, it will continue to be the main mechanism
by which major law reform will be carried out.
Amending Acts
Parliament must pass another Act to amend an
existing Act. For example, the Crimes (Forensic
Procedures) Amendment Act 2007 (NSW), which
changed several sections of the Crimes (Forensic
Procedures) Act 2000 (NSW), was enacted and
came into force through normal parliamentary
procedures. However, you will not find it in the
current statutes of New South Wales, because it
has been repealed. Indeed, section 4(1) of the Act
states that ‘this Act is repealed on the day following
the day on which all of the provisions of this Act
have commenced’. What’s going on? Amending
Acts are passed for a very specific purpose: to
amend another piece of legislation. Once this is
done, they are often no longer needed, though
they must contain a provision to guard against their
purpose being ‘undone’ when they are repealed.
Section 4(2) of the Crimes (Forensic Procedures)
Amendment Act 2007 (NSW) states that ‘the repeal
of this Act does not … affect any amendment made
by this Act’. The function of an amending Act is
just that: to amend. The Act that it amends is called
the ‘principal Act’. View some amending Acts, and
previous versions of principal Acts, by choosing
‘historical notes’ or ‘Acts (as made)’ in an online
legislation database.
Lists of ‘consolidated Acts’ and ‘in force
Figure 4.8 The High Court of Australia.
legislation’ will contain Acts that are currently in
force; that is, that have not been repealed.
Political parties present their policies to the voters
before each election, and if voted into power they United Nations
are expected to fulfil these promises. For example,
The United Nations is the chief organisation involved
the Labor Party, under former leader Kevin Rudd,
in international law; it is the primary mechanism in
campaigned in 2007 with the promise of repealing
the evolution and reform of the law governing states.
John Howard’s ‘WorkChoices’ legislation. By the end
The role of the United Nations in the development and
of 2008, the Rudd government had introduced new
implementation of international treaties was outlined
workplace relations legislation that abolished some
in Chapter 2. The effectiveness of the United Nations
of the harsher elements of WorkChoices. In 2012, the
in promoting peace and security around the world
Gillard government, being a minority government,
via international law is discussed in more detail in
had to make many compromises with the Greens
Chapter 2. Law reform may take place when Australia
Party and independent members of parliament to
implements a treaty by passing domestic legislation
pass legislation through parliament. In contrast,
that takes account of its international obligations.
the commanding majority of the Baird Liberal NSW

Intergovernmental organisations Other agencies

As mentioned in Chapter 2, many intergovernmental Other agencies of law reform are:
organisations are subsidiaries of the United Nations. • Royal Commissions
These bodies are established to meet and decide • the NSW coroner
upon certain international issues (e.g. refugees, • the Office of the NSW Ombudsman 4
tariffs and wealth). To this extent, they contribute to • the Australian Human Rights Commission.
international law reform on a global and on a regional
scale through the promotion and development of For more information about the role these agencies
multilateral and bilateral treaties. play in law reform in Australia, visit the agencies’
websites.
Review 4.4
1 Define ‘precedents’ and identify their role in court decisions.

2 Outline the process for amending a principal Act.
3 Identify the role of the United Nations.

Chapter summary
• Law reform is the process of changing the law • Parliamentary committees are established by
to make it more current, to correct defects, both Houses of Parliament to examine ways
simplify it and to remedy injustice. of addressing flaws in legislation, to look at
• The conditions that give rise to law reform are how to simplify the effectiveness of a law, or
changing social conditions, new concepts of to examine more closely legislation that is
justice and new technology. particularly complex. It could also be the case
• The law must reflect social values if it is to that developments within society warrant
stay relevant and to ensure a high rate of greater attention from the legislature and
compliance. therefore a committee is set up.
• When the law fails to deliver just outcomes to • The media influence law reform by keeping
individuals or groups within the community, citizens informed and holding governments
it may mean that new concepts of justice accountable.
are needed. • Non-government organisations are
• The rate of technological change in the organisations that are independent of
world today has put the law under significant governments. Their aim is to influence
pressure to stay current. The law must change governments to make changes that will
to accommodate new possibilities. improve people’s lives.
• Law reform commissions have been • The primary mechanisms of law reform are
established by various parliaments within the courts and parliaments. The United
their own jurisdictions to report on matters Nations can be a mechanism of law reform in
referred to them. These commissions are Australia through the country’s participation
independent of the government and submit in international treaties.
recommendations that the government can
implement fully, partially or not at all.
Questions
1 Which of the following statements is the most 3 Law reform commissions have been set up
correct way to describe public morality? by parliaments to investigate which areas
a Public morality is a shared set of religious of the law need to be reformed. Which of
beliefs. the following determines the scope of their
b Public morality refers to the crimes investigation?
committed against the community. a ministers’ directions to the law reform
c Public morality refers to the similar values commission
and beliefs held by the majority of the b terms of reference
community at a particular point in time. c public opinion
d Public morality is the shared set of beliefs d media commentary
held by the Australian Parliament. 4 Which of the following is not an agent of law
2 Law reform is necessary at times, because reform?
technology is advancing so quickly. Which of a the media
the following is an area in which the law has b the Queen
had to change due to technological change? c superior courts
a identity theft d lobby groups
b IVF procedures
c collection of DNA evidence
d all of the above

5 What could citizens do about a federal law that b bring defamation proceedings against TV or
explicitly discriminates against naturalised radio stations that run programs on that law
citizens who were born overseas? c call talkback radio stations and form a lobby
a form a law reform commission at the group to pressure parliament
local level d lobby the state Supreme Court 4
1 Explain why changing social conditions 5 Outline some of the problems that have arisen
contribute to the need for law reform. with the advancement of DNA evidence.
2 Explain, using examples, how and why the law 6 Explain why identity crime can be difficult to
has lagged behind technology. prosecute.
3 Discuss the reasons why Australia no longer 7 Explain how the United Nations can be a
imposes capital punishment for murder. vehicle for law reform in Australia.
4 Describe the extent to which the law has
improved its response to domestic violence.

Chapter 5
Law reform in action
Chapter objectives
• discuss the effectiveness of the legal system in addressing issues
• investigate the interrelationship between the legal system and society
• discuss the role of law in encouraging cooperation and resolving conflict
• discuss the role of law in initiating and responding to change
• locate, select and organise legal information from a variety of sources, including legislation, cases,
media reports, international instruments and documents
• account for differing perspectives and interpretations of legal information and issues
• communicate legal information using well-structured responses.

Legal oddity
In New South Wales, drivers must take care not to splash a person waiting for a bus with water or mud. Under
the Road Rules 2014 (NSW), splashing a bus commuter can cost drivers up to $2200! All other pedestrians are
fair game – although you might get a few nasty words shouted at you!

Topic 1
Law reform and native title
Relevant law
Racial Discrimination Act 1975 (Cth)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Aboriginal Land Rights Act 1983 (NSW)
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
Native Title Act 1993 (Cth)
Native Title Amendment Act 1998 (Cth)
Native Title Amendment (Technical Amendments) Act 2007 (Cth)
SIGNIFICANT CASES
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Mabo v Queensland [1988] HCA 69
Mabo v Queensland (No 2) [1992] HCA 23 (‘Mabo case’)
Wik Peoples v Queensland [1996] HCA 40 (‘pastoral leases case’)
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58
Manado on behalf of the Bindunbur Native Title Claim Group v Western Australia [2018] FCAFC 238

Chapter 5 Law reform in action
5.1 Conditions that led to law Tribal elders employed negotiation, discussion,
reform relating to native title rulings and sanctions when it came to unacceptable
behaviour. Traditional Aboriginal and Torres Strait
In basic terms, native title refers to the ownership
Islander societies were, and still are, rule-governed.
of and accessibility rights to land by the original
inhabitants. In Australia it has a legal significance nomadic
as a right to an area of land, claimed by peoples a term used to describe people who tend to travel and
whose ancestors were the original inhabitants change settlements frequently
before European settlement and who can prove that

It is clear from the map in Chapter 2 that Aboriginal
5
they have had a continuous association with that
land. It is a contentious topic in Australian law as, and Torres Strait Islander peoples lived in distinct
traditionally, Aboriginal and Torres Strait Islander cultural and language groups; it is not accurate to
peoples did not believe in individual ownership of categorise Aboriginal and Torres Strait Islander
land but that everyone owned the land. Thus, the peoples as belonging to a single cultural group. In
concept of native title has meant that Aboriginal and 1788, when the First Fleet arrived, the belief at the time
Torres Strait Islander peoples have had to develop a was that Aboriginal and Torres Strait Islander peoples
new mind set in regards to property ownership so as were ‘savages’, with no concept of land ownership.
to retain access to traditional lands. There were no obvious fences, landlords, tenants or
farms, and no signs to indicate ownership; therefore,
native title the British Government declared the land terra nullius.
the right of Aboriginal and Torres Strait Islander peoples to
their traditional lands
Figure 5.1 An engraving from The Illustrated London
News, no. 2581, 6 October 1888.
In fact, the term ‘native title’ has such significance
that the High Court used it when they recognised
Aboriginal and Torres Strait Islander people’s
property rights in Mabo v Queensland (No 2) [1992]
HCA 23 (‘Mabo case’). The Mabo decision was the
first legal recognition that the Aboriginal and Torres
Strait Islander peoples of Australia had a system of
law and ownership of their lands that existed long
before European occupation and settlement. This
recognition overthrew the idea of terra nullius, and
subsequent cases have led to efforts to enshrine
native title in legislation.
terra nullius
(Latin) ‘land belonging to noone’; the idea and legal concept
that when the first Europeans came to Australia, the land
was owned by noone and was therefore open to settlement;
this concept has been judged to be legally invalid
History of government policy

Aboriginal and Torres Strait Islander peoples have
inhabited the Australian continent for the past
50 000 years, living a sometimes nomadic lifestyle.
Although they did not use legal documents or written
laws, it is undisputed that Aboriginal and Torres
Strait Islander peoples used oral law, customs and
traditions to maintain order and control behaviour.

TABLE 5.1 Government policies and their effects on Aboriginal and Torres Strait
Islander peoples
Policy or law Effect
Dispossession/dispersal (1788–1800s)
Massive reduction in Aboriginal and Torres Strait
Islander population.
Since Aboriginal and Torres Strait Islander
Traditional Aboriginal and Torres Strait Islander
peoples were not recognised as citizens, it was
people’s areas were converted to farming lands.
not a criminal offence to hunt, shoot and kill them.
Aboriginal and Torres Strait Islander peoples
The general belief was that Aboriginal and Torres
could be shot on sight if armed with spears, or
Strait Islander peoples would eventually ‘die out’.
even if they were unarmed and within a certain
Martial law in New South Wales (1816)
distance of houses or settlements.
Martial law in Tasmania (1824)
Settlers were authorised to shoot Aboriginal and
Torres Strait Islander peoples.
Protection (1869–1909)
These Acts gave wide powers to the Board for the
Protection of Aborigines, which governed where
Aboriginal and Torres Strait Islander peoples could
live and work, what jobs they could do, and who
Aboriginal Protection Act 1869 (Vic) they could marry and associate with.
Aborigines Protection Act 1909 (NSW) The powers of the board under the New South
Wales Act were similarly wide, and included the
power to remove children from homes to be placed
in missions. This was the beginning of the Stolen
Generations.
Assimilation and integration (1900–1962)
By this time, Aboriginal and Torres Strait Islander
peoples were a long way from ‘dying out’; there The European majority attempted to teach the
was a policy shift to ‘Europeanise’ them so that Aboriginal and Torres Strait Islander population to
they would leave behind their language, culture, be ‘white’. This was met with both submission and
artefacts and traditions, and become ‘similar’ to resistance.
Europeans.
became Australian citizens, along with everyone
Nationality and Citizenship Act 1948 (Cth)
else, but not all states gave them full rights (e.g.
the right to vote in Commonwealth elections).
Effectively, these certificates meant the holders
In the 1940s ‘exemption certificates’ or ‘citizenship were ‘not Aboriginal’. The certificates had strict
certificates’ were given to some Aboriginal and conditions (e.g. certificate holders had to live a
Torres Strait Islander peoples by some states. ‘European lifestyle’) and could be revoked without
warning.
The 1962 amendments gave the right to vote in
1962 amendments to the Commonwealth Electoral Commonwealth elections to all Aboriginal and
Act 1918 (Cth) Torres Strait Islander peoples in states that had not
already provided this right.

TABLE 5.1 Government policies and their effects on Aboriginal and Torres Strait
Islander peoples
Policy or law Effect
Reconciliation (1967–)
The phrase ‘other than the Aboriginal race in any
state’ was removed from section 51(xxvi) of the
Australian Constitution, giving the Commonwealth
Government the power to make laws specifically
5
1967 referendum amending the Australian
for the benefit of Aboriginal and Torres Strait
Constitution
Islander peoples. Section 127 – which provided that
Aboriginal and Torres Strait Islander peoples were
not counted as part of the population for census
purposes – was deleted.
The final report from an expert panel recommends
Report, ‘Creating a Nation for All of Us’ (2011),
that the Constitution be amended to recognise
presented to the Prime Minister in 2012
Aboriginal and Torres Strait Islander peoples.
The colonial laws and policies developed in dispossession

relation to Aboriginal and Torres Strait Islander the removal or expulsion of people from their traditional
lands
peoples did not serve their interests, but were
suited to the white colonists’ interests. Some martial law
law enforced by the military over civilian affairs; overrides
examples of these laws and policies can be seen civilian law
in Table 5.1.
Formative assessment: regular basis to check your understanding. You are

Assessment for learning also encouraged to regularly review the ‘themes
activities and seek feedback from your teacher on a build your knowledge and skills of the topic.
Review 5.1
1 Write a meaning for ‘native title’.

2 Identify the Latin term that means ‘land belonging to noone’. Outline why the British Government
operated as though the land in Australia had no ownership.
3 Describe the legal systems of Aboriginal and Torres Strait Islander peoples prior to 1788.
4 Describe the three main policies of Australian governments in relation to Aboriginal and Torres
Strait Islander peoples from 1788 to 1967. List one effect of each policy.
5 For the Australian Constitution to recognise Aboriginal and Torres Strait Islander peoples, it has
to be amended. Using your legal knowledge, outline the processes required to change
the Constitution.

5.2 Operation of the legal Tasmania had been killed, had died from introduced
system relating to native title diseases, or had been forcibly relocated.
The concept of terra nullius has also had an
Part of the rich and diverse cultural heritage of
enormous impact on native title claims (that is the right
Aboriginal and Torres Strait Islander peoples was a
to claim ownership of traditional lands and waters).
well-developed structure of laws that governed their
Any Aboriginal or Torres Strait Islander community
relationships with one another, and with the land. All of
that has tried to claim native title has had to prove
this changed with European settlement. It would take
that they are the traditional owners of the land and
200 years for this system to be formally recognised.
have an ongoing connection with it. As the land was
The doctrine of terra nullius considered empty prior to British settlement, it also
in Australia meant that the settlers could take possession of most
of the arable land with government approval – which
The term terra nullius means ‘land belonging to no
entailed driving off anyone else who might be living
one’. As a common law concept, it refers not only to
on this land at the time. Thus the quandary arises, if
uninhabited territory, but also to territory that has
the traditional owners of the land have been forced
no recognisable system of law, or social or political
off their land (in some cases, 200 years ago), how then
organisation. Under the ‘doctrine of reception’,
do they prove a continuing connection with this land
when uninhabited land was colonised by Britain and
under Aboriginal law and custom?
no other system of law was apparent, then English
law would dominate.
Over the course of a few decades, the perception The legal status of Aboriginal and
that the country had very few inhabitants, and that Torres Strait Islander peoples up
they had no political or legal organisation and, thus, to 1967
no sovereignty, led to the legal fiction justifying British The doctrine of terra nullius meant that in the eyes of
possession and the imposition of British law. Although the law Aboriginal and Torres Strait Islander peoples
Governor Arthur Phillip was under orders to establish did not exist as citizens. The criminal laws did not
friendly relations with the Aboriginal and Torres Strait protect Aboriginal and Torres Strait Islander peoples
Islander peoples and did make serious efforts in and, throughout the first half of the nineteenth century,
this area, language and cultural barriers meant that government policies tended to accept violence as a way
negotiations had limited success. Terra nullius, as a of dealing with conflicts. One of the most significant
justification for British policy, was evident by 1835 when and tragic events of the 1800s occurred in New South
explorer John Batman attempted to lease land from Wales at Myall Creek, near Bingara. In June 1838, a
the Aboriginal and Torres Strait Islander peoples in the group of Aboriginal peoples who had set up camp on
area around the Yarra River in what is now Victoria. a cattle station were brutally attacked and killed by a
Batman negotiated a treaty for the transfer of the land group of white men (11 convicts and one free man),
in exchange for tools, weapons, food and blankets. who claimed they were acting in retaliation for the
Shortly thereafter, Governor Richard Bourke declared theft of cattle. Twenty-eight Aboriginal men, women
the treaty null and void, on the basis that New South and children were slaughtered.
Wales – which at the time extended from Cape York The Governor of New South Wales, Sir George
in the north to Wilson’s Promontory in the south and Gipps, ordered a police investigation into the
nearly as far west as the current border of Western massacre. This was the first time that the British
Australia – belonged to the Crown, not to the Aboriginal colonial administration had taken a decision to apply
and Torres Strait Islander peoples. the criminal law on behalf of Aboriginal and Torres
The concept of terra nullius has had a vast impact Strait Islander peoples. Initially, the 11 convicts were
on the Aboriginal and Torres Strait Islander peoples. found not guilty of the crime; however, a subsequent
Their treatment by the colonists, which involved retrial sent seven men to their death by hanging.
loss of land, loss of culture and forced dispersal, Because of these consequences, further massacres
has led to considerable social problems. This will of Aboriginal and Torres Strait Islander peoples
be discussed in more detail later in the course. By went unreported.
the 1840s, for example, most Aboriginal people in

Until the 1967 referendum, there were two of some 300 hectares of land for bauxite mining
references to Aboriginal and Torres Strait Islander without their permission. The petition failed to move
peoples in the Constitution: section 51(xxvi) and the federal government to recognise the rights of
section 127. Section 127 excluded Aboriginal and the Yolngu people and hence the ‘Gove land rights
Torres Strait Islander peoples from the census. case’ (Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141)
Section 51(xxvi) enabled the Commonwealth to make commenced in the Northern Territory Supreme Court
laws in respect of ‘people of any race for whom it in 1971. In his ruling, Justice Blackburn stated that
is deemed necessary to make special laws’ but
excluded ‘the aboriginal race’ from this power; this
if the Yolngu people did have any type of native title
rights, they would have been extinguished under
5
effectively reserved the responsibility for Aboriginal common law. Thus, the doctrine of terra nullius
and Torres Strait Islander peoples affairs to state prevailed and they could not prevent mining on the
governments. Since there were no federal laws land. Three years after the unsuccessful Yolngu
governing the welfare of Aboriginal and Torres Strait petition, members of the Gurindji people walked off
Islander peoples, different states interpreted their the job at two cattle stations in the Northern Territory,
rights and legal status in various ways, resulting in protesting against poor working conditions and pay.
inconsistencies and inhumanity. Their action was also a protest against dispossession
Many people incorrectly believe that the 1967 of their traditional lands by pastoralists.
referendum gave Aboriginal and Torres Strait Islander
peoples the right to vote. However, the right to vote in pastoralists
farmers raising sheep or cattle, usually on large areas of land
Commonwealth elections had been extended to all
Aboriginal and Torres Strait Islander peoples who did Figure 5.2 Bill Onus, the President of the Victorian
not already have this right under the laws of their state Aborigines Advancement League, taking part in a march
– namely, those in Western Australia and Queensland related to the 1967 Australian referendum.
– by amendments in 1962 to the (Cth). The right to vote
in state elections had been achieved in all states by
1965. By contrast, most Australians had been able to
vote in federal and state elections since 1911.
Nor did the referendum grant citizenship to
Aboriginal and Torres Strait Islander people: most
of the federal and state laws discriminating against
them had been repealed by 1967. Over 90% of the
population voted ‘yes’ on the amendments to the
Constitution. Section 51(xxvi) was amended to allow
the federal government to legislate for Aboriginal
and Torres Strait Islander peoples and to override any
discriminatory state laws. Section 127 was deleted.
From this point on, Aboriginal affairs became a
federal issue, and Aboriginal and Torres Strait
Islander peoples were counted in the census.
The development of native title
Native title claims in the

Northern Territory
In 1963, Yolngu people from the Gove Peninsula, in
eastern Arnhem Land, sent a bark petition to the
Commonwealth Government protesting the removal

In 1972, the Australian Labor Party, led by Gough title, the federal government passed the Native Title
Whitlam, was elected after 23 years in opposition. Act 1993 (Cth).
That year, the government responded to the failed The Mabo case and the ensuing legislation
Gove land rights case by establishing the Department significantly changed the legal status of Aboriginal
of Aboriginal Affairs. A Royal Commission into and Torres Strait Islander peoples in relation to native
Aboriginal land rights was established, under title and gave some people access to parcels of land
Justice Edward Woodward, who as a barrister had throughout Australia to practise their traditional
acted for the Yolngu people in the case. Following way of life. It did not allow Aboriginal and Torres
the commission’s findings, the Aboriginal Land Rights Strait Islander peoples to ‘own’ land, as this could,
(Northern Territory) Act 1976 (Cth) was drafted. This thereby, restrict current owners’ access to that land.
legislation established a process for traditional In December 1993, during the passage of the Native
owners to claim various parcels of land that were Title Bill through parliament, Prime Minister Paul
listed as available. Keating said:
Mabo cases
Between 1985 and 1992, Eddie Mabo and four [T]oday, as a nation, we take a major step
other men from the Murray Islands challenged the towards a new and better relationship
Queensland Government in two cases in the High between Aboriginal and non-Aboriginal
Court of Australia: Mabo v Queensland [1988] HCA 69 Australians. We give the indigenous
and Mabo v Queensland (No 2) [1992] HCA 23. people of Australia, at last, the standing
The first case questioned the validity of a they are owed as the original occupants of
state law that attempted to abolish native title by this continent, the standing they are owed
asserting state ownership of the islands off the as seminal contributors to our national life
coast of Queensland. The High Court held that the and culture: as workers, soldiers, explorers,
Queensland Act was inconsistent with the Racial artists, sportsmen and women – as a
Discrimination Act 1975 (Cth), because under it, the defining element in the character of this
Meriam people’s right to own property would be nation – and the standing they are owed
limited to a greater extent than that of other members as victims of grave injustices, as people
of the community. Under the Constitution, federal who have survived the loss of their land
law prevails where there is a conflict between state and the shattering of their culture.
and federal laws.
The second case, now known as the Mabo case,
concerned the Meriam people’s right to occupy and
control Murray Island (Mer). Although Eddie Mabo
and one of his fellow plaintiffs died during the course Growing recognition of native title
of the case, in May 1992, the High Court ruled (by six in some countries
judges to one) that Australia was not terra nullius Native title means the right of Aboriginal and Torres
and that the Meriam people clearly held native title Strait Islander peoples to live on their land and use it for
to their land. traditional purposes. Throughout the world, there has
The High Court’s decision in the Mabo case been growing recognition of the rights of First Nations
gave Australian law the doctrine of native title. peoples to their own lands. Hunting and fishing rights
The court recognised the traditional rights of and land ownership rights have been returned to many
the Meriam people to the eastern Torres Strait First Nations groups in different countries.
islands, and also held that native title existed for There has also been a move to give greater
all Aboriginal and Torres Strait Islander peoples self-determination to First Nations groups. Self-
in Australia before European contact. To make determination means the right of First Nations
clearer the legal position of landholders and the peoples to control the use of their traditional lands,
processes that must be followed in claiming native as well as the local economy and social policy.
M aˉori in New Zealand, Inuit in Greenland and

Review 5.2
1 Outline the legal status of Aboriginal and Torres Strait Islander peoples prior to 1967.
2 In regards to the recognition of Aboriginal and Torres Strait Islander peoples, recall the changes
that occurred between 1967 and 1993. Analyse why these changes occurred.
3 Describe how the Yolngu people’s native title claim was resolved in court. Recall how the newly
5
elected Whitlam government responded to this decision.
4 Explain the importance of the 1992 Mabo decision for the legal status of Aboriginal and Torres
Strait Islander peoples.
5 Evaluate the importance of the statement made by Prime Minister Paul Keating in 1993 on the
passing of the Native Title Act 1993 (Cth).
Legal Links
The Australian Institute of Aboriginal and Torres Strait Islander Studies publishes independent
research on native title. This research is available on the institute’s website.
Canada, and Aboriginal and Torres Strait Islander Figure 5.3 New Zealand is a good example of the
peoples are three groups who have been given integration of indigenous culture.
greater recognition in terms of native title and self-
determination in their own countries.
5.3 Agencies of law reform

relating to native title
When claiming traditional ownership of land,
Aboriginal and Torres Strait Islander groups must
have their claims legally validated. The only courts
that can make this determination are the Federal
Court and the High Court. Initial claims are brought
to the National Native Title Tribunal (NNTT), but
this body cannot make legal decisions about native
title; it can only carry out research and make
recommendations.
Claimants may obtain one of three types of
determination:
• unopposed determination (if the application is
uncontested)
• consented determination (if the parties involved
reach an agreement through mediation)
• litigated determination (the application is
contested in a court of law, and a judge makes a
decision).

Legal Links
The Federal Court of Australia’s website provides information about the processes involved in
claiming native title and judgments on native title cases.
High Court Because of the Mabo decision, the federal

With respect to native title claims, the High Court government enacted the Native Title Act 1993 (Cth).
of Australia has the same role as it does with any The Act has the purpose of:
other legal case: as a court that hears appeals about • providing for native title recognition and
decisions made in other courts of Australia. It cannot protection
show sympathy or favouritism, or be swayed by public • establishing methods and standards by
opinion when hearing these cases. which future dealings that affect native title
Initial claims of native title made by Aboriginal may proceed
and Torres Strait Islander peoples are brought • establishing a process for resolving native title
before the NNTT, which investigates and mediates claims and validating past grants of property
them. The Federal Court of Australia will make the interests that may be thrown into doubt
determination on whether native title exists. Any because of the recognition of native title.
appeal against a determination is made to a full
sitting of the Federal Court and then to the High Court The Act stopped short of defining native title and
of Australia. Thus, the High Court acts as a court of created the Native Title Tribunal to determine the
last resort in determining whether native title exists validity of native title claims. If native titleholders are
in claims made about certain geographical places unable to reclaim their lands and thus exercise their
in Australia. rights, the tribunal determines the compensation to
be paid.
Mabo case
The Mabo case is important because it led to the Wik case
introduction of native title legislation. It is also The Mabo decision and the Native Title Act 1993
significant because it gave recognition to the (Cth) resulted in other Aboriginal and Torres Strait
Aboriginal and Torres Strait Islanders inhabitants Islander groups attempting to reclaim land. The Wik
of Australia. and the Thayorre people launched a case against the
In this case, the High Court recognised the Queensland Government in 1996, claiming native title
existence of native title for a group of Murray rights to land that was being used by pastoralists,
Islanders in the Torres Strait. Eddie Mabo argued under pastoral leases. Under a pastoral lease, the
that they could prove uninterrupted occupancy government owns the land but the farmers have
of traditional lands, and that the state legislation exclusive right to use it. The Federal Court ruled that
annexing the islands did not extinguish their pre- the existence of pastoral leases extinguished the right
existing rights to it. to native title. This decision was appealed to the High
The case required the High Court to consider the Court, which ruled that the Wik and Thayorre people
legality of the declaration of terra nullius. The court were entitled to their traditional lands. The court found
ruled that the islanders were the traditional owners that pastoral leases and native title could co-exist but
of the land and that they had the right to possess and that when conflict arose, the pastoral leases would
occupy the islands and enjoy use of their traditional prevail (Wik Peoples v Queensland [1996] HCA 40).
lands. The High Court also established guidelines While the Wik decision did not grant automatic
for future claims of native title. These guidelines title over Crown land, it caused concern among
included the provision of compensation where the pastoralists and mining companies that they
federal government took the native title rights back. would have to enter into lengthy negotiations with


over access to and use of land. In response to this
concern in rural Australia, the federal government
enacted the Native Title Amendment Act 1998 (Cth),
which amended the Native Title Act 1993 (Cth) and
introduced some additional changes. There was
much debate in parliament over this Act before
it was passed. While the government had a large
majority in the House of Representatives, it did not
5
enjoy as much support in the Senate.
The main provisions of the Act are as follows:
• It extinguished native title over any land
that was considered privately owned prior to
1 January 1994.
• When native title exists alongside a pastoral
lease, the pastoralist is allowed to use the
land for primary production without having to
consult people who have native title interests.
• Tough tests were imposed to determine the
right to native title. At least one member of the
claimants must prove a continuous link with the
traditional lands.
Yorta Yorta case

The Yorta Yorta people are Aboriginal people
whose traditional lands are located in northeast
Victoria. They applied to the Native Title Tribunal
for determination of native title in respect of public
land and water in February 1994. The Yorta Yorta
Aboriginal community claimed that some areas of
state forests and waterways in northern Victoria and
southern New South Wales were their traditional Figure 5.4 Francis Firebrace poses for a photograph
lands. The Native Title Registrar, who assesses during the London Sorry Day event at the Embankment
claimants’ applications to the Tribunal, accepted on 25 May 2006 in London, England. Francis Firebrace
of the Yorta Yorta people is a storyteller, inspirational
their application in May 1994. The application was
speaker, performer and artist.
under mediation from September 1994 until May
1995, and then referred to the Federal Court. The Yorta Yorta then appealed to the High Court
The Federal Court dismissed the claim. Justice (Members of the Yorta Yorta Aboriginal Community
Olney found that, as the Yorta Yorta people had v Victoria [2002] HCA 58). They claimed that the
stopped occupying their traditional lands in the previous judgments had been wrong in requiring
nineteenth century the evidence did not support them to prove continuous observance of traditional
the claim. He said, ‘The tide of history has indeed laws and customs in relation to land. The High Court
washed away any real acknowledgment of their handed down its decision in December 2002 and
traditional laws and any real observance of their upheld the decision of the Federal Court by a majority
traditional customs.’ of five to two.
The Yorta Yorta people appealed this decision In its decision, the High Court examined
but the Full Court of the Federal Court upheld Justice the phrase ‘traditional laws and customs’,
Olney’s findings. and considered what was required for proving
continuous observance of these laws and customs.

In its decision, which was to influence future native In Bennell v Western Australia [2006] FCA 1243, the
title claims, the court held that claimants seeking to judge ruled that native title existed within an area in
prove native title must establish that there has been and around Perth. This was the first time native title
an acknowledgment and observance of customs was recognised over a capital city and its surroundings.
and laws on a substantially uninterrupted basis A subsequent appeal, Bodney v Bennell [2008]
since the arrival of British sovereignty. The fact that FCAFC 63, lessened the impact of this judgment.
these laws and customs have been passed down Native title cases take a long time to be determined.
orally is not sufficient; claimants must show that This can be seen in the case of Manado (on behalf
their way of life is influenced by these traditions. of the Bindunbur Native Title Claim Group) v Western
In this way, the High Court decision clarified the Australia [2017] FCA 136. The claim first came to the
law with respect to the evidence necessary to prove Federal Court’s notice in 2013, with a hearing starting
native title. in September 2015 and a decision made in late 2017.
Not all parties involved in the claim were happy with
Recent cases the decision and appeals were made against the
There have been other significant cases and decision. However, in one of the last decisions of 2018,
amendments that have strengthened Aboriginal and the full Federal Court handed down its judgment in
Torres Strait Islander peoples rights in the area of favour of the Bindunbur and Jabirr Jabirr/Ngumbarl
native title in Australia. In 2001, the case of Yarmirr v native title claim groups over land near Broome
Northern Territory (2001) 208 CLR 1 determined that (Manado on behalf of the Bindunbur Native Title Claim
native title rights of the Croker Island community Group v Western Australia [2018] FCAFC 238). The
included free access to the sea and seabed, the first whole legal process was time-consuming, expensive
time that rights involving waters had been allowed. and wearying for all involved.
Review 5.3
1 Define ‘native title’ and ‘self-determination’. Identify which Aboriginal and Torres Strait Islander
groups have gained greater recognition in these areas.
2 Assess the significance of the Mabo decision.
3 Describe the impact of the Wik case.
4 Providing examples, explain how a government might respond to the following scenarios:
a a court decision whose outcomes or likely consequences the government supports
b a court decision whose consequences are as yet unclear
c the concerns of groups within society about a court decision.
5 Describe the native title claim of the Yorta Yorta community.
6 Outline the legal history of the Yorta Yorta claim to native title.
7 Explain why the Yorta Yorta native title claim was denied.
8 Discuss how the Yorta Yorta decision may affect other native title claims.
Research 5.1
Read online the article, ‘Native title rights, regulations and licences: The Torres Strait Sea Claim’
(The Conversation, 8 August 2013). Compare the Torres Strait Sea Claim to the original Mabo case.
1 Summarise the three important preliminary points discussed in the article.
2 Describe how previous cases have paved the way for the Torres Strait Sea Claim case.

National Native Title Tribunal that concern all Australians. In this way parliament is
The National Native Title Tribunal (NNTT) is a federal able to address issues of equity and justice.
government agency set up under the Native Title Act In 2008, the then Prime Minister, Kevin Rudd,
1993 (Cth). Under the direction of the Federal Court apologised to Aboriginal and Torres Strait Islander
of Australia, it mediates claims for native title. peoples for past injustices inflicted on them.
The aim of the NNTT is to help resolve native Speaking in the House of Representatives in Canberra
title issues. The tribunal plays a variety of roles; on 13 February 2008, Rudd said the parliament
for example, it may act as an arbitrator if the apologised for laws and policies which had ‘inflicted
profound grief, suffering and loss on these, our fellow
5
people involved are unable to come to agreement
about proposed developments. It also helps in the Australians’. Actions such as these by
negotiation of other sorts of agreements such politicians and parliament are a way
as those for Aboriginal and Torres Strait Islander of bringing about social, if not legal,
peoples land use. If requested, the tribunal will aid change.
people who are negotiating proposed developments Video
(future acts) such as mining. It is not a court and State legislation
does not decide whether native title exists. As discussed, the Mabo and Wik decisions led to
The process of proving native title can be slow and Commonwealth legislation in the area of native
expensive. In the period between the establishment title and self-determination for Aboriginal and
of the NNTT and 31 December 2011, 200 applications Torres Strait Islander peoples. State legislation has
were submitted and 175 determinations were made. also been enacted to give rights to and protect the
Of the 175 determinations: interests of Aboriginal and Torres Strait Islander
• 134 were that native title exists over all or part of peoples. The National Parks and Wildlife Act 1974
the area (NSW) provides for the protection of places and
• 41 were that native title does not exist. relics which are of significance to Aboriginal culture.
Under this Act, it is an offence to knowingly destroy,
Parliament disturb or remove these objects or to destroy, deface
Parliament’s role in recognising native title is to or damage these places.
enact legislation to protect the property rights of The Aboriginal Land Rights Act 1983 (NSW)
Aboriginal and Torres Strait Islander peoples. recognises that:
Public pressure and lobbying by interested • land was traditionally owned and occupied by
parties have seen new laws regarding native title Aboriginal people
introduced in Australia. As mentioned above, the • land has spiritual, social, cultural and economic
Native Title Act 1993 (Cth) was enacted in response significance to Aboriginal people
to lobbying by Aboriginal and Torres Strait Islander • it is appropriate to acknowledge the importance
communities for statutory law reflecting the Mabo of land to Aboriginal people
case, but also lobbying by the mining and pastoral • government decisions made in the past have
sectors concerned about potential claims of native had a negative effect on Aboriginal land
title on their land. ownership.
Members of parliament, as representatives of their
constituents, also have a role to play in introducing This Act established a system of land councils. The
and encouraging discussion and debate about issues NSW Aboriginal Land Council has the power to make
Legal Links
More information about the NNTT can be found on the tribunal’s website.

claims on Crown land, approve or reject agreements to Federal legislation

allow mining on Aboriginal land, conciliate disputes, Federal parliament has enacted legislation to protect
and advise the state government on land rights. The all parties involved in, and affected by, native title
Act provided for the ownership of reserve land to be claims. As discussed above, the Native Title Act 1993
transferred to the Aboriginal people, through a local (Cth) was the Australian Government’s response to
council or the state Land Council, but in fact, only the High Court’s Mabo decision. The Act provides
a small percentage of land has been transferred. for native title to be recognised and integrated into
Section 28 of the Act provided for 7.5% of land tax in the land title system. However, if state or territory
New South Wales to be paid to the state Aboriginal laws can function concurrently with the Act, then
Land Council to meet administrative costs and to the Commonwealth Government is not allowed to
finance land purchases and future development, but interfere with their operation.
this ceased in 1998 due to a ‘sunset clause’ in the Act, The Howard federal government responded
and section 28 was repealed in 2001. to the High Court’s Wik decision with the Native
The Act also permits local Land Councils to Title Amendment Act 1998 (Cth). The amendments
negotiate agreements with the owners of land to give incorporated the High Court’s decision that native
Aboriginal and Torres Strait Islander peoples access title rights could co-exist on land held by pastoral
for the purpose of hunting, fishing or gathering. leaseholders. The same government amended the
legislation by the Native Title Amendment Act 2007
(Cth) and the Native Title Amendment (Technical
Amendments) Act 2007 (Cth). These changes also
Figure 5.5 Kevin Rudd’s apology to the Stolen
Generations on 13 February 2008 was streamed
allowed for Township Leases. This is where the
across Australia. Australian Government and the traditional owners
in a township negotiate for a town to be leased for
between 40–99 years. The Office of Town Leases
oversees the leases and processes. The effects
of the 2007 changes were intended to improve
the overall efficiency of the processes involved in
claiming native title. Commonwealth legislation
has also been enacted to provide some Aboriginal
and Torres Strait Islander people’s rights over
bodies of water. The Aboriginal and Torres Strait
Islander Heritage Protection Act 1984 (Cth) is used
to protect areas of water and of land that have
cultural significance for Aboriginal and Torres
Strait Islander peoples.
More recent changes

The Native Title Amendment Act 2007 (Cth) and the
Native Title Amendment (Technical Amendments) Act
2007 (Cth) were passed by the Howard government
in 2007 to bring efficiency to the native title process
by speeding up determinations. The Native Title
Act 1993 (Cth) was further amended by the Rudd
government with the Native Title Amendment Act
2009 (Cth), which allowed both the court and the
tribunal to mediate. The court is also allowed to
refer an application to another ‘appropriate person
or body’ to mediate. More amendments came with

the Native Title Amendment Act (No 1) 2010 (Cth). It Although one of the biggest legal steps forward
sets up a process for dealing with the construction was the overturning of the concept of terra nullius
of public housing and some other public facilities. in the Mabo case, the initial use of terra nullius by
The Native Title Amendment (Indigenous Land the British has continued to be a major obstacle
Use Agreements) Act 2017 (Cth) was passed to for those communities making native title claims;
provide greater clarification and give greater consider the Yorta Yorta people’s claim for their
validity and enforceability to Aboriginal and Torres traditional lands in Victoria. The court cases took
Strait Islander land use agreements. Students are
advised to check for updates that are more recent
eight years and the claim was eventually denied.
The basis of the High Court’s determination was that
5
on a regular basis as part of their studies for the Yorta Yorta could not prove a recent history of
this subject. traditional ownership of this land. The main reason
that they could not prove this history of ownership
Native title as a collective right was because, when the British took over this land,
A collective right is one that is claimed and shared they excluded the Yorta Yorta community. This is
by a group of people. Native title is a collective right, a problem faced by other Aboriginal and Torres
as it cannot be claimed by an individual, only by a Strait Islander communities in claiming traditional
group (e.g. the Wik people). All members of the ownership.
group share the rights that are gained. It is undeniable that major steps have been taken
However, despite native title being a collective with respect to native title, by both the judicial and
right, an individual can bring a claim before the legislative branches of government. However, those
courts, as seen in the Mabo case. As the individual interested in reform are also faced with the fact
is acting on behalf of the group, all members of the that the law protects the property rights of people
community that he or she represents will share the who themselves had nothing to do with colonial
rights gained. dispossession, but whose interests are at odds with
native title claims. In addition, legal progress is very
slow; for example, in 1996 the Yaegl people lodged
5.4 Effectiveness of law reform a claim over land around the mouth of the Clarence
relating to native title River. Further claims were lodged in 1998 and 2011
As discussed, there has been progress in the over adjoining lands. When native title was finally
area of law reform relating to native title; however, awarded in 2015 many of the original claimants
this progress has been relatively slow. Due to the had died.
very nature of the law, all stakeholders involved Future progress is likely to depend on the
in (and affected by) native title claims must be articulation and maintenance of new concepts of
considered when proposing and enacting new justice, and sustained public commitment to electing
legislation and, as such, the Native Title Act 1993 governments that will legislate for those aims. As
(Cth) and its amendments recognise not only the can be seen above, the federal parliament does
rights of the traditional owners, but also those of make ongoing amendments to current legislation
current landholders. regarding land rights.
Review 5.4
1 Draw a timeline showing the recognition of native title rights and self-determination for
Aboriginal and Torres Strait Islander peoples in general and in New South Wales
in particular.
2 Outline the major legislation governing native title at the federal and state levels.
3 Describe the major federal and state legislation that protects places and objects of cultural
significance for Aboriginal and Torres Strait Islander peoples.
4 Assess in what way native title is a collective right.

Topic 1 summary
• ‘Native title’ is the right of Aboriginal and Islander peoples, and to allow them to be
Torres Strait Islander people’ to an area of land counted in the census.
with which they have an ongoing association. • The Mabo case was a significant High Court
• The concept of terra nullius was used to justify decision that abolished terra nullius and led to
the implementation of British law and the the federal government passing the Native Title
dispossession of Aboriginal and Torres Strait Act 1993 (Cth).
Islander peoples. • Further state and federal legislation and court
• The 1967 referendum amended the Australian decisions have been instrumental in law reform
Constitution to allow the Commonwealth in the area of native title.
to legislate for Aboriginal and Torres Strait
Topic 1 questions
1 British policies towards Aboriginal and Torres b The High Court held that pastoral leases
Strait Islander peoples were based on which of can co-exist with native title, but where
the following? there is a conflict, the pastoral lease takes
a colonial conquest, then attempts at priority.
assimilation c The Wik decision overturned Mabo.
b mediation d The High Court found that the Native Title
c native title Act 1993 (Cth) was unconstitutional.
d implied rights contained in the Australian 4 The aim of the NNTT is:
Constitution a to assist with native title negotiations
2 What was the effect of the 1967 amendments to b to determine whether a particular place is
the Australian Constitution? terra nullius
a The amendments gave Aboriginal and Torres c to advise the Federal Court of Australia on
Strait Islander peoples the right to vote. native title
b The amendments allowed the d to hear criminal cases involving Aboriginal
Commonwealth to make laws for Aboriginal and Torres Strait Islander peoples.
and Torres Strait Islander peoples and 5 Which of the following statements is true of
allowed them to be counted in the census. native title?
c The amendments gave Aboriginal and a Native title can be claimed by an individual.
Torres Strait Islander peoples native title. b Native title is a collective right shared by
d The amendments gave Australian a group.
citizenship to all Aboriginal and Torres c Native title is the modern term for terra
Strait Islander peoples in New South Wales nullius.
and Victoria. d Native title is contained in section 128 of
3 Which of the following statements is true of the Australian Constitution.
the Wik decision?
a The Wik decision gave Aboriginal and
Torres Strait Islander peoples native title
over all pastoral land.

1 In your own words, describe the Myall Creek how law reform relating to native title has
Massacre. Discuss why, in your opinion, this taken place so far.
massacre occurred. 5 Reforms continue to take place in regards
2 Describe the role of the NNTT. to native title. Research and write a brief
3 Identify who Eddie Mabo was. Describe how summary of the more recent changes to the
he changed Aboriginal and Torres Strait law in regards to native title and community
Islander peoples’ rights. opinion about this issue. 5
4 Discuss the relationship between court
decisions and subsequent legislation. Explain

Topic 2
Law reform and sport
Relevant law
Anti-Discrimination Act 1977 (NSW)
Sex Discrimination Act 1984 (Cth)
Australian Sports Commission Act 1989 (Cth)
Disability Discrimination Act 1992 (Cth)
Civil Liability Act 2002 (NSW)
Australian Sports Anti-Doping Authority Act 2006 (Cth)
Fair Work Act 2009 (Cth)
Crimes Amendment (Cheating at Gambling) Act 2012 (NSW)
SIGNIFICANT CASES
Darren Kennedy v Narooma Rugby League & Gary Pender (unreported, Bega District Court, 2001)
Gardner v AANA Ltd [2003] FMCA 81
Taylor v Moorabbin Saints Junior Football League & Football Victoria Ltd [2004] VCAT 158
Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28
Goode v Angland [2017] NSWCA 311
De Belin v Australian Rugby League Commission Limited [2019] FCA 688
Isileli ‘Israel’ Folau v Rugby Australia Ltd (unreported, Federal Circuit Court, 27 November 2019)

5.5 Conditions that led to law Criminal law:

reform relating to sport On-field and off-field behaviour
Significant changes have occurred within the Criminal law is not excluded from behaviour on a
Australian sporting landscape over the past few sporting field or considered separate from an athlete’s
decades. Sport has become an integral part of right to compete. The referee and a judiciary who may
Australian culture and Australians have performed impose a penalty of suspension from future matches
incredibly well domestically and on the world stage. usually reprimand an illegal act, such as a punch
The rise of professional sport means that athletes thrown during a match. However, in 1985, during a 5
such as Sam Kerr, Andrew Bogut and Steve Smith professional Australian Rules match, Hawthorn
are ‘at work’ when we watch them play. These captain Leigh Matthews struck an opponent in the
athletes are considered employees and their teams face, causing the breaking of his opponent’s jaw.
or organisations become their employers. Days later, Matthews was arrested, charged and
Domestically, intense competition and high convicted of assault and ordered to a pay a $1000 fine.
stakes surround sports such as rugby league His conviction was eventually overturned on appeal;
(NRL), rugby union (Rugby AU), Australian Rules however, the case illustrates that criminal law is not
(AFL), soccer,basketball and netball. In addition, excluded from the sporting arena.
sports such as tennis, swimming and athletics have In addition to changes in the way sport is seen,
also achieved high status globally. Unsurprisingly, there have been broader social changes that affect
Australian sport has become ‘big business’ and the ways in which sport and the law interact.
significant prize-money and prestige are the norm. Gambling on sporting outcomes, in particular, has
Large corporations are increasingly associating risen to prominence in recent years. As technology
themselves with a team, athlete or competition has allowed online betting to flourish, a number of
through sponsorship deals that provide significant athletes have attempted to influence the outcome
financial incentives for athletes and teams in of a game in which they are involved for personal
exchange for advertising and media exposure. gain. In 2010, Ryan Tandy, a NRL player, bet several
By winning competitions or being associated thousand dollars on a game through his manager
with highly successful teams, ‘sponsors’ hope to and friends, on an aspect of a match in which Tandy
increase profits and market share. was involved (Director of Public Prosecutions (NSW)
v Elias [2013] NSWSC 28 (1 February 2013)).
sponsorship In the opening part of the match, Tandy
the support of an individual, event or organisation financially
or through the provision of products or services deliberately caused a penalty to enable a situation
to arise that may have netted him and his entourage
The pressure on athletes and teams to perform and a huge payout. Tandy was found guilty of match
an apparent ‘win at any cost’ attitude has led to an fixing and sentenced to community service. Sadly,
increasing range of legal issues in recent times. Tandy died of an apparent drug overdose in 2014. In
These issues include, off-field criminal behaviour, 2019, AFL player Jaidyn Stephenson was served with
gambling on competition matches, harm suffered the most severe ban for betting on football in the
by athletes during the course of a game, the use competition’s history. The AFL imposed a 10-match
of performance-enhancing drugs and player safety ban and a $20 000 fine after Stephenson was caught
as it relates to long-term injuries. These issues are gambling on games.
governed by many areas of law whereas, traditionally, More seriously, Rugby League player Jack
the laws and rules of sporting competitions have de Belin was charged with four counts of aggravated
been strongly influenced by the expression ‘what sexual assault in company and aggravated sexual
goes on the field, stays on the field’. The need for assault in company causing actual bodily harm.
law reform within Australian sport arises out of Large sections of the sporting community called for
changing social, legal and technological factors and the suspension of de Belin from all playing duties,
will be discussed throughout this chapter. despite the presumption of innocence. The governing
body, Australian Rugby League Commission (ALRC)

reacted swiftly with the introduction of a policy to

suspend players from playing in the NRL competition
if charged with a criminal offence carrying a jail
sentence of over 11 years. The policy enforced the
standing down of a player until the matter has been
dealt with by the courts. Players could still receive
wages and train with their team. Jack de Belin has
become the first player affected by the new rule
but challenged the policy in De Belin v Australian
Rugby League Commission Limited [2019] FCA 688.
The court upheld the ALRC’s policy and de Belin
was prevented from playing in the 2019 NRL season.
As discussed in Chapter 4, law reform can be
prompted by the recommendations of specialised
law reform bodies or various other agencies or
agents, and it can be brought about directly by court
decisions and various incidences on and off the Figure 5.6 Professional athletes are required to sign
sporting field. contracts that legally bind their playing services to a club
and a competition.
Civil law: Breach of contract
Professional athletes are required to sign contracts civil litigation
that legally bind their playing services to a club and court action brought to remedy a wrong or a breach of
contract law
competition and govern their off-field behaviour,
including their use of social media. In 2019, Wallaby
rugby union player, Israel Folau, had his $10 million
playing contract dissolved after he wrote a string of Civil law: Harm suffered in sport
social media posts that offended many members of Rules, laws or codes of conduct in contact sports often
the community. Both his employer, Rugby Australia concern the safety of players. Despite this, amateur
Limited and sponsors (e.g. Qantas) condemned Folau’s and professional players give express consent to acts
comments and beliefs and Folau was released from his that would constitute the basis for a criminal offence
playing duties prior to the 2019 World Cup. Rugby AU of assault – an indictable offence – when done in
claimed that part of Folau’s contract included a clause a non-sporting context. When players participate in
that prohibited him from using social media to offend various sports, they accept the risk of harm that can
sections of the community and that he was acting occur within the course of the game, when played
against the ARU Code of Conduct. in accordance with the rules. In contact sports
Under the Fair Work Act 2009 (Cth) section 772, such as rugby league, rugby union and Australian
Folau initiated civil litigation and contested his Rules football, players can break bones, be rendered
termination at the Fair Work Commission. In December unconscious and, in extreme cases, be injured to the
2019, Rugby Australia and Israel Folau settled their point of quadriplegia. Clubs, leagues or other agencies
dispute out of court for an undisclosed sum. involved have a duty of care to the participants.
Review 5.5
1 Define the term ‘sports law’. List some of the factors that have created the need for law reform.
2 Discuss some of the consequences of sport being ‘big business’. Construct a list and rank in
order three issues that arise out of the intense desire to win competitions.
3 Evaluate the rights of a sporting body to regulate the behaviour of one of their players’ social
media behaviour. Outline the outcome of the Folau case.

express consent the decision about the quantum of damages to award.

consent given directly, either orally or in writing Athletes have sought damages for loss of wages, in
indictable offence addition to medical expenses, pain and suffering. In
a serious criminal offence that requires an indictment 1997, Gary Pender broke Darren Kennedy’s jaw in an
(a formal, written charge) and a preliminary hearing; it
is typically tried before a judge and jury and is subject to
illegal tackle in an amateur game of rugby league
greater penalties than non-indictable offences in New South Wales. Kennedy sued both Pender
and the Narooma Rugby League Football Club for
In 2014, Alex McKinnon, a NRL player, was severely
injured in a tackle. He was lifted by a number of
$40 000 in medical bills. The club’s lawyers argued
that because the players were volunteers, the club
5
defenders and landed on his neck causing a spinal could not be responsible for their conduct.
cord injury with permanent effects. Grabbing a The New South Wales District Court held that
person and slamming him to the ground would be although players were not paid to play the benefits that
the basis of an assault charge if inflicted without they derived from the relationship were significant
consent. However, players give express consent to enough to form a relationship of employment and
being tackled in rugby. Nevertheless, they do not give ruled in Kennedy’s favour.
express consent to behaviour that is prohibited by the While there are criminal compensation schemes
rules and so McKinnon initially sought compensation for victims, maintained and administered by the state,
through legal channels by suing the opposition club the compensation sums involved are generally much
and the sport’s governing body. By 2019, McKinnon lower than the amount of financial compensation that
had resolved his dispute and was employed by a a successful plaintiff could receive in damages in
media outlet as a guest commentator after the a civil case. The maximum compensation available
NRL also raised significant funds to assist in his in New South Wales for a victim of a violent crime
rehabilitation. is $30 000. Since professional athletes can earn
Even in the ‘non-professionalised’ world of hundreds of thousands of dollars a year, victims’
amateur sport, material loss may be considered in compensation is seen as inadequate. When pursued
Figure 5.7 Alex McKinnon presents the Alex McKinnon Cup to Korbin Sims of the St George Illawarra Dragons with
trainer, Ben Hornby, on 7 April 2019 in Newcastle.

as a civil case, direct contact with a person’s body over the past few decades, there are still some
without the person’s consent is one of the intentional challenges to be addressed, socially and legally.
torts of trespass to the person. Taylor’s case, in the Victorian Civil and
Administrative Tribunal (Taylor v Moorabbin Saints
trespass to the person Junior Football League & Football Victoria Ltd [2004]
a tort involving direct contact with a person’s body without
that person’s consent VCAT 158), questioned the exclusion of all girls
aged 12 or over from competing alongside boys in
Therefore, players have usually chosen to sue other the junior competitions. Despite anti-discrimination
players or clubs for damages and loss of wages through legislation in the various states and territories and
the civil law system. As discussed in Chapter 3, the at federal level, all Australian jurisdictions contain
standard of proof required of the prosecution in a exceptions allowing exclusions based on sex. The
criminal case is ‘beyond reasonable doubt’. In a civil Equal Opportunity Act 1995 (Vic) permits the exclusion
case, the plaintiff needs only prove the defendant’s of one sex from a sport if strength, stamina or size is
liability ‘on the balance of probabilities’. This just relevant. Post-puberty, the average boy has greater
means that it is more probable than not that the lean body mass than the average girl, and there is
defendant is responsible for the wrong suffered – an an appreciable difference in their performance in
easier requirement to satisfy. sports. The judge’s task was to determine at what
age there is a lawful reason to separate the boys from
Equal opportunity in sport the girls. He concluded that the differences are not
In 2003, a junior Australian Rules Football league sufficiently great in the under-14 age group, but they
in Victoria banned a 13-year-old from playing in its are for the under-15s. So excluding Helen Taylor was
competition because of her sex. The player, Helen unlawful, though not the exclusion of the other two
Taylor, along with two other girls aged 14 and 15, girls. The judge added that it would be preferable if
challenged the ban. While both the number of girls Football Victoria would, instead of excluding girls,
and women involved in sport and the range of sports give them the choice of whether to participate.
open to female players have increased dramatically
In Court
Goode v Angland [2017] NSWCA 311

In Goode v Angland [2017] NSWCA 311, the court considered whether section 5L of the Civil Liability
Act 2002 (NSW) could be relied on as a defence to claims of professional sporting negligence.
Goode sustained serious injuries in a fall while he was riding as a professional jockey in 2009. Goode
claimed that his injuries were directly caused by the negligence of another jockey, Angland, who he
claimed rode in such a manner as to cause interference with his horse.
Ultimately, the court determined that the risk of falling from a horse and being seriously
injured is an ‘obvious risk’ for jockeys. The Civil Liability Act 2002 (NSW) provides that a person
is not liable in negligence where an obvious risk eventuates when participating in a dangerous
recreational activity.
Review 5.6
1 Consider the idea that ‘what happens on the field, stays on the field’. Assess if this approach is
ever appropriate in sport. Discuss with examples.
2 Explain why athletes would pursue civil action rather than criminal action.
3 Describe in what way the case of Goode v Angland changed civil claims for compensation.

While the decision was a victory for Helen Taylor, Women’s sport began to grow at such a rapid pace
questions remain about its application to other sports, that by 2019, seven professional women’s sports
and how great the differences between ‘boys’ and girls’ leagues have been established. Sports such as
physical attributes would have to be in other sports in cricket (WBBL), Australian Rules (WAFL) Soccer (W
order to justify an exception to the relevant legislation. League) enjoy increased media exposure; however,
There are also differences in the legislation of the only 10% of live sports broadcasts are devoted to
various states and territories. In New South Wales, the women's sports, reaching just 36% of the audience
exception to the prohibition of sex discrimination is
much less specific and allows female (or male) players
of men's sports. Yet approximately 48% of people
indicated that they would watch more women's
5
to be excluded in any circumstances. sports if it was more accessible, for example,
Section 38 of the Anti-Discrimination Act 1977 available on free-to-air TV. Clearly, issues of
(NSW), headed ‘Sport’, states: discrimination and equal opportunity have
changed since the early 2000s.
In 2019, highly inappropriate comments
Nothing in this Part renders unlawful the
were posted on social media when a photo of
exclusion of persons of the one sex from
AFLW player, Tayla Harris, was released across
participation in any sporting activity not
multiple media platforms. Large sections of the
being the coaching of persons engaged in
community rushed to her defence, but clearly
any sporting activity, the administration
the rise of female athletes as role models and
of any sporting activity or any prescribed
professional athletes does not sit comfortably
sporting activity.
with some people.
Girl power: Measuring the rise of women’s sport in Australia

By Monique Perry, Managing Director, Nielsen Media & Sports, and Kayla Ramiscal, Senior
Manager, Nielsen Sport
6 March 2019
Today, the ‘value’ of a sport is primarily based on TV viewership and attendance. For women’s
sport, it is widely assumed that ‘the attendance and viewing is just not there’. While these
traditional yardsticks are an important trading currency, our research shows that women’s sport has
broader engagement, influence and value.
Top-level traditional metrics do not favour women’s sports: women’s sport makes up just 10% of live
sports broadcasts; and with a unique broadcast reach across the keys sports of five million people,
it represents just 36% of the audience of men’s sport (13.8 million).
But women’s sport is growing and this is an indicator of future success. There are now seven
professional women’s sports leagues, five of which have been established in the past five years. As
popularity continues to increase, it’s inevitable that both brands and rights holders have questions
about audience, engagement, opportunities and return-on-investment attached to women’s sport.
Overcoming barriers to engagement is key. Interest in women’s leagues and sports is higher when
a free-to-air broadcasting strategy has been developed and executed. One-in-two (48%) people say

News (continued)
they would watch more women’s sport if it was accessible on free-to-air TV or free online. Facebook
is the most popular social media channel to follow women’s sport (87%), followed by YouTube (56%)
and Instagram (43%).
In Australia, Facebook and YouTube are the most popular social media channels for
following women’s sport.
The Rebel Women’s Big Bash (WBBL) and the Women’s Australian Rules Football league (AFLW),
for example, have attracted large audiences, stand-alone sponsorships and broadcast revenue.
Launched in 2015, the WBBL, a Twenty20 competition, has proved a remarkable success, attracting
an early free-to-air partner in Network Ten and title sponsorship from sports retailer, Rebel. In
December last year, Rebel renewed its deal for a further three years while in April, Seven acquired
the rights to broadcast 23 WBBL games per season for the next six years. Australians’ interest in
women’s cricket now stands at 43%.

News (continued)
Meanwhile, in Australian rules, the eight-team AFLW staged its inaugural season in 2017. Games in
that first season were largely free to attend, while the broadcast strategy revolved around coverage in
local markets on the Seven network – mainly the free-to-air digital service 7mate – with further national
coverage provided by Fox. Forty-one per cent of Australians are interested in women’s Aussie rules.
And let’s not forget Suncorp Super Netball, which draws larger audiences across the season than
any other women’s code and has the largest share of female viewers. 5
Women’s sport has intangible association value. Around eight-in-ten (78%) female sports fans say it
is important for sponsors to support women’s sport; and 74% say companies involved in sponsoring
sport gain in appeal with the audience.
We have already seen a shift in partnerships across women’s sport. Existing brand sponsors are
expanding their portfolios or switching completely from men’s sport to women’s. While brands that
are new to sponsorship, including Harris Scarfe and Priceline Pharmacy, are coming in at a lower
level – often as club sponsors.
Wider societal issues around diversity and equality are also playing into women’s sports investment
decisions. And there are more opportunities available in this comparatively uncluttered market at
a cheaper price. Not to mention the strong positive sentiments towards sponsors who are involved
in female sport sponsorship. Female athletes are seen as inspirational, considered role models and
positive advocates of healthy body image.
The rate of change in women’s sport is one of the most exciting trends in the sports industry right
now. At Nielsen, we are committed to integrating women’s sport into our current platforms for more
accurate and comparable measurement of key metrics. By collaborating with the industry, we also
need to develop new inputs including digital, social, net promoter scores and growth indices to
provide a more complete picture.
Making sense of what the future holds for women’s sport and the opportunities attached to it is
fundamental. For rights holders, brands and the media, women’s sport represents a chance to
develop a new commercial proposition and engage fans in a different way.
Figure 5.8 AFLW Carlton Blues forward, Tayla Harris, speaks in front of messages in support of women’s football
during a press conference at Ikon Park on 20 March 2019 in Melbourne.

Research 5.2
Respond to the following questions after referring to the Anti-Discrimination Act 1977 (NSW).
1 Discrimination based on gender is explicitly prohibited by this Act. Outline other characteristics
besides gender that do not justify discrimination, according to the Act.
2 Discuss if any of these characteristics are relevant to discrimination within sport. Describe any
situations in which they might be relevant. Discuss.
3 Assess if a person’s gender is different in any way from these other characteristics. Justify
your response.
5.6 Agencies of law reform In 2001, the All Australia Netball Association (AANA)
relating to sport issued a ban to prevent pregnant women from
playing in the national competition. This included the
Australian Human Rights captain of the Adelaide Ravens, Trudy Gardner, who
Commission was 15-weeks pregnant at the time. Gardner lodged
a complaint with HREOC, claiming discrimination
The Australian Human Rights Commission (AHRC)
on the grounds of her pregnancy under the Sex
is an independent statutory organisation, established
Discrimination Act 1984 (Cth). Gardner and the AANA
in 1986. It was called the Human Rights and Equal
were unable to resolve the disagreement in that forum
Opportunity Commission before 2008. The AHRC
and she took them to court, seeking an injunction to
investigates and reports to federal parliament
allow her to continue to play pending the outcome
about issues of human rights compliance, resolves
of her complaint. She missed three games due to
discrimination complaints and breaches of human
the ban, but the Federal Magistrates Court (now
rights, holds public inquiries, provides advice and
called the Federal Circuit Court) granted the interim
submissions to parliament, and conducts research into
injunction. Because of missing those three games,
human rights and discrimination issues. These issues
Gardner lost match payments and sponsorship.
cover a broad range of areas such as the provision of
Gardner successfully sued the Netball
goods and services, education, employment and sport.
Association in 2003 (Gardner v AANA Ltd [2003]
The AHRC can investigate complaints of
FMCA 81), seeking damages for distress, pain and
discrimination and assist in reaching agreement
suffering, as well as the loss of the match payments
between a complainant and the organisation or
and sponsorship money. The Federal Magistrates
company against which the complaint is made. It
Court found that the prohibition had breached
does this through conciliation, in which it acts as
sections 7 and 22 of the Sex Discrimination Act 1984
an impartial referee while the parties talk through
(Cth).
their concerns and look for solutions.
conciliation NSW Law Reform Commission

a form of alternative dispute resolution in which the Match-fixing is a term used to describe corrupt
disputing parties use the services of a conciliator, who takes
an active role, advising the parties, suggesting alternatives behaviour in predetermining the result of any
and encouraging the parties to reach agreement; the particular sporting event. The sole reason for fixing a
conciliator does not make the decision for the parties
match is to guarantee the result so that a bet placed
Research 5.3
View the AHRC’s website and research other areas dealt with by the AHRC in relation to sport. You
might first try searching the site using the word ‘sport’.

on the match would lead to a windfall for a gambler. women to continue playing sport, the guidelines offer
In 2011, the NSW Law Reform Commission described information and advice to protect sporting clubs.
some reasons why existing common law and As employers, clubs are concerned to avoid being
statutory offences that might apply in circumstances sued for negligence if a player suffers foreseeable
of match-fixing were inadequate to cover the range of harm to herself or her foetus while engaging in sport.
new match-fixing behaviours. For example, in rugby
league, bets can now be placed on whether the first
5.7 M
echanisms of law reform
scoring play of a game is a penalty goal or a try.
The commission was responding to cases such relating to sport 5
as that of Ryan Tandy, who played in an NRL match
in August 2010 and was found guilty of criminal The courts
behaviour because of his actions during the first few As discussed in Chapter 4, the courts’ role in
minutes of the match. Tandy created a situation that interpreting legislation as applied to a particular case
may have led to the opposing team taking a penalty is to clarify the law’s meaning. Where a higher court
goal in the first few minutes of play. The result of the sets a precedent, it is making a statement about the
match overall was of little concern. Prior to this case, application of the legislation or common law rule in
‘match-fixing’ could be prosecuted under offences relation to a set of facts and the way the law should
that did not use consistent terminology – some be applied in the future. A court’s consideration
focusing on fraud, dishonesty and/or corruption – or of a situation and the arguments for and against
that required the person charged to have obtained a claim can reveal unfairness or injustice in the
a benefit or be directly engaged in gambling. Since legislation itself.
Tandy did not place a bet on the game in question, In 2003, the then federal Sex Discrimination
but informed others of his intended actions so they Commissioner, Pru Goward, commented on
could benefit, his defence revolved around this notion Gardner’s case, saying that it was good to see
that he had not placed a bet on this particular match. the courts developing case law around the Sex
Under existing laws, Tandy may not have had Discrimination Act 1984 (Cth). The circumstances
charges laid against him, however, by 2012, the of pregnant women continuing to pursue sport at
Crimes Act (Cheating At Gambling) 2012 (NSW) high levels constituted a new application of the anti-
had been enacted. This legislation aimed to outlaw discrimination legislation.
behaviour previously inadequately covered.
Court of Arbitration for Sport
Australian Sports Commission The Court of Arbitration for Sport (CAS) was
The Australian Sports Commission (ASC) is established in 1984 as part of the International
an Australian Government statutory authority. Olympic Committee. It is an international arbitration
Established through the Australian Sports body established to settle sport-related disputes.
Commission Act 1989 (Cth), the ASC is involved in Based in Lausanne, Switzerland, it has courts in New
the operation and development of sport at all levels. York City and Sydney, as well as ad hoc, temporary
It provides advice to the government and funding courts in Olympic host cities. The CAS settles
to national sporting organisations. The Australian disputes through arbitration, where the parties
Institute for Sport (AIS) is one of its divisions. have agreed to its jurisdiction, and its decisions are
Because of the netball ban, the ASC was asked to binding. It hears two types of dispute:
investigate the issues surrounding pregnant athletes. • commercial, including contract disputes,
It hosted the National Forum on Pregnancy in Sport sponsorship and television rights, as well as
in August 2001, with participants from government, civil liability claims such as athletes’ accidental
industry and non-government organisations. Its injuries during competition
conclusions formed the basis for a set of guidelines • disciplinary, including drug-related problems,
for the Australian sporting industry on pregnancy in violence on the field and abuse of referees.
sport. In addition to clearing the way for pregnant

The World Anti-Doping Agency (WADA)

appealed the outcome of the FINA investigation,
asking that Sun Yang be banned from competing
for a maximum of eight years.
In November 2019 Sun Yang appeared before
CAS in an effort to clear his name. Unusual about
the event was that it was public and live-streamed.
Translation issues were experienced throughout
the day.
The February 2020 judgment by three senior
judges found Sun Yang guilty of refusing to
cooperate with the sample testers and banned him
from swimming for a period of eight years, effectively
ending his career.
Subsequently, CAS president John Coates
defended the integrity of Sun Yang's hearing,
Figure 5.9 Sun Yang at a Court of Arbitration for Sport
saying that the translation issues did not affect the
hearing on 15 November 2019 in Montreux, Switzerland.
judgment and that the defendant's lawyers could
Disciplinary cases are generally first dealt with by have requested for the case to be heard over a longer
the ‘competent sports authorities’, for example, period.
the Australian Olympic Committee. Appeals then
may go to the CAS. In 2019, Chinese swimmer Parliaments
Sun Yang smashed a vial of his own blood, As we have seen, matters sometimes come before
rendering the sample useless for analysis. Yang a court before they have been considered by
claimed the officer taking the sample did not have parliament. When a legal decision reflects new
proper accreditation and that he feared for his social patterns or attitudes, parliaments may enact,
own security. The governing body representing amend or repeal legislation to ensure that the statute
World Swimming, FINA, investigated the matter, law stays current and credible. This often happens
but appeared to condone Yang’s actions and he after extensive consultation with bodies such as law
went unpunished, despite claims in the Australian reform commissions, human rights commissions,
media that he was a drug cheat and feared being or – in the case of sports law – the Australian
found out through the blood sample. Sports Commission.
Review 5.7
1 Assess if the law that relates to pregnant athletes should be different from the law that protects
equal opportunity for female athletes.
2 a Identify the types of matters heard by the Court of Arbitration for Sport.
b Review the Sun Yang case.
c Discuss if CAS should be able to overrule governing bodies like FINA.
3 Discuss whether a fight on a football field is different from a fight on a street corner. Assess
whether penalties for fights on a sporting ground should be less than for assaults committed on
the street.

5.8 Effectiveness of law reform Indeed, in 2013 the National Football League
relating to sport (NFL) of the United States settled on a $765 million
package to support the 4500 players who were suing
Contract the league for damages. The players claimed the
NFL had known of the long-term dangers of head
Breaches of contract in the sporting world may have
collisions, that they had concealed such information
different particulars from breaches of contract in
from the players and failed to notify them of such
other areas of business, but the mechanisms and
remedies are not markedly different. The Israel Folau
dangers during their careers. By 2015, the NRL had
introduced new rules whereby players that received
5
and Jack de Belin cases illustrate the increasingly
head knocks are to be assessed by a doctor and
changing nature of commercial sport relating
often not allowed to continue the match. This rule
to human rights and equality as the community
is designed to recognise the issue of long-term brain
demands the highest standards of conduct off the
damage to athletes who receive repeated head
field. However, it is not clear that there is a significant
traumas. However, in 2019 confusion continued to
need for law reform in this area.
reign over players being allowed to return to the
field during match days. NRL player Robbie Farah
Harm suffered in sport received a knock to his head during a game and
Two social factors contributing to players’ appeared to stumble as he was escorted from the
preference for civil remedies rather than the field. He subsequently passed his HIA but was not
criminal law are a greater readiness to sue and permitted to re-enter the match, much to his coach’s
the professionalisation of sport. While the sums of displeasure as his team lost an important match.
money involved are relatively large in professional
sport, the purpose of tort law remains the same: to Equal opportunity in sport
compensate people for losses or damage suffered Local, national and international interest in ensuring
because of wrongs done to them. As mentioned, women’s equality with men in all areas, including
Alex McKinnon sought compensation of up to participation in sport, has prompted legislation
$10 million to cover his physical and medical needs at both state and federal level. Australia is a
for his lifetime, as well as the potential loss of signatory to the Convention on the Elimination of All
income and welfare. Forms of Discrimination against Women (1979), and
domestic legislation implementing this treaty makes
tort law
the body of law that deals with civil wrongs including discrimination on the basis of gender unlawful.
negligence, defamation, trespass and nuisance In addition, legislation such as the Racial
Discrimination Act 1975 (Cth) and the Disability
One consequence of widespread recourse to the Discrimination Act 1992 (Cth) protects other groups
civil law is fear of lawsuits. For example, schools may that have historically been disadvantaged. The
decide to phase out contact sports such as the rugby work of statutory bodies such as the Australian
codes if claims by students injured while playing Human Rights Commission is vital in addressing
become a common occurrence. Another concern issues of equal opportunity, and court cases such
is that players who are seriously hurt in situations as Trudy Gardner’s have provided further factors
where no one is at fault – for example, where a tackle for parliaments to think about when drafting
is perfectly within the rules of the game – are just legislation. In the course of law reform, parliaments
as much in need of financial assistance as those must balance concerns about negligence claims
awarded damages, yet insurance coverage may be against the need for fairness.
inadequate for their needs.

‘Groundbreaking’ discovery in NRL brain disease crisis

The Courier Mail
27 June 2019 Rugby league legend Peter Sterling has revealed he will donate his brain to science
after his death due to the increased concerns around concussion in the sport.
A disease linked to repeated concussions in American sport has been found in the brains of two
former Australian rugby league players.
The discovery is the first time Chronic Traumatic Encephalopathy – or CTE – has been identified in
a NRL athlete.
CTE is a degenerative brain disease that has been found in former players of American football, ice
hockey, soccer, rugby union and others exposed to repeated head injury.
Speaking on Macquarie Sports Radio’s Halftime with James Willis, Sterling said he wanted to
donate his brain as it will help future NRL players.
‘This has been an ongoing concern as we learn more in the future. I’ve said yes to donating my
brain to science in the future and I believe it is going to help players in the years to come’, he said.
‘I’m not scared but I am concerned. The decision to donate my brain was a decision not taken lightly
but I think it’s important that something like that can help so that we know more and we can take the
appropriate steps as that knowledge becomes readily available.’
While the effects and risks of concussion are starting to be more broadly known, Sterling said the
NRL has been working in the right direction when it comes to the rules and regulations surrounding
head knocks, including the HIA.
‘The rules that the NRL has put in place was a stand that they needed to make, as a welfare issue
for the players, and to err on the side of caution’, he said.
‘The NRL was doing the right thing by their players and legally as well so that we don’t go down the
same route as the NFL, so, fortunately, those protocols have changed.’
Researchers and clinicians from the Royal Prince Alfred Hospital, NSW Health and the University
of Sydney’s Brain and Mind Centre made the discovery in two donated brains from middle-aged
former professionals who played more than 150 NRL games over many years.
Research 5.4
1 Read the article ‘ “Groundbreaking” discovery in NRL brain disease crisis’ and answer the
following questions.
a Discuss why a former rugby player would agree to donate his brain to science.
b Assess if former rugby players should have the right to compensation given they have given
express consent in a sport that allows strong physical contact.
2 Evaluate the effectiveness of sports law in dealing with the rights of players to safety and/or
compensation for injuries.

Topic 2 summary
• Sports law is a complex combination of tort, • Rules of the games, set down by governing
criminal and contract law, and both statute and bodies, can be enforced in court, and players
common law. may face criminal charges or civil action for
• Sport has changed dramatically in the past harm inflicted.
40 years: it is broadcast nationwide, and • Coaches, referees and administrators may be
major companies spend vast sums of money subject to a claim in negligence for breaching
sponsoring teams and competitions. Gambling their duty of care. 5
on a range of sporting outcomes has become • Agencies of law reform in sport include the
far more widespread. Australian Sports Commission and the
• Athletes are held responsible for their intentional Australian Human Rights Commission.
actions both on and off the sporting field.
Topic 2 questions
1 Sports law is: c there is usually not enough evidence to
a the rules of any particular sporting body. prosecute a criminal case.
b the law made by the Australian Sports d witness statements from players cannot be
Commission. accepted in courts.
c a combination of various statutes, common 4 The Anti-Discrimination Act 1977 (NSW)
law judgments and tort law. gives an exception to the prohibition of sex
d none of the above. discrimination for which participants in
2 Express consent means: sporting activities?
a players may do whatever it takes to win a a coaches
game. b players
b what happens on the field stays on the field. c administrators
c players must give consent before they play d all of the above
a game. 5 The case of Trudy Gardner demonstrates:
d players accept the possibilities that can a a conflict between sporting rules and
occur within the course of a game. anti-discrimination laws.
3 Victims of assault on a sporting field usually b how sporting bodies are subject to
take legal action through civil courts because: legal action.
a criminal law does not apply on the sporting c the ability of individuals to challenge
field. decisions in courts.
b victims’ compensation is inadequate for d all of the above.
professional athletes.
1 Outline the changes in attitudes to sport that 4 Assess why victims of violence on the sporting
have occurred over the past few decades. List field do not report the offence to police.
some of the consequences of these changes. 5 Explain the link between the NFL, NRL
2 Explain the importance of the law in governing and Rugby Australia in terms of HIA and
on-field behaviour in contact sports. concussions. Discuss if governing bodies
3 Explain how contract law relates to should take such precautions.
professional athletes and clubs. Describe what
can happen if a contract is breached.

Topic 3
Law reform and sexual assault
Relevant law
Criminal Procedure Act 1986 (NSW)
Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 (NSW)
Criminal Procedure Amendment (Evidence) Act 2005 (NSW)
Criminal Procedure Further Amendment (Evidence) Act 2005 (NSW)
Crimes Amendment (Consent – Sexual Assault Offences) Act 2007 (NSW)
SIGNIFICANT CASES
R v Anon (‘gang-rape case’)
R v MM [2002] NSWCCA 58
R v MC [2009] VSCA 122
R v MAK [2005] QCA 57
R v BS & MS (‘gang-rape trial’)

5.9 Conditions that led to

law reform relating to violence context. Therefore, an important
sexual assault part of the law reform focus should be on
One of the central aims of the criminal justice system is
measures that might promote reporting
to prosecute criminal offenders on behalf of the victims
and challenge community attitudes to
and the community. Throughout the process, there is
sexual assault that continue to reinforce
a tension between the rights of the accused and the
its invisibility.
interests of individuals and the community; getting this 5
balance right is a constant challenge for the state.
There has been significant law reform in relation
Under-reporting is hard to gauge so only estimates
to sexual assault offences over the past decade.
can be used in approximating the incidents of sexual
This has been motivated by perceptions that the
assault in homes and the broader community.
criminal justice system was failing to deliver justice
Organisations such as Rape and Domestic Violence
for sexual assault victims and just outcomes for the
Services Australia and Australia’s National Research
community.
Organisation for Women’s Safety are sources of
sexual assault information about the rate of domestic and sexual
a general term for criminal offences involving unwanted violence against women. The ABS also periodically
sexual contact; acts include unwanted touching or groping,
conducts a ‘Personal Safety Survey’. Figure 5.10
indecent acts of other kinds, and rape
illustrates the results from the 2016 survey, which
was conducted from November 2016 to May 2017.
Current statistics allude to the shocking extent of
Under-reporting can be attributed to several
sexual assault and sexual violence experienced
factors. Many victims do not report sexual assault
by (mainly) women in Australia. According to the
because they believe they would not win a court case
Australian Bureau of Statistics (ABS), the sexual
or that it will be too much trouble, or they cannot
assault victimisation rate in 2019 was 105 victims per
face it emotionally. Compounding this is the fact
100 000 people. The ABS also revealed that persons
that in 70% or more of cases, the victim knows the
aged 19 years and under account for approximately
offender. In addition to this, there is no established
60% of all victims of sexual assault.
system for addressing the ‘multiple needs’ of some
Women are more affected than men by sexual
victims, including translation, mental health support,
assault and sexual violence. One in five women will
accommodation and counselling.
experience sexual violence in their lifetime compared
The Director of Public Prosecutions will generally
to one in 20 men, according to the Australian
prosecute if there are prospects of a conviction and
Government’s 2018 report, Family, Domestic and
it is in the public interest. Where the victim knows
Sexual Violence in Australia.
the attacker – which is the case in the majority of
Sexual offences are the least-reported crimes in
reported sexual assault cases – much of the case
New South Wales. As found by the Australian Law
relies on one person’s word against another’s unless
Reform Commission (ALRC), this under-reporting
there is convincing physical evidence. Advocates for
makes it difficult for the legal system to respond to
victims of sexual assault argue that cases that involve
this type of crime. In its 2010 report, Family Violence:
a stranger are more likely to proceed, because it is
A National Legal Response, the ALRC stated:
easier to establish that the sex was not consensual,
the assaults are often more severe, and there is more
Understanding that sexual assault is likely to be strong physical evidence.
under-reported is crucial background Physical evidence often poses another major
when considering the response of the obstacle in prosecuting sexual assault cases. Victims
criminal justice system. The vast majority of sexual assault generally need to be physically
of incidents of sexual assault do not come examined and questioned in detail to obtain evidence
to the attention of the legal system. The that can be used in court – many victims consider
problem is exacerbated in the family this process to be too traumatic.

Figure 5.10 Research from the 2016 Australian Bureau of Statistics Personal Safety Survey and the
Australian Institute of Criminology shows that both men and women in Australia experience substantial levels of
violence. Domestic and sexual violence is overwhelmingly committed by men against women.
Source: ABS
In addition, there has been a lack of state resources Guidelines had been updated. These guidelines help
provided to doctors who work in sexual assault sexual assault nurse examiners meet the medicolegal
services. In September 2018, the International needs of those who have been affected by sexual
Association of Forensic Nurses announced that the violence, including individual patients, families,
Sexual Assault Nurse Examiner (SANE) Education communities and systems.

Although there have been improvements in this 5.10 A

gencies of law reform
area, victims still must go through a difficult ordeal relating to sexual assault
to ensure sufficient physical evidence is obtained to
strengthen prospects of a successful prosecution. Criminal Justice Sexual Offences
Because of these and other factors, a formal Taskforce
complaint of a sexual offence has a low likelihood
The Criminal Justice Sexual Offences Taskforce was
of leading to a formal investigation, and even when
established in 2004 by the New South Wales Attorney-
there is an investigation it probably won’t result in a
trial. The ABS’s 2016 national Personal Safety Survey
General to investigate issues relating to sexual assault 5
and the prosecution of these crimes. Its task was to
reported that approximately 20% of women who had
advise the Attorney-General on how the criminal
experienced sexual violence by a male offender had
justice system could become more responsive to
reported the violence to the police. Again, this figure
victims of sexual assault without undermining the
is hard to accurately quantify.
right of the accused to receive a fair trial.
The taskforce had input from a broad cross-section
of government and non-government organisations, in
In New South Wales, the number an effort to obtain various viewpoints on the criminal
of sexual offences reported to police justice system. It produced 70 recommendations.
exceeded the number of proven charges Because of its report, new legislation was passed
by about 10 to one … Approximately from 2005, some of which is discussed below. In
8% of sexual offences committed against conjunction with the taskforce investigation, the
children and 10% of recorded sexual NSW Government also asked the Australian Institute
offences against adults reported to police of Criminology (AIC) to investigate whether giving
are ultimately proven at court. evidence via closed-circuit TV altered the impact
of the evidence as it was received; that is, whether
Jacqueline Fitzgerald, ‘The Attrition it was likely to reduce the empathy the jury might
of Sexual Offences from the New have for the victim or the accused. The AIC found
South Wales Criminal Justice System’, that there was no real difference in jury responses.
92 Contemporary Issues in Crime and Justice These findings went some way to convincing the
(January 2006), NSW Bureau of Crime government that this could be a reliable mode of
Statistics and Research. delivering evidence for traumatised victims who did
not want to be in the same room as the accused.
As a result, since 2015, victims of sexual assault have
been able to give evidence via closed-circuit TV, with
Given the estimates of the number of unreported the victim speaking to a camera, which is shown on a
incidents, this conviction rate represents a small screen in the court. This means that the victim does not
proportion of the incidents that are occurring. It is have to go into the courtroom to give evidence. Further,
worth asking why this is the case, especially when if there is an aborted trial, a hung jury or a retrial, the
compared to other categories of crime. recording from the first trial can be re-used, saving the
Review 5.8
1 Outline some reasons for the low percentage of sexual crimes reported to the police.
2 Discuss some of the difficulties in proving a sexual assault case when the victim knows
the attacker.
3 Discuss why specific training is important for doctors and nurses who deal with sexual
assault victims.

Legal Links
For more information, view the website of Rape and Domestic Violence Services Australia.
victim from giving evidence a second time. The law says justice system. The organisation provides
that in a following trial the ‘best copy’ of the evidence- support services, undertakes research, and links
in-chief and cross-examination can be used. This may to other bodies in Australia. It provides support
be a written transcript, an audio recording or a video and counselling for anyone who has experienced
recording. Such changes attempt to reduce further sexual violence.
traumatisation of the victim in these trials.
NSW Bar Association
Rape and Domestic Violence The NSW Bar Association, the professional
Services Australia organisation for barristers in the state, has rewritten
Rape and Domestic Violence Services Australia its own rules for the cross-examination of alleged
is at the forefront of reforms to the way sexual victims of sexual assault. Questions that belittle,
assault matters are dealt within the criminal confuse or mislead victims are banned. Attacks on
the victim, it is hoped, will now not be permitted in
Figure 5.11 Rape and Domestic Violence Services
Australia is a support and referral service for victims of
the courtroom.
sexual violence; its services are available 24-hours a day
via telephone or online. The media
Criminal cases involving sexual assault have
received significant media attention over the past
decade. The media’s influence on public opinion,
law organisations and governments has resulted
in changes that improve the treatment of victims of
serious sexual assault crimes in court. Victims being
forced to recount their experience over and over,
and defence counsel badgering victims in cross-
examination to call their credibility into question, have
been graphically portrayed by the media and have
Figure 5.12 Noriyuki Yamaguchi (right) and his lawyer attend a press conference in Tokyo, Japan, on 18 December 2019.
Yamaguchi is a former journalist who was accused of raping fellow journalist, Shiori Itoˉ , in one of the most high-profile
cases of the #MeToo movement in Japan. A Tokyo court awarded 3.3 million yen ($30 000) in damages to Itoˉ .

Research 5.5
On the internet, find some or all of the following articles:

• Adele Horin, ‘One in four women suffer sexual violence: Study’, The Sydney Morning Herald,
3 August 2011
• Adele Horin, ‘Slut Walk turns apathy into action on sex attacks’, The Sydney Morning Herald,
13 June 2011
• Stephanie Anderson, ‘Sexual assault: How common is it in Australia?’, SBS, 17 July 2015 5
(updated 23 August 2015)
• Michaela Whitbourn, ‘Plan unveiled to “strengthen” sexual consent laws in NSW’, The Sydney
Morning Herald, October 2019.
1 Read these articles and comment on the complexity of the sexual assault issue and the difficulty
in ensuring justice is achieved.
2 Outline the criticisms made of the criminal justice system in these articles. Identify and discuss
some reforms that could improve the effectiveness of sexual assault laws.
horrified the public and many in the legal profession. complainant

Frequently, however, the positive outcomes have a person making a formal complaint in a court of law
been accompanied by less desirable ones, such
as the rights of the accused being accorded a low • Criminal Procedure Amendment (Evidence) Act
importance, and a readiness to exploit the prejudices 2005 (NSW): This Act amended the Criminal
of some segments of the public. Procedure Act 1986 (NSW) to allow a transcript
or recording of a complainant’s evidence in any
retrial. If the evidence is admitted in a retrial, the
complainant cannot be forced to give further
5.11 Mechanisms of law reform evidence unless she or he decides to do so.
relating to sexual assault • Criminal Procedure Further Amendment
(Evidence) Act 2005 (NSW): Certain provisions of
Parliament this Act were designed to ensure that improper
There have been many Acts passed by the New questions were not put to complainants during
South Wales Parliament over the past few years to cross-examination. It also provided for evidence
usher in reform in sexual assault matters. Some of to be given in camera (privately) and for support
the key legislation is: people to be close to a complainant when they
• Criminal Procedure Amendment (Sexual Offence are giving evidence. The Act also introduced a
Case Management) Act 2005 (NSW): This Act new section into the Criminal Procedure Act 1986
amended the Criminal Procedure Act 1986 (NSW) to prevent an unrepresented accused
(NSW) to provide that a pre-trial order made from cross-examining the complainant.
by a judge in proceedings relating to a sexual • Crimes Amendment (Consent – Sexual Assault
offence is binding on whatever judge presides Offences) Act 2007 (NSW): A person’s lack of
at the trial. Rulings on the admissibility of consent and knowledge that a person is not
evidence by a judge other than the trial judge consenting are elements of sexual assault
need to be binding on the trial judge, so that offences such as rape. If someone is under
delays in the commencement of criminal the influence of alcohol or drugs, they may not
proceedings are minimised. The legislation was have the capacity to give consent. In court, an
designed to minimise the stress and trauma accused will be examined by the prosecution on
on complainants giving evidence, who had to what steps he or she took to ensure that there
prepare themselves to give evidence every time was consent. The Crimes Act 1900 (NSW) was
a trial was scheduled and rescheduled. amended to place the onus on the defendant

to prove there was consent; in the past the commission, ‘freeze’ in fear. Concerns about the
prosecution had this responsibility. efficacy of existing consent laws were triggered by
the Lazarus case (see the ‘News’ box below).
In 2019, there are calls to further amend the laws of
consent concerning sexual assault after the NSW in camera
(Latin) ‘privately’; only specified persons (e.g. a judge) can be
Law Reform Commission tabled a report. One present during the testimony or proceeding
recommendation in the report was that a person does
consent
not consent to sex if they do not ‘say or do anything’ free and voluntary agreement by a rational person who is able
to communicate consent. This is aimed to protect to understand and make a decision about the matter to which
he or she agrees
the rights of victims who may, in the words of the
Plan unveiled to ‘strengthen’ sexual consent laws in New South Wales

By Michaela Whitbourn
21 October 2019
New South Wales would follow the lead of Victoria and Tasmania in amending sexual assault laws to
clarify that a person does not consent to sex if they do not ‘say or do anything’ to communicate consent,
under a plan designed to ensure a person who ‘freezes’ in fear is not mistaken for a willing participant.
The NSW Law Reform Commission published a series of draft proposals late on Friday, which it
says will strengthen and simplify the ‘highly complex and controversial’ law of sexual consent,
following almost 150 formal submissions and 1800 responses to an online survey.
Its proposals were welcomed by the peak bodies lobbying for the changes, including Domestic
Violence NSW, but have already provoked debate among criminal defence advocates and the
Australian Lawyers Alliance, which accused the commission of caving in to lobby group pressure.
The Berejiklian government commissioned the review of consent laws in May last year following the
high-profile acquittal in 2017 of Luke Lazarus, who was accused of raping an 18-year old woman,
Saxon Mullins, in an alleyway behind his father’s Kings Cross nightclub in 2013.
The New South Wales Court of Appeal found the District Court judge who acquitted Mr Lazarus
after a retrial failed to comply with a statutory requirement that she consider the steps Mr Lazarus
took to ascertain consent. However, it left his acquittal in place on the basis that a third trial would
be ‘oppressive’ in the circumstances.
Among the submissions to the review was a controversial proposal by the NSW Bar Association to
water down sexual assault laws by removing or reducing criminal sanctions for offenders who had
an honest but mistaken and unreasonable belief a person was consenting to sex. The commission
did not endorse this proposal.
In a centrepiece reform, it proposed changes to bring New South Wales into line with Tasmania
and Victoria, where the criminal law states explicitly that a person does not consent to sex if they do
not ‘say or do anything’ to ‘communicate’ or ‘indicate’ consent.
The new law would recognise that ‘a person who “freezes” out of fear and is unable to communicate
does not consent’, the commission said.

News (continued)
It said the objectives behind the ‘communicative model of consent’ already underpinned New South
Wales law, as in Victoria and Tasmania, but it sought to ‘strengthen’ this with the proposed changes.
The commission also suggested new interpretive principles be included in the state’s Crimes Act,
including that ‘every person has a fundamental right to choose whether or not to participate in a
sexual activity’; ‘a person’s consent to a sexual activity should not be presumed’; and ‘sexual activity
should involve ongoing and mutual communication’. 5
Domestic Violence NSW chief executive Joanne Yates said the ‘improved definitions of consent’
were a ‘really positive’ step and the proposed interpretive principles were ‘very, very important … to
have enshrined in the Crimes Act’.
Ms Yates said, ‘we would hope that the people and organisations that are still interested in this
issue will … resubmit to the Law Reform Commission’s [review] process’ to ensure the changes
were ‘finally enshrined’ in New South Wales law.
Submissions on the draft proposals are open until 18 November, and will inform the final report.
Under the existing law in New South Wales, a person consents to sex if they ‘freely and voluntarily’
agree to it, and a similar definition applies in Victoria and Tasmania.
The Crimes Act already sets out a number of circumstances in which consent is not present,
including if the person is ‘substantially intoxicated by alcohol or any drug’.
The existing law says a person who does not offer physical resistance to sexual activity ‘is not, by reason
only of that fact, to be regarded as consenting’. This would be expanded to refer to verbal resistance.
Community Legal Centres NSW, the peak body for legal centres in the state, said in its submission
to the review that adopting the Victorian and Tasmanian changes would remove ambiguity in the
current law ‘by making immediately clear that active communication is a core element of consent’.
But critics have suggested the changes have little practical effect and may introduce uncertainty.
Australian Lawyers Alliance national criminal justice spokesman Greg Barns said, ‘the reform
proposals look awfully like a case of the commission caving into media and lobby group pressure’.
‘The NSW Bar proposal is fair, workable and accords with common sense. It is a pity the
commission has not adopted it. The communicative model of consent is not based on reality and
will lead to injustice,’ Mr Barns said.
The Office of the NSW Director of Public Prosecutions said in its submission that there was ‘no
particular advantage’ in adopting the Victorian or Tasmanian law and public education campaigns
to ‘dispel “rape myths” and reduce sexual violence generally … would have a greater impact’.
Experts have previously said that it is not clear that changing the law would have resulted in a
different outcome in the Lazarus case.
The courts
While recommendations of the Criminal Justice largely been brought about as a result of legislation.
Sexual Offences Taskforce have changed the manner Changes in social attitudes regarding sex crimes will
in which judges and the courts deal with matters doubtless lead to future court decisions rethinking
of serious sexual assaults, these changes have

the law or looking at criminal law issues in the area prosecuted are serious concerns for the NSW
of sexual assault in a way that leads to law reform. Government and for the community at large. The
Judges in cases where a guilty verdict was returned legislation passed from 2005 onwards has attempted
have handed down some severe penalties, both to send to address these problems. The chief task of this
a message of general deterrence to the community and legislation is to ensure that the court process, while
to reflect the severity of the offences. For example, Bilal protecting the right of accused people to a fair trial,
Skaf, who was convicted as the ringleader in a series does not further traumatise victims.
of gang rapes in Sydney in 2000, received a sentence Changes to the law of consent made in late
of 55 years’ imprisonment, with a 40-year non-parole 2007 may deliver a significant shift in outcomes for
period (this was reduced on appeal). complainants. In the vast majority of matters, where
It has been suggested that specialist courts for the complainant knows the accused, a reversal of the
sexual offences would lessen the trauma suffered onus of proof of consent may make it more difficult
by victims when giving evidence and would improve for the accused to deny criminal responsibility.
conviction rates. Such courts could have appropriate What remains questionable is the extent to which
technology (e.g. closed-circuit TV) and relevant the ‘reasonable grounds’ requirement for believing
facilities (e.g. separate entrances for defendants and that there was consent will unfairly prejudice juries
victims) and be staffed by specially trained judges against defendants.
and prosecutors. The changes to the NSW Barristers’ Rules about
questioning sexual assault victims can only be a good
thing. It is also a sign that the publicity and pressure
5.12 Effectiveness of law exerted by the various agencies of law reform have
reform relating to sexual prompted defence lawyers to rethink their conduct
assault in future cases.
As discussed, the low reporting rates for sexual State governments have implemented at
crimes and the low number of offenders successfully least two-thirds of the 70 recommendations from
Figure 5.13 Badrinath Singh and Asha Devi, the parents of a girl, ‘Nirbhaya’, who was gang-raped and murdered on
16 December 2012 in Delhi, India. Four of the six perpetrators were given the death penalty and, after having their
appeals rejected, executed in March 2020.

the Criminal Justice Sexual Offences Taskforce,

including: In nine out of 10 cases of sexual assault
• trying to address delays in sexual assault reported to NSW Police, however, the
matters coming to court; the District Court has victim and offender already know each
introduced mandatory timetables other. In many cases they are partners
• closing court when victims are giving or former partners. … [T]he capacity of
evidence the police to lay charges and clear the
• allowing complainants to use remote witness
facilities in 78 locations across the state
offence in these circumstances depends
greatly on whether the victim is willing
5
• requiring judges to disallow improper cross- to give evidence and whether there is any
examination questions. corroborating evidence, such as injury to
the victim.
Finally, continuing efforts to educate the public are
equally important. Sexual assault crimes are crimes
of violence, and certain beliefs about gender in our
society need to be articulated and challenged if Continuing education and reforms to the criminal
these crimes are to be properly addressed by the justice system will be necessary to improve reporting
criminal justice system. A NSW Bureau of Crime and collection of evidence to assist in more successful
Statistics and Research report stated that: prosecutions, while balancing the rights of the accused
with those of the victim and the community.
Review 5.9
1 Identify how the New South Wales Parliament has addressed the need for reform in the area of
sexual assault crimes. Give examples.
2 Describe other agencies that have had a role in bringing about changes to the way sexual
assault trials are conducted. Classify each of these agencies with respect to their function and
purpose within the legal system.
3 Outline some of the changes to sexual assault law that have taken place.
4 Discuss how success in this area could be measured. Give examples.
Figure 5.14 On 13 December 2019, in Brasilia, Brazil, people protest against the increase of sexual violence in Brazil.

Topic 3 summary
• There has been significant law reform relating • Law reform agencies that work in the area of
to sexual assault over the past decade, sexual assault include parliamentary inquiries
prompted by the failure of the criminal justice (e.g. the Criminal Justice Sexual Offence
system to deliver justice to victims. Taskforce), non-government organisations
• Sexual assault is a crime with one of the lowest (e.g. Rape and Domestic Violence Services
conviction rates in New South Wales due to Australia) and professional organisations.
investigation failures, delays in cases, a lack of • The media have been influential in putting
resources and a lack of information provided to pressure on governments to reform the laws
victims. relating to sexual assault.
Topic 3 questions
1 Which of the following was not a reason to c There was no difference in jury responses.
reform the law in the area of sexual assault? d Closed-circuit TV evidence was more
a a low rate of reported sexual offences likely to permit the presentation of graphic
b a low rate of convictions evidence.
c the poor level of service to victims in terms 4 The Crimes Amendment (Consent – Sexual
of information and resources Assault Offences) Act 2007 (NSW) changed
d the media was insufficiently interested in the Crimes Act 1900 (NSW) with respect to
sexual assault cases consent. Which of the following is correct?
2 The Criminal Justice Sexual Offence Taskforce a Documentary evidence is needed to
set up in 2004 has brought about which of the establish consent.
following changes? b The onus of proof of consent has been
a legislation to improve procedures for reversed.
giving evidence c Partial consent may be established.
b legislation requiring judgments to reflect d None of the above.
public opinion about sexual offenders 5 The Criminal Procedure Further Amendment
c a greater number of sexual offences (Evidence) Act 2005 (NSW) made which of the
being reported following changes to the Criminal Procedure
d a statutory requirement that the media Act 1986 (NSW)?
report cases with greater understanding of a Hearsay evidence can now be admitted to
the law prove that the complainant consented to
3 The NSW Government asked the Australian sexual intercourse.
Institute of Criminology to investigate whether b It prohibited the cross-examination of
giving evidence via closed-circuit TV altered victims by an accused person representing
the way in which the evidence was received; himself.
that is, whether it affected juries’ empathy c It allows a transcript or recording of a
for the victim or the accused. Which of the complainant’s evidence in any retrial.
following best reflects the Institute’s findings? d It reaffirmed the right of an unrepresented
a Juries were more likely to favour the accused to cross-examine the
accused. alleged victim.
b Juries were more likely to favour the victim.

1 Outline the main issues that prompted law 4 Describe at least three reforms to the law
reform in the area of sexual assault. relating to sexual assault.
2 Discuss the changes to the law of consent from 5 Assess the effectiveness of law reform in
the perspective of the victim and the accused. addressing the issues around sexual assault.
3 Identify and describe the role of some non-
legal measures in addressing the effectiveness
of the law in dealing with sexual assault. 5

Topic 4
Young drivers and the law
IMPORTANT LEGISLATION AND TREATIES
Children (Criminal Proceedings) Act 1987 (NSW)
Children (Detention Centres) Act 1987 (NSW)
Road Transport Legislation Amendment (Car Hoons) Act 2008 (NSW)
Road Transport Act 2013 (NSW)
Road Transport (Driver Licensing) Regulation 2017 (NSW)
SIGNIFICANT CASES
TG v R [2010] NSWCCA 28
SBF v R [2009] NSWCCA 231

5.13 Conditions that led nine months and then could practise their driving with
to law reform relating relatives or instructors. During the 1980s, a person
to young drivers could be granted a provisional licence (P-plates) on
their seventeenth birthday if they passed a practical
For most Australian young people aged 16–25,
and written test. After one year on P-plates, drivers
learning to drive a car and gaining a licence to drive
were automatically granted a C-class licence.
without adult supervision is considered to be a rite
However, in recent years, there have been a
of passage. Being able to drive means freedom from
parents, public transport and a general sense of not
number of tragic accidents, media and public criticism
of young drivers and new restrictions have been
5
having to rely on others to go places. However, the
placed on provisional drivers. The reasons for these
ability to drive a vehicle without adult supervision
restrictions are summarised in the following points:
carries enormous responsibilities, and is subject to
• P-plate drivers are four times more likely than
frequent legislative changes.
drivers with other licences to be involved in
When speaking to older generations of drivers,
fatal accidents.
many can recite stories about going to the nearest
• Drivers aged under 26 make up 15% of licence
police station and doing a driving test with a police
holders but are involved in 36% of road fatalities.
officer and being granted a licence with very little
• One P-plate driver dies in New South Wales
fuss. No photo identification, written tests or
every six days.
logbooks were required in those times. More recently,
• 17 P-plate drivers crash every day.
drivers could obtain a learners permit at 16 years and
Latest road toll figures nothing to celebrate

Media release
Australian Automobile Association
17 January 2019
The latest national road toll figures confirm Australia is not on track to meet road safety targets that
state and federal governments agreed to in 2011.
There is nothing to celebrate in the latest nationwide road toll figures that not only confirm
Australia’s 12-month death toll is higher today than it was almost four years ago, but also show
Australia is not on track to meet road safety targets agreed to by all Australian governments in 2011.
The nation’s peak motoring body, the Australian Automobile Association (AAA), has warned there
is no room for complacency in the latest data, which showed there had been 1146 road deaths in the
past 12 months: a higher toll than in the 12-month period to March 2015, just over three years ago.
The AAA says the latest road toll figures also confirm that Australia is not even close to the 30%
reduction target agreed to by the federal and state governments, to reduce the annual road toll to
998 by December 2020.
‘This devastating count of human lives highlights that the National Road Strategy, agreed to in
2011, is failing because of a lack of resources and willpower from politicians and bureaucrats alike’,
the AAA’s Chief Executive, Michael Bradley, said.
Mr Bradley said road tolls fluctuated from state to state and from year to year, but the heart of the
matter is that our National Road Safety Strategy continued as an unmitigated disaster and was not
on track to meet its objective of a 30% reduction by 2020.

• Crashes cause 66% of deaths among 17 to allows 100 km/h. Many states do not restrict the
20-year-olds. number of passengers P-plate drivers can carry,
• Speed is a contributing factor in 80% of crashes. but in New South Wales, P1 drivers are restricted
• Twenty-five per cent of P-plate drivers admit to one passenger between the hours of 11 pm and
speeding ‘most of or all the time’. 5 am. In Western Australia, P-plate drivers cannot
• In their first year of driving, 33% of drivers crash. drive between midnight and 5 am, except for work
• Restricting red P-plate drivers to one passenger or family reasons.
saves 18 lives a year.
C-class licence
‘C’ stands for car; an unrestricted driver licence often known
Over the past few years, obtaining a driver licence as a ‘black’ or ‘full’ licence in terms of restrictions on speed,
has become more time-consuming, and there are mobile phone use, passengers carried and blood alcohol
readings
now more restrictions on driver behaviour. All states
and territories in Australia have a uniform driver
licence system: in all of them, a C-class licence
(a car licence) allows a driver to drive a car, utility, The responsiveness of the
light truck or van provided it is not heavier than legal system
4.5 tonnes. However, as state governments have In 1970, 1309 people were killed on the roads in New
legislative responsibility for the administration of South Wales. This is not the highest figure in absolute
drivers, laws regarding driver behaviour vary. While terms since records have been kept – records started
most states allow 16-year-olds to learn to drive a in 1908 – but by dividing the population of the state
vehicle or motorcycle under the supervision of a by the number of fatalities, a figure of 28.98 fatalities
fully licensed driver, there are subtle variations in per 100 000 persons was recorded. By 2006, the
learner driver supervision requirements, speeds and road toll had fallen dramatically: to 496, a figure
the number of passengers allowable. For example, of 7.23 fatalities per 100 000. While the annual road
learner drivers in New South Wales must record toll has hovered around this figure since the 1990s,
120 hours of driving with at least 20 of these hours laws and restrictions for young drivers in New South
being at night. Learner drivers in New South Wales Wales are continually changing to try to minimise
may drive to a 90 km/h maximum, but South Australia fatalities and injuries on our roads.
Figure 5.15 Laws and restrictions for young drivers in New South Wales are continually changing to try to minimise
fatalities and injuries on our roads.

In 2006, two car accidents occurred that both caused coast. The second accident was in Sydney’s south.
multiple fatalities. The first accident was a horrific Both young drivers received jail sentences for their
motor accident on the New South Wales north actions.
In Court
TG v R [2010] NSWCCA 28
In 2006, 17-year-old driver TG was driving late at night with four of his mates in the car from Byron 5
Bay to Lismore, on the New South Wales north coast. The driver was speeding, driving at 115 km/h
in an 80 km/h zone, and was overtaking another vehicle on a wet road. He lost control of his vehicle
on a bend and collided with a tree, killing all four of his passengers. TG suffered minor injuries.
TG was charged with four counts of dangerous driving occasioning death. He was sentenced
to four years’ jail with a two-year non-parole period. Following the accident, the NSW Government
implemented new restrictions on provisional licences, making it illegal for P1 drivers to carry more
than one underage passenger between 11 pm and 5 am. Judge Charters noted that this change may
not be enough to prevent further deaths.
Legal Links
Search online for the article, ‘Four teenagers killed in car crash’ (The Sydney Morning Herald,
23 October 2006), which goes into detail about the accident near Byron Bay. The other accident
occurred just two weeks after the Byron Bay crash. SBF was a 17-year-old driver who also lost
control of his vehicle, causing the death of both his passengers.
In Court
SBF v R [2009] NSWCCA 231

On 7 November 2006, when SBF was 17 years old, he drove a vehicle at high speed, resulting in the
death of two young persons, MA and DF, and the serious injury to a third young person, KL. On
8 May 2008, SBF pleaded guilty and was sentenced (on 8 August 2008) to seven years and 10 months’
imprisonment with a non-parole period of four years and three months.
SBF appealed this District Court decision. There were four grounds of appeal, including that the
sentencing judge erred in his assessment of the aggravating features of the offences and that the
sentence was manifestly excessive. The Court of Criminal Appeal referred to what the sentencing
judge said at the time of the decision in August 2008, including the following:
These offences are of course extremely serious. This case is yet another example of young
people failing to heed the warnings regarding the dangers of speed, whilst driving motor
vehicles. There was on the part of the offender, and it is so conceded by his learned counsel,
a complete abandonment of responsibility. As a result of this appalling incident of driving,
two young men have lost their lives and another young woman has been seriously and
permanently impaired. The grief and loss consequent upon these deaths and injury can
barely be imagined but some idea can be gained from the victim impact material.
The three judges dismissed all four grounds of appeal and upheld the sentence imposed
in August 2008.

Review 5.10
1 Compare and contrast the two cases in the ‘In court’ boxes (TG v R [2010] NSWCCA 28 and SBF v
R [2009] NSWCCA 231). Suggest reasons for the higher sentence in the SBF v R case, despite the
accident having caused fewer deaths.
2 After reading the article, ‘Four teenagers killed in car crash’, describe your understanding of the
terms ‘justice’, ‘law’ and ‘society’ in relation to this motor vehicle accident.
3 Read the media article, ‘Latest road toll figures nothing to celebrate’. Explain two of the key
reasons why road fatalities in Australia have increased.
5.14 Agencies of law reform Roads administers the law for drivers under the
relating to young drivers Transport Operations (Road Use Management) Act
1995 (Qld). Each of these agencies is also concerned
Roads and Maritime Services and Transport for NSW
with changing the law to lower the road toll and
(TfNSW) (called the ‘NSW Roads and Maritime
ensure that all drivers are safe on Australian roads.
Services Authority’ (RMS) prior to 1 December
Each agency has its own mechanisms, but they each
2019) administers laws relating to New South Wales
have similar law reform objectives.
drivers under the Road Transport Act 2013 (NSW) and
the Road Transport (Driver Licensing) Regulation 2017
(NSW). These legal instruments set out a multitude
of restrictions on driver behaviour and penalties for 5.15 M
echanisms of law reform
infringements. relating to young drivers
There are severe penalties for driving recklessly, The Road Transport (Driver Licensing) Regulation 2017
both legally and socially. Under the Crimes Act 1900 (NSW) outlines a graduated licensing system. This
(NSW), reckless drivers can go to jail. Accidents also system allows young drivers to move through three
change the lives of victims’ families as they deal with stages of competency, from supervised learning to
the loss of, or serious injury to, loved ones. The law tries unsupervised driving. At stage 1, 16-year-olds can
to satisfy society’s desire to see offenders punished obtain a learner’s licence (L-plates) after passing
for breaching the law by driving a vehicle irresponsibly. a multiple-choice test. They must then complete
VicRoads is the statutory authority that 120 hours of driving that is supervised by someone
administers laws relating to drivers in Victoria. with a full Australian driver licence. This driving must
VicRoads aims to reduce the number and severity be recorded in a logbook (or digitally recorded) and
of road crashes and road trauma incidents, assists verified by the person who supervised the driving.
in the development of the road transport system, At stage 2, when they are 17, drivers can sit a test
and minimises the impact of roads and traffic on to obtain their P1 licence (red provisional licence)
society. VicRoads’ powers arise from the Transport (P-plates). At 18, drivers can progress to a P2
Integration Act 2010 (Vic), the Road Management (green provisional licence) after passing a ‘hazard
Act 2004 (Vic) and the Road Safety Act 1986 (Vic). In perception test’. In New South Wales, this system
Queensland, the Department of Transport and Main has been changed on numerous occasions.
Review 5.11
1 Account for the increasing complexity of restrictions on learner drivers since the 1980s.
2 Outline some similarities and differences between the states in relation to P-plate and
C-class licences.
3 Outline the relationship between law, justice and society in relation to learner drivers.

5
Figure 5.16 Learner and provisional licence holders must display the appropriate plates on the car when they are driving.
graduated licensing system • Vehicle restrictions: P1 and P2 drivers are not

a licensing system in which drivers pass through stages allowed to drive a range of six-cylinder vehicles
leading up to the granting of a full C-class licence
known as ‘high performance’ vehicles.
P1 • Logbooks: Learner drivers must log 120 hours
red provisional plates
of supervised driving in a logbook. A person
P2 with a full Australian driver licence or a driving
green provisional plates
instructor must sign each entry. At least
20 hours of driving must be at night.
The restrictions for young drivers as at November 2019 • Progression: Drivers must pass a hazard
are summarised below. These restrictions have been perception test to progress from a P1 (red)
changed significantly in response to pressure from licence to a P2 (green) licence.
the media, the public and the families of victims who • Alcohol and drugs: L-plate, P1 and P2 drivers
lost their lives in horrific crashes. Despite New South may not record any blood-alcohol reading above
Wales introducing a zero-alcohol limit for all P-plate zero or drive under the influence of drugs.
drivers in 2004 (this already applied to L-plate drivers),
crashes involving alcohol are still occurring. The development and reform of
law as a reflection of society
A summary of restrictions on In response to accidents, the NSW Government
L-plate and P-plate drivers made several key amendments to the legislation
In New South Wales, L-plate and P-plate drivers are governing young drivers. In 2007, the graduated
subject to the following restrictions: licensing system was amended to include 150 hours
• Speed: L-plate drivers must not exceed 90 km/h; of supervised driving experience for L-platers (later
P1 drivers must not exceed 90 km/h; P2 drivers amended to 120 hours). This was the beginning of a
must not exceed 100 km/h. Any L-plate or P-plate logbook system: all hours driven were to be recorded
driver caught speeding (either by exceeding and verified by the supervising driver. The intention
these limits or exceeding a marked limit) will be was to increase drivers’ experience, which would
fined, given four demerit points, and will lose improve their skills and so avoid tragedies. According
their licence for three months. to the TfNSW, drivers can reduce their chances of
• Mobile phones: All mobile phone use while being in a car accident by 30% by increasing the
driving is banned for L-plate and P1 drivers. number of supervised driving hours they complete.
• Passenger restrictions: P1 (red) drivers under However, according to law academic, Bronwyn
the age of 25 may only carry one passenger Naylor, critics of the logbook system argue that
under the age of 21 between 11 pm and 5 am; drivers from disadvantaged backgrounds were being
a breach of this rule will incur a loss of three treated unfairly:
demerit points – a fine may be also be awarded.

Figure 5.17 On 4 January 1966, the first person to be issued with a P-plate at the
Motor Transport Department in Roseberry was Lesley Armstrong of Bardwell Park.
In New South Wales, Aboriginal and Torres Strait

Magistrate Stephanie Tonkin in Townsville Islander people are twice as likely to be killed or
has been increasingly concerned about injured in a car crash compared with non-indigenous
the number of young people – Aboriginal people. According to a TfNSW study, the problems
and non-Aboriginal – coming before learner drivers most often identify are ‘the licensed
her prosecuted for driving without a driver helping often didn’t have time to help me go
licence. The introduction of the 100 hours driving’ (33%); ‘sometimes I couldn’t find a licensed
requirement [in Queensland] makes it driver to teach/help me’ (27%); and ‘I couldn’t afford
even more difficult to ever achieve a full a driving instructor’ (23%).
licence. Her colleagues in other states By 2015, the TfNSW had responded by supporting
also point to increasing numbers of Aboriginal and Torres Strait Islander communities
marginalised families unable to provide the around the state in 18 places, including Orange,
supervised driving required, whose teenage Bourke, Lake Cargelligo and Moree. In these places,
children are simply driving unlicensed. 445 young drivers have been enrolled in programs,
‘L-plates, Logbooks and Losing out: resulting in 164 provisional licences being issued
Regulating for safety – or creating new and 17 C-class licences. A total of $5 million over
criminals?’ (Alternative Law Journal, five years has been provided to make roads in
vol. 32, no. 2, 2010) and around Aboriginal and Torres Strait Islander
communities safer.

The importance of the rule of law

Restricted P1 Provisional licence The TfNSW claimed it had caught 32 learner drivers
for selected areas west of the Newell falsifying logbooks in 2010, compared with 189 in 2009
Highway and 84 in 2008. Victorian and Queensland departments
Under 25-year-old learner drivers living reported similar figures over the last four years, with
in Brewarrina, Walgett, Bourke, Broken similar reasons given for attempting to disobey the
Hill, Balranald and Hay can now apply law. Despite the apparent ease of falsifying logbooks,
for a restricted P1 provisional licence so
they can drive to work, an educational
asking parents to ‘bump up’ the hours behind the wheel
so as to speed up the process of gaining a provisional
5
institution and medical appointments. licence clearly demonstrates a lack of respect for, and
Learners in these areas will be able to understanding of, the rule of law. The intention of the
apply for the restricted P1 provisional legislation is to improve the experience, knowledge and
licence after they have completed 50 hours skill of learner drivers in order to reduce the road toll
of on-road supervised driving (including and save lives and prevent injuries on our roads.
at least 10 hours of night driving), with In response to the falsifying of paper logbooks,
these hours recorded in their logbooks. the TfNSW introduced a digital logbook app called
L2P. The digital logbook is designed for the latest
Source: NSW Centre for Road Safety
generation of learner drivers. It features a countdown
to motivate learners, real-time tracking and recording
of driving sessions plus an online educational platform
with demonstrations presented as video clips.
Legal Links
The Newcastle Herald article ‘Fudging the logbook’ (by Jeff Corbett, 12 July 2011) explains the
response some people have had to the logbook system. Find this article online.
5.16 Effectiveness of law killed when they were hit by a passing vehicle. A
reform relating to Road Safety Group (http://www.sarahgroup.org)
young drivers was started by Sarah Frazer’s father. In May 2012,
he presented a petition to the New South Wales
In 2007, just 48 hours after the passing of legislation
Parliament calling for a change to the National Road
restricting the number of passengers P1 drivers are
Rules. The petition had 23 000 signatures. One of the
allowed to carry, a young female passenger was killed
changes the petition called for was the introduction
in Sydney’s Royal National Park. A 19-year-old learner
of a ‘move over and slow down’ law.
driver lost control of his vehicle on a bend, killing
17-year-old Kim O’Brien and injuring another three
passengers. The tragedy highlights the intention of
Slow down, move over and given space:
the legislation relating to the numbers of passengers:
A road rule has changed
it restricts P1 drivers under the age of 25 to carrying
no more than one passenger who is under the age of The trial of a rule that required motorists
21 between 11 pm and 5 am. to slow down to 40 km/h when passing
In February 2012, a 23-year-old woman and the stationary emergency vehicles with
tow-truck operator who came to her aid were killed in flashing blue or red lights has been
an horrific accident. Sarah Frazer’s car broke down completed. A review of the trial, which
near Mittagong, on the New South Wales Southern included community feedback, has
Highlands, and needed to be towed. Both Sarah and resulted in a change to the road rules.
the tow-truck operator who came to her aid were

Figure 5.18 Four teenagers were killed in a single-vehicle

This rule has been changed to improve crash on June 7, 2020 in Townsville.
the safety of emergency services

personnel, tow-truck operators and
breakdown assistance providers
working on the road, as well as the
people they are helping. The changes
also make it safer on higher speed roads
where the time and distance required to
reduce speed to 40 km/h is the greatest.
The changes to the rule commenced on
26 September 2019.
Source: NSW Centre for Road Safety
Street or drag racing and ‘anti-hoon’

legislation
Another behaviour associated with young drivers is
‘drag’ or street racing. The use of suburban roads
for racing cars has had fatal consequences on
many occasions. This ‘hoon’ (antisocial) behaviour
has been outlawed since 1999 through the Road
Transport (Safety and Traffic Management) Act 1999
(NSW) the Road Transport Legislation Amendment
(Car Hoons) Act 2008 (NSW), and subsequently by
the Road Transport Act 2013 (NSW) because of the
danger it poses to both drivers and the public. Under
the legislation, a court can impose a fine for a first
offence of $3300, and can impose a fine of $3300
and/or nine months’ imprisonment for a second
or subsequent offence. A 12-month automatic
disqualification applies to those convicted of this
offence.
A ‘burn-out’ – intentionally spinning the wheels
of a vehicle at high revs to burn the rubber of the
tyres, creating smoke and a distinctive smell – is also
considered to be ‘hoon’ behaviour. The risk of cars
becoming out-of-control is high, which is why burn-
outs are outlawed. An ‘aggravated burnout’ is also Figure 5.19 Burn-out tyre marks in Murchison in
Western Australia.
an offence; this covers a hoon driver’s mates who
willingly participate in, urge others to participate Despite the penalties for these offences, street
in, photograph or film to promote, or organise hoon racing continues to create problems for police,
activity. The maximum court-imposed fine for a first victims, families and the public.
offence is $3300; it is $3300 and/or nine months’ Discussions about deaths caused by street
imprisonment for a second or subsequent offence. racing, as opposed to those caused by driving
A 12-month automatic disqualification applies to dangerously, involve comparing the harm that
those convicted of this offence. a driver may cause to members of the public or

Review 5.12
1 Discuss the mandatory 120 hours of supervised driving for learners.

2 Explain the statement ‘logbook requirements only create more criminals’.
3 Evaluate the effectiveness of law reform in relation to young drivers; refer to the accident in
Sydney’s Royal National Park and the death of Sarah Frazer.
5
innocent bystanders in various situations. It seems responsibilities. There are severe consequences
obvious that the risks posed by street racing are for those who blatantly disregard both the law and
higher than those posed by general incidents of the lives of others, and prosecutions can result in
speeding and driver inexperience. The fine – $3300 incarceration for drivers – not to mention the wrath
– can seem a very small price to pay compared and pain of the families of victims lost in senseless
with the price TG and SBF paid: incarceration for a car accidents.
number of years. Getting a C-Class licence now requires significant
The importance of driving unsupervised for many time behind the wheel and significant financial costs.
young Australians has not changed since the 1950s. Many families from lower-income groups claim the
Driving remains a rite of passage for many teenagers, costs prohibit their children from accessing private
but it clearly carries important legal and social transport.
Research 5.6 Review 5.13
1 Find online the article, ‘Street race death 1 Compare the fines and penalties for
horrifies NSW minister’ (News, 7 August street racing with those of speeding and
2012). Outline the minister’s response to mobile phone use while driving. Do you
the street racing accident. think the penalties are justified? Give
2 Explain the importance of driving within reasons to support your opinion.
the speed limit. 2 ‘Police should not be able to confiscate
3 Choose an act of reckless driving (e.g. vehicles under any circumstances.’
driving under the influence, street racing) Research the legislation about the
and research it. List the penalties for the confiscation of vehicles and discuss the
offence and explain the dangers involved. key issues surrounding the role of the
state in governing driver behaviour.

Topic 4 summary
• A number of tragic accidents, as well as media • The Road Transport (Driver Licensing)
and public criticisms of young drivers, and Regulation 2017 (NSW) outlines a graduated
new restrictions placed on provisional drivers, licensing system.
have made obtaining a licence a lengthy and • Support has been provided for members of
expensive process. disadvantaged communities to access driver
• The Roads and Maritime Services and licences.
Transport for NSW administers New South • Despite the penalties and the law, street or
Wales drivers under the Road Transport (Driver drag racing and ‘hooning’ are still activities
Licensing) Regulation 2017 (NSW) and the Road that some young drivers participate in.
Transport Legislation Amendment (Car Hoons) • Gaining a C-class licence requires a large
Act 2008 (NSW). amount of supervised driving time, which
may help the young driver, but is a burden on
families, especially ones with lower incomes.
Topic 4 questions
1 Legislation governing C-class licences: c 20
a is uniform across the country. d 50
b varies from state to state. 4 What proportion of P-plate drivers report
c only varies on speed-related matters. speeding ‘most or all the time’?
d only varies on passenger restrictions. a 10%
2 A key difference between red (P1) and green b 25%
(P2) provisional licences is: c 90%
a P2 drivers have no limits related to how d 100%
many passengers they can carry. 5 Zero-alcohol readings for all L, P1 and P2
b P2 drivers have a 0.02 blood-alcohol drivers came into force in which year?
restriction. a 2006
c P1 drivers aren’t required to display plates. b 2010
d P2 drivers can drive at a higher speed limit c 2004
than P1 drivers. d 1970
3 Approximately how many hours did learner
drivers of the 1970s complete before driving
unsupervised?
a 120
b no number specified
1 Outline the process for gaining a C-class 4 Discuss the four-time increase in required
licence in New South Wales. learner driver hours since the 1970s.
2 List two examples of legislation governing 5 Evaluate the law as it relates to young drivers
driver behaviour. and their rights to a driver licence.
3 Describe the difference between a P1 and a
P2 licence.

Part II
The individual and
the law
30% of course time
Principal focus
Students investigate the way in which the law impacts on individuals by referring to legal and non-legal
institutions, laws and media reports.

The themes and challenges covered in Part II include:
• the relationship between justice, law and society
• the relationship between rights and responsibilities
• balancing the rights of individuals with the needs of the state
• the role of the law in regulating technology
• the effectiveness of legal mechanisms for achieving justice for individuals and society.

Chapter 6 Your rights and responsibilities 164
Chapter 7 Resolving disputes 182
Chapter 8 Contemporary issue: The individual and technology 204

Chapter 6
Your rights and
responsibilities
Chapter objectives
• investigate the effects of legal and non-legal institutions on individuals
• explore the relationship between rights and responsibilities in various contexts
• discuss the necessary balance between the rights of individuals and of the state
• evaluate the effectiveness of legal instruments for achieving justice for both individuals and society
• identify and apply appropriate legal terms and concepts.
Relevant law
Defence Act 1903 (Cth)
Summary Offences Act 1988 (NSW)
Education Act 1990 (NSW)
Local Government Act 1993 (NSW)
Smoke-free Environment Act 2000 (NSW)
Local Government (General) Regulation 2005 (NSW)
Smoke-free Environment Regulation 2016 (NSW)
SIGNIFICANT CASES
Eatock v Bolt [2011] FCA 1103
Hanssen v Peninsula Private Hospital [2012] VSC
Lange v Australian Broadcasting Corporation (1997) HCA 25
Dietrich v R [1992] HCA 57
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Legal oddity
Make sure you are walking on the right side of the road – literally. Under the Road Rules 2014 (NSW), a pedestrian
can be fined $220 for not facing oncoming traffic when walking on the road (unless it is impracticable to do so).

6.1 W
hat are rights and Legal basis of rights
responsibilities? For a right to have a legal basis, it must be protected
Rights are entitlements that people have by legal by law and thus be enforceable. In Australia, legal
or moral authority. Rights refer to a way that people rights are derived through our Constitution, statute
should be treated. In most cases, this treatment must and common law.
be fair, respectful and equal. If you have a right to
something, others are legally or morally prohibited Australian Constitution
from taking it from you. A person has a right to Our Constitution sets out two types of rights: express
do something or possess something as a result of and implied. Express rights such as section 116
simply being human; hence, the expression ‘human give us the right to freedom of religion. Such rights
rights’. For example, students with disabilities have stop future governments from banning a religion or
the right to attend a public school in an area in forcing citizens to follow any one religion. Implied
which they live. The ‘local’ high school (under the rights such as the right to freedom of speech need
Disability Discrimination Act 1992 (Cth)) must treat to be ‘read between the lines’ and are not expressly
students with disabilities in the same way as all written in to the Constitution.
other students.
express rights
rights civil and political rights that are clearly and absolutely
legal or moral entitlements or permissions outlined in the Australian Constitution
implied rights
Responsibilities are legal or moral obligations that civil and political rights that can be inferred from the
Australian Constitution, rather than being expressly stated
a person may have to another person; to a group;
or to the state, society or other people generally.
There are responsibilities to act in particular ways,
as well as responsibilities to refrain from certain Statute
acts. For example, a parent has both legal and moral Examples of rights protected by statute are the rights
responsibility to take care of his or her children, and all not to be excluded or restricted based on race or
persons have a responsibility not to commit criminal ethnic origin and physical or mental disability. These
and tortious acts. States, groups, organisations, rights are contained in the Racial Discrimination Act
corporations and societies have responsibilities, just 1975 (Cth) and the Disability Discrimination Act 1992
as individuals do. (Cth). For example, an employer would not be able to
dismiss an employee because he or she was from a
responsibilities
certain racial group. Nor would a political party be able
legal or moral obligations to others
to refuse to allow someone to join because of his or her
tortious
wrongful; constituting a tort or breach of duty to others
ethnic origin.
Rights and responsibilities are related in some Common law

ways. Where citizens have particular rights, the Other rights have their origins in common law;
state has a responsibility to protect those rights that is, by decisions of the courts and judges. For
and ensure that individuals, groups or the state example, in Dietrich v R [1992] HCA 57, the High
itself does not violate them. Where the members of Court ruled that individuals have the right to a fair
a group have a legal responsibility to do something, trial, which includes legal representation paid by the
the group has a right to expect it. For example, state in serious criminal trials.
school principals have the responsibility to allow a
disabled student the right to attend the local school Legal basis of responsibilities
by arranging wheelchair access, teacher support As stated above, where someone has a right,
and training. someone else has a corresponding responsibility.

6
Chapter 6 Your rights and responsibilities
Statute a supplier, such as a soft drink manufacturer, must

Legal responsibilities are also called ‘obligations’ take care to ensure their products do not injure or
or ‘duties’. An example of a statutory obligation is harm their consumers.
parents’ duty to send their children to school or In another context, there is a duty of care from
to arrange for their children to be home schooled. doctors to their patients. Any breach of the duty
Another is the duty of the state to ensure that of care, resulting in harm that could be foreseen,
every child has the best possible education entitles the person harmed to bring an action
and to provide public schools. These duties are for negligence. In Hanssen v Peninsula Private
contained in Acts such as the Education Act 1990 Hospital [2012] VSC, the parents of a boy severely
(NSW) and are based on the principle, stated in handicapped during childbirth sued a hospital for
section 4 of the Act, that every child has the right negligence. The case was settled and the family
to an education. received millions of dollars in damages. More
recently in the Hunter region of New South Wales,
Common law the local area health service made payments of up
Other legal responsibilities are based on common to $69 million dollars to over 100 patients.
law such as the duty of care. As expressed in
negligence
Donoghue v Stevenson [1932] AC 562, a duty of care carelessness; a tort that involves breach of a duty of care
is owed to all persons who are likely to be ‘closely resulting in harm that could be foreseen
and directly affected’ by your behaviour. In short,
Figure 6.1 All children have the right to access an education.

Mistakes and medical negligence claims in Hunter New England Health cost taxpayers
$69 million in two years
By Anita Beaumont
The Northern Daily Leader
1 July 2019
Hunter New England Health (HNEH) has paid out more than $69 million in taxpayer funds
for medical mistakes in the past two years.
The health district finalised 105 medical negligence claims between 1 October 2016, and 1 October
2018, at an average cost of more than $650 000 per patient.
In its responses to two prior government information requests made by the Newcastle Herald
in 2010 and 2015, HNEH provided the individual claim payment amounts and ‘area of practice’ in
which the medical errors occurred – such as specialist obstetrics and gynaecology, pathology or
general surgery. Cases ranged from incorrect diagnoses to surgical procedures performed on the
wrong body parts.
Formative assessment: check your understanding. You are also encouraged to

Assessment for learning regularly review the ‘themes and challenges’ and the
The activities in this chapter are designed to assist you ‘learn to’ statements on pages 13–14 of the syllabus.
to build your understanding of the content covered. You can revisit these types of activities a number of
You are encouraged to complete the activities and times to continue to build your knowledge and skills
seek feedback from your teacher on a regular basis to of the topic.
Review 6.1
1 Explain the difference between rights and responsibilities and describe how they are related.
2 Describe how a right can gain legal basis.
3 Identify other terms used to describe legal responsibilities.
4 Use the news article, ‘Mistakes and medical negligence claims in Hunter New England Health
cost taxpayers $69 million in two years’, to assess the extent to which patients have a right to
compensation for incidents that occurred during a hospital stay. Assess the role of media in
protecting individual rights.
6.2 The nature of individual rights of the right. For example, most of us would expect
the right to fidelity when in a relationship but it is
The distinction between moral not a breach of statutory, common or constitutional
and legal rights law for people to engage in extra-marital affairs.
Legal rights outlined above fall under categories Therefore, while an act of infidelity may be immoral,
based on our Constitution, statutes and common it is not illegal.
laws. By contrast, moral rights may be argued While moral rights and responsibilities may have
from different viewpoints, and may or may not be binding force for everyone, only those who believe that
upheld by those that have responsibility in respect they are binding are likely to behave accordingly and

6
Figure 6.2 Labor senator Penny Wong (left), same-sex marriage Ambassador Magda Szubanski (centre) and former
Labor opposition leader Bill Shorten (right) celebrate after the Same-sex Marriage Bill passed the Federal Parliament
in Canberra on 7 December 2017.
try to persuade others to do so. In other words, moral Bill of Rights

rights and responsibilities are not enforceable. While a statement of basic human rights and privileges
many laws have been passed because they agree
with the moral views of most people in a community, Although the United Kingdom has no single
and are complied with for similar reasons, the law is constitutional document, the English Bill of Rights of
sometimes slow to change to reflect changes in social 1689 sets out a few fundamental rights and is still in
attitudes and public morality. The same-sex marriage force today. However, it is limited in its scope and
debate is a good example. Polling by Galaxy Research deals mainly with succession to the throne and the
(2009–2012) found that 64% of survey respondents way in which English law was to be adopted in its
agreed with changing the Marriage Act 1961 (Cth) and colonies (see section 6.4: The rights of Indigenous
allowing same-sex couples the right to matrimony. peoples, regarding the ‘doctrine of reception’).
However, it was not until after the formal Australian As one of the 47 member countries of the Council
Marriage Law Postal Survey in 2017 that the of Europe, the United Kingdom is a party to the
government enacted legislation giving people European Convention on Human Rights (1953) and
in same-sex relationships the is bound by it. The United Kingdom introduced the
same marriage rights as people in Human Rights Act 1998 (UK) to give further legal
heterosexual relationships. effect to the rights contained in this convention.
In the United States, the Bill of Rights, ratified
A Bill of Rights? Video in 1791, consists of the first 10 amendments to the
Constitution and contains fundamental rights of
Protections provided by Bills of Rights individuals in private life, in the criminal justice
Countries including the United States, the United process and with respect to the government generally.
Kingdom and New Zealand have a document known New Zealand’s Bill of Rights Act 1990 (NZ) contains
as a Bill of Rights. Such a document sets out civil, democratic and human rights, including
specifically what individuals are entitled to expect freedom from discrimination and freedoms from
of their government. Australia is the only Western government intrusions into individuals’ lives.
democracy that does not have one. Table 6.1 shows some examples of rights
contained in bills of rights.

TABLE 6.1 Examples of rights enshrined in a Bill of Rights

New Zealand: United States: European Union:
Bill of Rights Act 1990 (NZ) Bill of Rights (1791) European Convention on Human
Rights (1953)
The right not to be Excessive bail shall not be
subjected to torture or required, nor excessive No one shall be subjected to
to cruel, degrading, or fines imposed, nor cruel and torture or to inhuman or degrading
disproportionately severe unusual punishments inflicted treatment or punishment (Article 3)
treatment or punishment (s 9) (Amendment VIII)
The right to freedom of
Congress shall make no law The right to freedom of thought,
thought, conscience,
respecting an establishment of conscience, and religion (Article 9);
religion, and belief, including
religion, or prohibiting the free freedom of expression [including]
the right to adopt and to hold
exercise thereof; or abridging the freedom to hold opinions and to
opinions without interference
freedom of speech, or of the press receive and impart information and
[and] the right to freedom of
(Amendment I) ideas without interference (Article 10)
expression (ss 13 and 14)
No person shall be held to answer Right to a fair trial … Everyone
Everyone who is arrested …
for a capital … crime … unless on charged with a criminal offence
shall be informed … of the
a presentment or indictment of a shall be presumed innocent until
reason for it; and … shall
Grand Jury … nor … compelled proved guilty [and] has the following
have [and be informed of] the
in a criminal case to be a witness minimum rights: to be informed
right to consult and instruct
against himself, nor be deprived of promptly … of the nature and cause
a lawyer … to be released if
life, liberty or property without due of the accusation against him; to have
the arrest or detention is not
process of law (Amendment V) adequate time and facilities for the
lawful … to be charged [and
The right to a speedy and public trial preparation of his defence; [to have a
brought to court] promptly or
by … jury … to be informed of the lawyer]; to have … witnesses on his
to be released, and [not to be a
nature and cause of the accusation … behalf under the same conditions as
witness against himself] (s 23)
to have [a lawyer] (Amendment VI) witnesses against him (Article 6)
Research 6.1
View online the US Bill of Rights (the first 10 amendments to the US Constitution). Choose three
rights that are contained in the US Bill of Rights.
1 Summarise each of these three rights in your own words.
2 For each of these three rights, explain why it was considered important enough to be included
in the US Bill of Rights.
3 Assess whether these considerations are still relevant today and justify your response.
Review 6.2
1 Make a list of five rights and corresponding responsibilities.

2 Using an example, describe the difference between legal and moral rights.
3 ‘Citizens have the right to end their own lives if they are terminally ill.’ Discuss the legal and
moral issues arising from this idea.

6
TABLE 6.2 Arguments for and against a Bill of Rights in Australia

For Against
Australian law gives insufficient protection to
Statutes and the common law already
fundamental freedoms, and a Bill of Rights would
protect rights
enshrine those rights
A Bill of Rights would make our current laws more
A Bill of Rights makes little practical difference in
cohesive and accessible, rather than being ‘locked
the protection of rights
up’ in past judgments and statutes
We are becoming increasingly internationalised
Enabling judges to strike down laws made by
and need to be aware of international laws; a Bill
parliament that are inconsistent with a Bill of
of Rights would bring Australia in line with other
Rights would be undemocratic
countries
A Bill of Rights would allow Australia to meet its Rights written in a Bill of Rights can become
international obligations more effectively outdated very quickly in a rapidly changing world
A Bill of Rights would actually restrict rights,
A Bill of Rights would protect the rights
because once defined, a right is limited by the
of minorities
words in which it is expressed
The High Court’s interpretation of ‘implied rights’
The judiciary would become too political if there
in the Constitution is too limited: we need a
were a Bill of Rights.
document explicitly setting out our rights.
Arguments for and against an The AFP claimed that the journalists had illegally
Australian Bill of Rights obtained information to use in a story about
In Australia, a Bill of Rights has never existed, the behaviour of Australian Special Forces in
as the authors of our Constitution believed that Afghanistan between 2009 and 2013. This incident
citizens’ rights would be protected by decisions of clearly highlights a conflict between the rights of
the courts or by various statutes made as the need journalists to know and publish about the activities
arose. The Australian Constitution does set out a of Australian Special Forces and the responsibilities
number of express rights, including the right to
Figure 6.3 Journalists listen to Australian Federal Police
religious freedom (s 116) and the right to trial by (AFP) Deputy Commissioner, Neil Gaughan, speak to the
jury (s 80). However, the debate over the need for media on 6 June 2019 in Canberra. AFP officers raided
explicit constitutional protection for a broader range the home of News Corp journalist, Annika Smethurst,
of human rights has featured in Australian political over a story about a leaked plan for greater powers to
dialogue since the 1890s and continues today. Some spy on Australians. This was followed by a raid at the
Australian Broadcasting Corporation’s (ABC) head office
of the arguments for and against a Bill of Rights are
in Sydney; ABC journalists were investigating alleged
summarised in Table 6.2. unlawful killings carried out in Afghanistan by members
of Australian Special Forces.
6.3 I ndividuals’ rights and

responsibilities in relation
to the state
Conflicts between rights and

responsibilities
In June 2019, the Australian Federal Police (AFP)
raided the offices of the Australian Broadcasting
Corporation (ABC) to investigate potential criminal
behaviour by two journalists, Sam Clark and Dan Oakes.

AFP raid on ABC reveals investigative journalism being put in same category
as criminality
By John Lyons, the ABC’s head of investigative journalism
ABC News
15 July 2019
On 1 April, the Australian Federal Police (AFP) wrote an extraordinary letter, which could signal
a dramatic change in how the media is viewed in this country: it wanted the fingerprints of
two senior journalists.
Fingerprints? Given the date of the letter – sent two months before the AFP’s 6 June raid on the
ABC’s Sydney headquarters – the two journalists could have been excused for thinking that this
was some sort of April Fool’s joke by their colleagues.
But the letter was serious and had arrived in the email inbox of the two journalists and stated that
the AFP was ‘requesting your consent to a forensic procedure being the copying of your finger and
palm prints’.
The investigation came to prominence on 5 June when armed AFP officers raided the ABC’s
Sydney headquarters and sorted through 9214 documents and emails, which they hoped would help
them build their case against the journalists, particularly Oakes.
Throughout 2019, a significant media campaign, ‘your right to know’, began in opposition to the
federal government’s push for continued secrecy around the operations of military operations.
of the government represented by the AFP to keep State interference with

information about military operations a secret for the personal liberties
protection of citizens. It is the first time in history Less seriously, authorities in the United States have
that journalists in Australia have been targeted as been issuing fines of US$85 to pedestrians who
suspects in relation to three alleged offences. One walk and send text messages at the same time. In
under section 79(6) of the Crimes Act 1914 (Cth) Forth Worth, New Jersey, there have been 23 minor
concerning ‘the receipt of prescribed information’, accidents between cars and pedestrians and three
one under section 73A(2) of the Defence Act 1903 people have been killed because of not paying
(Cth) concerning ‘unlawfully obtaining information’, attention to traffic as they were using their phones
and another under section 132 1(1) of the Criminal while walking.
Code Act 1995 (Cth). In Australia, about 30% of pedestrians use a
These developments appear to be part of a hand-held device while crossing the road. Following
new climate in which journalists and their sources recent reports in New South Wales and Victoria of
of information, sometimes referred to as whistle- an increase in the number of distracted pedestrians
blowers, are targeted and News Corp journalist being injured or killed, there are now calls to
Anneke Smethurst’s home was also raided just explicitly outlaw people from using their phones
24 hours before the ABC raid. Smethurst, who wrote while walking. Is this an invasion of our personal
a story about Australia’s intelligence agencies, liberties or does the state have the responsibility to
which the AFP argued, was not for public outlaw such behaviour?
broadcast.

6
Pedestrian Council of Australia calls for $200 fines for crossing the road while on your
phone, wearing noise-cancelling headphones
By Ben Jaffrey
Muswellbrook Chronicle
4 July 2019
The Pedestrian Council of Australia (PDA) is pushing for legislation to be introduced to deter
people from using their phones while crossing the road.
PDA chairman Harold Scruby wants to see pedestrians hit with a $200 fine if they use their devices
or noise-cancelling headphones as they cross a street.
‘We want a special penalty which would be called “cross road while distracted”,’ Mr Scruby said.
‘There’d be a penalty for the use of any device while crossing the road.’
He added, ‘We’ve spent 8–10 years advertising, now it’s time for enforcement.’
An observational study, conducted by NRMA in Sydney, found that 36% of pedestrians crossed the
road while distracted by their smartphone or wearing earphones.
The findings were released in NRMA’s pedestrian safety report, Look Up.
It also found 7.5% of pedestrians crossed the road illegally and 3.4% crossed illegally while using
their smartphone or wearing earphones.
Mr Scruby said with such a high number of pedestrians being distracted by their devices, a penalty
needed to be introduced to minimise the chance of accidents.
‘A lot of people say if they [pedestrians] are going to be stupid, it’s their problem but the fact is
the cost of road trauma per annum is about $30 billion and much of that is pedestrian trauma,’
Mr Scruby said.
Mr Scruby added, ‘At the moment there’s no stopping people wearing noise-cancelling
headphones and stepping out on pedestrian crossing or a green light without looking, listening,
stopping, thinking.’
‘They’re in la la land. They’re not aware of the imminent danger surrounding them.’
Mr Scruby also said the $200 fine was a sufficient penalty.
‘If you park your car and go five minutes over on a parking meter, it’s about $110 [fine] where there’s
no potential for harm so why wouldn’t you have a considerable amount more for this,’ he said.

Review 6.3
1 Identify one further argument for and against an Australian Bill of Rights. Justify if you think
Australia needs a Bill of Rights or not.
2 Discuss the rights of a government to ban:
a access to information about military operations.
b the use of mobile phones while walking in public.
c passengers from carrying water and other liquids on an aircraft.
3 Read the news article, ‘AFP raid on ABC reveals investigative journalism being put in same
category as criminality’. Outline the reasons why the AFP raided the ABC’s offices. Assess the
extent to which this raid challenges our rights to know about military operations.
4 Read the news article, ‘Pedestrian Council of Australia calls for $200 fines for crossing the road
while on your phone, wearing noise-cancelling headphones’. Outline the reasons why any
law-making body is likely to be unsuccessful in outlawing the use of hand-held devices. Research
if any countries ban pedestrians using hand-held devices such as phones. Discuss with
a partner whether the government needs to outlaw pedestrians using hand-held devices.
It’s a free world? and that Andrew Bolt’s loss demonstrated the loss of
As discussed, the Australian Constitution does not the right of free speech. By 2018, federal law-makers
contain a Bill of Rights. It does expressly protect a had decided to not proceed with the alteration of
few rights of individuals. These are: section 18C of the Racial Discrimination Act 1975 (Cth).
• section 80: the right to a trial by jury
• section 116: freedom of religion Freedom of religion
• section 117: the right not to be discriminated Nonetheless, throughout 2019, the issue
against on the basis of one’s state of residence. of religious expression and discrimination
re-emerged through the behaviour of Australian
In addition, Australia is a party to seven core Rugby player, Israel Folau. Folau was stood
international human rights treaties. The right to down as a player for posting messages on his
freedom of opinion and expression is contained in Instagram account claiming that certain people
Articles 19 and 20 of the International Covenant on were destined to ‘go to hell’ if they didn’t follow
Civil and Political Rights (1966). Christianity. This issue highlights two main
In 2009, social commentator Andrew Bolt was arguments: first, Folau claimed he had a right to
brought to account over comments he made about
Figure 6.4 Israel Folau looks on as his solicitor, George
‘light-skinned’ Aboriginal and Torres Strait Islander
Haros, reads a statement outside the Federal Court in
peoples. Bolt claimed that many such people falsely
Melbourne on 2 December 2019.
claimed to be Indigenous so they could claim welfare
payments from the government. In 2011, a group of
‘fair-skinned’ indigenous people led by Pat Eatock
successfully sued Andrew Bolt in the Federal Court.
Bolt and his publishers were forced to publish an
apology over the incident.
Section 18C of the Racial Discrimination Act
1975 (Cth) became known as the ‘Bolt laws’. Prior
to the 2013 federal election, one of the federal
Coalition’s promises was to repeal this. They felt that
commentators like Andrew Bolt did have a right to
express their opinions on race in a general sense

6
Israel Folau offered to apologise over anti-gay Instagram post, court documents reveal
By David Mark, senior national sport reporter
ABC News
26 September 2019
Former Wallabies star Israel Folau offered to publicly apologise over his anti-gay social media post
warning homosexuals would go to hell, court documents have revealed.
In addition, the sacked rugby union international admitted he had breached the Rugby Australia
Code of Conduct.
The fresh information came in documents lodged by Rugby Australia outlining its defence in its
Federal Circuit Court case against Folau.
Folau is suing Rugby Australia and Rugby NSW for unlawful termination of his
$5.7 million contract.
Folau is also demanding his job back, an apology from Rugby Australia and Rugby NSW and
compensation, which was previously claimed to be worth about $5 million.
Rugby Australia is arguing that Folau was responsible for a high-level breach of its Code of
Conduct over the posts.
The court documents also said Folau could not argue that ‘Rugby Australia or Rugby NSW
terminated his employment for reasons that included his religion or his political opinion’.
say what he wished as a follower of Christianity Freedom Bills (the collective name for three draft
and second, Folau challenged his dismissal under Bills: the Religious Discrimination Bill 2019 (Cth),
section 72 of the Fair Work Act 2009 (Cth), claiming the Religious Discrimination (Consequential
his employer does not have the right to release him Amendments) Bill 2019 (Cth) and the Human Rights
from his $10 million contract. Legislation Amendment (Freedom of Religion) Bill
Folau claimed he had rights as a man of religion 2019 (Cth)) that aim to protect individuals such as
and that he was expressing his beliefs. He claimed Folau from avoiding scrutiny and persecution for
he genuinely believed that sinners were destined publicly announcing their views and risk being
for hell and that he was the victim of discrimination sacked from their jobs. In December 2019, Rugby
by those who disagreed with his views. The federal Australia and Israel Folau settled their dispute out
government responded by introducing the Religious of court for an undisclosed sum.
Review 6.4
1 Explain the difference between an ‘express right’ and an ‘implied right’.

2 Outline the rights expressly guaranteed by the Australian Constitution.
3 Discuss if Australians have a right to freedom of expression. Justify your response. Refer to
media stories about the Israel Folau case.
4 Research the Religious Freedom Bills and discuss the implications of such Bills being enacted.

Defamation You are legally protected from being sued if:

Another factor complicating the exercise of freedom • what you say is true
of expression is the risk of defamation. To what • it is your honest opinion, not a statement of fact,
extent can you criticise your teacher, friend or on a matter of public interest, and the facts on
boss, and possibly hurt his or her reputation? What which the opinion is based are clearly stated or
legal rights and responsibilities do you have as the • you have a legal, social or moral duty to
speaker or writer? In addition, how well does the law communicate something to a person and the
work to protect reputations on the one hand and free person has a corresponding duty to hear or read it.
speech on the other?
Even if you were taken to court and successfully
defamation used one of the three defences listed above, it may
the act of making statements or suggestions that cause
cost you a significant sum in legal fees. Consider the
case of actor Geoffrey Rush below.
Geoffrey Rush wins defamation case against Nationwide News, publisher of

The Daily Telegraph
By Jamie McKinnell
ABC News
11 April 2019
Oscar-winning actor Geoffrey Rush has been awarded $850 000 in initial damages after winning his
defamation case against Nationwide News over two articles published by The Daily Telegraph in 2017.
In a damning judgment in the Federal Court, Justice Michael Wigney said Nationwide News and
journalist Jonathan Moran failed to prove the imputations published in two articles in late 2017
were true.
Justice Wigney said in publishing unsubstantiated stories alleging Mr Rush behaved

inappropriately towards a female co-star during a 2015–2016 production of King Lear, the newspaper
produced ‘recklessly irresponsible pieces of sensationalist journalism of the very worst kind’.
He said he would determine an amount of damages related to lost income for Mr Rush – on top of
the $850 000 awarded today – at a later date.
Review 6.5
1 Read the news article, ‘Geoffrey Rush wins defamation case against Nationwide News, publisher
of The Daily Telegraph’ and answer the following questions.
a Outline the reason Mr Rush was suing Nationwide News for defamation. Identify the
argument Nationwide News used in contesting this defamation case.
b Evaluate the current laws on defamation. Outline the responsibilities you have when you talk
about someone else.
2 Search online for the case Lange v Australian Broadcasting Corporation [1997] HCA 25. Explain the
importance of this case to defamation law.

6
6.4 I nternational protection

of rights Article 10. Everyone is entitled in full
As discussed in Chapter 2, international law can equality to a fair and public hearing by an
be made through the formation of treaties between independent and impartial tribunal, in the
two or more nations. Treaties become binding on the determination of his rights and obligations
citizens of an individual nation either automatically and of any criminal charge against him.
upon ratification, if the treaty is self-executing, or Article 11.
once the nation has passed domestic legislation
1 E
veryone charged with a penal offence
to implement the treaty as part of its own laws. In
has the right to be presumed innocent
Australia, treaties must be implemented through
until proved guilty according to law in
domestic legislation in order to become binding.
a public trial at which he has had all the
self-executing guarantees necessary for his defence.
(of a treaty) automatically becoming binding on a state party 2 N
o one shall be held guilty of any
to the treaty as soon as the treaty has been ratified
penal offence on account of any act
or omission which did not constitute
Declarations are different from treaties in that they
a penal offence, under national or
simply state the parties’ intentions; they express the
international law, at the time when it
international community’s aspirations with respect to
was committed. Nor shall a heavier
an area of human rights. They are generally developed
penalty be imposed than the one that
through the United Nations (UN) or other international
was applicable at the time the penal
organisations, such as subsidiary bodies of the UN
offence was committed.
or the World Trade Organization, and while they are
not legally binding, they are morally binding and Article 15.
influential in setting standards for the protection of 1 E
veryone has the right to a
rights. The Universal Declaration of Human Rights nationality.
(1948) is an important declaration of the rights 2 N
o one shall be arbitrarily deprived of
to which all humans are entitled. The following his nationality nor denied the right to
extract summarises what the UN is trying to achieve change his nationality
internationally (the full text can be viewed online).
The Universal Declaration of Figure 6.5 Recipients of the UN Human Rights Awards
Human Rights at the General Assembly commemorative meeting in
New York, in December 2018. The occasion was the
Article 3. Everyone has the right to life, seventieth anniversary of the signing of The Universal
liberty and security of person. Declaration of Human Rights.
Article 4. No one shall be held in slavery

or servitude; slavery and the slave trade
shall be prohibited in all their forms.
Article 5. No one shall be subjected to
torture or to cruel, inhuman or degrading
treatment or punishment.
Article 9. No one shall be subjected to
arbitrary arrest, detention or exile.

Limitations of international law involved in high-risk conflicts where their own

in protecting rights interests are at stake, there has been no UN action.
Parties to international law are nation-states, One place where the UN has intervened, with
not individuals, and international law requires limited success, has been in Syria, due to increasing
the full participation and cooperation of nation- conflict and violence against civilians. In 2012, the
states in order to function effectively. Some states UN intervened in an attempt to quell violence and
may occasionally or frequently choose to ignore civil unrest. The United Nations Supervision Mission
declarations, treaties and UN resolutions, just as in Syria lasted 90 days and was suspended due to
some citizens choose to ignore the laws of their increasing levels of violence and an inability to
state. The consequences for nation-states, however, broker a ceasefire between the warring factions.
are seldom as immediate or certain as they are for
individuals who ignore the law. The rights of Aboriginal and
Rights are something thought to be possessed Torres Strait Islander peoples
not only by individuals but also by peoples or nations. The question of whether peoples who want
Self-determination is a key right of peoples. It independence from a colonial power have a right
means the right of a group to determine their own to such independence may be addressed from
political status (how they want to be recognised) and a general viewpoint but also considered in the
to pursue their own economic, social and cultural context of the particular historical facts of a place.
development. Self-determination is enshrined in The United Nations declared a decade for World
the UN’s Charter, as well as in the International Indigenous Rights from 1995 to 2004. The United
Covenant on Civil and Political Rights (1966) and Nations hoped to promote the rights, languages
the International Covenant on Economic, Social and and cultures of all indigenous peoples and to draft
Cultural Rights (1966). Article 15 of The Universal a Charter of Indigenous Human Rights.
Declaration of Human Rights (1948) expresses this As we saw in Chapters 2 and 5, Australian
right in terms of all individuals’ right to a nationality. Aboriginal and Torres Strait Islander peoples
have faced serious challenges to their political
self-determination autonomy since European settlement. Their laws
the right of people to determine their political status or how
were radically different from British laws and
they will be governed based on territory or national grouping
were not considered to constitute a system of law
at all. The ‘doctrine of reception’ mandated that
The UN Charter, Chapter 1, Article 1, Part 2 includes
uninhabited land colonised by Britain would be
self-determination as one of the purposes or goals of
subject to English law – despite the vastly different
the United Nations:
languages, cultures, beliefs and traditions of the
people who actually inhabited the land.
To develop friendly relations among political autonomy

nations based on respect for the principle self-determination, independence
of equal rights and self-determination
of peoples, and to take other appropriate One way in which self-determination is demonstrated
measures to strengthen universal peace. in Aboriginal and Torres Strait Islander communities
is using customary law rather than the English
common law. Circle sentencing is an example of
tribal law in practice.
Self-determination is a constant theme in international
politics; for example, the Basque independence Circle sentencing
movement in Spain and that of the Tamil Tigers in Circle sentencing courts have been established
Sri Lanka. In some cases, the United Nations has in several locations in New South Wales, the
intervened. In other cases, sometimes because of Australian Capital Territory and Western Australia.
individual member states’ reluctance to become Their introduction is based on Canadian experience

6
Circle sentencing works in the following way.

When an accused person in a criminal trial has
pleaded guilty or been found guilty, and is a member of
an Aboriginal and Torres Strait Islander community,
the magistrate travels to the accused’s community
for the purpose of sentencing. The magistrate and
other persons sit in a circle, talk through the issue
and come to a suitable sentence. The offender, the
victim and their families form part of the group, as
well as respected members of the local Aboriginal
and Torres Strait Islander community.
By 2018, debate continued as to the effectiveness
of the program with some arguing the root cause
of Aboriginal and Torres Strait Islander peoples
Figure 6.6 An earth oven is dug up at Hyde Park on offending were drug and alcohol issues and that
13 July 2019 in Sydney, Australia. NAIDOC Week the sentencing itself did not reduce recidivism.
celebrations are held across Australia each year to
However, supporters of circle sentencing include
celebrate the history, culture and achievements of
Magistrate Claire Girotto, who presides over a
number of local courts such as Dubbo, Walgett and
with indigenous communities and has the goal of Wellington. There have been 75 circles in Walgett
preventing crime, supporting victims and giving since the sentencing option was rolled out in 2006.
indigenous people greater involvement in the In more than 25 circles, Magistrate Claire Girotto
criminal justice system. Sentences are more likely had only witnessed one re-offender and praised the
to be meaningful for the offender if imposed by success of the program.
authorities within his or her own culture.
Review 6.6
1 Identify the purposes of The Universal Declaration of Human Rights (1948).

2 Suggest some possible ways rights are enforced and how they could be more effectively
enforced.
Research 6.2
Search online for the article, ‘Does circle sentencing reduce recidivism and keep indigenous
offenders out of jail? A study will find out’ (by Claudia Jambor, ABC News, 10 February 2019).
1 Outline the aims of circle sentencing.
2 Discuss the role of circle sentencing in small towns throughout New South Wales.
3 Discuss if Aboriginal and Torres Strait Islander offenders have a right to different
sentencing procedures.

Chapter summary
• Rights and responsibilities are contained in our • The High Court has recently defined
Constitution and in statute and common law. an implied right to freedom of political
• Moral rights are not enforceable by law and communication.
therefore cannot be upheld in a court of law. • International efforts to articulate and protect
• Australia is the only Western democracy that rights are contained in numerous conventions,
does not have a Bill of Rights. treaties and declarations. It is often difficult
• The rights and responsibilities of individuals to enforce these international instruments,
and the state have varied over time and have as some states do not recognise these
included measures that significantly limit agreements or have not incorporated these
people’s rights. rights into their domestic legislation.
• The Australian Constitution expressly • The right to self-determination is an
protects individual rights. internationally recognised right.
Questions
1 How are legal rights protected? 4 Which of these statements about defamation
a Legal rights are protected by statute is false?
law alone. You are legally protected from being sued if:
b Legal rights are protected by common a what you say is true
law alone. b it is your honest opinion, not a statement
c Legal rights are protected by both statute of fact, on a matter of public interest, and
and common law. the facts on which the opinion is based are
d Legal rights are protected by ethics and clearly stated
religious customs. c what you say is only posted on social media
2 Which of these statements about moral rights d you have a legal, social or moral duty to
is true? communicate something to a person and
a Moral rights have no legal basis. the person has a corresponding duty to
b Moral rights can be enforced. hear or read it.
c Moral rights are the same as legal rights. 5 How is the right to freedom of speech
d None of the above statements are true. protected?
3 Which of these statements about a Bill of a The right to freedom of speech is protected
Rights is true? by statute.
a Every state in the world has a Bill of Rights. b The right to freedom of speech is protected
b Only the United Nations can draft a Bill of by common law.
Rights. c The right to freedom of speech is protected
c A Bill of Rights is a document setting out by both common and statute law.
the rights of individual citizens. d The right to freedom of speech is not
d A Bill of Rights is part of the Australian protected by either statute or common law.
Constitution.

6
1 List two examples of how rights are protected 5 Explain the reasons for constructing
by statute and common law in Australia. declarations of rights. Outline some examples
2 Using examples, describe the difference of such declarations.
between moral rights and legal rights. 6 Outline other rights that are not expressly
3 Discuss to what extent journalists are contained in the Australian Constitution
in conflict with governments and their but are enjoyed by Australians as a result of
responsibilities to protect citizens and how it statutory or common law.
might best be resolved. 7 Discuss how defamation poses a threat to
4 Explain the concept of circle sentencing and individuals’ free expression. Describe the
why it might be effective. defences available to someone who has critical
things to say about a political figure.

Chapter 7
Resolving disputes
Chapter objectives
• investigate the roles of various law enforcement agencies
• discuss various methods of dispute resolution between individuals
• investigate formal and informal methods of dispute resolution between individuals and the state
• assess the effectiveness of legal and non-legal instruments in resolving disputes between individuals
and the state
• compare and contrast individuals’ disputes with other individuals and with the state
• identify the difference between formal and informal methods of challenging state power as the state
attempts to enforce rights
• identify and apply appropriate legal terms and concepts.
Relevant law
Crimes Act 1914 (Cth)
Income Tax Assessment Act 1936 (Cth)
Australian Human Rights Commission Act 1986 (Cth)
Privacy Act 1988 (Cth)
Criminal Code Act 1995 (Cth)
Residential Parks Act 1998 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Trees (Disputes Between Neighbours) Act 2006 (NSW)
Coroners Act 2009 (NSW)
Government Information (Public Access) Act 2009 (NSW)
SIGNIFICANT CASES
Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994)
Croome v Tasmania [1997] HCA 5
R v Christopher Michael Dawson [2018]
Hacienda Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1

Legal oddity
A woman in Brisbane received an anonymous letter from a neighbour in 2018 complaining about the moaning
and shouting coming from her house. The woman is the full-time carer of her son who has autism. The letter
stated that the police had been called to visit the premises and the police had then informed the complainant
that one of the occupants in the home had a mental illness. The letter went on to say that, although they were
sympathetic to the situation, the noise was disturbing and it would be appreciated if less time was spent in
the garden.

7.1 Law enforcement agencies • the powers of police officers to enter and
search premises, and to seize property
There are a number of law enforcement agencies
• the powers of police officers to arrest, detain
that have an important role in upholding statutes at
and question suspects
state and federal levels. There are legal restrictions
• the way in which suspects and others are to be
placed on these law enforcement agencies, in order
treated by police officers.
to protect members of society from an abuse of power.
law enforcement agencies Each state and territory in Australia has its own
those bodies that have the role of enforcing the law; they are police force. The NSW Police Force is primarily
created by Acts of parliament and include the police and
some government departments concerned with enforcing criminal law, particularly
those offences contained in the Crimes Act 1900
(NSW) (e.g. homicide, manslaughter and sexual
The police assault). More recently, legislation – such as the
Crimes (Criminal Organisations Control) Act 2012
State and territory police (NSW) – has been introduced to help the state
Under the Australian Constitution, state governments police combat the rise of bikie gangs and terrorist
are responsible for providing police services. The activities.
police service of each Australian state and territory Other aspects of state policing include assisting
is responsible for upholding the law, preventing with mediation in family and neighbourhood
and investigating crime, and providing community disputes, particularly those involving domestic
protection. In addition, police services manage violence. The application and enforcement of
emergency incidents, enforce road and traffic rules, Domestic and Personal Apprehended Violence
and deal with missing persons reports. Orders (AVOs) restricting the movements of some
The Law Enforcement (Police Responsibilities) individuals in relation to others is another part of the
Act 2002 (NSW) sets out the laws NSW Police job of the state police.
officers must obey when they perform these duties.
Apprehended Violence Order
For example, to ensure that evidence is collected a court order to protect a person who fears violence or
correctly and thus is able to be used by the harassment from a particular person; in New South Wales,
Apprehended Personal Violence Orders prohibit violence
prosecution in a court case, the police are guided between members of the public and Apprehended Domestic
by this Act, which covers: Violence Orders prohibit violence between family members
• the powers of police officers to stop, search and state police
detain people law enforcement agencies with state-wide jurisdiction
Figure 7.1 The powers of police officers to stop, search and detain people are defined in the Law Enforcement (Police
Responsibilities) Act 2002 (NSW).

Chapter 7 Resolving disputes
7
A recent issue for state policing is the use of sniffer inquiry in November 2019 recommended the trialling
dogs for drug detection at music festivals attended of pill-testing and an end to the use of sniffer dogs and
mostly by 18–25 year olds. Following the deaths of six strip-searching suspects, which could intimidate users
young festival goers over a two-year period, a coronial into ingesting dangerous doses in panic. Pill-testing, on
Coroner’s report recommends drug policy overhaul in NSW

By Amanda Lyons
Published by the Royal Australian College of General Practitioners
8 November 2019
The report has recommended trialling pill testing and stopping the use of sniffer dogs
and strip searches at music festivals in the state.
‘The faces of these young people will remain with me going forward, along with the hope that
improvements will be made,’ Deputy State Coroner Harriet Grahame told the New South Wales
Coroners Court when handing down the findings of her report.
The report is the result of an inquest into the drug-related deaths of six festival-goers between
December 2017 and January 2019. Three weeks’ of evidence was heard from a large number of
witnesses, including medical professionals, festival-goers and music industry representatives.
Ms Grahame stated she had found ‘compelling evidence’ that pill testing would support behavioural
change in young people attending music festivals.
‘I am in no doubt whatsoever that there is sufficient evidence to support a drug-checking trial in

New South Wales,’ she said.
‘Drug checking is simply an evidence-based harm-reduction strategy that should be trialled as soon
as possible.’
Ms Grahame also suggested the NSW Government give serious consideration to the
decriminalisation of small amounts of drugs held for personal use, and that the problem of drug-
related harm at music festivals needs to be viewed with ‘fresh eyes’, with priorities to be reframed
from ‘reducing drug use, to reducing drug death’.
She was also critical of what she described as a punitive approach to policing at music festivals,
recommending the end of widespread strip searches and sniffer dogs for the purposes of drug
detection. Ms Grahame believes such tactics may push young people into higher-risk behaviour,
such as taking all of their drugs at once to prevent detection and arrest.
‘I am of the firm view that there is sound evidence that high-visibly policing and use of drug
detection dogs at music festivals is a harmful intervention,’ she said.
However, following the report’s release, NSW Police Commissioner Mick Fuller issued a statement
to counter the suggestion policing methods were ‘implicit’ in the deaths, arguing that music
festivals ‘create a concentrated market for drug supply and organised criminal groups’.
Reproduced with permission from The Royal Australian College of General Practitioners from: Lyons
A. 'Coroner’s report recommends drug policy overhaul in NSW'. newsGP. 8 November 2018. Available
at www1.racgp.org.au/newsgp/professional/a-need-for-fresh-eyes-coroner-s-report-recommends
185
the other hand, would allow the potential user to have Act 1914 (Cth) and the Criminal Code Act 1995 (Cth).
the contents of the drug tested to check whether there Offences include drug importation and distribution,
are harmful substances present. While this would not and crimes relating to Commonwealth entities
help the habitual drug user, this non-judgmental stance (e.g. bribery of Commonwealth public officials). The
may result in better decision-making for those who never powers of the AFP are set out in the Australian Federal
usually take drugs. The six young people who died were Police Act 1979 (Cth).
not thought to be habitual drug users, and so they and
their friends did not know the risks and safe dosage of Australian Federal Police
the federal police agency of the Commonwealth of Australia,
the drugs. Controversy raged over the revelations that set up to enforce the federal laws and to protect the interests
children as young as 12 were being made to ‘strip and of Australia both domestically and internationally
squat’ to check for drug possession. The NSW Police
Force responded by stating that if festival goers didn’t Significantly, the nature of the AFP and what is
take drugs to festivals, they would have nothing to required of it have changed since September 11, 2001,
fear or worry about sniffer dogs and being searched, when four coordinated terrorist attacks occurred in
under section 146 of the Law Enforcement (Powers and the United States. The AFP has reacted to a rapidly
Responsibilities) Act 2002 (NSW). changing environment, particularly in relation to
terrorism and terrorist organisations. There is now a
Federal police greater focus on international operations.
The Australian Federal Police (AFP) is responsible The new challenges the AFP faces include
for enforcing federal law and criminal law where terrorism, cybercrime, human trafficking and sexual
crimes cross state boundaries. A key role is the slavery. The AFP may also be involved in the family
prevention and detection of crimes within Australia law process if the Family Court makes specific orders
against Commonwealth law. In certain circumstances, requiring the involvement of the AFP; for example,
police may also deal with Australians overseas. Crime if the court believes that a child may be taken from
legislation enforced by the AFP includes the Crimes Australia. Under sections 65Y and 65Z of the Family
Law Act 1975 (Cth), children involved in family law
Figure 7.2 In July 2019, Australian Federal Police (AFP) proceedings must not be removed from Australia.
Assistant Commissioner, Ian McCartney (right), and There is a penalty of up to three years’ imprisonment
NSW Police Assistant Commissioner, Mick Willing (left),
for anyone who attempts to do this. As mentioned in
address the media over an alleged plot to attack police
stations, embassies and defence facilities in Sydney. Chapter 6, the AFP has recently searched the home
Annika Smethurst and the ABC offices in Sydney to
search for evidence of criminal activity by journalists.
Chapter 20 also details the AFP’s investigations
into Mohamed Haneef’s alleged role in a terrorist
attack in Glasgow, Scotland in 2006. It is not the
most glowing of reports as the AFP spent $8 million
investigating Dr Haneef, only for him to be found to
have been wrongfully arrested. Similarly, Chapter 14
considers the controversy around their cooperation
with the Indonesian National Police regarding the
arrest and prosecution of the Bali Nine.
Additional law enforcement

agencies in Australia
Australian Border Force

The Australian Customs Service was renamed in
2015 to the Australian Border Force (ABF). It was
originally known as the Department of Trade and
Customs and was the first government department
7
established in 1901. Approximately 20 million • family law – enforcing court orders and
passengers each year move through air and preventing parents from illegally removing
seaports. ABF works closely with the AFP, as well their children from Australia
as with the Australian Quarantine and Inspection • law enforcement.
Service, the Department of Immigration and
Citizenship and the Department of Defence, to A high priority is the protection of the Australian
detect and discourage unlawful movement of goods community by intercepting illegal drugs and
and people across the border. firearms. The ABF uses sophisticated techniques
The ABF website describes its functions as: to identify suspicious aircraft, vessels, cargo,
• facilitating the lawful passage of people and postal items and travellers. The techniques include
goods intelligence analysis as well as the use of detector
• investigations, compliance and enforcement dogs and computer technology.
in relation to illicit goods and immigration In June 2019, the Australian Federal Police made
malpractice one of the largest drug seizures in the country’s
• onshore detention, removals and support to history. Approximately 1.2 tonnes of illicit drugs
regional processing arrangements. were seized in Sydney with an estimated street value
of $1.2 billion.
The ABF employs more than 5500 people in
Australia and overseas, has a fleet of sea patrol Australian Criminal Intelligence
vessels, and uses two aerial surveillance planes for Commission
surveillance of borders. The key areas of concern The Australian Crime Commission Act 2002 (Cth)
for the ABF are: established the Australian Crime Commission
• immigration – ensuring that passengers are (ACC), which, in July 2016, merged with CrimTrac
moving legally across borders to become the Australian Criminal Intelligence
• quarantine – monitoring and confiscating Commission (ACIC). It works at a national level
goods harmful to animal and human life with other federal, state and territory agencies
Figure 7.3 Ali al-Amin, a Lebanese father whose ex-wife allegedly tried to abduct their children, talks to the press as he
leaves the court in Baabda, Lebanon on 20 April 2016. A Lebanese judge said he will release on bail an Australian woman
and four journalists accused of abducting her children from their Lebanese father after he dropped charges against them.

to combat serious and organised crime. In New • computer intrusions (gaining unauthorised
South Wales, the Australian Crime Commission access to data in a computer or computer
(New South Wales) Act 2003 (NSW) was passed to enable system)
the full operation of the ACC in New South Wales. • unauthorised modification or destruction
Similar legislation was passed in the other states and of data
territories, effectively bringing the Australian Crime • denial-of-service attacks (deliberate removal
Commission Act 2002 (Cth) into state or territory law. All of service)
arms of intelligence gathering and law enforcement • creation and distribution of malicious software
were thereby brought together to unify the fight such as viruses, worms or trojans.
against serious, organised criminal activity.
The ACIC has a number of important functions, Each state and territory in Australia has its own
involving both intelligence and investigative roles: legislation, similar to the Commonwealth legislation,
• collecting and analysing criminal covering computer-related offences.
intelligence data Another task of the AHTCC is to police and
• giving advice about National Criminal remove inappropriate and illegal internet content
Intelligence Priorities (NCIPs) to the ACC Board such as child pornography and racially based
• managing criminal intelligence systems such as ‘hate’ sites. Identity fraud is also a growing
the Australian Criminal Intelligence Database criminal activity, especially with the increasing
• investigating federally relevant criminal activity use of social networking sites such as Instagram,
and forming task forces; for example, Strike Snapchat and Facebook. Identities are usually stolen
Force Tuno II, a homicide squad established to through ‘phishing’, whereby email is used to lure
investigate a string of possibly related murders, unsuspecting computer users to a fake website
attempted murders and suspected murders over where they provide their bank account details.
a 15-year period. Many other task forces are
established as the need arises to tackle serious Australian Security Intelligence
issues of organised crime, terror and Organisation
drug importation. The Australian Security Intelligence Organisation
(ASIO) is Australia’s national security service,
Australian High Tech Crime Centre established under the Australian Security
The Australian High Tech Crime Centre (AHTCC) Intelligence Organisation Act 1979 (Cth). It was
is hosted by the AFP and attempts to provide a initially established in 1949 as Australia’s security
national approach to technology crime. Its role is service to guard against activities such as espionage
to address serious and complex crimes involving (spying), sabotage, politically motivated violence
computer technology such as online fraud, mule and attacks on our nation’s defence systems. ASIO’s
recruitment, and offensive and prohibited internet main role is to gather information that will help the
content. ‘Technology-enabled crime’ includes crimes federal government and other law enforcement
committed directly against computers and computer agencies, such as the AFP, to prevent and thwart
systems, and also traditional crimes committed with attacks on Australia. ASIO’s role is expanding; it
the use of technology. employs approximately 1500 people; 75 government
departments, police and senior decision-makers use
mule recruitment ASIO’s information.
the attempt to procure a person (the ‘mule’) to receive and
deliver illegal funds to criminals abroad or at home without Chapter 20 outlines the role of ASIO in the arrest
the knowledge of the ‘mule’; this is usually done through and detention of terror suspect Mohamed Haneef, in
a fake company and may involve getting an unsuspecting
employee to sign a contract and transfer funds on behalf of
which ASIO correctly advised the AFP that Haneef
organised criminals was not a suspect in the 2007 Glasgow Airport
bombing and that there was virtually no evidence
The first category, detailed in Part 10.7 of the Criminal linking Haneef to this terrorist attack.
Code (Cth), includes:

7
Government departments 7.2 D
isputes between
Some Commonwealth and state government individuals
departments have the authority to enforce specific Disputes between individuals are highly variable in
laws. The Australian Tax Office (ATO) has the power terms of their nature, complexity and seriousness.
to enforce certain laws for the protection and benefit of One of the more common types of disputes between
society. For example, under the Income Tax Assessment individuals is that of ‘neighbourhood’ disputes. The
Act 1936 (Cth), the ATO can investigate and prosecute Trees (Disputes Between Neighbours) Act 2006 (NSW)
individuals or companies in relation to tax offences. clearly indicates that vegetation is a significant
The main issues relating to income tax involve source of conflict among neighbours, disputes
either the avoidance of tax or the underpayment can unfortunately become violent and result in
of tax. In 2018, ATO deputy Commissioner Michael tragic circumstances as the media article below
Cranston, his son Adam and daughter Lauren were would indicate.
accused of a $165 million tax fraud.
Other laws administered by the ATO include Alternative dispute resolution
those governing fringe benefits tax (FBT), the Goods Going to court can be expensive in terms of both
and Services Tax (GST) and superannuation. money and time. There has been pressure to provide
In December 2016, the federal government formed alternatives to court processes for solving legal
a new ministerial department named the Department disputes. It has been estimated that the average civil
of Home Affairs. The department ‘brings together case costs $30 000–$40 000, which puts many average
Australia’s federal law enforcement, national and wage earners in a precarious position should they
transport security, criminal justice, emergency lose. Logically, any claim against another party for
management, multicultural affairs and immigration less than this amount would seem useless, yet the
and border-related functions and agencies, working financial cost of loss or damage below this amount
together to keep Australia safe.’ Source: Australian may still be significant to the person who suffers it.
Government. Alternative dispute resolution (ADR) uses
a variety of methods to resolve disputes between
Formative assessment: parties without involving court processes. ADR
Assessment for learning allows the participants not only to save time
The activities in this chapter are designed to assist and money, but also to have more control over
you to build your understanding of the content proceedings.
covered. You are encouraged to complete the
activities and seek feedback from your teacher on alternative dispute resolution
dispute resolution processes, such as mediation, arbitration
a regular basis to check your understanding. You
and conciliation, that do not involve courts
are also encouraged to regularly review the ‘themes
and challenges’ and the ‘learn to’ statements on
ADR may be as simple as two parties talking through
pages 13–14 of the syllabus. You can revisit these
their dispute, or as complex as court-ordered
types of activities a number of times to continue to
mediation or arbitration. Mediation involves a neutral
build your knowledge and skills of the topic.
Review 7.1
1 Identify what a law enforcement agency is. Explain the role of the police in the legal system.
2 Outline the differences between the roles of state and federal police.
3 Describe a current legal issue or a dispute between groups at either the state or federal level.
Outline the main legal arguments on each side of the dispute.
4 Choose two law enforcement agencies and describe the importance of their role. Mention any
current media stories or cases before the courts that involve these agencies.

Man accused of murdering neighbour in Parkes after argument over barking dogs
By Joanna Woodburn
ABC News
25 June 2019
Police say a man has been shot dead in Parkes, in NSW’s central west, after a dispute over
barking dogs.
An 18-year-old man was charged with murder and firearms offences after a 25-year-old man was
shot at a house in Porter Street late yesterday.
The injured man was taken to hospital in a critical condition, and later died.
Police claimed the incident was sparked by an argument over the dead man’s barking dogs.
third party who attempts to help the parties come to mediation

an agreement. In arbitration, the neutral third party a form of alternative dispute resolution designed to help two
(or more) parties, in the presence of a neutral third party, to
will make a decision that is binding on the parties
reach an agreement
involved in the dispute. These are discussed below.
conciliation
a form of alternative dispute resolution in which the
Negotiation disputing parties use the services of a conciliator, who takes
Negotiation is discussion between two or more parties an active role advising the parties, suggesting alternatives
and encouraging the parties to reach agreement; the
with the aim of reaching a mutually beneficial outcome. conciliator does not make the decision for the parties
It involves consideration of the other party’s views, and
often some degree of compromise. Many parents teach The mediator does not provide advice on the matters
their children negotiating skills and you would probably or impose a decision on the parties. The mediator
be surprised at how often you negotiate with friends, may not have particular expertise in the subject area
teachers and parents. In a legal sense, negotiation is but will be an expert in the process of mediation.
frequently the first stage of resolving a dispute between Through his or her negotiation and listening skills,
parties. Negotiation only involves the parties involved the mediator is able to assist the parties in examining
and therefore is usually low in cost. the issues, and the parties will come up with their
own solutions to settle the dispute.
negotiation
any dialogue intended to resolve disputes and/or produce an In conciliation, the third party also helps the
agreement on further courses of action parties to identify the issues, consider alternative
options to solve the dispute and reach an agreement.
In contrast to a mediator, the conciliator may advise
Mediation and conciliation the parties, although he or she does not make a
Mediation and conciliation are similar procedures decision for them. A conciliator may be a legal
and are usually confidential. Both processes involve practitioner or professionally qualified in the subject
a neutral and independent third party who helps the matter of the dispute. He or she will be responsible
parties to negotiate their disagreement and to come for managing the process, explaining the rules and
to a decision that they both find acceptable. acting as an umpire. In conciliation, the parties may
also have their own legal advisers.

Figure 7.4 A couple going through the process of divorce may use mediation to settle any disputes.
Community Justice Centres and In the ACT, the Conflict Resolution Service (CRS)
Conflict Resolution Service has existed since 1988 as a non-profit organisation to
Community Justice Centres (CJCs) aim to resolve help solve disputes between neighbours. One of the
disputes through mediation. In NSW, there are six main methods used to solve disputes is mediation.
centres, which offer informal and impartial dispute According to the CRS website, 83% of mediated
resolution services to government agencies and to neighbourhood disputes are solved by mutual
all sections of the community. CJCs are funded by agreement.
the NSW Government and provide their services free
of charge. Arbitration
CJCs deal with disputes within families (including Arbitration is a formal process, in which an
youth conflict), workplaces, neighbourhoods and independent third party (the arbitrator) is brought in to
communities. determine how the dispute is to be resolved. It is useful
CJCs are designed to resolve disputes between when the subject matter of the dispute requires an
members of the same community. As these people expert and/or when a court-like procedure is desired,
usually have an ongoing relationship, it is important but with a greater degree of confidentiality. It is used
that a dispute over something like a fence is resolved when a contract specifies arbitration for resolution of
as quickly and economically as possible with no any disputes arising, in industrial relations matters,
long-lasting acrimony. A dispute over an issue such and in tenant and landlord disputes. It has become
as who is responsible for the repair of a fence can the preferred procedure in Australia for disputes
be resolved at a CJC by the parties talking through involving commercial contracts.
their dispute with a neutral mediator. It will be more
arbitration
satisfactorily resolved here than in a formal and a form of alternative dispute resolution in which the
confrontational courtroom. disputing parties present their cases before an arbitrator,
who makes a decision that is binding on the parties

Review 7.2
1 Assess the importance of alternative dispute resolution.

2 Distinguish between the processes of mediation, conciliation and arbitration. Identify where
negotiation fits into the dispute resolution process.
3 Discuss why someone might prefer alternative dispute resolution to taking the other party
to court.
In 2015, Coles was forced to pay $12 million in Among the statutes granting the court jurisdiction
compensation to small bread suppliers as a result of is the Trees (Disputes Between Neighbours) Act 2006
arbitration. A dispute between Coles and 4000 small (NSW). This Act allows the court to make judgments
bread suppliers arose out of Coles’ claim that it on issues involving the removal or pruning of trees
baked fresh bread each day in its retail stores. In and who should pay.
fact, Coles only pre-baked bread and stored it on
site. By claiming the bread was ‘made’ in its stores, Tribunals
Coles had made a false and misleading claim to Tribunals offer a less formal and expensive method of
its consumers. The former Victorian premier, Jeff dispute resolution than the court system. Individuals
Kennett, was the independent arbiter in the dispute. do not normally need legal representation – it is often
not even permitted – and the person presiding over
Courts the tribunal may have specialist expertise rather than
If the individuals involved in a dispute cannot resolve specific legal training. Their background should enable
it by way of alternative methods, they will need to them to understand the details of the dispute, and they
take the matter to litigation. One example of a court ensure that the principles of natural justice are applied,
that deals with disputes between individuals is the so that all the parties have an opportunity to put forward
NSW Land and Environment Court (LEC). their position, and nobody is disadvantaged.
NSW Land and Environment Court NSW Civil and Administrative

The NSW Land and Environment Court is a specialist Tribunal
court with a wide jurisdiction. It has the same status The NSW Civil and Administrative Tribunal (NCAT)
in the court hierarchy as the Supreme Court of New was established on 1 January 2014, combining the roles
South Wales and is responsible for interpreting and of 22 separate tribunals. NCAT has four main divisions
enforcing environmental law in New South Wales. (the Administrative and Equal Opportunity Division,
Proceedings that can come before the LEC include: Consumer and Commercial Division, Guardianship
• administrative or merits review: the court Division, and the Occupational Division) and deals
re-hears a case that has been decided by a with various types of disputes between individuals,
body such as a local council as well as between individuals against organisations.
• civil proceedings arising from a breach or Disputes between individuals are often heard
potential breach of the law by NCAT’s Consumer and Commercial Division;
• criminal proceedings for environmental offences. examples include disputes about repairing or
replacing the fence between two residential
More than 60 New South Wales Acts grant the LEC’s properties, excessive noise or pet ownership within
jurisdiction. It does not have the power to hear a block of units or townhouses, and appeals from
matters outside that statutory jurisdiction. It deals previous judgments. For example, in Hacienda
with environmental, development, building and Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1,
planning disputes, and certain types of native title Howarde disputed a decision made by the Consumer
claims. Alternative dispute resolution is integrated and Commercial Division. This appeal was based
within its procedures. around Howarde and his partner being able to

7
Review 7.3
1 Define alternative dispute resolution. Outline some of the forms it may take. Identify which form
of dispute resolution you think would have the most desirable results. Justify your response.
2 If you are having problems with your neighbours, discuss why going to court should be the last
step taken.
3 Outline what options there are for settling a dispute with your neighbour. Discuss with reference
to the types of disputes that might arise.
4 Describe to what extent the legal system assists in dispute resolution – reference Hacienda
Caravan Park Pty Ltd v Howarde [2016] NSWCATAP 1.
Research 7.1
View the NSW Caselaw website and search for the case Bowan v Glanville [2008] NSWLEC 10.
1 Summarise the dispute between the neighbours.
2 Evaluate the court’s judgment.
3 Discuss why the neighbours could not negotiate a settlement without resorting to the Land and
Environment Court.
live permanently in a cabin they purchased at the Lynette Dawson mysteriously disappeared in
Hacienda Caravan Park. Hacienda attempted to January 1982, leaving behind two young children. It
evict Howarde under the Residential Parks Act 1998 was alleged that Chris Dawson, her husband, had
(NSW), on the basis that Howarde had purchased been conducting an affair with a former student
the cabin from another tenant, so he did not have at the time of his wife’s disappearance. Chris
a permanent arrangement with Hacienda and Dawson denied killing his wife. The NSW Coroner
therefore could not live on Hacienda’s property. recommended a charge of murder be laid, yet the
NCAT upheld the appeal. NSW Director of Public Prosecutions ignored the
recommendations, apparently citing the absence of
Lynette Dawson’s body.
7.3 Disputes with the state
The Australian newspaper, headed by Hedley
There are a number of methods by which state
Thomas and David Murray, along with the family
power or government decisions and policies can be
of Lynette Dawson, launched an unprecedented
challenged. Some of these are informal or ‘non-legal’
media campaign involving a highly popular podcast
methods, and others involve formal legal channels.
series, ‘The Teacher’s Pet’, that detailed the life of
Chris Dawson and the circumstances surrounding
Non-legal methods of challenging Lynette’s disappearance. In 2001 and 2003, the NSW
state power Coroner found Lynette’s husband, Chris Dawson,
The media responsible for her murder.
In a reverse situation, Keli Lane was convicted in
By writing letters, sending emails, calling television
2010 for the 1996 murder of her young child, despite
and radio stations or posting status updates on social
the child’s body not being located. Attempts by
media sites, citizens are able to inform the community
her lawyers to appeal were all rejected, and Lane
of a decision they think is unfair, unjust or harsh. There
subsequently asked journalist Caro Meldrum-
have been many instances in which major television
Hanna to conduct an investigation. The result
and radio networks have taken on a story and caused
was a three-part documentary, EXPOSED: The
the state to overturn a decision. Two examples are the
Case of Keli Lane, which broadcast on the ABC in
cases of Lynette Dawson and Keli Lane.

September–October 2018. This was followed by executive or Cabinet decision. However, this issue would
calls via social media for people who might have clearly be irrelevant to residents of Western Australia.
knowledge of events from 1996, such as anyone Members of the public can also contact their
living in the same apartment block. Again, the federal or state MP, or local councillor, if they
investigation continues. feel a government department or agency in that
jurisdiction has wronged them. MPs and councillors
Members of parliament can help in resolving the dispute so that it does not
Members of state and federal parliaments (MPs) need to go to court or a tribunal. MPs and councillors
are elected by voters to represent a particular area rely on being re-elected to their position, so it is
or electorate. For example, former Prime Minister in their interest to help their constituents resolve
Tony Abbott held the federal seat of Warringah, in disputes quickly.
Sydney, before being defeated by Zali Steggall in the
2019 federal election. Trade unions
All citizens within an electorate are able to Groups of people in various industries
contact the office of their representative and speak unite to form trade unions to protect their
to their MP about an issue that may trouble them. rights and conditions of employment.
The MP may take this issue back to parliament Unions can help to negotiate a Video
in Canberra and discuss it with other MPs or the workplace agreement containing
party that is in power. important provisions about workplace safety, wages
Some electorates or regions are significantly more and conditions. They will also take action when an
affected by certain issues than others. If the Pacific employer proposes to change the conditions of work
Highway between Sydney and Brisbane were to be in a way that is detrimental to employees. In Australia,
widened, residents of towns along this highway could the legislative approach to industrial relations was
be directly affected. An MP in an affected area might historically based on conciliation and arbitration. Going
be able to convince his or her party to reconsider an on strike is seen as a last resort.
Figure 7.5 Keli Lane leaving Westmead Coroners Court on 15 February 2006.

7
In the early 1970s, one union, the Builders Labourers The organisation links its 600 000 members through
Federation, banned workers from worksites so email, Facebook and Twitter, and was actively
that various sites of heritage value in Sydney involved in the fight against Woolworths and its
were not demolished for the purpose of potential ownership of poker machines in Australia. GetUp!
property development. These ‘green bans’ were believes that there should be some sort of regulation
highly successful: a small park in Hunters Hill and regarding poker machines to stop people from losing
terrace houses in Victoria Street, Potts Point, still large amounts of money.
exist today. The historic area of Sydney known as
The Rocks was also saved and protected by the Legal methods of challenging
actions of unions placing bans on work at proposed power
demolition sites. Challenges to decisions of government or
More recently, the Australian Council of Trade government bodies can also be made on a formal
Unions (ACTU) ran a campaign against Australia’s or legal basis.
Free Trade agreement with China. The ACTU is
concerned about the loss of jobs to Australians and Internal reviews
the possibility of overseas workers being paid less to In New South Wales, government departments can
work in Australia. review their own decisions, procedures or behaviour.
Such reviews are very cost-effective, but can be
Interest groups, including ineffective in terms of practical outcomes if the
non-government organisations people conducting the review have been involved
People can also form groups where they share with a decision that is not appropriate or incorrect.
political values or aims or have a specific goal of An example is that of the Combined Pensioners
challenging a state decision. Individuals can join and Superannuants Association of NSW (CPSA). The
these groups and engage in activities of various organisation promotes the interests of pensioners
types, or donate money to fund their activities. and low-income retirees. When a booking fee was
GetUp! Action for Australia is an example of a introduced for country train fares in 2006, the CPSA
non-government organisation, which according to applied to RailCorp, the state-owned passenger rail
its website: system, to see documents related to community
consultation. The Minister for Transport claimed
that there had been extensive consultation and that
… is an independent, grass-roots it indicated ‘overwhelming community support’ for
community advocacy organisation the booking fee. Previously, pensioners were entitled
which aims to build a more progressive to four free rail trips per year.
Australia by giving everyday Australians The CPSA’s application was made under the
the opportunity to get involved and hold Freedom of Information Act 1989 (NSW), which has
politicians accountable on important since been repealed and replaced by the Government
issues. Information (Public Access) Act 2009 (NSW). This
legislation also gives the right to request changes
to personal records that are inaccurate, incomplete
Review 7.4
1 Assess how you would challenge the state if it refused to award you the Higher School
Certificate (HSC). Describe the laws and means you would utilise to investigate why you did not
receive your HSC.
2 In your dispute with the state about your HSC, identify which of the informal methods of
challenging state power would be the most effective and why.

or out of date, and to seek review of a decision not with disputes between consumers and businesses,
to grant access or to amend records. Other states or tenants and landlords, as well as between
and territories, and the Commonwealth, have similar individuals. Another is the NSW Administrative
freedom of information legislation. Decisions Tribunal, which hears cases involving
allegations of discrimination and professional
freedom of information misconduct, and reviews administrative decisions
the principle that people should be able to have access to
information relating to the administration of government of NSW Government bodies.
decision-making and information held by the government; The Administrative Decisions Tribunal has six
freedom of information legislation governs the processes of
obtaining this information, at state and federal level
divisions and an appeal panel. The divisions conduct
reviews of decisions by government agencies in the
The application was denied, so the CPSA requested following categories:
an internal review. The review found that there • the community services sector, including child-
had been no community consultation about the care and disability services
booking fee. • decisions of the Chief Commissioner of State
Revenue, many having to do with state taxation
External reviews • the professional conduct of legal practitioners
and property conveyancers
Reviews of government activities can also be
• equal opportunity claims referred to the
undertaken externally. There are a number of
tribunal by the Anti-Discrimination Board
avenues by which an external review can be pursued.
• retail tenancy and ‘unconscionable conduct’
These include the following.
claims against retail landlords
Administrative and other tribunals • decisions of government agencies under a wide
Administrative and other quasi-judicial tribunals are variety of laws (the General Division).
bodies that review specific administrative decisions
conveyancer
of government agencies. They offer a time-efficient, a person who deals professionally with the legal and
low-cost means of resolving legal disputes and practical matters involved in the transfer of titles to property
when real estate is sold and purchased
problems. They are different from courts as they
have narrow areas of jurisdiction, are less formal,
The General Division of the Administrative Decisions
usually do not allow legal representation and are
Tribunal most often deals with applications regarding
not bound by rules of evidence, and so can take into
access to government information, privacy and
account a variety of factors in finding a solution.
licensing matters involving firearms, passenger
One tribunal in New South Wales is the NSW Civil
transport and the security building industries.
and Administrative Tribunal (NCAT), which deals
Figure 7.6 The Combined Pensioners and Superannuants Association of NSW applied to see documents related to the
community consultation of the booking fee for country train fares.

7
Privacy bodies What is legal can vary depending on the
All individuals have a right to privacy. Most people circumstances of each case, but generally, decisions
would agree that it is not a pleasant feeling to know are subject to the following requirements:
that somebody who is not close to you has access to • Natural justice: You will study this concept in
information about you. detail in the HSC course. In this context, natural
In a broad sense, laws have been enacted at both justice refers to the person affected having the
state and federal level to prevent information about opportunity to be heard and the decision being
you from being released to companies, government unbiased.
departments or other citizens. Under the Privacy Act • The decision must be authorised by the Act
1988 (Cth) people are entitled to make a complaint if under which it was made and must be based
they believe that a Commonwealth Government or only on relevant considerations.
private organisation has mishandled their personal • The decision-maker must have jurisdiction to
information, including health information. There are make the decision.
legal responsibilities that government departments • The decision must be justified by appropriate
must carry out in the collection and storage of evidence.
personal information of individuals. • The decision-maker must have observed all
For example, if you have been convicted of procedures required by law in making the
a criminal offence, there are limits on how long decision, and there must have been no errors
information about this can be used. The Criminal of law.
Records Act 1991 (NSW) provides that after a person
has been crime-free for a certain amount of time, most A person desiring judicial review must have
minor offences are treated as ‘spent’ convictions. standing; that is, the issue must directly affect him
Once a conviction is spent, the person does not have or her. There would be huge costs associated with
to disclose it to prospective employers, insurance judicial reviews if any interested persons could order
agents, banks and so on. Unauthorised release of them, whether they were directly affected or not.
information about a person’s spent conviction is If a judicial review finds a decision flawed in one
subject to penalties. or more ways, the remedies that courts can issue will
At the state level in New South Wales, the chief depend on the nature of the error that was made by
Acts protecting privacy are the Privacy and Personal the decision-maker. They include:
Information Protection Act 1998 (NSW) and the Health • Prohibition – an order that stops a decision
Records and Information Privacy Act 2002 (NSW). from being made or implemented
Persons who feel that their personal information has • Certiorari – an order that reverses a decision
been misused may either request an internal review that has already been made
or complain to Privacy NSW, established under the • Mandamus – an order that compels the
state privacy legislation to help people to protect decision-maker to perform certain types of
their privacy. public duties that have not been performed
• Injunction – an order that prohibits the
The courts decision-maker from implementing an invalid
Law courts at both state and federal level have the decision, or compels the performance of a duty
power to review administrative decisions and actions. in decisions where mandamus is not available.
As discussed in Chapter 2, the term ‘judicial review’
is used to describe a process whereby a court with The Office of the Ombudsman
the relevant jurisdiction can review a decision made In 1809, the Swedish Parliament created a new official
by a government department only based on whether known as the Justitieombudsmannen. This loosely
the decision was lawfully made. Judicial review does translates as ‘citizens’ defender’ or ‘representative
not pronounce on the merits of the decision; that is, of the people’. The Office of the Ombudsman was
whether or not it was a good decision or the right created by statute in 1974 in New South Wales, and
decision in the circumstances. federally in 1977.

The office acts as a formal external control, If a complaint is made in writing, the
with legal power to investigate complaints made by Ombudsman’s office will investigate and assess
citizens. Public sector agencies and some private whether the complaint is justified. If it sees that the
sector agencies providing public services can use complaint is justified, the Ombudsman will make
the Ombudsman’s office to deal with complaints recommendations for rectifying the problem.
against them or their officers, for example, RailCorp,
Junee Correctional Centre, government and non- New South Wales statutory bodies
government schools, and agencies providing Statutory bodies are authorities created by statute
childcare and residential care. The Ombudsman does for a public purpose. The following statutory
not have the power to impose any punishment or fine bodies can investigate complaints and disputes of
on a government agency or department. He or she can, certain types.
however, make recommendations to the department
in question or to the New South Wales Parliament. Anti-Discrimination Board of NSW
Some of the main areas of complaint received by The Anti-Discrimination Board of NSW (ADB) is
the office involve: part of the NSW Attorney-General’s Department
• delivery of community services and was established under the Anti-Discrimination
• child abuse and neglect Act 1977 (NSW). Its role is to promote principles
• the operation of the police force. and policies of equal opportunity throughout New
South Wales to ensure that people are protected
Any citizen can make a complaint to the Ombudsman, from discrimination on the basis of characteristics
but it must be in writing. All complaints are such as disability, age, race and sex. It advises the
taken seriously, but are only followed through if government and also provides an inquiry service to
a prima facie case exists; that is, if the complaint inform people about their rights and responsibilities
would raise concern ‘on first view’. Such concern under anti-discrimination laws. The ADB will
could only exist if there were witnesses to an investigate and conciliate complaints when action
event or if a citizen had very strong and irrefutable is necessary. It has the power to issue fines for
evidence. behaviour that violates anti-discrimination laws.
Figure 7.7 The NSW Ombudsman accepts complaints about the operation of the NSW Police Force.

Preventing the deaths of children in NSW: latest report released

Ombudsman New South Wales – media release
24 June 2019
Nearly 1000 children died in New South Wales in the two-years 2016–2017, according to a report
tabled in parliament today by Michael Barnes, NSW Ombudsman and Convenor of the NSW Child
Death Review Team.
The Biennial Report of the Deaths of Children in New South Wales: 2016 and 2017 examines the deaths
of 981 children and found that 731 of them died from natural causes and 185 died from injuries. Of
the unnatural deaths, two-thirds (119) involved unintentional injury and 66 were due to intentional
injury, either suicide (54) or abuse (12).
‘The loss of a child is devastating for families, and communities, and the focus of my office and the
Child Death Review Team is to reduce the likelihood of these deaths by examining the causes and
circumstances and making preventative recommendations’, Mr Barnes said.
‘It is encouraging that the number and rate of deaths of children in New South Wales has continued
to decline. Over the 15 years to 2017, the mortality rate for children aged 0–17 years declined from
41 deaths per 100 000 children in 2003, to 30 deaths per 100 000 in 2017’, Mr Barnes said. ‘However,
it is important to acknowledge that this improvement has not been uniform.
Children living in the most disadvantaged areas of the state and in remote areas have higher
mortality rates than those living in the least disadvantaged areas and in major cities.
‘It is also disturbing that the mortality rate for Aboriginal and Torres Strait Islander children is still
twice that of non-Indigenous children’, Mr Barnes said.
‘Deaths as a result of injury continue to account for almost one in five child deaths. These injuries
are mostly unintentional – for example, transport fatalities and drowning deaths – but in the main,
they are preventable.’
Commissions of inquiry Commissions of inquiry do not have the power

Commissions of inquiry are set up to investigate to prosecute offenders. At the end of an inquiry,
serious matters at both state and federal level. the commission will produce a report containing
They are not judicial proceedings but fact-finding recommendations, which may include recommending
exercises. Royal Commissions are commissions of criminal prosecution of individuals. The
inquiry with particularly strong powers with respect government may decide to act on the commission’s
to calling witnesses. In the past, such inquiries recommendations: a number of police officers were
have investigated issues such as Aboriginal deaths sent to jail as a result of the NSW Royal Commission.
in custody (Commonwealth, 1987) and corruption However, it has been argued that the inquiry into
in the NSW Police Force (NSW, 1995). More Aboriginal deaths in custody has failed to produce
recently, there has been a Royal Commission into significant improvements in the conditions leading
Institutional Responses to Child Sexual Abuse to these deaths.
(Commonwealth, 2015).

Independent Commission During 2014, ICAC conducted a major investigation

Against Corruption into New South Wales politicians and their alleged
While the Ombudsman has the power to investigate corrupt conduct. Eddie Obeid and Joe Tripodi were
complaints made by the public, the Independent found to be corrupt over dealings involving the
Commission Against Corruption (ICAC) has greater leases of cafes at Circular Quay in Sydney. In 2016,
power. The Independent Commission Against the Supreme Court justice Robert Beech-Jones said
Corruption Act 1988 (NSW) created the ICAC as an ‘no penalty other than imprisonment is appropriate’
independent statutory body to investigate alleged for the corrupt former Labor minister. He imposed a
corruption in government. ICAC attempts to protect maximum sentence of five years with a non-parole
the interests of the public, prevent breaches of public period of three years.
trust and influence the behaviour of public officials. Many other high-profile and former high-profile
Some examples of corrupt behaviour include bribery, politicians, some of who were Ministers of the Crown,
fraud and theft. ICAC has the power to investigate the were investigated for corrupt conduct with much
activities of private citizens if such behaviour affects of the proceedings being covered by major media
the proper administration of public offices. outlets and sources. Another investigation in 2017
ICAC has the authority to ask the police service found serious corrupt conduct by Obeid and Tripodi,
to assist in its investigations, and is therefore able along with Gilbert Brown and Anthony Kelly, in
to search for and seize evidence where it sees fit. It relation to Australian Water Holdings Pty Ltd.
does not have the power to prosecute offenders (that
is the job of the Director of Public Prosecutions). At National and international bodies
the end of an investigation it can report to parliament
that corrupt behaviour has occurred, who committed Australian Human Rights Commission
it and what further action should be taken. If a citizen The Australian Human Rights Commission
feels that he or she has been wrongfully accused of (AHRC) is a national government body under the
corruption, he or she may seek judicial review in the responsibility of the Federal Attorney-General. It
New South Wales Supreme Court. was formerly called the Human Rights and Equal
Review 7.5
1 Explain the process of internal review of a government agency’s decision. Discuss what the
potential problems are with internal review.
2 Explain the function of freedom of information legislation.
3 Describe the role administrative tribunals and other tribunals play in settling legal disputes.
Give an example.
4 Outline the ways in which people’s privacy is protected in New South Wales.
5 Discuss what judicial review is and how it differs from review of the merits of a decision.
6 Outline the role of an ombudsman. Using a recent example from the media, explain how the
NSW Ombudsman is limited in solving issues such as domestic violence.
7 Explain the importance of natural justice as the state attempts to enforce laws.
Research 7.2
Find the website of the Anti-Discrimination Board of NSW (ADB). On the ADB’s website, choose
Resources from the menu. From the left-hand menu select ‘Equal Time Newsletter’ and then 'Back
issues' to look through their past newsletters. Alternatively, on the left-hand menu, you can select
and go through 'Conciliation reports'. Select two cases and evaluate the effectiveness of the ADB
in bringing about just outcomes in these cases. You should aim to include a case that has been
dismissed by the ADB.

7
Opportunity Commission, and was established by In 1991, a Tasmanian man, Nicholas Toonen,
the Human Rights and Equal Opportunity Commission complained to the Committee that certain sections
Act 1986 (Cth); it is now called the Australian Human of Tasmania’s Criminal Code criminalised his sexual
Rights Commission Act 1986 (Cth). orientation. In the case Toonen v Australia (1994), it
As detailed in Chapter 5, the AHRC plays a key was argued that the Tasmanian legislation breached
part in ensuring that we live in a tolerant, equitable Articles 2, 17 and 26 of the ICCPR; namely, the right
and democratic society. It provides information to privacy and the right to equal treatment before
through public education programs aimed at the the law. The Human Rights Committee ruled that the
community, government and business sectors. It also Tasmanian law constituted a violation of individuals’
holds public inquiries, advises parliament, conducts privacy under Article 17 and that Tasmania should
research and investigates discrimination complaints. amend its criminal code.
The federal government responded by enacting
The United Nations the Human Rights (Sexual Conduct) Act 1994 (Cth)
International treaties and declarations containing to override the offending sections of the Criminal
key principles of human rights include: Code Act 1924 (Tas). Nonetheless, Tasmania was
• The Universal Declaration of Human Rights (1948) reluctant to change its laws. It took a High Court
• International Convention on the Elimination of All decision (Croome v Tasmania [1997] HCA 5), which
Forms of Racial Discrimination (1965) held that Tasmania’s law was inconsistent with the
• International Covenant on Civil and Political Commonwealth Act, to force an amendment to the
Rights (1966) Criminal Code.
• International Covenant on Economic, Social and
Cultural Rights (1966)
Figure 7.8 On 18 December 2019, the UN High
• Convention on the Elimination of All Forms of
Commissioner for Human Rights, Michelle Bachelet
Discrimination against Women (1979) Jeria, attended an update on the human rights situation
• United Nations Convention on the Rights of the in Venezuela at the UN’s offices in Geneva, Switzerland.
Child (1989).
Human rights bodies under the umbrella of the United

Nations include the Commission on Human Rights,
now known as the Human Rights Council, whose
state members discuss and debate human rights
concerns. There are also committees that monitor
each of the conventions listed above, and that can
rule on individual complaints relating only to a single
convention. The UN Human Rights Committee is one
of these. It rules on individual complaints pertaining
only to the International Covenant on Civil and
Political Rights (1966) (ICCPR). State signatories
to the First Optional Protocol to the ICCPR have
agreed that their citizens can seek an opinion from
the Committee regarding breaches of the ICCPR.
Research 7.3
1 Investigate the provisions of the six human rights treaties listed above.
2 Briefly summarise the purpose of each of these treaties.
3 Compare and contrast the rights in the International Covenant on Civil and Political Rights (1966)
with the rights in the International Covenant on Economic, Social and Cultural Rights (1966).

Chapter summary
• Law enforcement agencies at the local, state • Disputes between individuals can be resolved
and federal levels have the task of enforcing using various legal (formal) and non-legal
laws and rights within their jurisdiction. (informal) methods.
Australian law enforcement agencies include • Disputes between individuals and the state
state and federal police, ASIO, Australian can be resolved using formal and informal
Customs and Border Protection Service, the methods. The state does not have unlimited or
Australian Criminal Intelligence Commission arbitrary power.
and the Australian High Tech Crime Centre. • The Australian Human Rights Commission and
• The nature of policing has changed the Anti-Discrimination Board of NSW carry
dramatically since 2001 in relation to terrorism, out vital roles in enforcing legislation that
cybercrime and border protection. Police protects rights.
are governed by Law Enforcement (Police • Cases such as Toonen v Australia illustrate
Responsibilities) Act 2002 (NSW) the ongoing need for law reform in relation to
human rights and their enforcement.
Questions
1 State and federal police officers: 4 Non-legal methods of challenging state power
a make and enforce laws. include:
b enforce laws. a media, trade unions and interest groups.
c investigate criminal laws in New South b trade unions, internal review, courts.
Wales. c members of parliament, trade unions
d do none of the above. and media.
2 The AFP’s role has: d internal and external review and media.
a changed dramatically since 2001. 5 Statutory bodies include:
b remained unchanged since 1901. a the ADB, the AHRC and ICAC.
c been modified by NSW Police. b Amnesty International, the ADB and
d been seconded by ASIO. the ABC.
3 When disputing parties present their cases to c the ADB, the AFP and the media.
an independent person who makes a decision d the ABC, the ADB and the ATO.
that is legally binding, the process is known as:
a negotiation.
b mediation.
c arbitration.
d all of the above.

7
1 Outline the roles of the Australian 5 Research and evaluate the Dawson case in
Human Rights Commission and the Anti- which law enforcement has allegedly failed to
Discrimination Board of NSW. Explain why bring a perpetrator to justice.
individuals and the state require such bodies. 6 Identify and describe a recent dispute between
2 Describe the role of at least three law individuals that has been solved through
enforcement agencies that operate in New mediation, arbitration or negotiation.
South Wales. 7 Assess the Australian Human Rights
3 Explain how the role of one law enforcement Commission, the Anti-Discrimination Board
agency has changed since 2001. of NSW or Independent Commission Against
4 Discuss why an independent and neutral Corruption. Discuss if we need such bodies.
third party is part of the mediation and
conciliation process.

Chapter 8
Contemporary issue: The
individual and technology
Chapter objectives
• investigate the way in which the law impacts the relationship between individuals and technology
in cyberspace
• identify the key features of the relationship between individuals and technology in cyberspace
• describe how individuals relate in cyberspace to other individuals, institutions, organisations,
corporations and governments
• investigate the nature of the relationship between individuals, the legal system and cyberspace
• discuss the effectiveness of the legal system in addressing issues that relate to individuals
in cyberspace.
Relevant law
Copyright Act 1968 (Cth)
Racial Hatred Act 1995 (Cth)
Communications Decency Act 1996 (US)
Cybercrime Act 2001 (Cth)
Spam Act 2003 (Cth)
Competition and Consumer Act 2010 (Cth)
Copyright Amendment (Online Infringement) Act 2015 (Cth)
Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth)
General Data Protection Regulation (EU) 2016/679
SIGNIFICANT CASES
Reno v American Civil Liberties Union, 521 US 844 (1997)
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63
United States of America v Ivanov (2001) 175 F Supp 2d 367
Department of Internal Affairs v Atkinson (High Court of New Zealand, 19 December 2008)

Legal oddity
While technology has made many aspects of our life simpler, when technology goes awry there can be
significant legal consequences for people in the community. A Melbourne commuter discovered this in
2013 when his ‘myki’ transport card would not ‘touch on’ before his train journey. An employee told him to
fix the issue at the other end, but in the interim, a security officer issued him a fine for not having a ticket.
The commuter successfully fought the fine, but technological issues with the myki card continue and many
other people have been issued on-the-spot fines.

205
8.1 T
he impacts of technology and this number is increasing every day. As a result,
on the individual digital technology and cyberspace are major areas of
interest for citizens and law-makers all over the world.
The impact of technology on the individual is one of
During the global coronavirus pandemic in 2020,
the most important issues that we all face today. This
the internet played a crucial role in everyday life and
is especially the case concerning digital technology.
even in people's survival. While in lock-down, people
In the twenty-first century, we have become very
used the internet to order essential items such as
dependent on the internet across all realms of
food and clothing, and to stay connected with their
human activity including communication, business,
friends and family.
and education. We have all become participants in
this digital revolution and it has changed the way we
The jurisdiction of cyberspace
think, communicate and interact.
Nearly three decades after the novelist William
In the 1990s when the internet started, there
Gibson coined the term cyberspace in his 1982
was a mood of optimism about the potential of
story ‘Burning Chrome’, the internet has become so
what some called the ‘information superhighway.’
widely available that it has forever changed our lives.
Some commentators envisaged a techno-utopian
Cyberspace is the global online virtual world created
future, which would benefit all of humankind. In the
by the interconnection of millions of computers on
2000s, as the internet increased its global reach, the
the internet. By the third decade of the twenty-
global internet platforms such as Google, Facebook,
first century, cyberspace touched just about every
Amazon and Apple, emerged and grew to become
aspect of our lives. Increasingly, our online and
the biggest businesses in history with enormous
economic power and political influence. All of this
change has put pressure on both domestic and
international legal systems.
By 2020, it was clear that timely, effective and
well-focused legal responses to the digital revolution
are needed to ensure that technology serves
humanity and is not used to enslave it. To chart the
best course into the future we need to understand
the history of digital revolution and how the law has
responded to it.
digital technology
computerised devices, connected to the internet, that are
used to generate, store and process data
internet
a global network of interconnected computer networks that
allows users to obtain and share information in a number
of ways
The internet Figure 8.1 The term ‘cyberspace’ was coined by the
American-Canadian science fiction writer, William
One of the most important and interesting
Gibson, in 1982, in his short story ‘Burning Chrome’. This
technological developments, particularly in terms of was well before the internet existed as we know it today.
the law, has been the creation of the internet. By 2020, The term and the concept were later popularised in
there were approximately five billion internet users Gibson’s debut novel, Neuromancer.
Legal Links
For up-to-date statistics relating to the internet, see the ‘Internet Live Stats’ website.

Chapter 8 Contemporary issue: The individual and technology
offline lives are merging. Like any other new area of supplied. They can be used to create software
human activity, there is a need for law applicable to programs that improve their performance or 8
cyberspace. Currently, no government or court can enhance or change their role. This feature
claim cyberspace as its exclusive jurisdiction. Its makes the internet unlike any other electrical
global nature poses particular challenges for the law. device or network that has ever been developed.
• Cyberspace is global. The internet went from
cyberspace being a collection of networks in the United
the ‘environment’ in which electronic communication
occurs; the culture of the internet States to being a global system. Cyberspace
lacks national boundaries. Like-minded people
can communicate with each other and join
The nature of cyberspace online communities regardless of where they
There are at least three distinctive features of live in the world. However, the negative side
cyberspace that pose unique challenges for legal to the lack of national boundaries is that it
regulation: is difficult for a nation-state to control what
• Cyberspace facilitates anonymity. The goes on within its territorial borders, if those
internet has made it much easier for persons activities are also taking place in cyberspace.
to distribute information and messages
anonymously or using a pseudonym. Approaches to rights
Web-based email services and many online in cyberspace
discussion forums allow you to create a user
name and hide your identity if you wish. While Laissez-faire approach to rights
domain names are identifiers for computers Some internet commentators advocate a laissez-
on the internet, and the IP number (physical faire approach to information, which means they do
address) of the computer being used can usually not think it should be regulated in any way. They
be determined, there is software that can be argue that individuals are capable of determining
used to encrypt internet activity or to hide the quality of internet content and that governments
identifying information about where a website should not intervene in the ‘marketplace of ideas’.
originated. This feature of cyberspace has One of the organisations taking this line is the
certain advantages for individuals’ privacy, but it Electronic Frontier Foundation, which was founded
also provides opportunities for cybercriminals. in 1990 with the primary goals of defending free
• Cyberspace facilitates creativity. The speech, privacy and consumer rights.
computers connected to the internet do not
laissez-faire
just retrieve information as a television receives (French) ‘allow to do’; may be used in a broad sense of
programs from a network; they also permit minimal government intervention in most aspects of society
information and services to be created and
Review 8.1
1 Outline some of the positive aspects of the global nature of cyberspace.

2 Outline some of the drawbacks of cyberspace, especially with respect to the enactment and
enforcement of laws.


Figure 8.2 On 1 February 2011, during the Arab Spring, protestors gathered in Tahrir Square in Cairo, Egypt. With the
eventual failure of the Arab Spring, the Supreme Council of Armed Forces, which was the governing group in Egypt,
(from Mubarak's departure at the start of the revolution, to the start of Morsi's term as president in June 2012) enforced
strict controls over the internet and especially social media in a bid to prevent further dissent.
Interventionist approach to rights Other methods of improving the quality of

Other commentators argue it is appropriate for information rely on the active involvement of online
governments to ensure that the law deals with communities and of key actors and stakeholders,
online phenomena such as race hatred and revenge including governments, parents, teachers, software
pornography, and to ensure reasonable quality companies and other businesses. Governments
overall. These advocates do not trust the marketplace would need to take a leadership role, but would also
of ideas. They advocate a more active role for need to give the other agents considerable freedom
governments in regulating quality on the internet, and scope. Some of the ideas include:
involving: • the establishment of national or international
• enacting legislation and/or international bodies for the accreditation of websites
treaties • greater use of reputation and industry ratings
• imposing obligations on ISPs to block systems, as used by YouTube, eBay and iTunes
certain content • greater use of brands and labels (‘trust marks’)
• strengthening enforcement agencies.
Research 8.1
Source online John Barlow’s article, ‘A Declaration of the Independence of Cyberspace’

(8 February 1996).
1 Outline the key points of Barlow’s article.
2 Discuss Barlow’s assertion that governments should keep out of cyberspace.

• government funding of internet awareness and Cybercrimes

digital media literacy skill classes in schools 8
• search engine filtering Hacking
• encouragement of social norms; for example, Hacking is unauthorised access to data held in a
as Wikipedia has done with respect to the computer or computer system, changing the data,
requirement of a ‘neutral point of view’ in all of interfering with electronic communication between
its content. computers, or impairing the security, reliability or
function of stored electronic data. A person may
In most cases, law can only set minimum standards. engage in hacking out of curiosity, for monetary gain,
Making laws in relation to cyberspace is very difficult, to alter data for some other reason or to maliciously
as there is a dearth of international agreements. spread a virus. Hacking also has the potential to be
Most of the laws regarding cyberspace are national used in an act of terrorism.
laws that are tied to local values. Limits on national The Cybercrime Act 2001 (Cth) amended the
law enforcement remain despite the global nature Criminal Code Act 1995 (Cth), as well as the Crimes
of the internet. Act 1914 (Cth) and several other Commonwealth
Acts. It created offences pertaining to computers,
data and the internet, now contained in the Criminal
8.2 Legal implications Code Act 1995 (Cth). As these are federal offences,
Even in cases where jurisdiction is clear, there are there must be a ‘Commonwealth connecting factor’;
difficulties with enforcement of the law in cyberspace. for example, the computers are owned or operated
Criminal and civil wrongs in cyberspace can by the federal government, the data is held by the
sometimes be classified into the familiar categories, federal government or the offender’s actions are
but they may also take on new characteristics. Some carried out via a ‘telecommunications network’ –
of the areas of law concerning cyberspace are as which includes the internet.
follows.
In Court
United States of America v Alexey Ivanov (2001) 175 F Supp 2d 367

In November 2000, Alexey Ivanov and his colleague, Vasiliy Gorshkov, were arrested in Seattle, United
States, and charged with conspiracy, fraud, hacking and extortion. Ivanov is a Russian computer
whiz who earned his living hacking the computer networks of US companies. He set up a company
that could supposedly give companies protection from hackers. Ivanov offered his services to
companies but only after he had secretly hacked into their network. If a company refused his ‘offer
of help’, he would send them a blunt email threatening to delete all their email files or publish all their
credit card information online. Ivanov and Gorshkov tried to extort money from many US companies
and they had a database of an estimated 50 000 credit cards.
The obvious difficulty in dealing with hackers like this is that they are based in foreign countries.
Also, there is no international law or mechanism that is effective in bringing them to justice. Often,
governments have to act unilaterally to deal with hackers and, in this case, that is exactly what
happened. Before their arrest, the pair was lured to a fake job interview in Seattle. At the ‘interview’,
they were asked to demonstrate their skills. The Federal Bureau of Investigation (FBI) monitored their
keystrokes and was able to discover their passwords. After the interview, the FBI counter-hacked
Ivanov’s company network in Russia and gathered all the evidence they needed to charge him.
Gorshkov was sentenced to three years’ jail and had to pay back $692 000 in illegal funds. He later
returned to Russia. Ivanov spent three years and eight months in jail and currently owes more than
$800 000 in fines.

A hacker may also be charged under state law. threat to publish the data if a payment is not made.
For example, in 2001, a company that set up a Ransomware scams have been increasing since
computerised sewerage system for Maroochy Shire 2012, with some examples including:
Council, Queensland, was hacked by an ex-employee, • CryptoLocker ($US400 ransom) – 2013
who made one million litres of raw sewage run into • CryptoWall ($US500 random initially,
public parks and creeks in the Sunshine Coast area. increasing to $US1000 after seven days) – 2014
He was convicted on various charges stemming • WannaCry ($US300 ransom) – 2017.
from his breach of section 408D of the Criminal
Code 1899 (Qld), which prohibits unauthorised use Businesses also fall victim to ransomware.
of identification information for the purpose of For example, at the end of January 2020,
committing an indictable offence. The legislation is Maze ransomware group targetted Bouygues
not specifically about computer hacking. On appeal Construction, asking for a ransom equivalent to
convictions on two of the charges were set aside but $US 10 million. The coronavirus pandemic of 2020
the sentence of two years’ imprisonment remained also provided opportunities for criminals to use
(R v Boden [2002] QCA 164). malware. One example was a COVID-19 tracking
Android app that promised to track coronavirus
Malware cases near the user, but which infected the user’s
Malware (short for ‘malicious software’) is software phone with ransomware that demanded large
that is designed to damage a computer or network. amounts of money.
One of the earliest examples was the Morris worm
of 1988 which caused computers to crash by rapidly Internet fraud
replicating itself and causing their systems to Fraud is intentionally misrepresenting or concealing
crash. The creator of the worm was the first person information to deceive or mislead. On the internet,
convicted under the United States’ legislation, the fraud can be carried out in a number of ways and can
Computer Fraud and Abuse Act 1984 (US). occur in conjunction with hacking.
A more recent development has been the use A scam is an attempt to obtain money through
of ransomware, in which access to data on the deception. Many scams, unique to the internet,
infected computer is blocked and a ransom payment have developed in recent years. They can function
is demanded for its release. There may also be a through unsolicited emails, websites promoting
Figure 8.3 The Chief of Police of Jakarta, Indonesia, Gatot Eddy (centre), speaks during a press conference on 26 November
2019. On display are evidence (bottom right) and Chinese and Indonesian suspects (in the background). Dozens of Chinese
nationals were arrested in Indonesia over an online scam that defrauded victims out of millions of dollars.

pyramid selling (where people are offered the right Spam

to sell a product or service, as well as the right to sell Spam is junk mail received electronically. Some 8
the scheme itself in the same way) and unsolicited spam is harmless, but much of it is malicious and
advertisements. potentially damaging to the recipient. Spam is also
Perhaps the best-known email scams are the known as unsolicited bulk email; that is, email send
ones in which the email promises the recipient to large numbers of people that the recipients have
huge rewards for helping a government, a bank, an not asked for or granted permission to have sent to
organisation or a family in Nigeria (or some other him or her. It does not matter what the content of the
country) out of some legal or financial difficulty. This email is; if it is unsolicited, it is spam.
assistance invariably involves transferring money Under the Spam Act 2003 (Cth), it is illegal to
electronically or supplying bank account details. send, or cause to be sent, unsolicited commercial
Another type of scam is ‘phishing’, where a electronic messages through email, instant message
person is sent an email apparently from a legitimate services (IM), telephone text messages (Short
institution, such as a bank asking the person for Message Service or SMS) or multimedia message
sensitive information, such as their account details. service (MMS). It does not cover faxes, voice
The information is then used to carry out fraudulent telephone calls or messages, or unsolicited ads that
activities, or to steal the person’s money. pop up to be seen by an internet user.
Fraud may also be perpetrated using fake The Spam Act was passed as a result of public
websites. In Australian Competition and Consumer concerns about spam. As discussed above, email can
Commission v Chen [2002] FCA 1248, the Australian be used for the purpose of fraud. The ways in which
Competition and Consumer Commission sought people’s email addresses and personal information
declarations that foreigner Richard Chen had misled are collected and handled for the purpose of
or deceived consumers in breach of the then Trade ‘spamming’ also raises privacy issues. Although the
Practices Act 1974 (Cth). Chen, an American, did not Spam Act applies to any spam regardless of content,
live in Australia and all of his activity was conducted a significant portion of the unwanted spam contains
from the United States. He operated three websites advertisements for pornography and other products
that appeared to be associated with the Sydney related to sex, illegal gambling schemes, pyramid
Opera House and purported to sell tickets to selling, and misleading or deceptive advertisements.
performances there. The stated price for the tickets Its method of distribution means that inappropriate
was twice the price of genuine ones and consumers material can be sent to minors.
never received tickets. The Federal Court granted The Australian Communications and Media
the declarations, as well as an injunction requiring Authority (ACMA), a Commonwealth statutory
Chen to remove the websites, take steps to prevent authority responsible for the regulation of radio and
Australian residents from accessing them, and stop television broadcasting, telephone communications
operating misleading and deceptive websites. and the internet, enforce the Spam Act.
Research 8.2
1 Identify the definitions for the scams listed below by visiting the Scamwatch website:
a online auction and shopping scams
b domain name renewal scams
c spam (junk mail) offers
d free offers on the internet
e modem jacking
f spyware and key-loggers
g ringtone scams
h up-front payment scams.
2 Construct a list of other types of internet scams.

In Court
Department of Internal Affairs v Atkinson, 19 December 2008 (CIV20084091002391/ 2008)

In 2008, a New Zealand man, Lance Atkinson, was found guilty in a New Zealand court of sending
two million unsolicited emails between 2007 and 2008 using iNet Ventures, an Australian-registered
company. These emails encouraged people to visit websites that used false claims to entice people
to buy prescription drugs, ‘male enhancement’ products and weight-loss pills.
However, this was only a small part of Atkinson’s spam operation. It is estimated that up to
10 billion spam emails were sent each day using a ‘botnet’ of 35 000 computers. A ‘botnet’ is a
large number of compromised computers using software robots (‘bots’) to send emails to bulk
addresses. The emails were aimed to market Herbal King, Elite Herbal and Express Herbal brand
pharmaceuticals, which were sent from Tulip Lab in India.
In 2005, the US Federal Trade Commission (FTC) had already pressed charges against Atkinson,
shut down his spam network, frozen Atkinson’s assets and fined him $2.2 million for running a
similar spam network. The network that Atkinson ran was the largest in the world, with connections
to Australia, New Zealand, India, China and the United States, and at its height was responsible for
a third of all spam. The FTC received over three million complaints about the operation.
One of the interesting aspects of this case is that it highlights the inability of any international
law or mechanism to deal with the spam that adversely affects all users of the internet throughout
the world. The only action that can be taken by states is to make their own laws against spam and
to unilaterally pursue the culprits for breaching this law. Often, states cooperate to track down the
criminals responsible, though this cooperation is not always guaranteed due to states’ differing
priorities and resources. Obviously, failed states have a difficult time cracking down on spam even
if they have the political will to do so.
Review 8.2
1 Recall what Lance Atkinson did.

2 Describe the size of Atkinson’s operation.
3 Identify the laws Atkinson violated.
4 Outline the ingredients for the successful prosecution of criminals like Atkinson.
Legal Links
For further discussion about spam and what is being done internationally to tackle it, view the
following websites:
• Australian Competition and Consumer Commission’s ‘The London Action Plan’
• The Spamhaus Project.
To see Australian spam legislation, view the Federal Register of Legislation’s website and enter
‘Spam Act 2003 (Cth)’ into the search field.
Cyberterrorism to economic loss, collapse of critical infrastructure,

Cyberterrorism is the use of information to intimidate or bodily injury or death. Some military commentators
coerce a government or its people to further a group’s describe this as the ‘new terrorism’ of our times.
or a person’s political agenda. Attacks could lead Instead of carrying a backpack filled with explosives, a

terrorist can cause far greater damage by unleashing Harvard Law School) said in his book, The Future
a carefully engineered packet of data onto the internet of the Internet and How to Stop It, we have not yet 8
and directing it at systems that control essential ‘experienced a 9/11 on the internet’ (i.e. an event
infrastructure such as power stations, dams, airports, as catastrophic as the September 11 attacks in the
hospitals, electricity grids and financial systems. United States in 2001). He argues that governments
Terrorist acts could include attacks against: will only act decisively to improve security against
• internet nodes cyberterrorism and other threats on the internet
• defence systems if they experience a massive catastrophe: in other
• networks and computer systems words, a 9/11 in cyberspace.
• telecommunications infrastructure
• the stock market Cyberwarfare
• nuclear power plants One of the problems of a cyber-attack is that it is
• critical infrastructure such as electricity grids hard to notice when it starts. It may take days before
• water supply realising an attack is under way.
• transportation systems
• health infrastructure. Types of attacks
There are several methods of attack in cyberwarfare:
Terrorists could also make use of: • propaganda – using propaganda on the
• ‘botnets’ of thousands of computers to launch internet to wage a psychological war against an
an attack adversary
• electronic threats • cyberespionage – obtaining secrets from an
• virtual blockades adversary using the internet
• email attacks • probing attacks – designed to find weaknesses
• viruses and worms. in an adversary’s defences in preparation for a
much larger attack in the future
Sadly, governments may never be fully prepared • distributed denial-of-service (DoS) attacks – when
for serious cyberterrorist attacks. As Zittrain a large number of computers in one country are
(an American professor of internet law and the used to launch a DoS attack against systems in
George Bemis Professor of International Law at another country
Figure 8.4 Homeland Security Secretary, John Kelly (centre), talks with White House Chief Strategist, Steve Bannon
(right), and Senior Advisor for Policy, Stephen Miller (left), before a meeting about cybersecurity with US President,
Donald Trump, at the White House on 31 January 2017.

• disruption of equipment essential for the trademarks and designs. Most of these things can
defence services of an adversary country be created or published on the internet.
such as computer networks, satellites and Intellectual property law protects the legal
communications rights arising from a person’s intellectual creations.
• attacking essential infrastructure such as It applies not to the ideas themselves but to the
water, power, fuel, communications and expression of these ideas. So the idea must have
transportation systems. developed into something tangible – for example,
a software program or an essay – to qualify for
In 2017, Wikileaks published a series of documents, protection. Three types of intellectual property
known as Vault 7, which showed capabilities of rights are copyright, trademarks and patents.
the CIA to engage in cyberwarfare, including Intellectual property is the exception when
accessing computer operating systems, web it comes to international law and cyberspace.
browsers, smartphones and smart televisions. They In many areas of law, international treaties do
also described CIA monitoring of the 2012 French not distinguish between offences committed in
presidential election. cyberspace and otherwise; however, there are a
In 2016, the Russian Government engaged in number of treaties and international organisations
an ‘influence campaign’ over the United States that deal specifically with intellectual property
presidential elections, with activities that allegedly issues on the internet.
included spreading fake news on social media and
hacking the Democratic National Committee’s copyright
an exclusive right to publish, copy, publicly perform,
computer network to publish (via Wikileaks) material broadcast or make an adaptation of certain forms of
damaging to the reputation of candidate Hilary Clinton. expression; namely sounds, words or visual images
trademarks
Intellectual property words, names, symbols or devices, used individually or
in combination, to identify and distinguish the goods or
in cyberspace services of one company from those of another
The term ‘intellectual property’ refers to creations of
patents
the mind that have commercial value. These include rights granted for a device, method, substance or process
inventions, literary works, artistic works, music, that is new, inventive or useful
software programs, databases, plant varieties,
Review 8.3
1 Identify three types of crime committed via the internet. Explain how each crime can harm
people.
2 Define ‘fraud’. Describe how fraud can be committed via the internet. Discuss other ways that
fraud can be committed.
3 Define ‘spam’. Using examples, discuss if spam is merely an annoyance, or if it raises serious
legal issues.
4 Construct a list of legislation that specifically deals with cybercrime. Identify other legislation
that has been used to prosecute crimes committed in cyberspace.
Research 8.3
View the website of the World Intellectual Property Organization (WIPO).

1 Identify WIPO’s definition of ‘intellectual property’.
2 Construct a list of the international treaties that relate to intellectual property.

Copyright • WIPO Performances and Phonograms Treaty

Copyright is the type of protection given to work (1996) 8
intended to convey information or enjoyment of • Copyright Amendment (Online Infringement)
literary form such as books, software, broadcasts, Act 2015 (Cth).
films and music. The Copyright Act 1968 (Cth)
protects material that has been produced in New challenges for the law relating to copyright
Australia. The laws of other countries that have have arisen as a result of digital technology.
signed the international treaties to which Australia Another major area of copyright violation involves
is a signatory also protect this material. The computer software that is copied and sold without
international conventions that ensure that any authorisation, causing losses of billions of dollars to
protection given to Australian creative works also the companies that originally created the programs.
applies globally are: Such unauthorised production is in breach of the
• Berne Convention for the Protection of Literary World Trade Organization (WTO) agreements,
and Artistic Works (1886) negotiated and signed by most of the world’s
• Universal Copyright Convention (1952) trading nations. If countries refuse to act against
• Rome Convention for the Protection of intellectual property violations within their borders,
Performers, Producers of Phonograms and other countries whose companies are suffering loss
Broadcasting Organisations (1961) as a result can ask the WTO to take action.
• World Trade Organization Agreement on
Trade-Related Aspects of Intellectual Property Trademarks
Rights (1994) Trademarks are signs or symbols that give a person
• WIPO Copyright Treaty (1996) or corporation the legal right to use, license or sell
the product or service for which it is registered.
Figure 8.5 A Member of the European Parliament, Axel Voss, reacts after the vote on copyright in the digital single
market during a plenary session at the European Parliament on 26 March 2019 in Strasbourg, France. The European
Parliament adopted controversial copyright reforms championed by news publishers and the music business,
delivering a blow to the tech giants that lobbied furiously against it.

A trademark distinguishes a person’s or company’s minimal commercial profit expected. While the ease
product from all others’ products. Some registered of obtaining material without paying for it clearly
trademarks have become famous images that will causes disadvantage to the people who produce
forever be associated with certain brands of goods. that material, some have argued that with the rapid
development of cyberspace, we need to rethink
Patents the concept of property and the laws that govern
Patents are for the protection of intellectual property property of all types.
in inventions. The aim of patent laws is to encourage
people to continue to research or develop new
products or technology. A patent gives the owner 8.3 D
ifficulties with
the exclusive right to derive commercial benefit enforcing rights
from the invention for the term of the patent, There are a number of ways in which individuals are
within Australia and its territories. International vulnerable in cyberspace. These include:
agreements regarding patents, such as the Patent • cyberbullying
Cooperation Treaty (1970), give our trading partners • cyberstalking
similar rights and ensure that the patent rights of • racial hatred
Australian inventors are upheld overseas. • exposure to violent, disturbing and/or illegal
Of these three types of rights – copyright, material, including child pornography
trademarks and patent – copyright has the most • exposure to adult material inappropriate
relevance to cyberspace. Information technology for children
has greatly reduced the cost of reproduction of text, • intrusions into privacy.
images and multimedia products, and the internet
cyberbullying
has similarly reduced the cost of transportation
harassment using digital media such as websites, email,
and distribution. Consider the difference between a chat rooms, social networking pages or instant messaging
truckload of books and the same content published
cyberstalking
electronically. The ‘culture’ of the internet has been repeated harassment using email, text messaging or
a further issue for intellectual property law: many other digital media with the intention of causing fear
or intimidation
resources are freely shared in cyberspace, with no or
Legal Links
For more information about trademarks and patents, view IP Australia’s website.
Review 8.4
1 Define ‘property rights’. Explain the specific nature of intellectual property rights, in contrast to
other kinds of property rights.
2 Recall what can be protected by each of the following and explain how each of these works:
a copyright
b trademark
c patent.
3 Discuss, with examples, how intellectual property rights are affected by the increasing use of
the internet.
4 Outline some of the legal means of protecting intellectual property in Australia and
internationally.

In cyberspace, there are few barriers between

individuals and there is potentially harmful content. 8
In addition, people who have grown up with the
internet and are comfortable using it and other forms
of digital technology may be less cautious than those
who have adapted to it and adopted it at a later point
in their lives. Online, people tend to loosen up and
reveal things that they would be less likely to divulge
in their offline world. Psychologists call this feeling
of invincibility the disinhibition effect.
disinhibition effect
the tendency to say and do things in cyberspace that the
person would not ordinarily say or do in the face-to-face
world
Social networking sites such as Twitter and Facebook

and online communication media such as chat Figure 8.6 Cambridge Analytica former employee and
whistleblower, Christopher Wylie, testified before the
rooms require varying degrees of public personal
Senate Judiciary Committee on Cambridge Analytica
disclosure; that is, information of a personal nature and data privacy in Washington, DC on 16 May 2018.
shared in what is essentially a public forum. The
impression that friends are ‘chatting’ in a controlled, available to a number of political organisations who
private space is an illusion. Other people can access wanted to target messaging and influence people in
this information, either immediately or at some later matters such as the 2016 US presidential election,
stage, as online information remains indefinitely the 2016 Brexit vote and the 2018 Mexican general
in cyberspace. election. Facebook CEO, Mark Zuckerberg, issued a
personal apology and promised to change Facebook’s
Privacy processes.
The information that we present about ourselves There has been a trend towards the use of services
online, including photographs, forms our digital and storage of personal and other data in ‘the cloud’,
dossier . This digital dossier comprises all the on sites that the user does not own or control; also,
information about a person held in multiple locations. the user need not have knowledge of or expertise in
their creation or maintenance. Individuals have little
digital dossier control over how the most powerful search engines
all the types of information about a person that he or she has
use their information. Information, stories, photos
deliberately or unintentionally put onto the internet, held in
multiple locations and anything else you may post on a website may be
removed later, but they have already been recorded
Governments and businesses have always collected in an internet archive, as well as in a search engine
information about individuals, but now the speed of ‘cache’ – a ‘snapshot’ that is taken of the page as it
data collection practices has outpaced methods of originally appeared. Other people may also copy your
protecting that data. In early 2018, it was revealed words or photos and post them on their own websites
that a political consulting firm called Cambridge or webpages. So your information acts like a ‘digital
Analytica had mined the personal data of over tattoo’: even when it’s no longer wanted for display,
80 million Facebook users without their consent. This it is not easily removed.
was done by way of a personality quiz app, which
retrieved personal information not only of the 300 000 Privacy laws
people who installed the app (arguably consenting The Privacy Act 1988 (Cth) contains ‘privacy principles’
to the information gathering), but also that of all covering federal government agencies and relating to
their Facebook friends. The app developer shared the handling of citizens’ personal information such
this with Cambridge Analytica, who in turn made it as social security, health insurance and taxation.

Amendments to the Privacy Act in 2000 extended the to keep personal information secure. The federal
privacy regime to parts of the private sector, relating to Privacy Act worked well for a long time, but without
how businesses should collect, store, use and disclose refinement it cannot keep up with developing
personal information. Some states and territories, technologies. Information privacy now connects
including New South Wales, have also enacted with nearly every part of our day-to-day lives.
privacy legislation; others have privacy schemes for This includes medical records and health status,
government agencies based on the privacy principles finances and credit rating, and other personal
contained in the federal Privacy Act. details recorded on a vast array of company and
There is currently no statutory tort for breach public databases. Even our ability to display photos
of privacy. However, in Australian Broadcasting of ourselves online has privacy implications. In 2012,
Corporation v Lenah Game Meats Pty Ltd [2001] the federal government passed the Cybercrime
HCA 63, the High Court held that there was nothing Legislation Amendment Act 2012 (Cth) to tighten
standing in the way of developing one. Since then, privacy rules by giving people more information
there have been several cases heard in state courts about the use of their personal details in cyberspace.
that point towards the recognition of such a tort. However, critics wonder whether this is enough and
In 2008, the Australian Law Reform Commission are concerned about government moves to store the
(ALRC) produced a report called, For Your browsing history of everyone in Australia.
Information: Australian Privacy Law and Practice, In May 2016, the European Union passed a
in which it recommended extensive changes to law data protection and privacy for all citizens
privacy laws and practices to take account of new of the European Union. The General Data
technology, as well as a way that individuals can Protection Regulation (GDPR) came into force in
bring a civil action for serious breach of privacy. April 2018. The GDPR also has impact outside Europe
The federal Privacy Act was introduced in 1988, because it lays down the requirements for transfer of
predating super computers, the internet, mobile information outside Europe. It requires all controllers
phones, digital cameras, ecommerce, sophisticated of personal data to have processes that safeguard
surveillance devices and social networking personal data and to use the highest privacy settings
websites – all of which make it more challenging as default.
Figure 8.7 On 22 May 2019 in Brussels, Belgium, European Commission Vice-President, Věra Jourová, addressed a
press conference about taking stock of the General Data Protection Regulation, one year after it came into force.

Research 8.4 8
1 Source online the following article, ‘Facebook moves 1.5 bn users out of reach of new European
privacy law’ (by Alex Horn, The Guardian, 19 April 2018).
a Describe how Facebook responded to the GDPR when it came into force in April 2018.
b Assess Mark Zuckerberg’s explanation of this decision.
2 Find recent media articles about the GDPR.
a Discuss if there is still any controversy about the GDPR.
b Assess the effectiveness of the GDPR since 2018.
Metadata Bruce Schneier, the author claims that we are living

Metadata is very useful when you are trying to find in the ‘golden ages of surveillance’ and that we are all
data or files. Tagging particular items can help you ‘open books to both government and corporations’.
search for what you are looking for. For example, Schneier says that the technology of today gives
if you are looking for a legal article, keying in the ‘governments and corporations robust capabilities
word legal into a search engine will result in various for mass surveillance’ and that our response to this
documentation that has been tagged with the word ‘creeping surveillance has largely been
legal or legal type terms. However, there may be a passive’.
danger to our privacy due to metadata. Despite
metadata
all these laws about privacy, the reality today is the data about data; it is information that identifies
governments and corporations are using metadata individuals through phone and internet activity giving a
detailed picture of their lives and relationships
to discover more about people’s tastes, interests and
relationships. In the recent book Data and Goliath by
Figure 8.8 American whistleblower, Edward Snowden, speaking via Skype at the Wired Next Fest 2019
in Milan, Italy. Snowden worked in the United States as a contractor to the CIA. In May 2014, he fled the
United States after leaking information about mass global spying carried out by the American National
Security Agency. He was given temporary asylum in Russia. Video

Review 8.5
1 Discuss how someone’s ‘digital tattoo’ might pose problems for them in the future. Outline some
hypothetical scenarios and propose ways that you can prevent this from happening to you.
2 Define ‘metadata’. Discuss why metadata threatens everyone’s privacy.
Safety racial hatred

abuse or denigration of a person because of his or her race,
Another potential danger of revealing too much or verbal abuse or denigration of a race generally
about yourself online is that false identities are
easily created, and the person with whom you are In late 2008, there were calls in Australia to toughen
communicating may not be genuine. Parents may be laws on cyber-racism after a spate of occurrences
justifiably concerned about online predators, who on social networking sites. In the Criminal Code Act
assume false identities to entice young people into 1995 (Cth), Part 10.6 deals with telecommunications
harmful encounters online or in the physical world. services and includes section 474.17, which states
that it is illegal to use ‘a carriage service to menace,
online predator
a person with malicious intent (e.g. a sex offender or paedophile)
harass or cause offence’.
who gives false and misleading identities with the aim of enticing A person is guilty of an offence if:
their victims into harmful encounters online or in real life a the person uses a carriage service and
b the person does so in a way (whether by the
For others, the disinhibition effect may contribute to method of use or the content of a communication,
behaviour such as rude language, harsh personal or both) that reasonable persons would regard
criticism or violent online games. At the extreme end as being, in all the circumstances, menacing,
of the continuum, the disinhibited behaviour may harassing or offensive.
include threats, cyberbullying or cyberstalking.
Expression of racial hatred is illegal in Australia Protecting children
under the Racial Discrimination Act 1975 (Cth). The One of the most significant concerns about
Racial Hatred Act 1995 (Cth) amended this Act to cyberspace is the need to protect children, not only
extend its coverage, giving people a mechanism to from inappropriate content and online predators, but
complain about racial hatred. In the offline world, also from serious criminal offenders who victimise
racial hatred may occur through speech, gestures, children. Child pornography is a legal and moral
images or written publications. This law applies problem that goes beyond the legality of images or
equally to cyberspace, at least for people under the text on the internet or other media.
jurisdiction of Australian law. As with other types In the United States, laws to protect children
of expression, it is relatively easy for anyone to from inappropriate material must be drafted in
encourage racial hatred in cyberspace. such a way as not to violate the right to freedom
Research 8.5
Research the laws relating to cyber-racism in Australia and evaluate their effectiveness. Start with
the cyber-racism section on the Australian Human Rights Commission’s website.
Legal Links
For more information about online safety issues, see the website of the Australian eSafety
Commissioner.

Review 8.6 8
1 Describe how cyberbullying, cyberstalking and cyber-racism are different from their
counterparts in the physical world.
2 Assess whether laws relating to these acts should be drafted to relate specifically to cyberspace,
or whether existing laws are adequate.
3 Propose some non-legal ways that could be used to protect against cyberbullying, cyber-
racism and online predators. Consider the following agents in your response: parents, teachers
and schools, older teenagers (e.g. siblings, friends or mentors of younger children), software
companies and internet service providers.
of expression contained in the First Amendment. feed’ legislation originated during the Howard
Another difficulty is that if a law is too broad in the federal government and involved the establishment
scope of what should be prohibited, it can prohibit of a filtering scheme that would be imposed on all
too much – including content that is unlikely to be Internet Service Providers (ISPs).
accessed by children or to have anything to do with
the victimisation of children. This and other issues Internet Service Providers (ISPs)
companies that offer customers access to the internet
will be further examined later in the discussion of
the proposed ‘clean feed’ legislation in Australia.
The Rudd Labor government elected in 2007
continued to consider the ‘clean feed’ proposal.
Internet filtering
The $70 million plan would block webpages listed
Similar concerns about offensive and obscene
in a ‘blacklist’ maintained by ACMA. It was argued
content were raised in Australia during the period
that this would not only prevent internet users from
of the Rudd–Gillard governments. The idea of ‘clean
In Court
Reno v American Civil Liberties Union, 521 US 844 (1997)

In 1996, due to public pressure, the US Congress passed the Communications Decency Act 1996
(CDA). Two provisions of the CDA prohibited the ‘knowing’ transmission on the internet of obscene
or indecent sexual communications or images to people under 18 years of age.
Many people considered these CDA provisions to violate the principle of freedom of expression.
So a broad collection of individuals and groups (the American Civil Liberties Union, the Electronic
Frontier Foundation, Human Rights Watch, and organisations and trade unions of editors,
publishers, high school journalism teachers) united to challenge the CDA in court. (The ‘Reno’ in
the case name is Janet Reno, the US Attorney-General from 1993–2001.) A US federal court ruled
that the CDA violated the First Amendment of the US Constitution; the US Government appealed
this decision in the US Supreme Court.
The US Supreme Court affirmed the lower court’s decision and held that the indecency
provisions of the CDA were an unconstitutional restriction of free speech. The court found that
the terms ‘offensive’ and ‘indecent’ were vague, and the CDA provisions were overly broad. It
concluded that the CDA did not focus enough on protecting minors from potentially harmful
material. Moreover, there is no effective method of finding out the age of an internet user.
The court’s view was that online communication differs significantly from broadcast media, in
that users seldom encounter content online ‘by accident’. Therefore, the internet should be subject
to less regulation than the broadcast media.

seeing unwanted and inappropriate material, but and sellers could post praise and complaints about
would also combat child pornography itself. Two one another and their transactions, and one ‘customer
potential types of filter were canvassed. Either support person’ who was paid $100 a month to resolve
all pornographic material would be blocked, or disputes. However, with the growth of the company,
an ‘opt-in’ scheme would allow users to continue scams began to proliferate. Goods were offered but
receiving ‘adult material’. not delivered, hundreds of would-be buyers were
The mandatory proposal was much more affected, and it was only a matter of time before eBay
restrictive than the voluntary ISP filter schemes faced a lawsuit by alleged victims of fraud. Without
operating in some European countries, which block the threat of prosecutions to limit the relatively small
only child pornography. One version of the scheme number of dishonest users, cybercrime could ruin an
in Australia would include a wider range of material, online business. Governments are needed to create
some inappropriate for children but not necessarily an environment where the rule of law prevails and
involving pornographic or violent content. ‘Social where law enforcement mechanisms will deter those
themes’ upsetting to children could include divorce who break the law.
and euthanasia. Governments provide public goods that enable
It has been pointed out that criminals individuals and businesses to use the internet
distributing child pornography seldom use sites effectively. These public goods are:
that are accessible on the internet. Increasingly, • the cable network and communication laws
they are using less public methods such as peer- • criminal law
to-peer networks, which allow single computers to • laws governing property rights
communicate with each other; encrypted networks, or • enforcement agencies.
smaller networks using codes that only the members
know; or other systems that prevent public access. Essentially, the smooth functioning of the internet
Consequently, blocking websites is not an effective depends on governments preventing harm and
means of stopping the spread of child pornography. protecting rights. Countries whose governments do
Some ISPs dislike the proposal because it is too a poor job of this are finding that big companies are
easily bypassed by users, and because enforcement refusing to do business there.
would be too onerous. Another objection was the risk
that the filter would block material that has nothing Current status and sources of law
to do with the type of content that the law aims to in cyberspace
fight. Due to significant grassroots opposition to
the ‘clean feed’ – as well as the Labor government’s National
political problems – these proposals to filter the At a national level, both statutes and court decisions
internet in Australia have stalled and no action was are used to govern the use of the internet within
taken on the ‘clean feed’ idea. nation states. Many laws relating to cyberspace are
contained within more general statues, as outlined
previously in this chapter. Examples include
8.4 Future directions sections 308–308I of the Crimes Act 1900 (NSW),
which set out computer offences, including hacking,
Why laws are needed and the Spam Act 2003 (Cth). Further, superior
Cyberspace is a new and exciting development courts can also create precedents in relation to the
in society, but arguably there is no reason to legalities of activities in cyberspace.
think people are any better able to regulate social
behaviour there than in any other place, in the International
absence of external authority. Unlike other areas of law where issues cross national
In 1995, when eBay was founded, the company’s boundaries, there are few specific international
owners did not believe that they needed to rely on treaties that deal specifically with cyberspace.
government or laws to make their online business work. Given the exponential rise in internet use since the
They had an online ‘feedback forum’ where buyers 1990s, one would expect that there would be many

international treaties to deal with common issues began to review that framework in 2008 to ensure
faced by all states. However, this is yet to occur. that it stays current. The EU has made a number 8
Some international organisations and their current of treaties relating to cyberspace. Parties to the
roles with respect to governance in cyberspace are: Council of Europe Convention on Cybercrime
• United Nations: The United Nations has little (2001), for example, include 38 European
control over the internet or what happens in countries, Canada, Japan, Montenegro, South
cyberspace, except in the area of intellectual Africa and the United States.
property. There are no UN-sponsored treaties • World Trade Organization (WTO): The WTO
or conventions that are specifically designed to looks after trade matters between nations. This
govern cyberspace. Intellectual property aspects includes trade aspects of intellectual property,
of internet use are looked after by WIPO. which are dealt with via the TRIPS agreement.
• World Intellectual Property Organization The WTO also deals with ecommerce matters.
(WIPO): WIPO is a specialised agency of the • Internet Corporation for Assigned Names
United Nations concerned with intellectual and Numbers (ICANN): This non-profit
property. corporation was established in 1998 to coordinate
• European Union (EU): The EU is an economic the naming system on the internet, which is
and political partnership of European nations used to identify all websites. It has international
that has regulatory powers in various areas representation but is very much under US
of social and economic life. In 2003, the EU government control. ICANN’s role is strictly
reformulated its regulatory framework covering limited to the management of the domain naming
communications to cover ‘all electronic system. However, it has the potential to become
communication networks and services’, and the most powerful organisation overseeing
the internet if in the future there is a wider
Figure 8.9 Vice President and the Director for Security representation of the international community.
at the Pochta Bank, Stanislav Pavlunin, at the session, ‘Is • Internet Assigned Numbers Authority
Russia prepared for new challenges in cyberspace?’ at (IANA): IANA is one of the oldest
the 2019 Russian Investment Forum in Sochi, Russia. internationally organised institutions,
having been established by the US Defence
Information Agency in 1972 for the purpose of
assigning unique addresses to all computers
connected in networks at that time. Today it
manages over 20 million domain names, with
around 40 000 registered every day.
All of these organisations have websites that you

can view.
Strategies for governments

In their efforts to exert control in cyberspace,
governments do not have to be completely effective
to be adequately effective. Achieving perfect legal
control is quite often just too expensive.
Intermediaries
One way in which governments can exert control
over content is by enlisting local intermediaries such
as ISPs and the companies that control the physical
internet connections. They can also influence the
policy of what goes on the local portals for search

engines. By utilising financial intermediaries, such as technology to avoid the law, and authorities using
PayPal, banks or credit card companies, a government new technology against the law-breakers. It can
can wield huge influence over an industry – indeed, it be quite costly for governments to chase and shut
can cripple it without going to court. down illegal operations in cyberspace. Also, only
Needless to say, some countries that have utilised developed (first world) countries have the financial
these methods are not known for having a high and other resources to do this.
regard for freedom of expression or for corporate Another major difficulty for governments seeking
independence from government. to control content is the risk of censorship. As we
have seen, this is of particular concern to countries
Prosecution of individual criminals with explicit protection for freedom of expression.
Quite often the simplest way a government can On the other hand, countries that have no qualms
assert control over cyberspace is by physically about limiting free speech, such as China and Saudi
arresting an individual suspected of cybercrime. Arabia, have achieved unprecedented control over
The difficulty is that the person must be within the internet content within their jurisdictions.
territorial borders of the government that is seeking As there are many different legislative regimes
him or her. Otherwise, extradition treaties can be in the world, what is illegal in one country may be
used to remove the person from the country where permitted in another. In the absence of effective
he or she has taken refuge. international conventions to deal with content
that has human rights implications, such as child
extradition pornography, some nations have implemented
the handing over of a person accused of a crime by the
authorities of the country where he or she has taken measures such as ISP filtering.
refuge to the authorities of the country where the crime
was committed
Global laws
Challenges to government control The challenge of transnational

of cyberspace cybercrime
One of the greatest challenges for governments is Cybercrime is big business and it poses a challenge
that each new technological innovation tends to for law enforcement agencies. Crimes such as data
make it easier for the law to be violated in some way. theft, data tampering, and the creation of viruses
Often there will be a race between people using new and worms are enormously damaging. Companies
Research 8.6
1 View the OpenNet Initiative website and read the information relating to global internet filtering.
2 Using the ‘view country profiles’ drop-down menu, find some countries that have implemented
ISP filtering schemes. Research the different schemes in use.
3 Explain how these schemes attempt to protect innocent content providers and internet users
while filtering out objectionable material.
4 Outline some of the types of objectionable material that these filters target.
Review 8.7
1 Discuss why strategies involving the use of intermediaries (e.g. ISPs, companies that provide
physical infrastructure and banks) are problematic. Outline some of the objections that could be
made to these strategies.
2 Identify three problems for governments seeking to make certain types of web content illegal.

also tend to under-report the effects of cybercrime for the domain name system (DNS). The founders
on their business because they do not want the of ICANN intended it to be the ultimate authority 8
adverse publicity. for the internet. However, the US Government
ISPs are not capable of blocking criminal activity had responsibility for its oversight, under a
unless they have the specific details of which user is memorandum of understanding between ICANN
involved. In combating cybercrime the enforcement and the US Department of Commerce, from 1998 to
agencies have to work quickly to deal with criminal 2009. Representatives of other countries and other
acts because it is easy for criminals to slip back into observers have questioned why the United States
anonymity once they know they have been detected. should have primary authority, and argued that it
One major reason for the Australian Government should be more independent and therefore more
introducing the Metadata Laws in 2015 was to international. In 2009 the United States gave up its
combat terrorism. This legislation requires ISPs to control of ICAAN.
store information about their customers’ phone and Some of ICANN’s achievements have included:
online usage for two years. However, civil liberties • decentralisation of the sale and distribution of
groups are concerned that too much power has been domain names, which led to a significant drop in
given to government in this legislation. the price of registering a domain name
• establishment of an effective method of
terrorism resolving trademark disputes
violence or the threat of violence, directed at an innocent
group of people for the purpose of coercing another party, • reduction in the incidence of cybersquatting;
such as a government, into a course of action that it would that is, making a profit from the use of someone
not otherwise pursue
else’s domain name.
The only binding international treaty on cybercrime

Most of all, ICANN has ensured the stability of
to have been formed to date is the Council of Europe’s
the internet so that individuals, businesses and
Convention on Cybercrime (2001), which entered into
governments rarely worry about the internet
force in July 2004. However, it has been difficult
collapsing.
getting countries to agree to sign the convention
due to sensitivity about sovereignty and authorising
third parties to do cross-border searches. Also, there Figure 8.10 In 2019, the American convenience store
are civil liberty concerns that the treaty jeopardises chain Wawa had a massive data breach. Malware
discovered on Wawa payment processing servers on
free speech and privacy rights. Forty-seven nations
10 December 2019 affected customers’ credit and debit
had signed and ratified the convention as of 2015, card information from 4 March 2019 until the breach was
leaving seven signatories who have not yet ratified contained on 12 December 2019.
it. Though the aims of the treaty are noble, it has
not yet made a significant contribution to fighting
cybercrime. Nations are still relying on unilateral
action and ad hoc cooperation with a few other
like-minded nations to fight cybercrime.
However, the Convention on Cybercrime (Draft 25),
along with recommendations made by the Model
Criminal Code Officers Committee of the Standing
Committee of Attorneys-General, influenced the
development of Australia’s Cybercrime Act 2001
(Cth), discussed earlier in the chapter.
ICANN’s potential
One organisation that has enormous potential to
be the ultimate global authority on the internet is
ICANN. This non-profit organisation is responsible

Figure 8.11 Shaltai Boltai (Humpty Dumpty) hacking group leader Vladimir Anikeyev (aka Lewis) attends a parole
hearing at Moscow's Lefortovo District Court. Anonymous International (Shaltai Boltai) specialised in hacking the
accounts of officials and businessmen and putting the information for sale.

Chapter summary
• Cyberspace is an area in which the law is • Efforts to protect children from indecent or
8
playing an increasing but controversial role. inappropriate material on the internet can
The characteristics of cyberspace include conflict with the protection of individual rights
global coverage, easy anonymity for users and to free expression. Combating serious criminal
the facilitation of creative activity. activity that makes use of the internet faces
• Crimes specific to cyberspace include hacking similar challenges, as well as the difficulty of
and spam. enforcement.
• Fraud and violations of intellectual property • Philosophical approaches to rights in
rights are not specific to cyberspace, but they cyberspace fall into two general camps:
take on a distinctive character in that context. laissez-faire and interventionist.
• Privacy and safety issues are of concern • While greater government control of
to many internet users, and particularly to cyberspace has clear benefits with respect to
parents of young users. fighting crime, democratic governments must
• The Australian Law Reform Commission has ensure that individuals’ civil rights are not
recommended the development of a statutory violated.
tort of breach of privacy, and other reforms to • International regulation of cyberspace is in
take account of new technology. its infancy.
Questions
1 Two distinct features of cyberspace that will 4 Spam is:
influence laws relating to it are its: a the unauthorised duplication of goods
a security and predictability. protected by intellectual property law.
b anonymity and global character. b an unsolicited commercial electronic
c political progressivism and educational message.
value. c an attempt to gain money through some
d democracy and communitarianism. sort of deception.
2 It can be concluded from the US Supreme d the intentional misrepresentation or
Court decision in Reno v American Civil concealment of information in order to
Liberties Union that: deceive or mislead.
a cyberspace requires some degree of 5 A digital tattoo is:
government control. a a unique type of computer identifier used
b laws that attempt to regulate internet by some European countries.
content may restrict free speech. b a software program unique to the
c online communication is more like a individual, which is stored online
conference call than a private conversation. somewhere in cyberspace.
d all of the above c a type of internet scam.
3 The international organisation concerned with d information placed on the internet that is
copyright law is: no longer wanted but that cannot be easily
a ICANN removed.
b IANA
c the UN
d WIPO

1 List the different types of intellectual property 5 Explain why government control of cyberspace
and explain how cyberspace may pose unique is constantly challenged.
problems for intellectual property law. 6 List the international organisations that
2 Describe the various ways in which privacy can have some authority for the regulation of
be violated in cyberspace. cyberspace. Describe the function and
3 Explain how privacy is protected in Australia. jurisdiction of each organisation.
4 List some of the problems arising from the free 7 Outline the reasons why law is not always
and unrestricted transmission of information in effective in cyberspace.
cyberspace.

Part III
Law in practice
30% of course time
Principal focus
Students investigate contemporary issues that illustrate how the law operates in practice.

The themes and challenges covered in Part III include:
• the relationship between justice, law and society
• the development and reform of law as a reflection of society
• the importance of the rule of law
• the responsiveness of the legal system in dealing with issues
• the effectiveness of legal and non-legal mechanisms in achieving justice for individuals and society.

ISSUE 1 – GROUPS OR INDIVIDUALS SUFFERING DISADVANTAGE 230
Chapter 9 Children and young people 230
Chapter 10 Women 258
Chapter 11 Migrants (digital chapter)
Chapter 12 Aboriginal and Torres Strait Islander peoples (digital chapter)
Chapter 13 People who have a mental illness (digital chapter)
ISSUE 2 – EVENTS THAT HIGHLIGHT LEGAL ISSUES 302
Chapter 14 The Bali Nine 302
Chapter 15 Alcohol and violence (digital chapter)
Chapter 16 The Port Arthur massacre 326
ISSUE 3 – INDIVIDUALS OR GROUPS IN CONFLICT WITH THE STATE 348
Chapter 17 Julian Assange 348
Chapter 18 Outlaw motorcycle gangs (digital chapter)
Chapter 19 Behrouz Boochani 368
Chapter 20 Mohamed Haneef (digital chapter)
Chapter 21 The Northern Territory National Emergency Response
(digital chapter)
ISSUE 4 – CRIMINAL OR CIVIL CASES THAT RAISE ISSUES OF
INTEREST TO STUDENTS 394
Chapter 22 The Christchurch Massacre 394
Chapter 23 Facebook and social media privacy issues 416

Issue 1
Groups or individuals
suffering disadvantage
Chapter 9
Children and young people
Chapter objectives
• explore legal concepts and terminology relating to children and young people
• investigate the main features of the Australian and international legal systems in relation to children
and young people
• analyse the legal system’s effectiveness in delivering justice and addressing issues in society relating
to children and young people
• investigate the place of the law in encouraging cooperation and resolving conflict with regard to
children and young people
• investigate the role of the law in addressing and responding to change with respect to children and
young people
• find and use legal information from a range of sources
• develop the ability to effectively communicate legal information and issues.

Relevant law
Children (Criminal Proceedings) Act 1987 (NSW)
Children’s Court Act 1987 (NSW)
Education Act 1990 (NSW)
Births, Deaths and Marriages Registration Act 1995 (NSW)
Children (Protection and Parental Responsibility) Act 1997 (NSW)
Young Offenders Act 1997 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Adoption Act 2000 (NSW)
Australian Citizenship Act 2007 (Cth)
Advocate for Children and Young People Act 2014 (NSW)
SIGNIFICANT CASES
Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402
Department of Health & Community Services (NT) v JWB & SMB [1992] HCA 15 (‘Marion’s case’)
Re W (A Minor) [1993] Fam 64

9.1 C
hildren, young people and mortality rate was as high as 50% for children in
the law their first year. Many children also experienced
violence on a regular basis. For many, poverty and
Children and young people represent the future of
crime were significant influences in their formative
society. The respect we afford them and the way in which
years. Joining a gang and participating in crime and
we support and nurture their social,
prostitution were ways of surviving until adulthood.
emotional and cognitive development
Children committing criminal acts were treated
are crucial to the maintenance of a fair
in the same way as adult offenders. The concept
and just community.
Video of an age before which a person could not be held
criminally responsible – doli incapax – did not
children exist, and children as young as seven or eight were
generally, persons aged 15 years and younger, depending on
the legal context convicted of serious criminal offences.
young people
doli incapax
in New South Wales, persons aged between 16 and 18 years
(Latin) ‘incapable of wrong’; the presumption that a child
under 10 years of age cannot be held legally responsible for
his or her actions and cannot be guilty of a criminal or civil
offence
How the law defines ‘children’ and
‘young people’
Children were forced to work from a young age. The
Traditionally, the legal age of adulthood was
beginning of the industrial era saw the beginning
21 years. In the past 20–30 years, most jurisdictions
of child labour in factories, where they worked
have lowered this age to 18 years.
long hours, usually with dangerous machinery, for
Article 1 of the United Nations Convention on the
very low pay. They also experienced work-related
Rights of the Child (1989) states that anyone under the
diseases due to hard physical labour or from working
age of 18 is a child unless the national law specifies
with industrial chemicals while unprotected.
an earlier age.
The concept of public education did not exist. The
The Children and Young Persons (Care and
education children received depended on the wealth of
Protection) Act 1998 (NSW) defines a ‘young person’
their family. Private tutors or governesses who taught
as someone aged between 16 and 18.
the children at home were one option for the rich, or
These definitions are important because laws
boys could be sent to exclusive boarding schools.
treat children and young people differently from
adults. These laws are intended to: Figure 9.1 Children pick slate in an anthracite mine in
• prevent them from being exploited Pennsylvania, United States.
• protect them from the consequences of making
uninformed decisions
• protect others from being disadvantaged by
dealing with a person who is a minor.
A history of the status of children

and young people
Historically, children had no legal rights until
they reached adulthood. It was not until the late
nineteenth century that concern about the working
conditions of children, and the broader effects that
child labour had on the quality of many children’s
lives, set in motion significant changes.
Throughout the nineteenth century, children in
poorer families were constantly threatened by the
spread of disease. They lived in dirty, overcrowded
housing with very poor sanitation. The infant

9
Chapter 9 Children and young people
In 1870, the Elementary Education Act was passed the Rights of the Child (1989), and the Gillick case
in England, introducing compulsory universal in England.
education for children aged 5–13 years. In
Australia, the Church of England initially assumed United Nations Convention on the
responsibility for the education of colonists. Following Rights of the Child
disagreements between Anglicans, Presbyterians The United Nations Convention on the Rights of the
and Catholics as to which religion had authority Child (1989) (‘Convention on the Rights of the Child’)
for this task, each colony between 1872 and 1895 sets out a comprehensive set of rights for all children
passed Education Acts making primary education and young people. It covers civil, political, economic,
a state responsibility and stipulating that it would social and cultural rights, and requires that all
be ‘free, compulsory and secular’. Many parents of state parties act in the best interests of the child.
limited economic means needed their children to The Family Law Act 1975 (Cth) and other Australian
be working, and it wasn’t until the introduction of a legislation endeavour to reflect that objective. The
minimum working age that children began to attend basic rights of a child, as set out in Articles 1–40 of
school regularly. the Convention on the Rights of the Child, include
By the end of the nineteenth century, the right to life, to have one’s own name and identity,
governments, religious institutions and charities to be raised by one’s family and to have a relationship
had become aware that children required specific with both parents, even if the parents are separated.
legislation to protect them from violence and abuse, The Convention on the Rights of the Child is the
and to give them greater opportunities to develop most widely ratified human rights treaty, with more
socially and emotionally. than 193 countries having ratified it. The exceptions
are the United States and Somalia. It is monitored by
Recognition of children’s rights the UN Committee on the Rights of the Child, which
Two significant events in the 1980s that advanced the assesses state parties’ performance, reports to the
rights of children and young people, internationally UN General Assembly and makes recommendations.
and in common law countries, were the opening The committee does not have the power to hear
for signature of the United Nations Convention on individual complaints of violations of children’s rights.
Figure 9.2 On 20 November 2019, in the Bolívar Square in the Colombian capital city of Bogotá, more than 5000 toys
were displayed in a protest against child abuse in Colombia. The year 2019 marks the thirtieth anniversary of the
adoption of the United Nations Convention on the Rights of the Child (1989). However, despite being the most ratified
international treaty in the world, children’s rights are still not respected around the world.


Review 9.1
1 Identify some of the challenges children and young people experienced in England in the
nineteenth century.
2 Define the term doli incapax.
3 Using examples, outline how the law defines children and young people.
4 Read about the Gillick case online. Critically analyse the implication of the House of Lords’s decision.
The Gillick case of consent in medical matters, provided that he or

Gillick v West Norfolk and Wisbech Area Health she had ‘sufficient understanding and intelligence
Authority [1985] 3 All ER 402 (‘Gillick case’) was a to enable him or her to understand fully what is
House of Lords decision. The Department of Health proposed’. In other words, children have the right
and Social Security (DHSS) had distributed a and the ability to make decisions that affect their
flyer advising doctors that they could lawfully lives, and they can do so competently as long as
provide contraception and advice to persons under they understand the implications of their decisions.
16 years old without their parents’ consent. The
local health authority refused to promise Victoria 9.2 Legal responses
Gillick, a mother of five daughters, that they would
not provide advice and contraception to her Civil law in relation to children
daughters without her consent. Gillick brought an and young people
action against the health authority and the DHSS, The Family Law Act 1975 (Cth) governs disputes
based on her belief that a child under 16 was too between married and de facto couples, including
young to make such a decision without parental disputes relating to children. The ‘paramount
consent. Justice Woolf in the first instance held consideration’ for orders relating to children made
that Mrs Gillick was not entitled to declarations under this Act must be the children’s best interests.
prohibiting the doctors at the clinic from prescribing Many other aspects of the law applying to
contraceptives or providing advice to her daughters. children come under state jurisdiction. In New South
The Court of Appeal allowed Mrs Gillick’s appeal, Wales, these include the following matters.
and the Department of Health and Social Security,
on behalf of the health authority, took the matter to Registration
the House of Lords, which affirmed the appeal on Under the Births, Deaths and Marriages Registration
the basis that a child under 16 years was capable Act 1995 (NSW), parents have seven days after the
Research 9.1
Find the website of the Office of the United Nations High Commissioner for Human Rights. On this
website, search for the United Nations Convention on the Rights of the Child (1989).
1 Outline the main rights in this convention.
2 Identify the significance of this convention.
3 Outline any similarities between this convention and the Gillick case.

9
birth of a child to give notice of the birth, and 60 days under the Education Act 1990 (NSW). Under section 22
to complete the registration process. This puts the of this Act, parents must send their children to a
existence of the child on the public record and government school or a non-government school
gives the child a legal name, that of the father or registered with the NSW Education Standards
mother in most cases, and therefore affords to the Authority (NESA), or register them for home
child all legal rights and protections. The parent or schooling. Section 4 of the Act asserts that it is the
parents also assume responsibilities under the law duty of the state to ensure that every child receives
for the child’s welfare. If a child is stillborn, the state an education of the highest quality.
Registrar of Births, Deaths and Marriages must be
notified within 48 hours. Work
If a child is a foundling, the person who has been Generally it is acknowledged that it is in the best
granted guardianship of the child is responsible for interests of children that they remain in school
having the child’s birth registered. An adoption order and receive a formal primary and secondary
made under the Adoption Act 2000 (NSW) must also be education. According to the NSW Office of
registered (Births, Deaths and Marriages Registration Industrial Relations, there is no minimum legal age
Act 1995 (NSW) s 23). A child’s name may be changed, limit for young workers. If, however, they are under
and children over the age of 12 must consent to this 15 years, they must receive authorisation from the
change (Adoption Act 2000 (NSW) s 101; Births, Deaths NSW Department of Education to leave school.
and Marriages Registration Act 1995 (NSW) ss 28, 29). Young people in the workplace are covered by all
of the relevant workplace and safety legislation for
foundling workers in New South Wales.
a deserted infant whose parents’ identity is unknown
The NSW Commission for Children and Young
adoption order People, in its 2005 Children at Work report, surveyed
a court order that establishes a new legal relationship
between potential adoptive parents and a child eligible 10 999 children and young people in Years 7–10,
for adoption; an adoption order also severs the legal living in New South Wales about their working
relationship that existed between the adoptive child and his
or her natural or legally recognised parents or guardians
experiences. Although the survey found that
prior to the adoption process the majority of children could list both positive
and negative aspects of working, and that they
especially liked getting paid and gaining experience
Citizenship and responsibility, the report also showed some
The Australian Citizenship Act 2007 (Cth) replaced trends of concern:
the Australian Citizenship Act 1948 (Cth). It sets out • Children living in less disadvantaged areas were
how a person becomes an Australian citizen, the more likely to work, and work decreased with
circumstances in which a person may cease to be a increased social disadvantage. Children with
citizen, and some other matters related to citizenship. greater household responsibilities had fewer
Under the Act, a child is automatically an Australian opportunities to work.
citizen if they are born in Australia with at least • Young workers were paid less than mature
one parent who is an Australian citizen. If a child people doing the same jobs, possibly because
is born overseas with at least one parent who is an they often work on an informal or casual
Australian citizen, they may apply to be registered basis and their work is outside regulatory
as an Australian citizen by descent, although certain requirements. Recent cases in 2017, 2018 and
criteria must be met. A child who is a permanent 2019 have documented the underpayment of
resident and who has been legally adopted also many young people across a range of industries
automatically acquires Australian citizenship. in Australia. A report produced by the Young
Workers Centre estimates that one in five young
Education workers are paid below award wages.
Children have the right to be educated, and it is • High levels of harassment and injury were
compulsory for children aged 6–17 to attend school reported by the children surveyed.

Figure 9.3 Child fatalities in the workplace in Australia, 2003–2016.
Source: Safe Work Australia.
In addition to these issues – which are still prevalent medical or dental treatment and is aged 14 years or
in 2019 – Safe Work Australia has repeatedly over. Parents have the responsibility to seek proper
highlighted the extent to which children and young medical care for their children, even if they have
people are harmed or injured while at work. religious objections. Section 174 of the Children and
Young Persons (Care and Protection) Act 1998 (NSW)
Medical treatment authorises a medical or dental practitioner to carry
In the case of the Department of Health & Community out emergency treatment on a child or young person
Services (NT) v JWB & SMB [1992] HCA 15 (‘Marion’s without parental consent.
case’), the High Court of Australia followed the As legislation does not deal with a young person’s
decision in the Gillick case, holding that once a right to refuse medical treatment, this issue is governed
person has sufficient maturity and intelligence to by the common law. If a child under 16 years refuses
understand what is proposed, she or he is capable of medical treatment, parents have a right to insist that
consenting to medical treatment.This common law it be performed, despite the Gillick test of competency
test is subject to section 49 of the Minors (Property and (Re W (A Minor) [1993] Fam 64). A court can override
Contracts) Act 1970 (NSW), which protects a medical a young person’s refusal of medical treatment if the
practitioner from liability in tort for treating a young refusal is not in his or her best interests.
person, if the young person has given consent to the
Research 9.2
View the websites for Young People at Work and Lawstuff to research other aspects of work for
children and young people. Summarise your findings in a few paragraphs.

9
Discrimination A child is also personally responsible for his or her

Children and young people are protected from own wrongful acts. The general rule is that parents
discrimination on the basis of age by Part 4G of the are not liable for torts committed by their children.
Anti-Discrimination Act 1977 (NSW). This Act also
outlaws discrimination on the basis of sex, race, Leaving home
sexuality and other characteristics, and applies to Young people do not have the right to leave their
discrimination in work, education and the provision parents’ home before the age of 18. However, the
of goods and services. There are a number of law would not normally force young people over
exceptions, however, relating to superannuation, the age of 16 to stay at home against their wishes.
insurance, credit applications, vehicle safety and The following factors would be considered:
sport, and the Act does not affect the operation of maturity, accommodation, safe living environment
laws relating to the legal capacity of children or of and the parents’ attitude.
laws specifically designed to protect them.
Inheritance and parentage
Contracts The Status of Children Act 1996 (NSW) provides that
Under the Minors (Property and Contracts) Act 1970 all children, including ex-nuptial children, are treated
(NSW), people under 18 years are generally not the same as those whose parents are married. This
bound by a contract, lease or other transaction (ss 8, essentially means that ex-nuptial children have the
17). The courts will not enforce such contracts, even same rights in relation to disposition of property
if they do exist. The exception to this, contained in made by a will or without a will as those born in
section 19 of the Act, is a situation where a young wedlock. Any person left out of a will can contest this
person enters an agreement that is for his or her own under Chapter 3 of the Succession Act 2006 (NSW).
benefit and is a necessity such as accommodation or
ex-nuptial children
food. For example, a young person who leaves home children born of parents who are not legally married
at age 17 to take an apprenticeship and has to sign a
rental lease for accommodation or needs to buy a car
Figure 9.4 In 2013, the children of Australian billionaire,
on finance for transport will be bound by the contract.
Gina Rinehart, instigated court proceedings over the
Some minors may be able to enter into certain multi-billion dollar family trust. Rinehart’s two eldest
contractual arrangements if they have a parent or children, John Hancock and Bianca Rinehart, sought
guardian who acts as a guarantor to ensure that the Gina’s removal as head of the trust, which was set up
contractual obligations are fulfilled. by her late father, Lang Hancock, in 1988 and is worth at
least $5 billion.
guarantor
a person who gives a formal promise that someone else’s
contract will be fulfilled, often backed by some form of asset
that will stand as collateral to secure the promise
The Supreme Court of New South Wales can

confer the capacity to enter a legal contract upon
a minor (s 26).
Torts
There is no age restriction on taking legal action
for a civil wrong. If a child is injured as a result of
someone else’s negligence, is a victim of defamation,
or suffers loss or damage as a result of some other
wrongful behaviour, he or she is entitled to sue the
wrongdoer.

The Status of Children Act 1996 (NSW) clarifies Communities & Justice
issues of parentage for children in New South Wales. Since 1 July 2019, the Department of Family
There is a presumption of parentage if a child is and Community Services (FACS) and Department
born within a marriage. In addition, if a child is born of Justice have been a single department, named
within 44 weeks after the death of the spouse, the Communities & Justice.
child is presumed to be the child of the deceased Communities & Justice is responsible for the
spouse. care and protection of children in New South Wales.
It carries out this role in cooperation with non-
presumption of parentage
outlines a specific condition whereby a man and/or a woman government organisations and government agencies.
are presumed to be the parents of a child Its activities include the provision of accommodation
and support for children and young people who need
For couples who live together but are not married, to live away from their families, the regulation of child
section 10 of the Act goes on to state: care through licensing, and the funding and regulation
• A child born to a woman is presumed to be a of adoption services.The Department of Communities
man’s child if, at any time during the period & Justice is authorised to intervene between parents
beginning not earlier than 44 weeks and ending and children where there is a need for care and
not less than 20 weeks before the birth, the man protection. A child or a parent can also request the
and the woman cohabit but are not married. Stronger Communities Investment Unit (SCIU) to
• In all of the above cases the law clearly states assist in cases where the family is experiencing
that the birth mother is the legal mother; this difficulties. Intervention by the state can include
is especially important in cases in which birth preventative services such as family support and
technologies have been used. respite child care, through to extreme cases where
• If a child is born through the use of fertilisation children are removed from their families, or
procedures, the Act states that the intended where police action is taken against abusers.
‘social parents’ are also the legal parents. In the
case of a married or de facto couple, there is a Why should our society protect children
presumption of knowledge of the procedure, but
from abuse?
this can be challenged in court on the balance The following points outline the underlying
of probabilities. Men and women who donate presumptions for the prevention of abuse:
biological material to assist in these procedures • children are important community members and
are not presumed to be the mother or father of the they have the right to be safe from abuse
child who is the result of that pregnancy. Under • in time, children may themselves become
the Act, the above provisions are irrefutable. parents, and the way they parent their own
children will be influenced by their own
The Family Law Act 1975 (Cth) and the Marriage Act childhood
1961 (Cth) are consistent with the approach used in • research suggests that there is a strong link
the Status of Children Act 1996 (NSW). Presumptions between child abuse and subsequent social
of parentage are in place to ensure that all children, problems
where possible, will have assigned to them one or two • prevention pays for itself in the long run.
parents with the responsibility outlined under the law
to care for and maintain them. Australia’s signature on the United Nations
Convention on the Rights of the Child (1989) means
Care and control that the Australian Government is obliged to ensure
Children have the right not to be neglected or abused that legislation and policy are put in place to protect
physically, sexually or emotionally. Child abuse children.
in Australia is a worrying aspect of our society.
What is abuse?
Governments have passed laws to combat this, but
Generally, there are four types of abuse:
to date the effectiveness of these initiatives has been
• Physical abuse – this can involve any type of
limited.
physical injury

9
• Sexual abuse – this can be in many a the child’s or young person’s basic physical or
forms, from suggestive comments to sexual psychological needs are not being met or are at
intercourse risk of not being met,
• Neglect – this can involve children not b the parents or other caregivers have not
receiving adequate food, clothing, shelter and arranged and are unable or unwilling to
health care arrange for the child or young person to receive
• Emotional abuse – this can result from things necessary medical care,
that are said or implied. b1 in the case of a child or young person who is
required to attend school in accordance with
Abuse generally lowers a person’s sense of self- the Education Act 1990 (NSW) – the parents
worth and affects a child or young person’s ability to or other caregivers have not arranged and are
develop socially, emotionally and cognitively. Usually unable or unwilling to arrange for the child
a child who is abused in any of these first three ways or young person to receive an education in
will have suffered some form of emotional abuse as accordance with that Act,
well. Regardless of the type of abuse, they all have c the child or young person has been, or is at risk of
consequences for our society. being, physically or sexually abused or ill-treated,
Child sexual assault is often hidden. Children d the child or young person is living in a household
often find it hard to talk about sexual assault because in which there have been incidents of domestic
they think it is their fault or that no one will believe violence and, as a consequence, the child or
them. Even if children consent, sexual and indecent young person is at risk of serious physical or
assaults against children are crimes. If the offender psychological harm,
says the child consented there is one defence only: e a parent or other caregiver has behaved
where the child was aged 14–16 years and the offender in such a way towards the child or young
believed the child was over 16 years. The notification person that the child or young person has
rate over the past 20 years has increased at a rate suffered or is at risk of suffering serious
that has put Communities & Justice resources under psychological harm,
enormous pressure. It is believed that this trend will f the child was the subject of a pre-natal report
continue at a similar or increasing rate. under section 25 and the birth mother of the
child did not engage successfully with support
Children and Young Persons (Care and services to eliminate, or minimise to the lowest
Protection) Act level reasonably practical, the risk factors that
The guiding principles for administering the gave rise to the report.
Children and Young Persons (Care and Protection)
Act 1998 (NSW) are as follows: risk of harm
concerns about the safety, welfare and wellbeing of a child
• the safety, welfare and wellbeing of children and
or young person because of sexual, physical or emotional
young people are the paramount considerations abuse and/or neglect
• children and young people must be given an
opportunity to express their views concerning
their safety and welfare, and these must be Reporting of children and young people
given due consideration at risk
• culture, disability, language, religion and Under section 24 of the Children and Young Persons
sexuality of the child or young person must be (Care and Protection) Act 1998 (NSW), any person
taken into account who has reasonable grounds for believing that a child
• any course of action followed should be the or young person is at risk of harm may make a report
least intrusive for the child or young person and to Communities & Justice. Mandatory reporting is
her or his family. a responsibility of all paid workers who are involved
in delivering welfare services, health care, children’s
Under the Children and Young Persons (Care and services, education, residential services or law
Protection) Act 1998 (NSW), a child or young person enforcement, partly or fully, to children. They must
is considered at risk of harm when: make a report to Communities & Justice if they

Review 9.2
1 Outline how a child becomes an Australian citizen.

2 Construct a list of a child’s or young person’s legal rights and responsibilities in each of the
following areas, along with the statutory or common law source of each of the rights and obligations:
a education
b work
c medical treatment
d entering a contract.
become aware during the course of their work that a Criminal law in relation to children
child is at risk of harm. and young people
The final report from the Royal Commission Section 5 of the Children (Criminal Proceedings)
into Institutional Responses to Child Sexual Abuse Act 1987 (NSW) clearly states the principle of doli
was published in 2018. The report stated that there incapax: ‘It shall be conclusively presumed that no
had been a systemic oversight of the failure to child who is under the age of 10 years can be guilty
act on child sexual and other forms of abuse that of an offence.’ This is the same in all jurisdictions in
children were subjected to by members of a range of Australia.
institutions. The final report is available on the Royal Between the ages of 10 and 14 a child may be
Commission’s website. found guilty of a criminal offence, but the prosecution
must rebut the notion of doli incapax and show that
mandatory reporting
a person working in child-related employment must, by law, the child, at the time of the alleged offence, could
report to care and protection agencies a child who he or she distinguish between right and wrong. From the
believes to be at ‘risk of harm’
ages of 14 to 17, children and young people are held
fully responsible for their actions. However, they are
Figure 9.5 Law enforcement officers at Saugus High School in California, the United States. On 14 November 2019, on
his sixteenth birthday, a teenage boy gunned down fellow students at the school, killing two students and wounding
another three before turning the gun on himself.

9
subject to a different range of criminal sanctions Youth Justice Conference

than adults who have committed the same offences. a meeting of all the people who may be affected by a crime
committed by a young offender; used to help the offender to
Detention is a last resort for a juvenile offender in
accept responsibility for their actions while avoiding the court
all states and territories. system
sanction
A warning can be given by a police officer, either
form of a fine or punishment at the place where the child was found offending or
juvenile anywhere else. The child must be told of the nature,
a child or young person, generally under 18 years of age, purpose and effect of the warning. No conditions
although this may vary depending on the context
can be attached to the warning, and no additional
sanctions imposed. The police officer must ensure
that the child understands the warning and must
Young Offenders Act notify the parents.
The Young Offenders Act 1997 (NSW) has the aim A caution is given by a police officer or a
of providing diversionary measures for young specialist youth officer when the child admits
offenders as alternatives to court appearances. the offence. It is used where the offence is more
The Act only applies to summary offences and to serious. The officer must determine whether a
those indictable offences that can be dealt with matter would be appropriately dealt with by caution
summarily. by considering the seriousness of the offence, the
degree of violence involved and harm caused to the
summary offence
a criminal offence that can be dealt with by a single judge victim, and the number and nature of any offences
without a jury and does not require a preliminary hearing the child has committed. He or she must ensure that
indictable offence the child understands the nature, purpose and effect
a serious criminal offence that requires an indictment (a of the caution, and that he or she is entitled to obtain
formal, written charge) and a preliminary hearing; it is
typically tried before a judge and jury and is subject to legal advice and to choose to have a court deal with
greater penalties than non-indictable offences the matter. A court may also give a caution. Before
a caution is given, the offender must be given a
The principles of the Young Offenders Act are that: written notice of it.
• the least restrictive sanction should be applied A youth justice conference may be used for
where possible offences of the same gravity as those for which a
• children should be informed of their right to caution is imposed or one that is more serious such
seek legal advice as those involving harm to a victim. Conferences
• criminal proceedings are not to be started if are designed to encourage the offender to take
there is an appropriate alternative for dealing responsibility for his or her own actions, to provide
with a matter. support services, to promote the rights of victims,
and to involve families and others in the justice
Under the Young Offenders Act, children and young process.
people who committed an offence covered in the
Act may proceed through a three-tiered system Crimes Legislation Amendment
of diversionary processes, comprising warnings, (Police and Public Safety) Act
cautions and Youth Justice Conferences. The Crimes Legislation Amendment (Police and Public
Safety) Act 1998 (NSW) was introduced as a result of
warning
an increase in knife-related violence in New South
a formal notice given to a young offender, usually for a first
minor offence Wales. The Act amended the Summary Offences Act
caution
1998 (NSW), creating new knife-related offences
a formal notice given to a young offender where the offence is and giving additional search powers and ‘move on’
more serious than one appropriately dealt with by a warning powers to police. It aims to reduce the number of
weapons used, or even carried, in a public place by:

• providing police with extra power to conduct a The other main section of the Act gives the
search on an individual and to confiscate any Children’s Court the power to make parents attend
dangerous implements they find the court with their children and to make them sign
• allowing police to give reasonable directions to an ‘undertaking’ for their child’s behaviour. In more
a person where necessary in public places serious cases, the court could punish the parents if
• enabling police to demand the name and it can be shown that their neglect has caused their
address of a person who might provide children’s offending.
information about serious offences.
The role of the United Nations
The Act is seen as an anti-gang measure to allow The United Nations Convention on the Rights of
police to disperse groups of people before situations the Child (1989) has been important in putting the
escalate. rights of children on the global agenda. Ratification
usually means a government passing domestic
Children (Protection and Parental laws to give effect to some or all of the principles
Responsibility) Act of an international treaty. Once a state has signed
The Children (Protection and Parental Responsibility) and ratified a treaty, the United Nations committee
Act 1997 (NSW) enables local police to remove young structure monitors and reports on the extent to
people under 16 years who are at risk in public places, which that state is complying with its international
and return them to their parents. The Act is unique in obligations.
that the police are only given these powers in local The Committee on the Rights of the Child meets
government areas considered operational areas. to examine reports from ratifying countries. The 18
Currently in New South Wales, there are four committee members are independent experts in
operational areas: Ballina, Orange, Coonamble and the field of human rights, who are elected by the
Moree. Local government can apply to the Attorney- governments of ratifying countries. As mentioned,
General’s Office to become an operational area. the committee has no coercive power. Australia has
They must demonstrate that they have adequate a responsibility under the convention to report to the
crime prevention and youth support programs. committee on the steps that it has taken to give full
effect to the contained rights.
operational area
a local government area that can apply for police to be given
additional powers under the Children (Protection and Parental The role of parliament and
Responsibility) Act 1997 (NSW) the courts
Federal and state parliaments have passed
In an operational area, the police can ‘safely escort’ numerous Acts that protect children and young
a young person under 16 years from a public place people by restricting their activities and by placing
if the young person is not being supervised by a responsibilities on adults to ensure the welfare of
responsible adult and is at risk. children and young people. Certain rights of children
Legal Links
The NSW Police Force website has information on warnings, cautions and Youth Justice
Conferences.
Review 9.3
1 Outline how children and young people are protected from discrimination.
2 Explain the purpose of doli incapax. Identify what age group doli incapax applies to.
3 Identify the offences in the Young Offenders Act 1997 (NSW).

9
Figure 9.6 On 4 July 2019, a German woman, ‘Jennifer W’, who had joined the Islamic State (IS) jihadist group was
accompanied by her lawyer, Ali Aydin (right), as she arrived at court for another session of her trial in Munich, Germany.
The woman is accused of war crimes including letting a five-year-old Yazidi ‘slave’ girl die of thirst in the sun. The case
against the woman is believed to be the first time in the world an IS militant has been brought to justice for committing
international crimes against members of the Yazidi minority.
have also been enshrined in legislation, which in turn matters that affect children and young people. For
created legal institutions and processes that promote example, the previous body (NSW Commission for
and protect these rights. The courts have also played Children and Young People) made a submission to the
a role, through cases that have affirmed the current Review of the Young Offenders Act 1997 (NSW) and
law or changed the law through reinterpretation. the Children (Criminal Proceedings) Act 1987 (NSW)
Some of the legal institutions in New South Wales in December 2011.
that have been set up to protect children and young It also undertakes research into matters that
people follow. affect children and young people, and prepares a
three-year strategic plan for children and young
NSW Advocate for Children and Young people in New South Wales.
People
The NSW Advocate for Children and Young People NSW Office of the Children’s Guardian
is a statutory body set up to promote respect for and The NSW Office of the Children’s Guardian was
understanding of the interests and needs of children first set up under the Children and Young Persons
and young people. It was established in 2015, under (Care and Protection) Act 1988 (NSW), and under
the Advocate for Children and Young People Act 2014 further legislation in 2013 it became an independent
(NSW), and took over some of the functions of the government agency.
previous NSW Commission for Children and Young The office took over the former NSW Commission
People. for Children and Young People’s responsibility for
A key role is making recommendations to implementing and monitoring the working with
government and non-government organisations children check. This is the mandatory employment
regarding legislation, policies, services and other screening by employers of job applicants in child-

related employment, as outlined in the Children Legal Aid NSW

and Young Persons (Care and Protection) Act 1998 Legal Aid NSW provides a range of services to
(NSW). There are penalties for employers who children and young people in New South Wales. It
engage someone in employment relating to children represents children and young people in a variety of
without sufficient scrutiny of the person, or if they are matters, from welfare proceedings in the Children’s
aware the employee is a prohibited person for child- Court to family law matters in the Family Court. Its
related employment. These requirements reduce the legal representatives will also appear for children
likelihood of prohibited persons having contact with and young people facing criminal charges in the
children in the course of their work. Children’s Court.
working with children check

a check by the NSW Office of the Children’s Guardian on the
NSW Ombudsman
appropriateness of a person in New South Wales to work in The main role of the NSW Ombudsman is to act
child-related employment
as an independent review body that deals with
prohibited person individuals’ complaints about the administration of
a person prohibited from working in child-related
employment because of a conviction of a serious sex
government agencies or the agencies’ compliance
offence, murder of a child, or an offence involving violence with specific legislation. Traditionally, the office is
towards a child seen as representing the people’s interests, and its
credibility comes from its reputation for impartiality,
The office also has a range of responsibilities independence from government and confidentiality.
connected with out-of-home care in New South There have been calls for a specialist ‘children’s
Wales, manages accreditation of non-government ombudsman’ that can take a more targeted approach
adoption services and authorises employment of to issues facing children and young people in their
young children in the entertainment industry. dealings with government agencies.
Another important role performed by the
Children’s courts ombudsman’s office is investigating and reporting
The Children’s Court Act 1987 (NSW) deals with on ‘reviewable deaths’ of children in New South
children’s courts in New South Wales. There are Wales. A death is reviewable if at any time in the
seven specialist Children’s Courts, five of them in three years before the death, the child or a sibling
metropolitan areas, with 13 Children’s Magistrates. has been reported to Department of Community
There are also five Children’s Registrars who aid in Services (DOCS) for any matter. With the objective
administering matters before the court. The court of preventing harm, abuse and neglect of children,
has a dual role: determining matters of juvenile the ombudsman’s office assesses whether the child
offenders that appear before it, and determining protection system could have prevented some of
care and protection matters concerning children on these deaths. From 2012–2013, 1067 children died in
application to it by Communities & Justice. New South Wales. The ombudsman’s office report
Under the Children and Young Persons (Care and released in 2015 stated that 41 (3.8%) of these deaths
Protection) Act 1998 (NSW) (ss 71, 72), the court ‘may as reviewable: Of these:
make a care order in relation to a child or young • nine children died as a result of abuse (five), or
person if it is satisfied that the child or young person in circumstances suspicious of abuse (four)
is in need of care and protection for any reason’. • 18 children died in circumstances of neglect (15)
or suspicious of neglect (three)
Review 9.4
1 Outline the main role of the NSW Advocate for Children and Young People.
2 Describe what the ‘working with children check’ means.

9
• 14 children died while in care – all of whom were 9.3 Non-legal responses
in statutory out-of-home care.
As children and young people cannot vote, it is
difficult at times for their voices to be heard.
NSW Civil and Administrative Tribunal
Some very effective non-legal mechanisms
As discussed in Chapter 7, the NSW Civil and
keep the issues of children and young people on
Administrative Tribunal reviews administrative
the political agenda. These mechanisms may be the
decisions of NSW Government bodies. Its
first point of call, and can either provide valuable
Administrative and Equal Opportunity Division
information about a person’s rights or refer the
deals with applications for review of decisions made
person on to a relevant source.
by DOCS. The division also hears applications for
declarations that a person seeking to apply for a job Trade unions
working with children is not a prohibited person
Trade unions are organisations of workers who act
under the Commission for Children and Young
together to maintain their rights to good working
Persons (Care and Protection) Act 1998 (NSW).
conditions. The Australian Council of Trade Unions
provides information about pay and conditions, health
COAG National Framework
and safety issues, apprenticeships and training, and
In 2009, the Council of Australian Governments
negotiating employment contracts for young people
(COAG), an intergovernmental forum made up of
entering the workforce for the first time.
the federal and all state and territory governments,
published its National Framework for Protecting Kids Helpline
Australia’s Children 2009–2020. This initiative
The Kids Helpline is just one of many organisations
has the aim of fighting child abuse and neglect
from which children and young people in crisis
by preventing it in the first place; that is, by
can seek advice. It offers 24-hour free telephone
protecting the safety and wellbeing of children.
and online counselling, and referral about issues,
Recommendations handed down in 2018 by the
including family relationships, child abuse, mental
Royal Commission into Institutional Responses
health, bullying, drugs and alcohol, and eating and
to Child Sexual Abuse will have implications for
weight issues, as well as specific issues faced by
government and non-government agencies in the
people from Aboriginal and Torres Strait Islander,
light of the inadequacies exposed of institutions in
non-English-speaking or rural backgrounds. View the
protecting children from abuse.
Kids Helpline website for more information.
Review 9.5
1 Describe the role of the NSW Ombudsman in protecting the rights of children and young
people.
2 Outline the role the NSW Civil and Administrative Tribunal can play in protecting the rights of
children.
3 Discuss the strengths and weaknesses of non-legal mechanisms in their ability to protect the
rights of children.

Figure 9.7 The Kids Helpline is a free service that gives advice and counselling to young people.
Australian Childhood Foundation for people who have experienced child abuse, as
The Australian Childhood Foundation works to well as resources for parents and others who are
educate the community about child abuse. It also concerned about their own situation or want to
provides a list of services that offer help and support report child abuse.
Legal Links
The Worksite for Schools website (https://cambridge.edu.au/redirect/9038) provides fact sheets, case
studies, job profiles and other information about work that is specifically directed at young people.
Research 9.3
The organisations listed below are involved in protecting the interests of children and young
people. Select two organisations and find their websites. Construct a fact sheet about each
organisation.
• Committee on the Rights of the Child
• NSW Advocate for Children and Young People
• NSW Office of the Children’s Guardian
• NSW Children’s Court
• Communities & Justice
• Legal Aid NSW
• NSW Ombudsman
• Australian Council of Trade Unions

9
9.4 Effectiveness of responses Young people and public spaces

As they grow through adolescence and into There is a need to develop better guidelines on the
adulthood, young people are more likely to take use of public space by children and young people.
risks. At the same time there are adults in society In some states the police can remove children from
who abuse and exploit children and young people. public places when they are considered to be at risk
This means that children and young people will of offending, whether they are suspected of illegal
sometimes be at risk of harm, or at risk of harming behaviour or not. It is argued that this is a restriction
others. It is in this light that the legislation and of children and young people’s freedom of assembly
mechanisms in place to ensure justice for children and erodes their civil rights.
and young people will be evaluated. The Crimes Legislation Amendment (Police and
Public Safety) Act 1998 (NSW) was introduced in
Children and young people and response to the increased offences related to knives
the criminal justice system between 1996 and 1997. The Act made it an offence
If children and young people are exposed to the to carry a knife in a public place and gave the police
criminal justice system, it is usually through the power to search people for knives and other
interaction with a police officer when being arrested weapons. It also gave the police the power to search
or questioned about some matter. This experience people in public places if their behaviour appeared
can influence their attitude to authority and to the to cause fear, obstruct, harass or intimidate.
wider community in general. One way to gauge the effectiveness of this
A joint inquiry of the Human Rights and Equal legislation is the extent to which knife-related
Opportunity Commission and the Australian Law offences have decreased because of the extra powers
Reform Commission was conducted in 1997. The given to police. The NSW Ombudsman’s Office also
inquiry titled Seen and Heard: Priority for children in the conducted a review of the legislation in 1999. The
legal process examined the relationship of children and Youth Action and Policy Association, in a paper
young people and the legal process. Of the 843 children entitled ‘Knives Legislation to Stay’, commented
and young people surveyed, 78% said the police rarely that the report found that the increased powers of
treated young people with sufficient respect. the police led to an increase in arbitrary stop and
search procedures and that the legislation had led to
only a modest increase in searches that uncovered a
Young people are frequently targeted for knife in the first year of operation. It also showed that
police intervention – for lacking ‘respect’, there was an enormous increase in searches where
for being ‘rowdy’, for being part of the no knife was found. The report indicated that, midway
‘rave culture’, or simply for being young through 1999, 81.9% of people searched carried no
and out in public. weapon that would be a threat to public safety. The
paper went on to state:
Source: ‘Young People and Public Space’
conference workshop presented by the
Youth Justice Coalition and Youth Action As many of us had always expected, young
and Policy Association, 2002 people were the clear target of these new
powers. What was surprising was the
levels of harassment of young people …
An incredible 68% of people searched
The Seen and Heard inquiry also examined how were aged 25 or under. Not only were
policing could become more consistent with young people targeted for these searches,
provisions in the Convention on the Rights of the they were more likely unfairly targeted.
Child, and recommended that national standards Whereas only one in seven 17-year-olds
should be implemented via legislation or policy in who were searched was found to have
certain areas of concern. Some of the main areas knives, almost one in two 37-year-olds
follow.

The Children (Protection and Parental Responsibility)

had knives. The Youth Justice Coalition Act 1997 (NSW) was introduced to address the rise in
and other groups have argued that juvenile crime caused by a lack of parental supervision.
police stop and search powers should be This Act has also been criticised for the way that it
consolidated into one piece of legislation impedes children and young people’s use of public
as at present there are a minimum of six spaces. A review of policy and legislation relating
acts giving police the power to stop and to youth street rights, conducted by the University
search people which can cause confusion of Technology Sydney’s Community Law and Legal
for the police and citizens alike. Research Centre and the Youth Justice Coalition,
found that the this Act contravened the Convention
Recently, the increased practice of using on the Rights of the Child in a number of ways:
‘strip searches’ at a number of musical • impeding young people’s rights of freedom of
festivals across the country in 2018 and association and assembly
2019 has been called into scrutiny. Some • discriminating against young people due to
of these searches were of minors and were their visibility in public space
undertaken with no adult present. The • giving the police arbitrary power of detention
use of sniffer dogs has been contentious • failing to consider the child’s ‘best interests’.
for some time in regard to the extent
to which they accurately indicate a The Seen and Heard report produced by the Human
‘reasonable suspicion’ that a crime, in this Rights and Equal Opportunity Commission and the
case drug possession, has been committed. Australian Law Reform Commission also stated
In 2019, The New South Wales Law the legislation has problems. It outlined that police
Enforcement Conduct Commission can scrutinise the behaviour of children and young
opened a four-day inquiry into the people even if it is not criminal, and can act on
allegedly unlawful strip-search of the stereotypes about young people.
girl at the 2018 Splendour in the Grass Public spaces are very important to young people,
festival near Byron Bay. given that there are very few places that they can get
together to meet and spend time together. Young
people congregating in groups are easily branded
Figure 9.8 Police officers and drug-detection dogs walk among patrons at the 2019 Splendour in the Grass festival in
Byron Bay.

9
Research 9.4
View the website of the NSW Bureau of Crime Statistics and Research. Study the article, ‘Knife
offences and policing’ (by Jacqueline Fitzgerald, 2000). Outline the effect the Crimes Legislation
Amendment (Police and Public Safety) Act 1998 (NSW) has had on assaults and robberies
involving knives.
as anti-social, even though crime statistics show Sentencing of young offenders

that young people are more likely to be victims than Another area of concern at the time of the Seen
offenders. Move-on and stop-and-search powers and Heard report was the sentencing of juveniles.
serve the law-and-order agendas of governments by Children and young people, more than any other
trying to clear the streets and supposedly making the offenders, have the best chance of rehabilitation
community safer. Given this, and the diminishing and reintegration into society. As such, the sentence
ratio of public space available due to the increase that offenders receive should take into account the
in privately owned shopping malls, the civil rights age of the offender and the circumstances under
of children and young people are frequently which the offence was committed. The report noted
being infringed. that research has indicated that detention and other
harsh sentencing options are generally ineffective
Arrest and police interview as deterrents to reoffending.
In some jurisdictions, it is alleged that police rely Most jurisdictions consider these factors. In New
heavily on arrest to gather evidence or to further South Wales, the courts follow guidelines under the
the interrogation of suspects. In other words, arrest Children (Criminal Proceedings) Act 1987 (NSW),
can be used as a method of investigation. This is which considers juvenile offenders. However, the
especially so for Aboriginal and Torres Strait Islander report suggested that there was room for improvement
youth. in this area, observing that ‘magistrates often do
Article 37(b) of the Convention on the Rights of not take sufficient account of social factors such as
the Child states that arrest should be a ‘last resort’, homelessness, family circumstances, educational
not a routine practice, as it can be a very negative needs and so on in determining sentences for
experience for children and young people. The children’ and recommending that ‘sentencing options
Seen and Heard report also recommended that for should take into account the special health and other
children at risk, welfare and health services might requirements of children and young people’.
be the more appropriate agencies to deal with the
situation. This is not to deny that arrest is appropriate Figure 9.9 Zachary Cruz, 18, the brother of the teenager
when it is necessary for a police officer to protect the who killed 17 people at Marjory Stoneman Douglas High
community. School in Florida, USA, in February 2018. Cruz was
arrested for trespassing but was released from custody
All suspects have the right to contact a lawyer
10 days later.
and to have him or her present during questioning,
as long as this does not interfere with the police
investigation. Persons under 18 can contact the Legal
Aid Youth Hotline if they have been arrested and need
legal advice. However, people do not always exercise
this opportunity because they are not aware of their
rights. Further, a situation sometimes exacerbated by
language difficulties, cultural differences or age. The
Australian Law Reform Commission and others have
recommended greater efforts by police to inform
accused persons of their rights in terms that they can
understand and act on.

Youth conferencing possible explanation is that YJCs do not address

While youth conferencing generally deals with the underlying causes of juvenile offending
matters that would be dealt with summarily, it (e.g. drug and alcohol use, parental neglect and
can, under the Young Offenders Act 1997 (NSW), be abuse, poor school performance, boredom and
used for some indictable offences such as robbery unemployment).’
and aggravated break, enter and steal. One of the The NSW Commission for Children and Young
criticisms of well-intentioned laws like the Young People supported this in its submission to the
Offenders Act is that they are not being used for a Review of the Young Offenders Act 1997 (NSW) and
sufficiently wide range of offences, and therefore the Children (Criminal Proceedings) Act 1987 (NSW)
some young offenders are missing out on the in December 2011. It believes the current legislation
benefits that conferencing offers. The Shopfront does not meet the needs of children and young people
Youth Legal Centre, in its submission in response for the following reasons:
to the NSW Law Reform Commission paper on • Recent research has revealed a greater
sentencing young offenders in 2003, argued that: understanding of the development of the
adolescent brain until the age of 25. It has
suggested that our understanding of the
Youth justice conferencing is suitable for meaning of criminal responsibility for children
a wide range of offences, even very serious and young people may need to be reassessed.
ones. It is not a ‘soft option’. Indeed, it (In October 2019, Centre Alliance’s Rebekha
could be said that conferencing works best Sharkie put legislation to parliament to lift
in the case of relatively serious offences the age from 10 to 14, which was backed by
because the young offender is obliged to independent MP Zali Steggall.)
consider the consequences of his or her • The report also goes on to say, ‘the attempt to
actions, in particular the harm caused to combine the so called “justice” and “welfare”
the victim. In most cases, conferencing is models of juvenile justice in the legislation has
a more effective mechanism than court for created a complex and sometimes contradictory
achieving this. amalgam of community-based sanctions and
controls alongside formal court processes and
detention. It is possible that this has led to “net
widening”, as police warn, caution or refer to
A further criticism of the application of the conferencing children who might otherwise have
provisions of the Young Offenders Act suggests that been dealt with informally.’
conferencing needs to be supported by additional
rehabilitative measures. According to the Director of Lastly, it argues that the principles of restorative
the NSW Bureau of Crime Statistics and Research, justice that underpin youth justice conferencing are
Dr Don Weatherburn, in March 2012, ‘the conference contentious and there is insufficient evidence for
regime established under the Young Offenders Act the effectiveness of youth justice conferencing in its
1997 (NSW) is currently no more effective than current form in reducing recidivism. This supports
the NSW Children’s Court in reducing juvenile re- the view expressed by Dr Weatherburn.
offending among persons eligible for a conference’.
Conferencing in Victoria produced lower Care and protection of children and
reoffending figures but it is also suggested that this young people
may be influenced by the fact that Youth Justice The Wood Royal Commission (1997) into police
Conferencing in that state considers matters that corruption spent its last two years investigating
are more serious and conferencing is not as easy to issues surrounding child abuse. Evidence emerged
dismiss as a soft option. about the lack of effective procedures and processes
Dr Weatherburn went on to say that, ‘[o]ne can for reporting and following up alleged instances of
only speculate about the reasons for this but one child abuse within governmental agencies and the

9
broader community. It also highlighted the magnitude Commission’s recommendations will be a test of the
of child abuse in society and the need for better Commonwealth’s resolve to finally ensure that the
legislative responses to deal more effectively with laws in place to protect children and young people
the complexity of the issues surrounding child abuse. will be more effectively administered.
As the rights of children emerged, so, too, did
an awareness of the problems associated with child Children and young people in
abuse and the long-term damage it can cause. the workplace
Evidence also began to emerge that domestic A number of children and young people are engaged
violence and child abuse are linked, and are good in the workplace and most are satisfied with the
predictors of each happening. benefits it offers. The two main issues, as outlined
The situation of child abuse portrayed by the 2008 earlier, are that the incidence of work-related injuries
statistics is even more disturbing in Aboriginal and and the incidences of harassment continue to be
Torres Strait Islander communities across Australia. too high.
The rate of all types of abuse in 2008 was estimated A further two issues regarding children in
to be much higher in the Aboriginal and Torres the workplace are rates of junior pay, which are
Strait Islander population. Aboriginal and Torres in breach of the Convention on the Rights of the
Strait Islander children were six times more likely Child, and the use of child labour in some industries
to be removed from their families. It was argued in Australia. Child labour is where children
the Howard government’s intervention into remote between the ages of 4–15 years are forced to do
Aboriginal and Torres Strait Islander communities work that affects their education and their social
was necessary on the ground that the rate of abuse and psychological development. This is generally
of Aboriginal and Torres Strait Islander children associated with poorer developing countries,
was unjustifiably high. The Australian Law Reform but has been identified in Australia in the textile
Commission has also found that in 2008, Australian industry. Reports have been made of children
Aboriginal and Torres Strait Islander children were working long hours at sewing machines after school
no safer than they had been 10 years before. and during the school holidays. As these reports are
In further developments, Justice James Wood, made, they continue to be investigated by unions
who in 2008 headed the Special Commission of and governments.
Inquiry into Child Protection Services in New
South Wales, recommended a number of changes International issues
to the child protection system currently operating Children around the world are exploited and
in New South Wales. As the system is crumbling abused where the laws of their countries fail to
under the weight of notification of ‘children at risk’, offer protection to them. There are approximately
Wood has proposed a new category of mandatory 250 million child labourers worldwide. In 2012, it was
reporting, whereby the more serious matters only estimated there were as many as 250 000 to 300 000
will be referred to Communities & Justice. The police, children and young people involved in armed
teachers and doctors, according to Justice Wood, conflict, with up to 100 000 of these believed to be
can handle many of the non-urgent reports that are in Africa.
being made to Communities & Justice. In countries ravaged by war and famine, where
The Royal Commission into Institutional family structures have been destroyed, children
Response to Child Sexual Abuse has well lack the protection normally afforded to them within
documented the failing of a range of institutions the family. Very recently in Australia, children sat in
across the country in adequately dealing with immigration detention centres, having broken no
instances of child sexual abuse. In October 2018, laws, as a result of the previous federal government’s
the Federal Parliament issued an apology on behalf punitive laws relating to asylum seekers. In other
of the state to victims whose cries for help were countries, minors are still being executed for the
ignored. The extent to which adequate compensation crimes they have committed.
will be forthcoming and the implementation of the

and services for children’s health, education and

welfare; the adequacy of legislation in addressing
the needs of children; and further action required.
Nonetheless, some have argued that the development
of a process for scrutiny of draft legislation for
compliance with treaty principles should be a high
priority.
Other deficiencies in Australian law regarding
the Convention on the Rights of the Child include
the following:
• The defence of ‘lawful correction’ is still
available in all states and territories to parents
who use corporal punishment on their
children, except in New South Wales, where it
has been limited by legislation prohibiting force
Figure 9.10 Children carry garment cloth in Dhaka,
to the head or neck, and force causing harm
Bangladesh. Many products sold throughout the world
are still made using forced child labour.
‘likely to last for more than a short period’.
• There are laws under which police can deny
Australia’s obligations under the children and young people use of public space
United Nations Convention on the by asking them to leave or removing them;
Rights of the Child (1989) for example, Part 3, Division 2 of the Children
As discussed earlier in this chapter, the Committee (Protection and Parental Responsibility) Act 1997
on the Rights of the Child examines parties (NSW).
compliance to the United Nations Convention on • Children and young people are paid less for
the Rights of the Child (1989) and their obligations doing the same work as adults on junior rates
under this convention. The committee can report of pay.
and publish adverse findings on countries that have • It is argued that the criminal age of
failed to enforce the rights of its children. States can responsibility of 10 years is too low.
choose to ignore or comply with such findings.
corporal punishment
Australia has been a strong supporter of this
the physical punishment of people, especially of children, by
convention from the very outset, and has an extensive hitting them
body of federal and state law in place designed to public space
protect and promote the welfare of children and areas set aside in which members of the community can
young people. At the same time, there are still areas associate and assemble
where Australia can do better.

The Joint Standing Committee on Treaties was
set up to investigate and report on: Child executions
• issues arising from treaties Child executions violate international law. It
• proposed treaty actions is acknowledged throughout the international
• questions relating to a treaty which one of community that putting to death child offenders
the houses of parliament or a minister has negates the current thinking that children and young
referred to it people have the potential for growth and change,
• other matters which the Minister for Foreign and hence rehabilitation. It is further argued that
Affairs has referred to it. execution denies the child or young person this
chance. International law clearly denounces the
For example, in 1998 its Report 17 looked at domestic death penalty for children and young people who have
ramifications of ratification; federal, state and committed crimes when they were under the age of 18.
territory progress in complying with the Convention Despite this, some countries still use the death
on the Rights of the Child; the adequacy of programs penalty. The number of executions is small, but as

9
In Court
Roper v Simmons 543 US 551 (2005)

In 2005 in the case of Roper v Simmons, the US Supreme Court ruled that the execution of child
offenders is a violation of the US Constitution. This contrasts a ruling made in 1989 by the same
court that executing 16- and 17-year-old offenders was constitutional. In 2005, the court found that
there was now a national consensus against executing child offenders. The court reached this
conclusion after considering international and national trends, scientific evidence, and appeals
from human rights, religious, legal and child advocacy organisations.
Amnesty International has called for an immediate end to all child executions.
TABLE 9.1 Recorded executions of child offenders since 1990

Year Recorded Total recorded executions Countries carrying out executions of
executions of worldwide child offenders (numbers of reported
child offenders executions are shown in parentheses)
1990 2 2029 Iran (1), United States (1)
1991 0 2086
Iran (3), Pakistan (1), Saudi Arabia (1),
1992 6 1708
United States (1)
1993 5 1831 United States (4), Yemen (1)
1994 0 2331
1995 1 3276 Iran (1)
1996 0 4272
1997 2 2607 Nigeria (1), Pakistan (1)
1998 3 2258 United States (3)
1999 2 1813 Iran (1), United States (1)
Democratic Republic of Congo (1), Iran (1),
2000 6 1457
United States (4)
2001 3 3048 Iran (1), Pakistan (1), United States (1)
2002 3 1526 United States (3)
2003 2 1146 China (1), United States (1)
2004 4 3797 China (1), Iran (3)
2005 10 2148 Iran (8), Sudan (2)
2006 5 1591 Iran (4), Pakistan (1)
2007 14 1252 Iran (11), Saudi Arabia (2), Yemen (1)
2008 8 2390 Iran (8)
2009 7 714, excluding China Iran (5), Saudi Arabia (2)
2010 1 527, excluding China Iran (1)
2012 1 682, excluding China Yemen (1)
2013 3 778, excluding China Saudi Arabia (3)
2015 9 1634, excluding China Pakistan (5), Iran (4)
2017 4 Iran (4)
2018 3 Iran (3)
Source: Amnesty International

Figure 9.11 Mary Robinson, the former UN High Commissioner for Human Rights, was quoted in the Amnesty
International report, Stop Child Executions.
Amnesty International states, in its report Stop Child

Executions, it is ‘an affront to all notions of morality The overwhelming international
and decency when it comes to the protection of consensus that the death penalty should
children – one of the most vulnerable groups in not apply to juvenile offenders stems
society’. Of those countries that still use the death from the recognition that young persons,
penalty, many have publicly stated that they will not because of their immaturity, may not fully
use it against children and young people. This, it is comprehend the consequences of their
said, reflects ‘the conviction that the lives of child actions and should therefore benefit from
offenders – due to a young person’s immaturity, less severe sanctions than adults. More
impulsiveness, vulnerability and capacity for importantly, it reflects the firm belief that
rehabilitation – should never be simply written off’. young persons are more susceptible to
The Amnesty International report quotes change, and thus have a greater potential
Mary Robinson, the former United Nations High for rehabilitation than adults.
Commissioner for Human Rights:

9
Between 1990 and 2019, Amnesty International Child executions also breach international treaties
recorded 145 executions of children in 10 countries: such as the:
China, the Democratic Republic of Congo, Iran, • International Covenant of Civil and Political
Nigeria, Pakistan, Saudi Arabia, South Sudan, Rights (1966), Article 6: ‘Sentence of death
Sudan, the United States and Yemen. Several of these shall not be imposed for crimes committed by
countries have now changed their laws to exclude persons below 18 years of age.’
the practice. Iran has executed more than twice as • United Nations Convention on the Rights of
many child offenders as the other eight countries the Child (1989), Article 37: ‘Neither capital
combined; Iran has executed 93 child offenders since punishment nor life imprisonment without
1990. the possibility of release shall be imposed
Amnesty International states that: for offences committed by persons below
18 years of age.’
the exclusion of child offenders from the

Research 9.5
death penalty is now so widely accepted
in law and practice that it has become Research an international human rights
a rule of customary international law – issue that relates to children and young
international rules derived from state people (e.g. child slavery, child soldiers,
practice and regarded as law (opinio juris) – forced child labour). Construct a fact sheet
and therefore binding on every state, except outlining the issue. To get started, search
on those that have ‘persistently objected’ to for the issue on Amnesty International’s
the rule in question. website.
Figure 9.12 A boy holds a rifle as the Regional

Coordinator of Community Authorities (CRAC-
PF) community police force teaches a group
of children how to use weapons, in Mexico, on
January 24, 2020. The CRAC-PF vigilante group
trains children as young as five so they can
protect themselves from drug-related criminal
groups operating in the area.

Chapter summary
• Historically, children had no legal rights. who have committed summary offences and
This began to change gradually in the some indictable offences.
nineteenth century, with the introduction of • The United Nations Committee on the Rights
free compulsory education and laws limiting of the Child oversees the implementation of
children’s labour. the United Nations Convention on the Rights of
• The United Nations Convention on the Rights of the Child (1989).
the Child (1989) was an important development • The NSW Advocate for Children and Young
in promoting the rights of children and young People is an independent body that conducts
people. More countries have signed this research related to children and young people.
convention than any other international treaty. • The Office of the Children’s Guardian monitors
• The law generally defines a child as a person out-of-home care in New South Wales and non-
under the age of 16, and a young person as a government adoption service providers. It also
person aged 16–18. conducts ‘working with children’ checks.
• The status and rights of children under the law • The Children’s Court of New South Wales has
are contained mainly in legislation in the areas a dual role with respect to children and young
of work, education, discrimination, medical people. It hears criminal matters relating
treatment and contracts. to young offenders as well as offer care
• All states in Australia have enacted care and applications for children and young people who
protection legislation over the last 30 years. are considered to be at risk of harm.
• Children and young people are given special • Communities & Justice investigates reports of
consideration in respect to criminal law, which children who are considered at risk of harm.
takes into account the age of the offender at • Non-legal mechanisms for protecting the
the time of the offence. rights of children and young people include
• The Young Offenders Act 1997 (NSW) provides counselling services and services offered by
diversionary measures for young offenders community organisations.
Questions
1 Which of the following is a feature of 2 Which of the following is the best definition of
doli incapax in New South Wales? a ‘young person’?
a Children and young people are responsible a A young person is a person under the age
for their crimes from the age of 14. of 16.
b There are certain crimes for which children b A young person is a person between the
and young people are not responsible. ages of 12–16.
c Children under the age of 10 are not c A young person is a person aged between
responsible for their crimes. 16–18.
d People with mental disabilities are not d A young person is a person aged between
responsible for their crimes. 18–25.

9
3 Which of the following is not a reason for b Australia can pass whatever laws it
the law to treat children and young people chooses to, as it is a sovereign state.
differently? c Australia can pass whatever laws it
a to prevent them from being exploited chooses to, as it is a sovereign state, but
b to protect them from the consequences of it is obliged to pass laws to implement the
making uninformed decisions provisions contained in the convention.
c to give them the best chance of finding d Australia will pass laws recommended by
appropriate employment the UN General Assembly.
d to protect others from being disadvantaged 5 Which of the following bodies monitors the
by dealing with a person who is a minor mandatory screening of applicants for jobs in
4 Which of the following statements best child care?
describes Australia’s obligations under the a Australian Council of Trade Unions
United Nations Convention on the Rights of the b Communities & Justice
Child (1989)? c NSW Office of the Children’s Guardian
a Laws must be passed within Australia d Committee on the Rights of the Child
to implement all of the convention’s
provisions.
1 Outline what changed in the treatment of 5 Outline the roles of the NSW Commission for
children and young people by the end of the Children and Young People.
nineteenth century. Explain why this occurred. 6 Discuss some challenges that may confront
2 Provide examples of contexts where the Communities & Justice in performing its role
criminal justice system treats children and effectively.
young people differently from adults. 7 Identify at least two non-legal mechanisms
3 Explain how the Young Offenders Act 1997 that promote the rights of children and
(NSW) is unique and outline some of the young people.
recent criticisms made of the Act.
4 Comment on the extent to which the United
Nations can regulate the implementation of the
United Nations Convention on the Rights of the
Child (1989) throughout Australia and the rest
of the world.
1 Critically evaluate how the legal system Marking criteria for extended-response questions
responds to the issue of juvenile justice. can be found on the Cambridge GO website. Refer
Refer to strategies for crime prevention, to these criteria when planning and writing your
issues surrounding arrest and detention, responses.
diversionary schemes and court proceedings
for young people.

Issue 1
Chapter 10
Women
Chapter objectives
• explore legal concepts and terminology that relate to women
• investigate the main features of the Australian and international legal systems that relate to women
• analyse the effectiveness of the legal system to deliver justice and to adequately address issues in
society relating to women
• investigate the place of the law in encouraging cooperation and resolving conflict with regard to
women and the law
• investigate the role of the law in addressing and responding to change with respect to women

Relevant law
Women’s Legal Status Act 1918 (NSW)
Sex Discrimination Act 1984 (Cth)
Workplace Gender Equality Act 2012 (Cth)
SIGNIFICANT CASES
O’Callaghan v Loder [1984] EOC 92–023

10.1 Women and the law more prominently challenged. During the two World
Wars, women, through necessity, successfully took
For centuries, women have campaigned for change in
on traditionally male roles due to the shortage of
order to have their voices heard. Throughout history,
men at home.
men have held most of the political power and held
This was especially so during World War II.
most of the wealth in most societies. Intended or not,
Women ran farms, worked in factories and generally
policies and laws have favoured men in all facets of
maintained productivity at home. Although this
society. Gender should not be a factor in determining
work was at times difficult, many women also
the worth of an individual’s work, but women have
found it liberating. They came to see that they had
been discriminated against in many areas and denied
potential beyond their traditional roles in society,
equality of opportunity, especially in the workplace.
and began to ask why many areas of employment
At both federal and state levels, there is a
were denied to them and, more importantly,
substantial body of legislation and policy specifically
why they did not receive equal pay. In 1943, an
relating to the rights of women. In this unit of study,
Australian Women’s Conference for Victory in
the changing status of women in Australia today
War and Victory in Peace was held in Sydney. The
will be examined, as well as the legal and non-legal
participants drew up a program of reforms for the
mechanisms for achieving equality (primarily in the
government to incorporate into post-war Australia.
workplace). The unit will also include an evaluation
This document, the Australian Women’s Charter,
of the effectiveness of these responses.
contained 23 objectives such as the establishment
Other issues relevant to the rights of women in
of a national network of childcare centres and equal
Australia today will be covered in the Year 12 course
pay. It is considered a ‘landmark manifesto’ of
in the unit on family law.
Australian feminism.
Historical roles and attitudes
feminism
For many years, the attitude that women are different the advocacy of rights for women on the basis of the equality
from men and inferior in significant ways has been of men and women; there are many varieties of feminist
reflected in the laws and policies of many countries, ideas in political and social thought
including Western societies. These attitudes

Figure 10.1 Historically, a woman’s role was that of
meant that women had only a short period of paid
homemaker. Many women are still expected to fulfil
employment – if any – until they married and took up
that role.
the role they were destined to fulfil: homemaker. Men
almost exclusively held all positions of power and
owned practically all property. It followed that the
position of women in society was one of subservience
and powerlessness. Women’s working lives involved
domestic duties such as rearing children, preparing
food, sewing and various other tasks in the home.
This position was strongly influenced by biology.
As most women were bearing children (no reliable
and safe contraception was available), they were left
at home, dependent on their male partners.
Views of women’s essential nature extended
to various aspects of social life, and sometimes
attempts were made to explain or justify these views.
Much was written and said by men about women,
especially in Victorian England, from reasons as to
why they belong in the home bearing children, to
analysis of their sexual desires.
There have been signature times throughout the
last 120 years where women’s restricted roles were

Chapter 10 Women
10
Review 10.1
1 Describe the social attitudes about women prior to the twentieth century and give some reasons
why these attitudes permeated society.
2 Construct a detailed timeline to outline the historical development of the roles of women
in society.
For many women, though, the end of the war meant Weinstein – one of the most influential movie
room had to be made for the returning soldiers, and producers in Hollywood – was found guilty of sexual
they resumed their domestic roles as wives, mothers assault offences and was sentenced to 23 years'
and homemakers. imprisonment. The movement broke the silence
The 1960s and 1970s was the next important over the treatment of many women and has garnered
period when women challenged their secondary significant publicity and support worldwide.
status to men. The feminist movement of this
time took on matters such as discrimination in the Progress and challenges
workplace and liquor licensing laws in some states, for women
which said women couldn’t be served in the public
bar. Important pieces of legislation such as the Education, training and workforce
Family Law Act 1975 (Cth), the Anti-Discrimination participation
Act 1977 (NSW) and the Sex Discrimination Act 1984 A person’s status in society is greatly influenced
(Cth) were products of this era. by opportunities to acquire skilled employment.
In 1975, the United Nations proclaimed that Historically, women who wanted to enter professions
year to be International Women’s Year to promote had many barriers to overcome, some of which
issues relating to women around the world. Today persist today. The formal education that most young
in Australia there is a significant body of law that girls received was usually short in duration and
protects the rights of women and promotes equality assumed a future as a homemaker.
of opportunity. Having said this, the status of women In the nineteenth century, there seemed no pressing
in society continues to be affected by particular reason for young women to complete their secondary
issues and concerns. For example, women still lack education, let alone go to university. Those women who
pay equity, may suffer violence in the home and are were able to attend university to study subjects such
under-represented in senior management roles in as law and medicine did so in the knowledge that even
the workplace and in parliamentary representation if they passed their exams, they would not be given
at a state and federal level. degrees and were effectively barred from practising
In 2017, the ‘Me Too’ movement emerged in in their chosen field. This did not deter some women,
response to the treatment of women, particularly in whose thirst for knowledge and a chance to use their
the entertainment industry. The movement involved talents spurred them on regardless.
women publically sharing their experiences of Passage of the Women’s Legal Status Act 1918
sexual harassment and discrimination. Some of (NSW) opened the way to recognition of women’s
the women’s experiences involved high-profile right to enter professions. Many women who had
men; in some cases, these men were then charged successfully completed their degrees were able to do
with criminal offences. For example, in 2020, Harvey so, and some were elected to parliament in the 1920s.

262
TABLE 10.1 Education participation rate(a)(b)(c), 15–24 years
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
Males % 56.1 56.1 55.9 55.9 56.2 56.1 56.5 59.7 57.8 58.1 59.4 59.7 58.7 59.2 60.3 61.2 60.9
Females % 56.0 57.9 58.5 57.8 58.1 57.5 57.9 58.1 58.3 59.6 60.3 61.9 60.9 62.6 64.0 64.4 64.9
ISBN 978-1-108-86281-3
(a) Includes any of the following: Certificate III or IV; Advanced Diploma or Diploma; Bachelor Degree; Graduate Diploma or Graduate Certificate, or Post
Graduate Degree.
(b) Prior to 2013, data excludes people permanently unable to work.
(c) Males and females who have attained Year 12 or a formal qualification at Certificate III or above as a proportion of all persons for each sex and age group.
Source: ABS 4125.0–Gender Indicators, Australia, September 2018, Table 5.1.
TABLE 10.2 Apparent retention rate for full-time school students, Year 7 or 8 to Year 12
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
Males % 68.1 69.8 70.3 70.4 69.9 69.0 68.8 68.9 70.8 73.2 74.6 75.8 77.8 80.0 80.7 80.9 81.2
Females % 79.1 80.7 80.7 81.4 81.0 80.7 80.1 80.5 81.4 83.0 84.3 84.3 85.6 87.4 87.4 87.8 88.5
Source: ABS 4125.0. Gender Indicators, Australia, September 2018, Table 5.3.
Milgate et al.
TABLE 10.3 Workforce participation by gender, full-time or part-time status and occupation
Female Male
Occupation Full-time (%) Part-time (%) Total (%) Full-time (%) Part-time (%) Total (%)
Clerical and administrative workers 43.3 30.7 74.0 22.8 3.2 26.0
Community and personal service workers 26.8 44.3 71.0 17.5 11.5 29.0
Sales workers 18.6 43.3 62.0 21.8 16.2 38.0
Professionals 35.3 19.9 55.2 38.2 6.6 44.8
Managers 28.2 8.3 36.5 58.4 5.0 63.5
Labourers 11.5 22.9 34.4 41.1 24.5 65.6
Technicians and trades workers 7.8 6.4 14.2 76.2 9.6 85.8
Machinery operators and drivers 6.3 3.5 9.8 75.9 14.4 90.2
© Cambridge University Press 2020

Total employees 25.0 21.8 46.9 43.2 9.9 53.1
Source: ABS (2018) Labour Force, Australia, Detailed, Quarterly, February 2015, cat. no. 6291.0.55.003, Table 07, viewed 24 November 2018. Note: Occupations are ranked from largest proportion
of female employees to smallest.
Chapter 10 Women
10
The participation rate of young women in in February 1978 to 60.5% in October 2018. Across
education has continued to increase significantly Australia, women still constitute the majority of
over the past 30 years, and in the years 2007–2017 part-time and casual workers. Workers in these
has increased marginally (see Tables 10.1 and 10.2). categories often lack job security and other benefits
Women enrolled in higher education comprised available to those in full-time employment such as
58% of enrolments in 2016. However, women have parental leave and holiday pay.
been under-represented in trade apprenticeships
in Australia and are substantially under-represented Social security
in the manual trades. The number of women in In the early twentieth century, the provision of
manual trades was less than 3% in 2015. This seems welfare payments to people who were unemployed
consistent with the level of occupational segregation or otherwise experiencing difficulty earning an
seen in NSW and throughout Australia today, income was not seen as a responsibility of the
especially in the trades. With respect to labour federal government. This changed with the Great
force participation, women have made significant Depression in the early 1930s, when it became
gains in the period covered by the ABS Labour apparent that, at times, people might be unemployed
Force statistics, with participation rising from 43.5% due to circumstances beyond their control.
Review 10.2
1 Examine Table 10.3 and list the occupation groups in which women are well represented and
under-represented.
2 Outline possible reasons for women’s under-representation in the following occupations:
labourers; technicians and trades workers; machinery operators and drivers.
Figure 10.2 Women make up over 50% of enrolments in higher education.

Unemployment benefits today are available

to women as well as men. There are also family By marriage, the husband and wife
allowance payments to assist with the costs of are one person in law: that is, the very
raising children, and low-income families may being or legal existence of the woman
receive rental assistance to help with private rental is suspended during the marriage, or at
accommodation. least is incorporated and consolidated
All people who have carers’ responsibilities – for into that of the husband, under whose
example, for a family member with a disability – can wing, protection, and cover, she performs
receive Carer Payment benefits because their everything and is therefore called in our
responsibilities affect their ability to earn an income. law-french a feme-covert.
The majority of carers are women. Most recipients
of parenting payments are also women. A person,
regardless of marital status, can qualify for parenting
payments if he or she has primary responsibility The effect of this type of legal reasoning and
for one or more young children and meets certain attitude was far-reaching. Almost all women before
income tests. Separated parents can receive the twentieth century were married and as a result
financial assistance with the cost of caring for their nearly all women were assigned an inferior status
children, through the Child Support Agency. in society. Evidence of this can also be found in the
Studies have shown that, over the long term, areas discussed in this chapter.
women fare far worse financially than men after Today, the rights and responsibilities of men and
a divorce. In addition, approximately 90% of women in relationships can be found in the Family
lone-parent families are headed by women. The Law Act 1975 (Cth) and the Property (Relationships)
responsibilities of child care present significant Legislation Amendment Act 1999 (NSW).
barriers to entering the workforce. While financial
The right to own property
support from the government is therefore vital, most
A married woman lost all control over any personal
people who are dependent on welfare as their main
property she owned at the time of the marriage, and also
source of income nevertheless live on or below the
any she acquired during the marriage. If she owned any
poverty line.
real property, it came under her husband’s control,
poverty line but remained hers for the purpose of inheritance. As
the minimum level of income needed to meet basic the husband was the breadwinner and the wife was
necessities below which a household is defined as poor; the
poverty line is different in different countries
dependent on him (an inferior position), women were
generally subject to the will of their husbands.
real property
Marriage property consisting of land and the buildings on it
In the past, when a woman married she effectively
lost the legal identity she had as a single person. This situation continued until the Married Women’s
The law did not recognise the existence of the Property Act 1882 was passed in England, and later
woman within the marriage, as her legal identity a similar act was passed in New South Wales, the
became that of her husband’s. They were regarded Married Persons (Property and Torts) Act 1901 (NSW).
as unito caro. These Acts gave women greater control over their
personal property. At the time of its passing, the 1901
unito caro
(Latin) ‘one in flesh’; meaning that when a woman married,
Act was seen as forward-thinking and progressive,
in the eyes of the law, she assumed the legal identity of and it established an independent legal status for
her husband married women.
The Act effectively allowed women to retain
William Blackstone, author of Commentaries on the ownership of any property they brought into the
Laws of England, 1765, said that in a marriage the marriage and to make dispositions of property by
husband and wife are a single person in law:

Chapter 10 Women
10
means of a gift. The Act also protected any property signed authority was required. The legal position of
left to a woman in a will and protected a woman from women at this time reaffirmed the legal reasoning
a husband who was unscrupulous or a spendthrift. that husband and wife were one in law.
In other words, a husband could not spend his wife’s This situation changed with the Married Persons
money or sell any property his wife had inherited (Property and Torts) Act 1901 (NSW). Either partner had
from her family or other sources. Today, men and the ability to sue or be sued, to sue the other and to
women can hold, manage and dispose of property in obtain remedies to seize and protect their own separate
their own right and as they see fit. The Family Law Act property. Women could also enter into contracts on
1975 (Cth) and the Property (Relationships) Legislation their own. Today, the common law and legislation
Amendment Act 1999 (NSW) recognise the financial recognise the rights of all men and women who are
and non-financial contributions made by parties not minors to sue and be sued, and to enter contracts.
to a marriage, de facto or same-sex relationship
before, during and after the relationship. As such, The right to vote
these pieces of legislation recognise the role played For women everywhere, the right to
by the homemaker in contributing to the assets of vote (suffrage) has always symbolised
the family. the fundamental right of all members
The Family Law Legislation Amendment of a democratic society. But until the
(Superannuation) Act 2001 (Cth) now allows early twentieth century, this right was Video
superannuation to be divided in the event of marriage
breakdown. This was an important development, as Figure 10.3 This sculpture, ‘Great Petition’, was created by
superannuation is a sizeable asset, especially in the artists Susan Hewitt and Penelope Lee and was launched
future when it matures. Prior to the passing of this on 3 December 2008 to celebrate the one-hundredth
anniversary of women being granted the right to vote in
Act, there were strict rules about when and how
Victoria. The sculpture depicts the petition submitted to
you could collect your superannuation; for example,
the Victorian Parliament in 1891 that called for women to
when a person resigned from her or his job. As a be granted the right to vote. The sculpture sits near the
result, many women who had been contributing in Victorian Parliament building in Melbourne. The original
the home, but had no formal superannuation in their petition, containing 30 000 names, is 260 metres long.
name, had no access to their share of the family’s
superannuation, which was usually in the husband’s
name. The legislation allows the superannuation to
be split into two funds, one in each spouse’s name.
These aspects of property in relationships will be
covered in the HSC course under family law.
The ability to sue and enter contracts

A feme sole, or single woman, had the same rights
as a man for civil wrongdoing (torts) and the same
rights to sue or be sued and to enter into contracts.
This was not the case for married women. If a married
woman was being sued, her husband had to be a
co-defendant, and if she wanted to sue someone,
her husband had to be a co-plaintiff. A husband and
wife were also not permitted to sue each other.
feme sole
(French) a single woman
Similarly, by herself, a married woman was not

allowed to enter into a contract – her husband’s

not generally available to women. The right to vote Politicians in Australia were certainly more
was also an important symbol of women’s struggle receptive to the issue of universal suffrage. This
for equality. In Britain, it was Emmeline Pankhurst may have been in part due to the fact that Australia
who was the driving force behind the suffragette was a young country and the contributions that
movement. Suffragette marches on parliament women had made in a pioneering sense were well
grew in size from approximately 300 marches in appreciated. Hence, the vote for women in England
1906 to 4000 marches in 1907. Suffragettes chained lagged behind that of Australia, even though it was
themselves to pylons and gates and disrupted the suffragette movement in England that inspired
many political meetings. the movement in Australia. Regardless, Australia
certainly was one of the world leaders in giving
suffrage women the vote.
the right to vote, guaranteed by the law
As can be seen in Table 10.4, women in South
suffragette
Australia gained the vote in 1894, and all women were
a term used to describe a supporter (whether male or
female) of the suffrage movement allowed to vote in Commonwealth elections in 1902.
The rest of the states soon followed. Aboriginal and
Emmeline Pankhurst was driven by the injustice of Torres Strait Islander women did not gain the right
a lack of universal suffrage. She was determined to to vote in federal elections, in every state, until 1962.
right this wrong, as was evident when she said that Until that time, Aboriginal and Torres Strait Islander
to get reform realised: women had been excluded by the Commonwealth
Franchise Act 1902 (Cth) (now repealed).
You have to make more noise than Jury service

anybody else, you have to make yourself Even though women had gained the right to vote,
more obtrusive than anybody else, you the right to serve on juries came much later. In New
have to fill all the papers more than South Wales, like many other parts of Australia, a
anybody else, in fact you have to be there person had to satisfy certain property qualifications
all the time and see that they do not snow to serve on a jury. This was discriminatory because
you under. at the time most household property was in the
husband’s name. In 1947, this requirement was
dropped, but there was still no automatic right to
serve; women had to apply to do so. In 1968, the
Rose Scott was an important person in the jury roll automatically included all women, but if a
Australian suffragette movement. In a similar vein women didn’t wish to be included she could simply
to the movement in England, Scott, along with other advise the officer responsible for the rolls, and she
women, marched and held rallies to raise awareness would be removed.
around the issue of the right to vote.
TABLE 10.4 Years in which voting rights for Australian women were won
State Voting rights Right to stand for parliament
South Australia 1894 1894
Western Australia 1899 1920
Australia (Commonwealth) 1902 1902
New South Wales 1902 1918
Tasmania 1903 1921
Queensland 1905 1915
Victoria 1908 1923

Chapter 10 Women
10
During debate in parliament over the introduction of Because these women have little English, they have
the Jury Act 1977 (NSW), the Attorney-General, F. J. not always been aware of their rights. Some of these
Walker, said: workplaces are characterised by unsafe conditions,
onerous shift work, bullying, inadequate toilet and
rest room facilities, little attempt to have multilingual
… that because of an outmoded selection
health and safety signs, and pay that is lower than the
system and the proliferation of persons
legal minimum wage. The trend towards contracting
who may claim exemption from jury
labour hire companies for casual workers has
service, the stage has been reached where
exacerbated the problems, as companies thereby
the jury rolls now in use are not truly
avoid legal obligations that they would otherwise
representative of the ordinary citizen.
have to employees.
A large number of migrant women also carry out
home-based work. While this work offers flexible
hours, and there is no need to pay for child care,
exemption evidence suggests that many women work long
being immune from certain duties and obligations hours in poor conditions and are paid a pittance on
a piecework basis. In 1992, the federal government’s
As the main aim of the Jury Act was to ensure ‘that ‘Inquiry into Equal Opportunity and Equal Status for
jury service, so far as is practicable, will be shared Women in Australia’ reported on this situation in its
equally by all adult members of the community’, the publication, Half Way to Equal. As documented in
responsibility to serve on juries was extended to the submission of the Asian Women at Work Action
all those enrolled to vote. This, of course, included Group to the 2007 National Industrial Relations
all women. Inquiry, and a July 2008 report by the Australian
Human Rights Commission, the problems are still
Women from non-English- very much in evidence.
speaking backgrounds It has also been noted that migrant women have
Migrant women throughout Australia experience an unemployment rate higher than Australian-
the same barriers as other women, but the problems born people, and for those from non-English-
are compounded by a language barrier, especially speaking backgrounds it is even higher than for
in the workplace. There is a high concentration of migrants fluent in English. Even some migrant
migrant women in blue-collar jobs, which are not women today with a high level of educational
known for flexible working hours. Generally, migrant qualifications usually cannot work in Australia
women have less confidence in negotiating job- without undertaking expensive bridging courses,
sharing or part-time options with their employers. sometimes on top of a recognised language course.
Moreover, they are often less able to afford to work As a result, many of these women must take jobs
only part-time. that pay far less than the jobs they would have had in
Migrant women have been employed in factories their original countries, because their qualifications
in substandard conditions throughout Australia. are not recognised.
Review 10.3
1 Explain some of the main workplace issues facing women from non-English-speaking
backgrounds.
2 Outline why women from non-English-speaking backgrounds are more likely to be exploited in
the workplace than women who speak English.

Research 10.1
Asian Women at Work (AWATW) has a membership of over 1300 migrant women workers. The
group works to educate and empower Asian women workers in Australia. View AWATW’s website
for more information.
1 Search online for websites that discuss AWATW’s activities.
2 Outline the specific difficulties that migrant women face at work.
3 Outline how AWATW recommends women can tackle these difficulties.
4 Discuss which agents would be involved in these efforts to tackle difficulties at work and their
roles of these agents.
Aboriginal and Torres Strait Aboriginal and Torres Strait Islander women
Islander women are twice as likely to suffer from cervical cancer
The impact of colonisation on Aboriginal and and eight times more likely to die from it than non-
Torres Strait Islander women was devastating. In indigenous women. Diabetes resulting from dietary
addition to disease and massacre, it is generally and lifestyle issues is a major problem. Aboriginal
accepted that there were many examples of young and Torres Strait Islander women between the ages
girls and women being victims of sexual assaults of 35 and 64 are 33 times more likely to die from
by members of the non-indigenous community. diabetes than non-indigenous women.
For the children of the Stolen Generations and The labour force participation rate for Aboriginal
their families, the practice of taking children from and Torres Strait Islander women is significantly
their parents resulted in great spiritual, physical worse than non-indigenous women (see Figure 10.5).
and emotional suffering. Today, Aboriginal and With respect to educational indicators, Aboriginal and
Torres Strait Islander women fall behind on Torres Strait Islander women fare significantly worse
most indicators of health and wellbeing. The life than non-indigenous women and the general non-
expectancy of Aboriginal and Torres Strait Islander indigenous population on retention rates to Years 11
women is 75.6 years compared to 84.6 years for and 12, post-school and tertiary qualifications. There
non-indigenous women. has been a slight improvement in some of these areas,
but thus far, many government attempts to overcome
these entrenched disadvantages have failed.
Figure 10.4 June Oscar AO is an Australian Bunuba
woman, Aboriginal and Torres Strait Islander peoples
rights activist, community health and welfare worker, and
film and theatre producer. Oscar began a five-year term
as Australia’s Aboriginal and Torres Strait Islander Social
Justice Commissioner on 3 April 2017.
Figure 10.5 Comparison of estimated Aboriginal and

Torres Strait Islander and non-indigenous labour force
participation rates (15–64 years of age) as at 2016 Census;
reported 2018.
Source: Australian Bureau of Statistics

Chapter 10 Women
10
Review 10.4
1 Outline some of the health and wellbeing issues facing Aboriginal and Torres Strait Islander
women today.
2 Assess why some of the attempts to resolve these issues have failed.
10.2 Legal responses CEDAW contains 30 Articles. Articles 1–16 set
out the main rights of women. Articles 17–22
International law outline the powers and responsibilities of the
The main treaty that addresses discrimination Committee on the Elimination of Discrimination
against women around the world is the Convention against Women, the body set up to monitor the
on the Elimination of All Forms of Discrimination implementation of the treaty. Articles 23–30 set out
against Women (1979) (CEDAW). It was opened for the provisions governing the formal operation of
signature in 1979 and entered into force in 1981. the treaty; for example, the time frame for its being
open for signature and entering into force, and how
opened for signature disputes about interpretation are to be resolved.
(of a treaty) negotiations have concluded and the treaty is
As a signatory country, Australia has an obligation
ready for parties’ signatures; many treaties, especially those
convened by the United Nations, will be open for signature to ensure that its laws and policies protect the rights
only until a certain date; others, such as the Geneva of all women and promote equality of opportunity.
Conventions, are open for signature indefinitely
entered into force The role of the United Nations in

(of a treaty) having become binding on those states that have
consented to be bound by it protecting the rights of women
The United Nations is the mechanism whereby
The preamble of CEDAW acknowledges that countries around the world meet and sign international
the Charter of the United Nations (1945) and The declarations and treaties. The Convention on the
Universal Declaration of Human Rights (1948) affirm Elimination of All Forms of Discrimination against
that all human beings are born free and are equal in Women (1979) has been important for forwarding the
dignity and rights. It also acknowledges that under rights of women throughout the world. Today there
human rights treaties, states have responsibilities are 189 parties to this convention.
to ‘ensure the equal rights of men and women However, with all aspects of international
to enjoy all economic, social, cultural, civil and law there is a difference between signing an
political rights’. international treaty and ratification. Due to the
sovereignty of all states, there generally has to be
state the political and/or economic will before a state
will agree to sign a treaty. Most states act out of
self-interest, and the United Nations can only
It affirms that, in spite of this, there is still
pressure states to comply with international law.
discrimination against women around the world.
Once a state has signed a treaty, the UN committee
The treaty states that this discrimination:
structure monitors and reports on the extent to
which they are complying with their international
obligations.
… hampers the growth of the prosperity
This is no different for the CEDAW. The
of society and the family and makes
Committee for the Convention on the Elimination
more difficult the full development of the
of Discrimination against Women was established
potentialities of women in the service of
under Article 17 of the convention. The committee
their countries and of humanity.
has 23 members who are considered experts in
fields relevant to the treaty. This committee is
different from other human rights committees in

Figure 10.6 In Ankara, Turkey, on the International Day for the Elimination of Violence against Women in 2017, a protester
chants slogans in a protest by Kurdish and Turkish women about protecting their rights and lives. The UN General
Assembly designated 25 November as the International Day for the Elimination of Violence against Women to raise
awareness of the fact that women around the world are subject to rape, domestic violence and other forms of violence.
that all the members have always been women. The The main provisions in Articles 1–16 of CEDAW
members of the committee serve four-year terms are outlined below.
and usually meet once a year for two weeks. The
committee monitors the implementation of the treaty
by examining reports submitted by states that have Convention on the Elimination of
ratified or acceded to CEDAW. All Forms of Discrimination against
Australia has a responsibility under CEDAW to Women (1979)
report to the committee every four years, or as the
Article 1 Defines discrimination against
committee may require, on the steps it has taken to
women as ‘any distinction, exclusion or
give full effect to the rights contained in it. Having
restriction made on the basis of sex that
a federal structure of government can present
impairs or nullifies women’s enjoyment of
difficulties in ensuring that all states are complying
human rights and fundamental freedoms’.
with the treaty.
The committee experiences significant Article 2 States that are a party to the
difficulties as a mechanism set up to oversee the treaty will condemn discrimination
implementation of the treaty because the states against women and will pursue means to
that have become a party to it have made many eliminate it.
reservations. It is well documented that CEDAW
has had more reservations than any other treaty and Article 3 States should take ‘all
hence the committee has limited powers to promote appropriate measures, including
the implementation of the treaty. legislation, to ensure the full development
and advancement of women’ guaranteeing

Chapter 10 Women
10
them the same fundamental human rights Article 10 Women shall have the same
and freedom as men. rights as men to education and training.
Article 4 Parties are to adopt special Article 11 To eliminate workplace

measures to ensure the equality of de facto discrimination against women. This
couples between men and women and to includes equality of opportunity, equal
protect maternity. These positive measures pay and conditions. This also includes the
are not to be considered discriminatory. elimination of discrimination on the basis
of pregnancy and maternity.
Article 5 Social and cultural patterns of
men and women are to be modified with Article 12 To eliminate discrimination
the aim of eliminating prejudices and in the area of health care and ensure
customary practices that are based on the adequate services throughout pregnancy,
inferiority/superiority or stereotyped roles confinement and the post-natal period.
of men and women. The importance of
Article 13 To eliminate discrimination
maternity to children and parenting as a
against women in economic areas such
responsibility of both men and women.
as family benefits and finance, and also
Article 6 To eliminate all forms of traffic participation in areas of social life such as
in women and exploitation of prostitution sports and cultural activities.
of women.
Article 7 To eliminate discrimination against women who face particular
against women in the public and political problems in rural areas.
life in regard to voting, participation
Article 15 Equality with men before the
in government and non-government
law. This includes all aspects of civil law, in
organisations.
particular rights in respect to contracts.
Article 8 Women shall be given
‘the opportunity to represent their
against women in marriage and family
Governments at the international
relations. This can include equal rights
level and to participate in the work of
with men in respect to entering a
international organizations’.
marriage and dissolution of a marriage.
Article 9 Women shall have ‘equal rights It also includes the same rights and
with men to acquire, change or retain responsibilities as parents.
their nationality’.
Review 10.5
1 Select five Articles from the Convention on the Elimination of All Forms of Discrimination against
Women (1979) (CEDAW). Outline some state or federal legislation that has provisions consistent
with CEDAW.
2 View the CEDAW website and identify some countries that are not signatories to the treaty.
Propose a hypothesis on why this might be the case.

Domestic law
Legislation protecting women from discrimination
exists at both state and federal levels in Australia.
Discrimination means treating someone unfairly
because of some characteristic. Discrimination
on the basis of sex may be considered to include
discrimination because of someone’s marital status
or because she is pregnant or likely to become
pregnant. There are two types of sex discrimination:
direct discrimination and indirect discrimination.
Direct discrimination is a more blatant form and is
more easily identified; for example, where male
employees are offered first choice for extra overtime
ahead of female employees.
direct discrimination
a practice or policy of treating a person or group of people
less favourably than another person or group in the same
position, on the basis of sex, race, national or ethnic origin,
age, sexuality or other characteristic
indirect discrimination
practices or policies that appear to treat everyone in
the same manner, but which adversely affect a higher
proportion of people from one particular group
Indirect discrimination is usually harder to detect. It

occurs when there is a procedure, rule or practice
that, on the face of it, is the same for everyone and
not discriminatory, but when carried out actually
discriminates against a particular group of people.
Indirect discrimination can occur even when there
is no intention to discriminate. An example provided
by the Australian Human Rights Commission is a Figure 10.7 More women than men interrupt their working
situation where a manager offers a wage increase to lives for a period of time when they have children.
all employees who have worked for the company for a
education; the provision of goods, facilities and
number of years without interruption. On the face of
services; accommodation and housing; insurance;
it this may not seem discriminatory; however, given
and superannuation. The Act explicitly included
the fact that many more women than men interrupt
sexual harassment as a form of discrimination
their working lives for a period of time when they
in employment and education and makes this
have children, this policy has the effect of treating
behaviour illegal.
women less favourably than men.
sexual harassment
Sex Discrimination Act any unwelcome sexual behaviour, such as sexual advances,
suggestive comments, unwanted touching, written
Some, but not all, provisions of the Convention on communications or gestures, especially in the workplace
the Elimination of All Forms of Discrimination against
Women (1979) were implemented in Australian law The other main aim of the Act is to promote
through the Sex Discrimination Act 1984 (Cth). community respect for the principle of the equality
The Act aims to eliminate discrimination of men and women. The Act makes it illegal to:
on the basis of sex, marital status or pregnancy • discriminate against someone on the basis of
in a number of key areas such as employment; sex, marital status or pregnancy

Chapter 10 Women
10
• dismiss someone from her or his job on the (Cth). The AHRC will investigate the complaint and
basis of the person’s family responsibilities organise a conciliation conference to try to resolve
• sexually harass someone. the complaint with the other party. If conciliation
fails, the complainant may make an application to
Sexual harassment is any unwelcome or unwanted
the Federal Circuit Court or Federal Court to have
sexual behaviour that makes a person feel humiliated
the complaint heard.
or offended, and where that reaction is reasonable
in the circumstances. It occurs when a woman (or a
Australian Human Rights Commission
man) is subject to unwelcome behaviour from others
The Australian Human Rights Commission (AHRC)
because of their gender. It can include behaviour
is the new name of the Human Rights and Equal
such as unwanted sexual advances, touching
Opportunity Commission. It is an independent federal
without consent, or making jokes or suggestive
statutory body created by the Australian Human Rights
comments that are gender-oriented.
Commission Act 1986 (Cth). It has the responsibility to
Often there is a power imbalance between the
administer the five federal discrimination laws, each
harasser and the harassed; usually the harasser
with their own commissioner. There is a president
occupies a higher position at the workplace. The
who is aided by the Human Rights, Race, Sex,
person being harassed may think that her (or his)
Disability, Aboriginal and Torres Strait Islander, and
advancement, or indeed continued employment,
Social Justice Commissioners.
depends on accepting such sexual overtures.
The Sex Discrimination Commissioner’s role is to
This can make it difficult to establish a case for
promote greater equality between men and women.
the harassment, even if the person decides later
The main way this is to be achieved is through the
to make a complaint. In O’Callaghan v Loder [1984]
development of policy, initiation of research, and
EOC 92–023, Loder, who was the Commissioner for
education of all people in respect to the behaviours
Main Roads, made sexual advances to an employee,
and structures that contribute to sex discrimination.
O’Callaghan. While the NSW Equal Opportunity
The trafficking of women to Australia to work in the
Tribunal recognised the power imbalance and
sex industry or to be exploited in other work-related
was sympathetic to O’Callaghan, it nevertheless
areas is still a concern, not only for the Commission.
held that there is also an onus on the employee to
The sex discrimination unit works closely with the
make it known to the employer if his or her conduct
Australian Border Force on this issue.
is unwelcome. The tribunal was not satisfied that
When people have complaints under the Sex
O’Callaghan had made it clear to Loder that she
Discrimination Act 1984 (Cth) they lodge these with
was offended by his behaviour; therefore, if Loder
the complaints-handling section within the AHRC.
was not aware that his conduct amounted to sexual
The complaints-handling section has a responsibility
harassment, he did not breach the law.
to investigate and conciliate all complaints under the
Sexual harassment is still a pervasive element
Australian Human Rights Commission Act 1986 (Cth),
in the workforce today. The #Metoo movement in
including complaints about sex discrimination.
2017–2019 has exposed harassment of women within
the entertainment industry by some high-profile men
Anti-Discrimination Act
in Hollywood and around the world. The toppling of
The broad-based Anti-Discrimination Act 1977
Malcolm Turnbull as Prime Minister by the Liberal
(NSW) makes unlawful discrimination on the basis
Party in 2018 saw claims by some women that they were
of sex, race, marital status, disability, responsibility
intimidated and threatened with disendorsement of pre-
as a carer, sexuality and age. It also establishes the
selection for their seats in parliament if they did not fall
Anti-Discrimination Board, which is part of the NSW
in line with the leadership figures pushing for change.
Attorney-General’s Department, to oversee the
A person who has a complaint under the Sex
implementation of the Act. The Equal Opportunity
Discrimination Act 1984 (Cth) can take action
Division of the NSW Administrative Decisions
through the Australian Human Rights Commission
Tribunal hears complaints of discrimination.
(AHRC). This body, which was set up under the
Women who feel they have been discriminated
Australian Human Rights Commission Act 1986
against can make a complaint to the Anti-Discrimination

Research 10.2
View the UN Women website and read the ‘About us’ section.
1 Summarise the role of UN Women.
2 Identify some of the issues facing women in the world today.
Board, which will investigate the complaint and try to Fair Work Australia is another authority that
help the parties to reach a solution. If the board cannot addresses discrimination in the workplace affecting
resolve a complaint, women can take their case to the all workers, including women.
Administrative Law and Equal Opportunity Division of
the NSW Civil and Administrative Tribunal, established Workplace Gender Equality Act
under the Civil and Administrative Tribunal Act 2013 The principles of equal opportunity in the workplace
(NSW), which can make a decision, like a court. reflect the right to equitable access to jobs, career
Complainants generally must make their paths, training and staff development and equitable
complaint within 12 months of the alleged incident conditions of employment.
and it must be in writing. In essence, equal opportunity is about:
• treating people with dignity and respect
TABLE 10.5 Sex discrimination Act 1984 (Cth) – complaints received by grounds,
2017–2018
Sex Discrimination Act – grounds Number Percentage
Sex discrimination 349 30
Marital or relationship status 10 <1
Pregnancy 105 9
Sexual harassment 321 27
Family responsibilities 64 5
Breastfeeding 8 <1
Gender identity 30 3
Intersex 4 <1
Sexual orientation 87 7
Victimisation 138 12
Causes, instructs, induces, aids or permits an unlawful act 66 6
Advertisements
Total 1182 100
Source: Australian Human Rights Commission, Annual Report 2017–2018.
Review 10.6
1 Describe the difference between direct and indirect discrimination.

2 Explain why indirect discrimination is difficult to establish and prove.
3 Outline the objectives of the Sex Discrimination Act 1984 (Cth).
4 Define what is meant by ‘sexual harassment’. Outline what needs to occur before a complaint of
sexual harassment can be initiated.

Chapter 10 Women
10
• unbiased management decisions industries. At present, this is not case. It is also
• ensuring equal access in all areas of hoped that equal opportunity will provide much-
employment, including recruitment, transfer, needed role models in managerial positions so that
promotion, training and development, younger women will aspire to these positions. As
information access, management and well, no woman can be considered for a particular
supervision of staff and conditions of job for which she is not suitably qualified. The Act
employment, with all selection based on merit is not about putting women in jobs ahead of men:
(the best person for the job) section 2A(a) clearly states that one of its objects
• recognition and respect for the cultural and is ‘to promote the principle that employment for
social backgrounds of staff and customers. women should be dealt with on the basis of merit’.
This means that matters such as selection and
In other words, diversity is valued. The Workplace promotion of employees should be based solely
Gender Equality Act 2012 (Cth) requires certain on their qualifications, experience and ability to
organisations to establish workplace programs to do the job.
remove the barriers to women in the workplace, both A recent global survey undertaken in 2019
when they enter and as they advance. Under the Act, revealed that Australia and New Zealand have
any organisation that has 100 or more employees and recorded the biggest improvement in gender diversity
that is a higher education institution, a private sector in senior management since 2016. However, despite
company, a non-profit or community organisation, some progress, the data from the survey showed that
a private school or a union must develop and women still faced barriers when balancing
implement such a workplace program. a career and a family (see ‘News’ below).
The objectives of the Workplace Gender Equality The Workplace Gender Equality Act 2012
Act 2012 (Cth) reflect the idea that in a just and fair (Cth) also establishes the Workplace Gender Equality
world there should be an equitable spread of both Agency to oversee the implementation of the Act.
sexes in management and support jobs across all
Figure 10.8 Companies are expected to hire and promote women based on merit. Unfortunately, this does not
always happen.

Research 10.3
1 View the NSW Department of Justice website and research some decisions made by the NSW
Civil and Administrative Tribunal (in the Administrative and Equal Opportunity Division) in 2015.
2 View the Anti-Discrimination Board of NSW website. Click on ‘Publications’ and then
‘Factsheets’. Select a fact sheet that is relevant to women and summarise women’s rights in
this area.
Australia makes big strides in closing gender gap, global survey finds
By Laura Chung
11 October 2019
Australia and New Zealand have recorded the biggest improvement in women senior managers
over three years in a global survey of 3000 listed companies across 56 countries.
The report by the Credit Suisse Research Institute found Australia and New Zealand topped the
‘momentum’ category for female participation in senior management, with a 7.9% improvement
compared with the 2015 sample. The next closest country improved by 7.7%.
It also said Australia and New Zealand’s percentage of women on boards had increased from 19.5%
in 2015 to 29.6% in 2019. However, other countries, including France, Norway, Italy and Vietnam
ranked higher, recording 44.4%, 40.9%, 33.1% and 29.7% respectively.
The report showed the proportion of women in management increases as the percentage of women
on boards rises, ‘suggesting that the impact of greater diversity in the boardroom leads to a better
gender balance in executive functions’.
Chief operating officer for Credit Suisse Australia, Katrina Glover, said the report was an invaluable
snapshot for Australian boards and companies to measure their progress internationally.
‘It is reassuring that we have seen significant progress being made in Australia and globally to
achieve an equitable and inclusive workforce,’ she said.
Gender, work and employment relations professor Rae Cooper from the University of Sydney
Business School said while progress was being made, it was important to remember progress could
be ‘patchy’.
ASX 200 board seats occupied by women reached 29.7% last year, just shy of the Australian Institute
of Company Directors 30% target.
Data from Chief Executive Women showed just 12 of CEOs in the ASX 200 were women and about
15 had no women executives at all.
The report, which draws on global data built by Credit Suisse company analysts, found that barely
5% of the 3000 companies analysed had women chief executives and less than 15% female chief
financial officers.

Chapter 10 Women
10
News (continued)
It noted that while progress had been made globally, women still faced barriers when balancing a
career and a family.
‘Women actually want to be able to combine having a family with having a career and be rewarded,’
Professor Cooper said.
‘The generation coming through will be a challenge to businesses because they expect that.’
Government agencies portfolio. WGEA’s main objective is to promote and

There are agencies at both federal and state levels improve gender equality in the workplace.
that provide policy advice on women’s issues.
portfolio
a key area of government responsibility headed by a minister
Office for Women
The federal Office for Women is part of the Department One of the challenges faced by WGEA is convincing
of Prime Minister and Cabinet. Its primary role is to organisations that there are many benefits to
provide policy advice to the Minister for Women, and having an equal opportunity workplace. Some
to ensure that government and Cabinet decisions of these are that it helps in hiring and retaining
about legislation, policy and budgetary matters are the best applicants, improves productivity and
made with a view to their effect on women. The Office creativity, attracts more female customers and
for Women also administers programs to combat enhances the organisation’s management style.
issues such as domestic violence and sexual assault, Organisations with more than 100 employees have
represents the Australian Government at national to report annually to WGEA the steps they are
and international forums on women’s issues, and taking to promote equal opportunity. Companies
has primary responsibility within the government for that do not comply with the legislation face two
Australia’s obligations under CEDAW. sanctions:
• being named in the federal parliament in a
Women NSW report put on the public record (referred to as
At a state level in New South Wales, Women NSW is the ‘naming sanction’)
part of the NSW Department of Health. It advises the • being unable to tender for federal government
state government and works with other government contracts and industry assistance.
agencies and non-government organisations
to develop programs and policies with positive Another important role performed by WGEA is the
consequences for women. Women NSW is also gathering of statistical data from a number of sources
responsible for domestic violence prevention: to to give an up-to-date overview of women in the labour
lead and manage government policy relating to the force. This is compiled annually and allows WGEA to
prevention of domestic and family violence. track trends in equal opportunity in the workplace.
WGEA is an important mechanism if women are
Workplace Gender Equality Agency to achieve economic equality. It focuses attention
The Workplace Gender Equality Agency (WGEA) is on the position of women in the labour force, their
the new name of the Equal Opportunity for Women representation at management levels, their level of
in the Workplace Agency (EOWA). The WGEA is a earnings, their participation in work-related and
statutory body set up under the Workplace Gender employer-sponsored training schemes, and their
Equality Act 2012 (Cth). It is a part of the federal employment status (full-time, part-time or casual).
Department of the Prime Minister and Cabinet All of these factors impact greatly on women’s ability
to enjoy economic equality.

Figure 10.9 The 2017–2018 ‘Gender equality scorecard’ released by the Australian Workplace Gender Equality Agency
shows that in that financial year, 50.1% of employees were women, 17.1% of CEOs were female and 39.1% of manager
were female.
Review 10.7
1 Explain the roles of the Office for Women, and Women NSW.
2 Outline and discuss some issues that might be raised by the Office for Women and by Women
NSW in the development of law and policy relating to:
a requirements for businesses regarding conditions of employment
b budget provisions regarding the funding of health care
c programs in which business leaders provide mentoring for high-achieving university
graduates.

Chapter 10 Women
10
Case Study
Discrimination – the basis for the torture of women

One of Amnesty International’s projects is the ‘stop violence against women’ campaign. The
following information supplied by Amnesty International outlines the facts and issues on how
discrimination is the basis for the torture of women. Better compliance by states and enforcement
mechanisms through the CEDAW, especially Article 1, would help alleviate this problem
throughout the world.
The torture of women is rooted in a global culture that denies women equal rights with
men, and legitimises the violent appropriation of women’s bodies for individual gratification
or political ends. In recent decades, women’s groups and other human rights activists
and non-governmental organisations around the world have made significant advances in
preventing and combating abuses, providing support and redress for survivors of abuse and
winning greater equality for women. Yet women worldwide still earn less than men, own less
property than men, and have less access to education, employment and health care. Pervasive
discrimination continues to deny women full political and economic equality with men.
Violence against women feeds off this discrimination and reinforces it. When women
are abused in custody, when they are raped by armed forces as ‘spoils of war’, when they
are bought and sold as trafficked women, bonded labourers or in forced marriages, when
they are terrorized by violence in the home, unequal power relations between men and
women are both manifested and enforced. The torture of women will not be eradicated until
discrimination on the grounds of gender is addressed.
Violence against women is compounded by discrimination on the grounds of race,
ethnicity, sexual orientation, social status, class and age. Poor and socially marginalised
women are particularly liable to torture and ill-treatment. Such multiple discrimination
further restricts women’s choices, increases their vulnerability to violence, and makes it even
harder for them to gain redress.
Sometimes the perpetrators of these acts of violence are state officials such as police,
prison guards or soldiers. Sometimes they are members of armed groups fighting against the
government. However, much of the violence faced by women is at the hands of the people
with whom they share their lives, whether as members of their family, of their community or
as their employers. There is an unbroken spectrum of violence that women face at the hands
of men who exert control over them.
The following case is one of many millions throughout the world:

Indravani Pamela Ramjattan was sentenced to death in May 1995 in Trinidad and Tobago
for the murder of her common law husband in 1991. During her trial, the lawyers introduced
evidence of the years of abuse and violence she had suffered – including beatings, death
threats and rape. Despite this evidence, she was convicted of murder, for which there is
a mandatory death sentence. In 1999, an appeal court reduced her murder conviction to
manslaughter and sentenced her to a total of 13 years’ imprisonment based on psychiatric
evidence that showed that at the time of the murder she was suffering from ‘Battered
Women’s Syndrome’.

New steps in a nation’s quest to end violence

By Jewel Topsfield
13 October 2019
It’s one of the most dangerous countries in the world to be a woman, but a new initiative
is marshalling businesses to help tackle Papua New Guinea’s epidemic of family and
sexual violence, writes Jewel Topsfield.
Saina* was hit so often she says her body started getting used to the
pain. Her husband grew up in a family where violence was normal.
He had mood swings, triggered by a potent mix of alcohol and jealousy.
65.6%
of women affected
Saina has a prestigious job at a firm in Port Moresby, Papua New Guinea by domestic violence
(PNG). Under PNG’s wantok system of kinship, those with money have a
cultural obligation to share their wealth with their clan. So Saina would
help pay bride prices (a traditional payment made by the groom’s family 90%
when a couple marries) or death compensation or for a feast to celebrate a of women in PNG
young woman’s first menstruation. prisons serving
time for murder
Saina says her husband felt inferior and angry when she was publicly
after acting in self
thanked. ‘You are doing these things to get a big name,’ he would tell her.
defence
She begged her relatives to acknowledge her husband, the ‘head of the
80%
family’, and not her. ‘They praise the breadwinner and it demoralises the
male ego,’ she says.
And so, the beatings would start again. of children

experience some
Every three months or so Saina would seek refuge at relatives’ homes
form of physical,
until things cooled down. Once, when pregnant, she went to a safe
verbal or sexual
house. ‘They said they didn’t have dietary supplements to cater for
abuse
pregnant women.’
So Saina waited, yet again, at an auntie’s house, until her husband came to collect her and her
newborn, bringing a pig for the relatives to atone for his violence.
‘In PNG, a pig pays for everything,’ Saina says. ‘Instantly they forget your pain and struggle and
send you back to your husband.’
PNG is one of the most dangerous countries in the world to be a woman. There is a lack of official
data but an estimated two in three women are affected by domestic violence.
Belief in sorcery, known locally as sanguma, is widespread. Violence against those believed to be
sorcerers or witches – most of whom are women – has escalated, especially in the country’s Highlands.
Ninety per cent of women in prisons in PNG are serving time for murder, after acting in self-defence
in response to family violence, according to a PNG Government report.

Chapter 10 Women
10
News (continued)
In October last year, two things changed in Saina’s life. Her husband began hitting their three-year-
old son. She believes this was a way of him hurting her when she was numb to her own pain. Saina
knew this time she had to leave him, for the sake of her four children.
Meanwhile, Saina’s company subscribed to Bel isi PNG (Peaceful PNG), a world-first public–
private partnership which marshals business to help tackle the country’s epidemic of family and
sexual violence. Bel isi PNG offers access to safe houses and case management – medical care,
counselling and legal assistance – to employees of companies that pay a subscription fee.
‘I was more or less their first client,’ Saina says. Saina and her children spent a few days in a safe
house. Bel isi PNG connected her to counselling and welfare services and helped her obtain a
restraining order against her husband.
It’s been a long and at times frightening ordeal. She’s moved home several times and changed bus
routes. She paid her relatives to sit outside her child’s school gates all day and tip off the teachers
and police if her husband arrives. ‘Violence is expensive in PNG,’ she says. But now, a year on,
‘absolutely I feel safe’.
‘Not only safe, I feel I have mental peace, I am emotionally stable, I concentrate on my work. My kids
are still traumatised at times when triggered by fights or shouts but overall they are happier and
their school grades have dramatically improved.’
In 2017, the PNG Government released a national strategy to prevent and respond to gender-based
violence. It said that, despite work by the PNG Government, civil society and the international
community to address the problem since the early 1980s, ‘violence remains serious and pervasive’.
The ‘rights-based and gender-responsive approaches’ to tackle violence had struggled to be accepted
in conservative PNG society. The vast majority of the approaches focused on awareness-raising,
which the strategy said was only a first step that alone was not effective in reducing violence. ‘The
modern state, combined with some enduring aspects of traditional cultures and Christianity, has
perpetuated patriarchal beliefs, ideas, attitudes, behaviours and institutions,’ the strategy said.
‘Human rights and gender equality, for instance, are still rejected and misperceived as Western
ideas. In some circles they are seen as radical, subversive and in conflict with traditional cultures,
Melanesian ways and Christian religious doctrine.’
But Bel isi PNG looks at violence from another perspective. It recognises that, as well as being a
humanitarian issue, violence is also a significant cost to business.
A recent survey of three large companies in Port Moresby found 68% of employees had experienced
family and sexual violence. They lost an average 11 days of work a year as a result. The amount of staff
time lost cost one of the companies 3 million kina ($1.28 million), which was 9% of its total salary bill.
Stephanie Copus-Campbell, who has worked on development programs in PNG for years, believes
Bel isi PNG is a potential gamechanger. ‘Bel isi PNG has chosen to tackle the problem from the angle
of the economic impact on the workplace, which benefits both individuals and companies,’ she says.
Copus-Campbell formerly headed the Australian aid program to PNG and is now the executive
director of the Oil Search Foundation, which runs health, education and women’s protection
programs. Several years ago, one of her top-performing employees suddenly stopped coming to

News (continued)
work. A month went by. Copus-Campbell begged the woman to talk to her. ‘I really cared about this
woman but I also risked losing her,’ she says.
Finally, the employee agreed to meet at a local hotel. ‘She was sitting in a dark corner,’
Copus-Campbell recalls. ‘All she did was pull her hair back.’
The woman had been horribly disfigured by her husband.
The experience haunted Copus-Campbell. It persuaded her not only of the need to support domestic
violence survivors in the workplace but also to spend a lot more time ‘listening and not telling’.
Bel isi PNG started with a donation from Bank South Pacific – a building. The bank’s head of
support services, Alicia Sahib, suggested its disused single men’s quarters could be converted into
a safe house after she learned bank employees were accessing other shelters. ‘That was a shock to
me,’ Sahib says.
Steamships Trading Co. provided office space for the case management centre, which is operated by
Femili PNG, a non-governmental organisation that tackles family and sexual violence. The Oil Search
Foundation agreed to design, manage and help fund the project. Security firm G4S offered free 24-
hour transport to safe havens. The Australian Government contributed $4.5 million over five years.
Twelve major companies and organisations have subscribed so far, including ANZ, homeware
chain Brian Bell, Exxon Mobil and oil and gas producer Oil Search. Most of these have also
implemented policies that address family and sexual violence in the workplace. Copus-Campbell
acknowledges only about 15% of Papua New Guineans are employed in the formal sector.
Meanwhile, 85% live in rural areas, where violence is prevalent. In July, women and children were
hacked to death with machetes during the slaughter of more than 20 people in the mountains of
Hela province, sparking fears of a new era of tribal violence.
Copus-Campbell says survivors of violence who need help in any province can call Bel isi PNG and be
connected to local services. ‘It’s a heck of a lot better than 20 years ago but we still have a long way to go.’
One of the things Papua New Guineans have stressed to Bel isi PNG is the need for men to be
involved in advocating for change. The government’s strategy on violence notes ‘currently very few
organisations in the youth or men’s sector are active in gender-based violence response’.
In 2013, Kepari Leniata was burned alive in Mount Hagen, in the Western Highlands province of
PNG, after she was accused of bringing about the death of a six-year-old boy using witchcraft. Her
gruesome murder prompted an outpouring of grief and anger and led to a government crackdown
on sorcery related violence.
It was also the catalyst for Eddie Aila to found Warrior Culture, a program that runs workshops
in villages, communities and companies to help men overcome violent behaviour. ‘When Kepari
Leniata was murdered, some leaders were asking for men to be tortured, killed, castrated,’ Aila
says. ‘I felt this language was going to scare men away. I was telling people they have to get men
involved to stop family and sexual violence, they are 50% of the family.’
But Aila said that, while there were many programs for women, no one was helping men. ‘I started
Warrior Culture because I felt no-one was listening to me when I said men don’t know how to
manage their emotions, men don’t talk about it, the expectation is they are macho.’

Chapter 10 Women
10
News (continued)
Aila is a sporting legend in PNG who represented his country in rugby league in the
2000 World Cup.
He has also faced his own demons. His partner left their violent relationship when he was 30. ‘When
she left, I thought she would come back because that is part of the cycle of violence,’ Aila says. ‘When
she didn’t come back, the massive void forced me to look inside. I thought, “This is terrible, my boys
are going to be like me, and my girls are going to marry someone like me.” It forced me to change.’
Warrior Culture is inspired by the hausman (men’s house) tradition in PNG, where values and
norms are taught by elders.
Aila is honest about his own experience. He says men are initially nervous around such a heavy
topic, but then open up. They discuss blaming their wives for making them mad, suicide and
concerns about infidelity. ‘Men are basically feeling scared,’ Aila says. ‘The pattern is always the
same … they don’t think they are good enough.’
Aila is among a group of men whom Bel isi PNG has enlisted to help champion change. Another
is Powes Parkop, the voluble governor of Port Moresby. Every Sunday, in the predawn streets of
Port Moresby, Parkop leads a spirited 8-kilometre community walk, the pace more a gallop than a
Sunday stroll.
The walk is about promoting health but is also a symbolic reclaiming of the streets for women and
girls. Many carry banners calling for a safe city. At walk’s end, on a makeshift stage on the side of
the road, Parkop delivers a rousing sermon to the assembled crowd: stop violence against women,
stop spitting betel nut, stop littering.
‘The future will not clean itself,’ he booms. ‘The problem of violence in our city and our country is
not a women’s problem. It is our problem because men are insecure.’
But not all male champions of change are high-profile. Ovia Hekau lives with his wife and three
daughters in a traditional stilt house in the village of Hanuabada on Port Moresby’s coastline. The
family fish through a hole in the lino on the kitchen floor. ‘Christ is the head of this house,’ says a
sign in the living room.
Hekau works as a driver for the Oil Search Foundation and when he heard the male champions of
change program discussed in the car, Hekau said he was keen to be involved.
‘I would see my dad bashing up my mum,’ he says. ‘The arguments were loud, it was really
frightening. I was five, maybe six years old … just sitting and crying.’
Hekau vowed not to repeat the past when he had his own family, ‘It wouldn’t put a good picture for
my children.’
Community members often seek Hekau’s counsel. He advises them not to hit their partners if they
hear they have been unfaithful. ‘After belting your wife [if] you find out what you heard is not true,
you will definitely regret it,’ he tells them.
Hekau’s wife, Vavine, says her husband’s friends and cousins look up to him. ‘He doesn’t take
sides against the wife, for him wife-bashing is wrong,’ she says softly. ‘I am so proud he is not
like his dad.’
*Saina’s name has been changed to protect her identity.


Legal mechanisms have been put in place to
overcome the historical and cultural barriers that
women still face. There are also some very effective
informal measures that keep the issues of women on
the political agenda.
Trade unions
In the early part of the twentieth century, unions
were against women’s full participation in the
workplace. As women were paid less than men,
unions did not want a situation where employers
were able to exploit this cheap labour and force men
out of jobs. Figure 10.10 Statistics show that women continue to do
Today, unions are strong advocates for the more housework than men.
rights of women in the workplace. The Australian
The scheme extends paid leave to either parent of
Council of Trade Unions (ACTU) lists the following
a new born child if he or she is the primary carer
achievements to which the union movement has
and earns less than $100 000 per year. The decision
contributed:
was welcomed by parents, the union movement, and
• the principle of equal pay for equal work
past Sex Discrimination Commissioner Elizabeth
• women’s parental leave
Broderick. Other commentators have commended
• improved child care
the change arguing law and policies making it easier
• universal superannuation
for fathers to take a greater role in child care are
• anti-discrimination and affirmative action
necessary in order for women to have true choices.
(equal employment opportunity) legislation.
In 2019, the scheme is still in operation and over time
it will ideally become one of the ‘norms’ accepted for
A fundamental challenge still facing the ACTU is
women in the workplace.
the fact that the major unions in Australia have a
much lower percentage of women at the executive
level than among the general membership. Lobby groups
Most recently, the ACTU campaigned for paid There are non-government organisations (NGOs)
maternity leave, which it believes is a fundamental throughout Australia that promote issues important to
human right and a necessary measure to address women. A well-known NGO is the Women’s Electoral
the discrimination and disadvantage suffered by Lobby, founded in 1972. The Women’s Electoral Lobby
women are parents. At least 157 countries have some is dedicated to ‘creating a society where women’s
form of paid leave, and of those 30 are member states participation and their ability to fulfil their potential
of the Organization for Economic Co-operation are unrestricted, acknowledged and respected and
and Development (OECD). Without paid maternity where women and men share equally in society’s
leave, women face a lack of job security and income responsibilities and rewards’. The Women’s Electoral
loss if they take time off after bearing a child. Lobby is a self-funded, non-profit organisation,
Paid maternity leave gives mothers time to bond not affiliated with any political party that lobbies
with and breastfeed their babies without financial governments, publishes research papers, participates
considerations necessitating an early return to work. in public debate, participates in legal cases where
In 2011, the federal government introduced women’s human rights are at issue and conducts
18 weeks’ paid parental leave for working women. campaigns to raise awareness of these issues.

Chapter 10 Women
10
Research 10.4
1 Find the Office for Women’s website. From the ‘Current Initiatives’ section of the website, select
two issues from these categories: ‘Women’s Economic Security’; ‘Women’s Safety’; ‘Leadership’.
Research these issues.
2 View the Women’s Electoral Lobby website and research two policy positions of the group. Write
a one-page report on what you discover.
10.4 Effectiveness of responses many reservations, which allow them to refuse to

comply with certain parts of the treaty. Hence, the
The law is constantly evolving through legislation
Committee on the Elimination of Discrimination
and the courts to reflect the changing values of the
against Women is not able to declare a state to
society it is meant to regulate. Over the past 30 years,
be in violation of the treaty where it has entered
women in Australia have seen landmark legislation
certain reservations. The committee can only
passed addressing the issues they face, especially
continue to encourage states to review their
in the workplace.
current reservations.
In spite of the many improvements that women
have fought for and achieved, there are still reservation
many areas that require constant vigilance and a statement made by a state when signing or ratifying a
persistence in order for change to occur. It is in treaty that allows it to exclude certain provisions or modify
them as they apply to the state’s own practice
this light that the legislation and mechanisms for
achieving justice for women will be evaluated. We
Upon ratification, the Australian Government
will look at the responsiveness of the law in relation to
entered a reservation with respect to paid maternity
Australia’s international obligations under CEDAW,
leave, which it has now complied with. It also
discrimination, equality of opportunity (especially
entered a reservation stating that it ‘does not
in the workplace), and issues emanating from these
accept the application of CEDAW in so far as it
such as pay equity, gender segregation, sexual
would require alteration of defence force policy that
harassment and child care.
excludes women from combat duties’. Women in
gender segregation the Australian Defence Force now serve in combat
the separation of people according to their gender areas, but structural and cultural discrimination is
still very much evident in the defence forces. The
Treatment of Women in the Australian Defence Force
International review, released in August 2012, revealed that one in
Women around the world are exploited and abused four women in the defence forces had experienced
as a result of their unequal position under the laws some form of sexual harassment and this continues
of their countries. The Convention on the Elimination to be an ongoing cultural challenge today. It may be
of All Forms of Discrimination against Women some time before such entrenched cultural attitudes
(1979) (CEDAW) was a significant step forward in towards women are overcome. Due in large part to
highlighting the issues and getting states to commit states’ reservations, there are still many areas where
to ending discrimination against women. women experience discrimination and violations
States can choose to comply with or ignore of their human rights. It is believed that there are
their international obligations and usually act at least four million women and girls sold into sex
out of economic or political self-interest in slavery each year and that approximately a quarter
determining their course of action. CEDAW is of all women experience domestic violence. It is
one of the treaties most ignored by states. Those estimated that up to 130 million women are victims
states that have signed the treaty have included of genital mutilation. Literacy is still a major cause

of concern: two-thirds of all adults who are illiterate enforcement mechanism, as exists with most
are women. This is a consequence of poor education other human rights instruments. This would allow
opportunities for girls compared to boys, especially individuals and groups to be able to make a direct
in developing countries. Women are also four times complaint to the CEDAW committee about alleged
more likely to be infected with HIV/AIDS than men, breaches of the treaty. The optional protocol does
and up to 130 million women die from this disease not add extra rights. Rather, it tries to improve the
each year. Education about the spread of AIDS and enforceability of the existing instrument.
programs that address specific health issues relating
to women are not adequate in many poorer countries. optional protocol
an addendum to a treaty, agreed to by the parties at a later
At the same time, 189 countries have ratified date, to create enforcement provisions or to interpret the
CEDAW and have passed laws consistent with the treaty in light of later developments
treaty. Millions more girls now receive a primary
school education and millions of women have been The Australian Government signed the optional
able to take out loans or now have the right to own or protocol in 2008, thus sending a message to the
inherit property in their own right. The issues listed international community about its commitment to
above are now well established on the global agenda, the treaty. Australia has a good record with respect
whereas prior to CEDAW they were isolated issues to laws and policies for women, compared to other
in different countries, the extent of which was not countries in the world. The Sex Discrimination Act
effectively monitored. 1984 (Cth) is one such mechanism.
An optional protocol has been approved by Critical assessments have suggested that
the UN General Assembly to provide an additional there are gaps in our laws with respect to women.
Figure 10.11 A picture of Japanese Prime Minister, Shinzō Abe, behind a statue of a teenage girl that symbolises
the ‘comfort women’ who served as sex slaves for Japanese soldiers during World War II. This photo was taken at a
demonstration held near the Japanese embassy in Seoul, South Korea, on 18 September 2019. The demonstration was
demanding the Japanese Government formerly apologise for its use of Korean women as forced labour during World War II.
On the day of the demonstration, South Korea officially dropped Japan from its ‘white list’ of trusted trade partners.

Chapter 10 Women
10
For example, the Australian Human Rights The effectiveness of the legislation may, however,
Commission 1999 report, Pregnant and Productive still be limited by a lack of knowledge of rights or
discussed the idea that it is a right, not a privilege, reluctance to exercise those rights. This can be for
to work while pregnant, and pointed out gaps many reasons such as fear of dismissal, failure to
in the coverage of federal anti-discrimination recognise that there is a problem, or being unaware
legislation regarding that issue. Other critics that such rights exist in the first place.
have noted that the Sex Discrimination Act fails Most of the blatant forms of discrimination
to take into account the fact that gender may have disappeared due to complaints made against
combine with other characteristics of a person employers and the educative effect of the laws.
(e.g. race, disability or sexuality), resulting in Discrimination today is usually more subtle and
different forms of disadvantage. In other words, covert. Generally these types of discrimination
it is not the case that discrimination is the same involve systematic practices of disadvantage. If an
for all women, regardless of their individual employer has such a practice or policy that does
attributes. Moreover, its reliance on complaints by disadvantage women, it is not illegal if the court
individuals or groups directly affected, rather than believes it to be ‘reasonable’ (s 7B Sex Discrimination
addressing discrimination at the systemic level, Act 1984 (Cth)). This may go part of the way towards
makes enforcement problematic (see Beth Gaze, explaining the glass ceiling that women have
‘The Sex Discrimination Act after Twenty Years: described as an impediment to their career progress.
Achievements, Disappointments, Disillusionment
and Alternatives’, University of New South Wales glass ceiling
an invisible barrier that prevents women from rising in an
Law Journal, 2004, p. 53). organisation through promotion; on the face of it, a company
The Australian Human Rights Commission may not directly discriminate, but subtle practices may still
discourage women or prevent them from being promoted to
argued that Australia’s signing on to the optional more responsible and better-paid positions
protocol would provide the will to correct such
deficiencies, as individuals then would be able to There are other factors that limit the effectiveness
complain directly to the committee, putting added of the legislation in redressing grievances. Even if a
pressure on the Australian Government. complainant wins the case and is awarded damages,
a woman may have to return to a hostile work
Domestic environment. On top of this, the cost – economic and
emotional – may be extensive.
Anti-discrimination legislation
Proving that an employer or other person has
State and federal anti-discrimination Acts provide far-
discriminated against a complainant can be difficult,
reaching protection to women who experience any
and most of the time impossible. At the same time,
form of discrimination in the workplace. There are few
the Sex Discrimination Act 1984 (Cth) has enabled
restrictions placed on women as to what work they
some important cases to be won. In 1994, a woman
do. This is to some extent due to anti-discrimination
won $160 000 after losing her career and a position
law. Women today have moved into the workforce in
as a partner in a law firm. This was the largest award
unprecedented numbers.
Review 10.8
1 Explain, with examples, why there is a need for treaties such as the Convention on the
Elimination of All Forms of Discrimination Against Women (1979) (CEDAW).
2 Define reservations and how they limit the effectiveness of CEDAW.
3 Evaluate the extent to which the Australian Government has implemented the provisions
of CEDAW.
4 Outline how the signing of the optional protocol for CEDAW will strengthen the enforcement of
the treaty.

under the Act at the time, but many would argue that power imbalance that still exist in many workplaces
this is a small amount for a career. A study completed and in other parts of society.
in 2012 by Paula McDonald at the Business School at The Australian Human Rights Commission
the Queensland University of Technology, and Sara estimates that one in five women and one in 20 men
Charlesworth of the University of South Australia, experience sexual harassment in the workplace. Its
found that half of all financial settlements for sexual data continues to show that approximately 20% of
harassment were below $7000. These amounts are complaints received by the Australian Human Rights
significantly lower than what might be achieved Commission were under the Sex Discrimination Act
through the judicial system. Redress through the 1984 (Cth), and that a high percentage of these
courts, however, is out of reach for most women due complaints relate to sex discrimination in the
to time and cost. workplace. New technologies, including mobile
The provisions of the Sex Discrimination Act phones, email and social networking, have increased
1984 (Cth) about sexual harassment have been opportunities for sexual harassment by providing
effective in that the only requirement is to show that new ways in which it may occur. Conversely, the
the unacceptable behaviour actually took place. digital footprints these avenues leave also enables
Complaints of sexual harassment remain high, but evidence to be gathered. The Australian Human
this could also be attributed to women’s greater Rights Commission estimates that over two-thirds
awareness of their rights. The #MeToo movement of those who made a complaint left their place of
has further highlighted the inadequacies of formal employment. Although unmeasured, the economic
legal and non-legal mechanisms in place and how cost to employers and the community as a result of
they have been fundamentally undermined by the this staff turnover is a poor use of human resources.
Figure 10.12 Members of UltraViolet – a women’s advocacy organisation – outside the NBC News headquarters in New
York City on 23 October 2019. The UltraViolet members delivered a petition with more than 18 500 signatures calling on
the network to take immediate action to address abuses of power at NBC.

Chapter 10 Women
10
It also reflects a residual lack of respect for female why systems and policies alleged to be indirectly
colleagues in the workplace, as most of the discriminatory are reasonable and necessary. The
complainants are women. definition of ‘sexual harassment’ has also been
In spite of some of the criticisms outlined strengthened, with the complainant only having
above, the Sex Discrimination Act 1984 (Cth) to show that she or he ‘reasonably’ felt offended,
has continued to evolve. In 1992, the Act was humiliated or intimidated.
amended to ban discrimination on the basis of the In 1994, amendments extended the scope of
occupation or identity of one’s husband or wife. protection under the Act. One of these measures was
The idea of ‘reasonableness’ as a defence for direct to simplify the definition of ‘indirect discrimination’.
discrimination on the grounds of pregnancy was The number of exemptions under the Act, such as
also removed. those relating to superannuation and insurance, has
In indirect discrimination cases, the onus of also recently been reduced.
proof is on employers to provide a defence as to It should be noted that the difference between
the anti-discrimination and equal opportunity laws
Figure 10.13 Statistics from the Australian Human Rights Commission illustrate the degree of
gender inequality that still exists today.

is that discrimination legislation is complaint-based, Some of the reasons for a lack of pay equity with
whereas the Workplace Gender Equality Act 2012 men are as follows:
(Cth) is based on the introduction of programs to • Women are less likely to be the recipients
eliminate discrimination at a systemic level. This Act of over-award payments than men. Women
has failed to significantly improve the representation receive approximately 54% of these type of
of women in senior management and boards of payments compared to men. These payments
Australia’s top 200 companies. While there have are typically paid in occupations where there
been some successes in introduction of equality of are skill shortages, usually in highly unionised,
opportunity programs in some workplaces, it seems male-dominated occupations.
that structural and cultural impediments to equality • Comparative worth – some occupations that
of opportunity for women in the workplace continue predominantly employ women have been
to prove difficult to overcome (read the article, deemed to require fewer skills than occupations
‘Australia makes big strides in closing gender gap, dominated by men, even when the educational
global survey finds’, above). barriers for entry are clearly higher for the
Under-representation of women has again predominantly female occupation. This can be
been highlighted in the federal parliament in 2019 seen in nursing, in which pay lags behind trades
within the forty-sixth parliament of Australia. The such as plumbing. In essence, occupations with
Labor Party, which introduced a quota system, a high proportion of women are undervalued.
has approximately 47% representation of women, • Less overtime – women are generally located in
which is seen as significant progress. The Coalition occupations that receive less overtime.
government has increasingly come under fire for • Skills-based career paths – women are
its lack of progress in this area. The Liberal Party is generally less likely to access accredited
at 23% representation of women, and the National workplace training and education, even though
Party has 28%. they have the same educational qualifications
and competencies as men.
Pay equity
For many years the earnings of women have not The pay equity gender gap is still a cause for concern
matched those of men. Historically, women have for the federal government.
always on average earned less than men, but since
the 1970s this gap has been closing. For many Gender segregation of the workforce
advocates of economic equality for women, pay Australia has one of the most sex-segregated
equity is an issue yet to be resolved. workforces in the developed world. This means
Major developments in pay equity for women that women do not perform the same work as men.
came about because of the following two test cases: Women generally work in different jobs and different
• equal pay for equal work case (1969) industries. Hence, some occupations have come to
• equal pay for work of equal value case (1972). be considered ‘female’.
This becomes apparent when one considers the
The equal pay for equal work case established
following statistics. In 1992, the Commonwealth
that women doing the same work as men should
Government report Half Way to Equal stated that 55%
receive the same pay. The equal pay for work of
of women worked in two occupational groups – clerks
equal value case introduced the concept that
and salespeople, and personnel services – whereas
different jobs of the same worth should get the
men were spread over a range of occupations. Evidence
same minimum wage. On the face of it, women’s
also suggested that sex segregation was increasing.
struggle to achieve equal pay had taken a quantum
For example, women comprised 98% of typists and 1%
leap and justice had finally been achieved. What
of tradespersons in the fields of electrical and metal
was not recognised were the explicit and implicit
fitting and machining at the time of the report.
barriers confronting women in the workforce then
In 2016 in New South Wales, there was still a
and today, preventing women achieving pay equity
significant gender imbalance of nursing professionals
with men.

Chapter 10 Women
10
and teachers. In contrast, in science, building and Women often work in industries that are poorly
engineering professions a high percentage are men. unionised and they tend not be represented in the
On getting women to enter non-traditional areas union structure. The enterprise bargaining system
of employment, it is suggested there is what is known set up under the Fair Work Act 2009 (Cth) assumes
as a ‘threshold of normality’. When women comprise that all workers approach the bargaining table on
at least 15% of an industry workforce, this becomes a level playing field. However, a concentration of
sustainable in that young women have sufficient women in lower-paid jobs requiring fewer skills
role models to encourage their participation in that has made women vulnerable in respect to pay and
industry. conditions. The continuing deregulation of the
In addition to this, Australian women currently workplace in the name of flexibility and choice
spend about 36 hours per week on unpaid work – the will further influence pay equity for women and
second shift (men spend around 14.5 hours). seriously undermine equality of opportunity in the
workplace.
Patterns of employment Child care is an example of an industry where the
More women than men are likely to work part- employees are predominately women who are poorly
time; hence, women earn less and are less likely paid. In recent years, there have been mounting calls
to access work benefits. In 2012, women comprised to improve the pay of childcare workers.
45.6% of all employees: 54% of women worked full-
time (24.7% of all employees) and 46% worked part- Equal opportunity in the workplace
time (20.9% of all employees). This affects women’s The Workplace Gender Equality Act 2012 (Cth) is the
superannuation contributions and hence their main piece of federal affirmative action legislation.
retirement benefits. It also affects their capacity The main provisions of the Act and the overseeing
to save. of the Act by the Workplace Gender Equality Agency
Figure 10.14 More women than men are likely to work part-time; hence, women earn less and are less likely to access
work benefits.

Review 10.9
1 Define ‘pay equity’. Identify the extent to which women experience pay inequity on a
proportional basis to men.
2 Explain, with examples, at least three reasons why pay equity for women is still an issue in
Australia today.
3 Define what is meant by the phrase ‘gender segregation of the workplace’.
4 Outline reasons why gender segregation contributes to pay inequity for women.
5 Explain what is needed to get women into areas of employment that are not traditionally
‘women’s jobs’.
were discussed earlier. Affirmative action legislation fewer than 20 employers have ‘made significant
has been in place since 1996. The extent to which it achievements in reshaping their workplaces to make
has made a difference to the equality of opportunity them more accommodating of a diverse workforce,
of women in the workplace can be gauged by the real including the needs of parents’.
choices that women have. It was also suggested that most of the employers
The Workplace Gender Equality Act 2012 (Cth) who reported to EOWA were doing the minimum
encourages organisations to design workplace to get by under the Workplace Gender Equality Act
programs that promote ‘the elimination of 2012 (Cth). They still saw equality of opportunity as
discrimination on the basis of gender’. One measure an additional expense to be carried by them. The
of success is the proportion of women who are in reality is that when effective Equal Employment
company board and executive management positions. Opportunities programs are introduced they can
In 2011, the EOWA census results showed that any deliver real savings.
significant change was melting away. It found that only While the rate of affirmative action progress to
3% of the top companies had a female chief executive date has been uneven, it appears that organisations
officer. Anna McPhee, a previous EOWA director, with a history of workplace segregation, where
has been quoted as saying ‘there was systematic women are paid lower rewards, and where women
discrimination against women in the workplace and have less access to training and promotion, need
that the top companies were still boys’ clubs’. She also sustained affirmative action if real change is to occur.
stated that women who were trying to get to the top At the same time, the Workplace Gender Equality
faced a hostile culture, were belittled and harassed, Act 2012 (Cth) does enjoy sufficient community
and their skills were not taken seriously: ‘the white support to ensure that companies comply.The
male that could work 100 hours a week was still the naming sanction ensures a high rate of compliance.
most desired manager in an inflexible workplace’ This support, however, is not matched by a good
(Source: Daily Telegraph, 28 October 2008). working knowledge of the issues facing women
It is clear that women are confronted by the in the workplace and hence the development of
glass ceiling. This refers to a situation in which programs that genuinely try to address these issues.
women can see a career path, but they are unable to One of the challenges faced by EOWA (and now
progress past a certain level for a variety of reasons. WGEA) is to continually educate organisations and
Evidence suggests that it is indirect discrimination the wider community about the invisible barriers
that contributes to this effect as it creates barriers to that inhibit women from being given opportunities to
equal employment opportunities, and that it is rife in fill senior management and leadership roles. Given
both the private and public sectors. that women now make up 46% of the workforce, and
According to the EOWA, at the current rate of comprise 56% of university graduates, they are well
progress, employment equity for women will come under-represented in many areas.
in approximately 177 years. They also estimate that

Chapter 10 Women
10
One of the biggest challenges we face these two issues are mutually exclusive and only a
in making the labour market more radical rethink of workplace practices will provide
equitable remains how best to make workable solutions. The ‘Fertility Decision Making
workplaces family friendly. This includes Project’ (2003) conducted by the Australian Institute
some flexibility in allowing women and of Family Studies found that 95% of respondents
their partners to juggle work and family wanted children. It also found that they generally
through more flexible hours of work, desired a larger family than what they would have
access to working conditions in part-time in reality. The reasons given for this were concerns
and casual employment etc. It is also such as job insecurity and difficulties in managing
about developing policy and practices that work and family responsibilities.
support and acknowledge that the stage The federal government has taken a positive
in a family’s life when raising children, step forward in setting up an inquiry, ‘Balancing
especially in the early years, is short term Work and Family’. Submissions from individuals
in the context of a person’s working life and organisations have been taken to hear what
and allowances need to be made to allow the pressing issues and barriers to achieving this
families to better manage this. balance are. The decisions around juggling work and
family should not be the sole responsibility of women.
Human Rights and Equal Opportunity It is about how to achieve the best outcomes for all
Commission, Paid Maternity Leave members of families. Giving more flexibility to share
Submission. July 2002. the load is just as important for men as for women.
Essentially it is about choice. See article ‘Australia
makes big strides in closing gender gap, global
survey finds’.
Paid maternity leave is also one way to minimise
the separation that women experience from the Figure 10.15 A child care centre at Anne Arundel
workplace after childbirth. Australia’s reservation to Community College in Arnold, Maryland, USA. College
paid maternity leave under the CEDAW meant that students can face another financial hurdle in completing
their education: the cost of child care. In many parts
the federal government for many years resisted such
of the country, childcare costs rival the cost of college
a scheme. A national Paid Maternity Leave scheme tuition. Some colleges are looking ahead and opening
finally appeared on the political agenda of the Rudd childcare centres on campus.
Labor government. The 2008 economic crisis caused
this to be again delayed – just as community support
for such a move was gaining momentum. It was
introduced in 2011 and is a positive step forward for
women who interrupt their careers to have a family.
The 2011 scheme is still in operation in 2019.
Quality, affordable child care is critical for women
in finding the balance between work and family.
However, the high costs of having children in long
day-care is an economic hurdle that women and their
families weigh up before deciding whether or not one
parent returns to the workplace after having children.
Nationally, there are calls to arrest the declining
birth rate, which is at 1.77 children per couple,
below the replacement level of 2.1. An ageing
workforce also presents challenges in maintaining
a skilled workforce and our tax base. At present

In Court
Australian Iron & Steel v Banovic [1989] HCA 56

This landmark case involving indirect discrimination revolved around Australian Iron and Steel’s
retrenchment policy of ‘last on, first off’ (i.e. the last employees to be hired last are the first to be
retrenched). On the face of it, this seems a reasonable policy to adopt; however, it adversely affected
women because the company had only begun to employ women after many years of only employing
men. The High Court found this policy imposed a condition ‘in which a substantially higher proportion
of one sex cannot comply than the other sex’.
It was also argued that discriminatory hiring policies in the past meant that more men were
in senior positions that were immune to the retrenchment policy. The High Court deemed this
to be discriminatory. It concluded that ‘retrenchment policies that kept alive the effects of past
employment discrimination constituted, themselves, sex discrimination’.
Review 10.10
1 Explain the principles of ‘equality of opportunity’ in the workplace.

2 Define the term ‘affirmative action’.
3 Explain what is meant by the ‘glass ceiling’.
4 Assess how effective the Workplace Gender Equality Agency has been in achieving attitudinal
change in the organisations that report to it.
5 Outline why paid maternity leave and quality affordable child care are important issues for
women in the workplace.
6 Discuss to what extent progress has been made in Australia with regards to ‘affirmative action’
in the workplace.
Research 10.5
1 View the Workplace Gender Equality Agency’s website and find the media meleases section.
Select two recent media releases and construct a short fact sheet to present to the class.
2 On the internet, look up ‘gender quota systems in the workplace’. Outline what quota systems
are in relation to equal opportunity. Brainstorm the advantages and disadvantages of having a
quota system, as is currently the case in the United States.
Review 10.11
Draw a table with two columns headed ‘strengths’ and ‘weaknesses’, then construct a list of the
strengths and weaknesses of the Sex Discrimination Act 1984 (Cth).

Chapter 10 Women
10
Chapter summary
• Women historically were treated as opportunity programs within organisations
second-class citizens. They were explicitly that are required to report under the Workplace
discriminated against in the areas of marriage, Gender Equality Act 2012 (Cth).
property, the right to vote, the ability to sue and • Two legal mechanisms that exist to promote
enter contracts, and jury service. the rights and equality of women are the
• Today women enjoy the same rights as men federal Office for Women, and Women NSW.
in most of these areas, but still experience These bodies attempt to influence legislation
economic, legal and social disadvantage. and policy as it applies to women.
• Women from non-English-speaking • The Australian Council of Trade Unions and the
backgrounds and Aboriginal and Torres Strait Women’s Electoral Lobby are non-government
Islander women face additional barriers to groups that campaign on issues concerning
equality of opportunity. women, especially in the workplace.
• The Convention on the Elimination of All Forms • The effectiveness of the Convention on the
of Discrimination against Women (1979) is the Elimination of All Forms of Discrimination
international treaty specifically addressing against Women (1979) is limited by the many
the many areas in which women experience reservations by states. The strength of this
discrimination. convention is dependent on states affirming its
• In Australia, anti-discrimination and equal principles in domestic legislation.
opportunity legislation have been passed • The effectiveness of the Sex Discrimination
at federal and state levels. The chief Acts Act 1984 (Cth) is limited by factors such as
discussed in this chapter are the lack of knowledge of rights, reluctance to
Sex Discrimination Act 1984 (Cth), the exercise rights, and the difficulty of proving
Anti-Discrimination Act 1977 (NSW) and the discrimination.
Workplace Gender Equality Act 2012 (Cth). • The Sex Discrimination Act 1984 (Cth) has
• The Australian Human Rights Commission been strengthened by amendments that extend
is a statutory body set up to administer the its scope, and remove certain exemptions
five federal anti-discrimination laws, one of and defences. The only requirement in
which is the Sex Discrimination Act 1984 (Cth). sexual harassment cases is to prove that the
• The Workplace Gender Equality Agency is offensive behaviour actually took place. The
a statutory body. One of its main functions onus is on the employer to show why indirect
is to oversee the development of equality of discrimination was ‘reasonable’.
Questions
1 Which of the following statements about d Women have not always had the same
women’s historical status is not true? rights as men because in the past, most
a Women have been seen as essentially women preferred traditional social roles.
different from men and therefore expected 2 Which of the following statements relating to
to have different social roles. women’s workforce participation is true?
b Women’s jobs have been valued less and a Part-time and casual workers usually
paid less. have the same work conditions as full-
c Events such as wars, despite their time workers, and they are paid the same,
enormous social cost, have sometimes also proportional to hours worked.
provided opportunities for women.

b Workplace relations laws relating to pay 4 The Sex Discrimination Act 1984 (Cth)
and conditions are enforced more strictly in prohibits:
relation to labour hire firms and companies a unwanted touching and dirty jokes at work.
contracting ‘outworkers’. b indirect discrimination at work unless it is
c Many migrants to Australia have difficulty part of a ‘reasonable policy’.
getting jobs suited to their qualifications, c discrimination against doctors’ wives
which may not be recognised, and they because of their husbands’ profession.
may face the additional challenge of d all of the above.
learning English. 5 Australia’s signing the optional protocol for
d Aboriginal and Torres Strait Islander the Convention on the Elimination of All Forms
and migrant women have a lower of Discrimination against Women (1979) will
unemployment rate than other Australian allow which of the following to happen?
women, but they often have trouble getting a The federal government will be able to pass
part-time or casual work. legislation prohibiting discrimination.
3 The Convention on the Elimination of All b The Committee on the Elimination of
Forms of Discrimination against Women (1979) Discrimination against Women will advise
contains: states on how best to implement the treaty.
a anti-discrimination laws that can be c Individual Australians will be able to
adapted to suit a country’s cultural complain directly to the Committee on
traditions. the Elimination of Discrimination against
b provisions condemning discrimination Women.
against women and setting out ways in d The Committee on the Elimination of
which states are to combat and prohibit Discrimination against Women will
sexual discrimination. recommend trade sanctions against states
c provisions that can be enforced by the in breach of the treaty.
UN Security Council or the UN General
Assembly.
d a preamble stating that women are
biologically the same as men and therefore
not entitled to special treatment such as
safety precautions at work when pregnant.
1 Explain why women were treated as inferior to 5 Assess the effectiveness of non-legal
men in early Australian society. mechanisms in improving the rights of women
2 Explain the particular barriers experienced by in the workplace.
Aboriginal and Torres Strait Islander women 6 Explain the limitations that exist for a more
and migrant women. effective implementation of the Convention on
3 Define the term ‘equal opportunity’. Outline the Elimination of All Forms of Discrimination
how it is provided for in Australian law. against Women (1979).
4 How is Women NSW different from its 7 Discuss the strengths and weaknesses
Commonwealth counterpart? of the Sex Discrimination Act 1984 (Cth).
What reforms have taken place through
amendments?

Chapter 10 Women
10
Evaluate the effectiveness of the legal system in 1 What consequences do these expectations of
dealing with discrimination against women. Read the ‘ideal worker’ have for women?
the following quote, the answer the following 2 Do these consequences also apply to men?
questions. If your answer is ‘no’, would your answer be
different if more men took a more active role
in parenting?
[The ideal worker] works full time and 3 Suggest some legal and non-legal
overtime and takes little or no time off mechanisms for addressing these
for childbearing or child rearing. Though consequences.
this ideal-worker norm does not define
Marking criteria for extended-response questions
all jobs today, it defines the good ones:
can be found on the Cambridge GO website. Refer
full-time blue-collar jobs in the working-
to these criteria when planning and writing your
class context and high-level executive and
responses.
professional jobs for the middle class and
above. When work is structured in this
way, caregivers often cannot perform as
ideal workers.
Joan Williams, Unbending Gender: Why

Family and Work Conflict and What to Do
About It (1999, Oxford University Press,
New York, p. 1).

Issue 1
Chapter 11
Migrants
This chapter is available in the digital
version of the textbook.

Issue 1
Chapter 12
Islander peoples

Issue 1
Chapter 13
People who have
a mental illness

Issue 2
Events that highlight
legal issues
Chapter 14
The Bali Nine
Chapter objectives
• describe the key features of the investigation of transnational crime
• identify the relevant legal terminology in investigating and discussing Australian and Indonesian law
in regard to transnational crime
• evaluate the effectiveness of Australia’s legal system in achieving justice in fighting
transnational crime
• investigate the relationship between society and the Australian and Indonesian legal systems
• recognise differing perspectives on issues related to the death penalty
• locate quality information from authoritative sources using the internet.

Relevant law
International Covenant on Civil and Political Rights (1966)
Death Penalty Abolition Act 1973 (Cth)
Second Optional Protocol to the International Covenant on Civil and Political Rights (1989)
Indonesia Law on Psychotropic Substances, Law No 5 of 1997, art 59 (11 March 1997)
Treaty between Australia and the Republic of Indonesia on Mutual Assistance in Criminal Matters (1999)
Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth)
Agreement with the Republic of Indonesia on the Framework for Security Cooperation (2006)
Extradition Treaty between Australia and the Republic of Indonesia (2007)

14.1 A
brief history of the penalty of death by firing squad, or a lesser penalty
Bali Nine of a life sentence or 20 years in jail.
On 29 April 2015, Andrew Chan and Myuran
Sukumaran were executed by firing squad. This act
Overview of the case
was condemed by many Australians and pleas for
On 17 April 2005, the Indonesia National Police
clemency were made by the then Prime Minister
(INP) arrested four Australians at Bali’s Ngurah
Tony Abbott and Foreign Minister Julie Bishop.
Rai International Airport: Michael Czugaj, Renae
Despite being characterised as the ‘king-pins’ or
Lawrence, Scott Rush and Martin Stephens. The
‘ringleaders’ of the Bali Nine’s smuggling operation,
Indonesian police found heroin strapped to the
Chan and Sukumaran had distinguished themselves
bodies of these four people. Soon after, Andrew
as model prisoners during their 10 years in jail. Their
Chan was arrested by INP officers at the airport
executions shocked the nation and had a serious
in Denpasar; Chan’s suitcase had 0.01 grams of
impact on Australia–Indonesian relations.
heroin residue in it. Later that same day, in a hotel in
The international community places a high
Kuta, Myuran Sukumaran, Tan Duc Thanh Nguyen,
priority on cooperation in dealing with transnational
Matthew Norman and Si Yi Chen were arrested.
crime and many agreements and treaties have been
The INP found nearly 350 grams of heroin in a bag
made between nations to facilitate cooperation.
at the Kuta hotel. This group of nine Australians
However, the international community is also
was planning to smuggle a total of eight kilograms
committed to human rights. Sometimes, there
of high-grade heroin into Australia. From this time
is a clash between cooperation in transnational
on, they were known as the ‘Bali Nine’. Each of the
crime and commitment to human rights. In the
nine Australians was charged with trafficking heroin
case of the Bali Nine, there was a clash between
and faced the possibility of receiving the maximum
Figure 14.1 Andrew Chan (second from the left) and Myuran Sukumaran (right) arrive at the Denpasar District Court
on 14 February 2006.

Chapter 14 The Bali Nine
TABLE 14.1 The Bali Nine

Name Age From Role Sentence (after appeals)
in 2005
Andrew Chan 21 Sydney Ringleader Execution
Si Yi Chen 20 Sydney Drug mule Life imprisonment
Michael Czugaj 19 Brisbane Drug mule Life imprisonment
20 years’ imprisonment; sentence
Renae Lawrence 27 Newcastle Drug mule commuted and released and deported
to Australia in November 2018
Tan Duc Thanh Nguyen 21 Brisbane Financier Life imprisonment (died in June 2018) 14
Matthew Norman 18 Sydney Drug mule Life imprisonment
Scott Rush 19 Brisbane Drug mule Life imprisonment
Martin Stephens 29 Wollongong Drug mule Life imprisonment
Myuran Sukumaran 24 Sydney Ringleader Execution
Australia’s cooperation with Indonesia in combating Planning

drug trafficking, and Australia’s commitment to The nine young Australians had been recruited by
abolishing the death penalty. contacts they had made in nightclubs in Australia.
The heroin was sourced from Thailand and the
transnational crime
crime that occurs across international borders, either in group was to pick it up in Indonesia and smuggle it
origin or effect into Australia.
Andrew Chan, Myuran Sukumaran and Tan Duc
Thanh Nguyen were in charge of this smuggling
Figure 14.2 Photos of the Bali Nine from February 2006. Top row, left to right: Myuran Sukumaran, Scott Rush,
Tan Duc Thanh Nguyen, Renae Lawrence; bottom row left to right: Si Yi Chen, Matthew Norman, Michael Czugaj, Martin
Stephens and Andrew Chan.

operation. The other six were to be drug mules, knew that drug lords were trying every trick in the
carrying the drugs from Indonesia to Australia. The book to keep up the supply of drugs into Australia.
drug mules were organised into separate teams One way of smuggling drugs into the lucrative
and did not know of each other’s existence until Australian market was by using drug mules.
their arrest. All nine went on a ‘holiday’ to Bali, The AFP had been watching the group of young
Indonesia, which is a very popular destination for Australians for six months, ever since they had
Australian tourists. received a tip-off from an informant in Brisbane. The
AFP was not sure whether or not the nine Australians
drug mule were part of a drug-smuggling operation. It took
a person who transports drugs; either by concealing drugs
in their luggage, by ingesting drugs in pouches, strapping months of surveillance to build profiles and put
drugs to their body, or concealing them in some other way together information about friendships and travel
plans. By 8 April 2005, when all nine Australians
Before leaving for Bali, Andrew Chan met Martin were in Bali, the AFP had gathered a large amount
Stephens and Renae Lawrence who were staying of information about this group. All their intelligence
in room 126 at the Formule One Motel in the Sydney pointed to Andrew Chan being the organiser.
suburb of Enfield. Matthew Norman and Si Yi Chen The AFP decided to contact their counterparts
were staying in the same motel, in room 129. Their in Indonesia.
suitcases were repacked with items needed for
attaching bags of heroin to their bodies such as Indonesia National Police
bandages, fabric bands and tight shorts. Chan flew
The AFP’s cooperation with the Indonesia National
to Bali on 3 April 2005. The others stayed at the
Police (INP) began in the late 1990s when Indonesia
Sydney motel for a few days, and then on 6 April,
transitioned to a full democracy after the downfall
they also flew to Bali.
of President Suharto’s regime. From this time, the
Meanwhile, Scott Rush and Michael Czugaj had
AFP provided training and support for the INP’s
flown to Sydney from Brisbane and were staying at
enforcement activities regarding drug smuggling and
the Spanish Inn Motor Lodge at Strathfield. They had
transnational crime. AFP–INP cooperation intensified
been invited to Sydney by Tan Duc Thanh Nguyen.
in the aftermath of the Bali Bombings of 2002 when
They were joined at the motel by Myuran Sukumaran
the AFP formed a permanent investigative team in
who gave them cash and told them to book a holiday
Indonesia called Operation Alliance. AFP officers in
to Bali. Rush and Czugaj flew to Bali on 8 April 2005.
Operation Alliance worked closely with Indonesian
Sukumaran and Nguyen were on the same plane.
police in response to the Marriott Hotel bombing in
Unbeknown to these nine young Australians, the
2003, the bombing of the Australian Embassy in 2004
Australian Federal Police had been following their
and the Bali Bombings of 2005.
movements with great interest.
Indonesia National Police
Cooperation between law in Indonesia, the police force is called the Kepolisian Negara
enforcement agencies Republik Indonesia (POLRI)
Australian Federal Police On 8 April 2005, the AFP’s senior liaison officer in
In 2005, the Australian Federal Police (AFP) Bali, Paul Hunniford, sent a letter to the INP, which
considered Indonesia to be one of the main places stated that, ‘[the] AFP in Australia has received
from which drugs would be smuggled into Australia. information that a group of persons are allegedly
Also, there had been a recent crackdown on the importing a narcotics substance (believed to be
importation of drugs into Australia and the AFP heroin) from Bali to Australia’. Four days later, on
Legal Links
For more information about the Australian Federal Police (AFP), see the AFP’s website.

Legal Links
Further information about the relationship between the Australian Federal Police and the Indonesia
National Police can be found in the article, ‘Partners against crime: A short history of the AFP–
POLRI relationship’, written by David Connery, Michael McKenzie and Natalie Sambhi and
published by the Australian Strategic Policy Institute in March 2014.
12 April 2005, Hunniford again wrote to the INP phone, the metadata alone connected the Bali Nine,
listing the passport numbers, birth dates and likely which made it difficult for them to claim, as they later
flight dates of eight young Australians (at this point
the AFP had no knowledge of Myuran Sukumaran).
did, that they did not know the other members of
the group.
14
The INP would soon transmit information about the On 17 April 2005, Andrew Chan checked out of his
ninth Australian to the AFP. hotel and went to another hotel where he and Myuran
After receiving the two letters from the AFP, Sukumaran met Scott Rush and Michael Czugaj,
the INP began surveillance of the nine young and taped packages of heroin to their bodies. Then
Australians in Bali. They focused particularly on Chan and Sukumaran met and set up the drug mules
Andrew Chan who had been to Bali twice in the from the other group: Renae Lawrence and Martin
previous six months; one of those visits had been Stephens. The two groups of drug mules (Rush and
with Renae Lawrence. Chan and Lawrence had Czugaj; Lawrence and Stephens), unaware of each
managed to smuggle heroin into Australia without other’s existence, left in separate taxis to travel to
a hitch in October 2004. the Ngurah Rai International Airport in Denpasar.
Then Nguyen and Sukumaran headed to the Melasti
The crime Bungalows where they met Si Yi Chen and Matthew
On 8 April 2005, Andrew Chan collected a specially Norman. Meanwhile, Chan got a taxi to Ngurah Rai
constructed silver suitcase containing five kilograms International Airport. During all of this time, every
of heroin from Cherry Likit Bannakorn, a 22-year- move had been observed and recorded by the INP.
old woman from Thailand. Chan was not under
surveillance, as the AFP had not yet sent the first of Arrest
their letters to the INP. At 8 pm on 17 April 2005, Renae Lawrence and Martin
From 12 April 2005, INP officers were stationed Stephens arrived at the airport in Denpasar. From
at the hotels where the young Australians were the moment they got out of the taxi, every move they
staying; the INP officers began taking photos and made was watched. However, they were unaware of
tracking their movements. The original plan was for this as they passed through security without a hitch,
the nine Australians to return to Australia on 9 April
with the heroin. However, Andrew Chan wanted to Figure 14.3 27-year-old Renae Lawrence from Newcastle
wait for another shipment of heroin before the drug is escorted by Indonesian Police through Denpasar
mules returned home. Bannakorn had not brought Prison on 24 April 2005 in Denpasar, Bali, Indonesia.
enough on her first trip so they had to wait until she
could deliver more. This gave the INP officers more
time to continue their surveillance and compile
more evidence.
At 9 pm on 16 April 2005, Chan again met
Bannakorn and collected the rest of the heroin. This
time, INP officers were filming Chan. As well as visual
surveillance, which included numerous photos and
some videos, the INP was also monitoring the phone
conversations between the nine Australians. Even
though they spoke in code with each other on the

not even being picked up by the sniffer dogs. Then 14.2 Legal responses
the pair was approached by a customs officer, who
asked them to follow him so they could be searched. Trials
This search revealed the packages of heroin. The Indonesian justice system is based on Dutch
Meanwhile, at 8:30 pm, Scott Rush and Michael law, inherited from when Indonesia had been
Czugaj left the hotel for the Ngurah Rai International part of the Dutch empire. As a result, Indonesian
Airport. At the immigration counter at the airport, law follows the European system, which is an
the two men were detained by customs officials inquisitorial system, rather than the adversarial
and escorted into an office where they found Renae system followed in Australia. There are no juries
Lawrence and Martin Stephens. Rush and Czugaj and each case is presided over by a panel of three
were searched. Between them, the four drug mules to five judges. As well as leading the questioning of
were found to be carrying 8.2 kilograms of heroin witnesses and suspects, the judges also decide the
worth around $4 million on the streets of Sydney. guilt or innocence of the accused.
Unaware that the four drug mules had been
detained by customs, Andrew Chan arrived at the inquisitorial system
a legal system where the court or a part of the court (e.g.
airport and checked into the same flight as Lawrence
the judge) is actively involved in conducting the trial
and Stephens. Soon after, customs officials and and determining what questions to ask; used in some
police officers asked Chan to come with them. countries that have civil legal systems rather than common
law systems
INP officers then went to the Melasti Bungalows
where Myuran Sukumaran, Matthew Norman, Si Yi adversarial system
a system of resolving legal conflicts – used in common law
Chen and Tan Duc Thanh Nguyen were celebrating countries such as England and Australia – that relies on
Sukumaran’s twenty-fourth birthday. The four men did the skill of representatives for each side (e.g. defence and
prosecution lawyers) who present their cases to an impartial
not know that they had been under surveillance. The decision-maker
police officers searched the hotel room; in a rucksack,
they found 334.26 grams of heroin. The four men were
In court, the Indonesian prosecutors had decided
handcuffed and taken to Polda police station.
to bring the same charge against all Bali Nine
defendants, regardless of their role: the charge of
Formative assessment: ‘exporting narcotics as part of an organisation’.
Assessment for learning This charge carried the death penalty. Once the
The activities in this chapter are designed to assist you trials were under way in the Denpasar District
to build your understanding of the content covered. Court, the prosecutors followed the same strategy
You are encouraged to complete the activities and in each case of trying to get the co-accused to give
seek feedback from your teacher on a regular basis to evidence against each other. The four mules –
check your understanding. You are also encouraged to Lawrence, Czugaj, Rush and Stephens – all followed
regularly review the ‘themes and challenges’ and the the same story that they had told from the day of
‘learn to’ statements on pages 15–16 of the syllabus. their arrest: they had no idea of the true reason
You can revisit these types of activities a number of of why they were in Bali until it was too late and
times to continue to build your knowledge and skills that they had been threatened by the ringleaders,
of the topic.
Review 14.1
1 Identify what made the Bali Nine’s crime a transnational crime rather than a domestic crime.
2 Describe the content of the letters that the Australian Federal Police (AFP) sent to the Indonesia
National Police (INP) on 8 April and 12 April 2005.
3 Outline the methods used by the AFP and INP to gather intelligence on the Bali Nine before
their arrest.
4 Recall how each member of the Bali Nine was arrested.

Chan and Sukumaran. When the four drug mules The prosecutors were harsh in their
testified, they backed up each other’s stories. When condemnation of Chan and Sukumaran. The
the prosecutors made their sentence request, they prosecutors at Sukumaran’s trial said that he had
asked for 20 years for Lawrence, but life for Czugaj, been evasive during the trial, was guilty and not a
Rush and Stephens. The judges did not agree and shred of leniency should be given. They demanded
imposed life sentences for all four of the drug mules. the death penalty. Similarly, Chan was described as
The ringleaders, Chan and Sukumaran, along being the ‘driving force’ of the Bali Nine operation
with Norman, Chen and Nguyen, followed the and that he had failed to cooperate and had given
same strategy of denying any involvement or any confusing and convoluted evidence. Therefore, the
knowledge about the drugs. When these five were prosecutor demanded the death sentence for Chan.
called to testify, they all said that they did not wish
to give evidence because they were also suspects in
In both cases, Judge Supratman said that there
were no mitigating factors that might lessen the
14
the same case. When asked about their responses sentence and commented that a drug dealer was
to the drug mules’ accusations against them, they as bad as a terrorist. As a result, the judge found
all issued denials. the two men guilty and sentenced them to death
The judges were visibly displeased and they by firing squad. Chan and Sukumaran were the
were particularly annoyed with the testimonies of first Australians in history sentenced to death in
Chan and Sukumaran, despite the glowing personal Indonesia. Meanwhile, Norman, Chen and Nguyen
references that were presented on their behalf were given life sentences.
during the trials. Sukumaran’s defence lawyer, The last of the Bali Nine to be tried were the men
Mochamad Rifan, portrayed his client as being a who made up the so-called ‘Melasti Group’. These were
scapegoat for the mules, who had tried to absolve the men arrested at the Melasti Beach Bungalows. Even
themselves of all blame by putting all responsibility though the evidence against the Melasti Group was
onto Sukumaran and Chan. more circumstantial, it pointed to Chen and Norman
Figure 14.4 Tan Duc Thanh Nguyen, Si Yi Chen and Matthew Norman wait for the beginning of their trials on
12 October 2005.

Review 14.2
1 Identify the arguments the four drug mules used in their defence at their trials.
2 Describe the strategy Andrew Chan and Myuran Sukumaran used in their defence.
3 Describe the outcome of the trials for each member of the Bali Nine.
being next in line to be the drug mules to transport The eight male members of the Bali Nine were
heroin to Australia once they received the next shipment lodged in the maximum-security block. Renae
of heroin from Thailand. Each of the three men said that Lawrence was housed with the female prisoners in
they had been in the wrong place at the wrong time. another block.
When each was asked by the judge whether they had In 2005, Kerobokan Prison had a bad reputation,
regrets, they all said that they did. But when they were but since then it has been transformed. This is
asked if they acknowledged guilt, they said they did not. largely due to Ilham Djaya, who was the head of the
They too were given life sentences. prison until April 2008. Djaya’s number one priority
was to clean up corruption in the prison. Under
Imprisonment and rehabilitation Djaya’s watch, gangs and drug dealers no longer
After their arrest, the nine young Australians were ran the prison, the drab grounds of the prison were
held in cells at the Polda Jail. However, Chan and revamped and there are now gardens and lawn,
Sukumaran were split from the other seven due to which are tended to by the prisoners. Djaya’s other
claims by some that they feared the two ‘ringleaders’. priority was to rehabilitate the inmates. He sacked
Eventually though, all nine ended up in Kerobokan many of the guards and difficult prisoners were
Prison on 28 July 2005. moved to other jails.
Within the maximum-security block, the
Kerobokan Prison eight male members of the Bali Nine were given
Kerobokan Prison came to the attention of the some freedom to reconfigure and redecorate their
Australian public with the arrest of Schapelle Corby cells. They set up some gym equipment in their cells
on 8 October 2004 for smuggling 4.2 kilograms of and Myuran Sukumaran installed a screen-printing
cannabis into Bali. By the time the Bali Nine were machine. They were allowed out of the block into the
arrested, Corby had spent six months in Kerobokan rest of the prison during the day.
Prison. Corby attracted a lot of attention from the Despite the fact that the four drug mules had
Australian media and as a result the Australian testified against Chan and Sukumaran, they all got
public got to learn a lot about the Bali prison. On on well. In fact, reports indicated that Chan and
27 May 2005, Corby was convicted for smuggling Sukumaran had demonstrated kindness to their
cannabis into Bali and was given a 20-year fellow Bali Nine prisoners. Chan had become a
sentence. In addition, until October 2005, death row motivator, always insisting that the men keep active
in Kerobokan Prison had been home to the three and not just sit around. Chan also had many repeat
Bali Bombers who had been responsible for the visitors who spoke of his engaging personality.
2002 bomb attacks. Sukumaran developed a talent for art, and became
With a population of nearly 800 people, a mentor to other prisoners.
Kerobokan Prison was overcrowded in 2005, but In 2008, Ilham Djaya was replaced by Siswanto
compared to other prisons in neighbouring countries as governor of the prison; Siswanto was governor
like Thailand or the Philippines, it was not too bad. for three years. Under his guidance, the Bali
However, Kerobokan Prison has received bad Nine prisoners in Kerobokan Prison were able
press through books like Kathryn Bonella’s Hotel to continue their rehabilitation. In 2010, he gave
Kerobokan. About half of the population of the prison character evidence supporting Chan
was there for drug crimes. and Sukumaran.

14
Figure 14.5 Myuran Sukumaran with some of his artworks painted while in prison.
Legal Links
Source online SBS’s 2010 interview with Andrew Chan and Myuran Sukumaran, called The
Condemned. It originally aired in November 2010, just days before a final hearing on whether Chan’s
and Sukumaran’s death sentences for drug trafficking would be carried out. The interview gives an
insight into Chan’s and Sukumaran’s living conditions in Kerobokan Prison and their rehabilitation.
The interview also provides the perspective of Chan’s and Sukumaran’s lawyer.
Research 14.1
Source online Jewel Topsfield’s article, ‘Bali Nine executions: How Chan and Sukumaran’s road to
redemption changed Kerobokan jail’, The Sydney Morning Herald, 19 February 2015.
1 Describe how Kerobokan Prison has changed since 2005.
2 Describe Chan’s and Sukumaran’s reaction when they arrived at the prison in 2005.
3 Outline the initiatives taken by Chan and Sukumaran to improve life in the prison for all the
inmates.
4 Outline how Topsfield describes Sukumaran.
5 Discuss why the other inmates and the prison guards feared life in Kerobokan Prison once Chan
and Sukumaran had gone.

Appeals Court structure

The appeals process available to the Bali Nine
commenced with an appeal to their sentences
given in the Denpasar District Court to the Bali Supreme Court Constituional Court
High Court. Appeals from decisions made in the Bali
High Court go to the Indonesian Supreme Court. Bali High Court
The Indonesian Supreme Court oversees 68 high
courts across Indonesia. The Supreme Court only
Denpasar (Bali)
considers questions of law, not fact. Another avenue
District Court
that can be taken is to appeal to the Constitutional
Court. This court has the same standing as the Figure 14.6 The court hierarchy in Bali, Indonesia.
Supreme Court.
TABLE 14.2 The Bali Nine’s appeals process

Date Appeal authority Decision
26 April 2006 Bali High Court • Chan and Sukumaran’s death sentences confirmed
• Life sentences reduced to 20 years’ imprisonment for
27 April 2006 Bali High Court Chen, Czugaj, Lawrence, Nguyen and Norman
• Life sentences upheld for Rush and Stephens
• Convictions upheld for Nguyen, Chen, Norman and
Rush, and death penalty imposed, rather than the lighter
sentences granted by the Bali High Court (this was in
response to the prosecution appealing the sentence
6 September 2006 Supreme Court
reductions given by the Bali High Court)
• Death sentences upheld for Chan and Sukumaran
• Life sentence upheld for Stephens
• Life sentence reinstated for Czugaj
Ruled that Indonesian law permitted the death penalty for the
crime of drug trafficking; this was in response to Chan, Rush
3 May 2007 Constitutional Court
and Sukumaran lodging a constitutional challenge against
the death penalty
Final appeal to the court (called a Peninjauan Kembali or
6 March 2008 Supreme Court ‘PK’); death sentences reduced to life imprisonment for
Nguyen, Chen, Norman
10 May 2011 Supreme Court Death sentence reduced to life imprisonment for Rush
10 May and Appeals against death penalty dismissed for Chan and
Supreme Court
6 July 2011 Sukumaran
Indonesian President
13 May and
Susilo Bambang Appeals for a pardon rejected for Chan and Sukumaran
9 July 2012
Yudhoyono
December 2014 Indonesian President
Appeals by Chan and Sukumaran for clemency rejected
and January 2015 Joko Widodo
Denpasar District Application by Chan and Sukumaran for a judicial review into
January 2015
Court their cases rejected
Challenge against President Widodo’s refusal to grant
9 February 2015 Indonesian Court
pardons dismissed
Indonesian Appeal against the ruling that they could not challenge
6 April 2015
Administrative Court Indonesian president’s refusal to grant clemency rejected

All members of the Bali Nine appealed their Renae Lawrence’s sentence was commuted, and
sentences and exhausted the appeals process. she was released and deported to Australia.
Appealing a conviction can be risky as sentences
can be increased as well as decreased, as members Execution of Andrew Chan
of the Bali Nine soon found out. and Myuran Sukumaran
At the end of the appeals process, the sentences On 3 March 2015, Andrew Chan and Myuran
for the members of the Bali Nine were: Sukumaran were moved from Kerobokan Jail and
• six members (Si Yi Chen, Michael Czugaj, transferred to the island prison of Nusakambangan in
Tan Duc Thanh Nguyen, Matthew Norman, Central Java, which was to be their place of execution.
Scott Rush and Martin Stephens): life The method of execution at Nusakambangan was
imprisonment
• one member (Renae Lawrence): 20 years’
as follows:
• A special firing squad was recruited from the
14
imprisonment national police force.
• two members (Andrew Chan and Myuran • Inmates were moved to isolation cells 72 hours
Sukumaran): death. before the execution.
• Family members and religious counsellors were
Since 2015, Chen, Czugai, Norman and Stephens permitted to visit up to a few hours before the
have continued to submit applications to have execution.
their life sentences changed to a fixed-term prison • Prisoners had their hands and feet tied, but
sentences. To be successful, these applications chose whether they stood, knelt or sat before
need to be personally approved by the Indonesian the firing squad.
president; to date, all such applications have • 12 marksmen aimed rifles at each prisoner’s
been denied. In June 2018, Tan Duc Thanh Nguyen heart, but only three marksmen had live
died in prison of cancer. In November 2018, ammunition in their rifles.
Figure 14.7 On 4 March 2015, Bali Nine duo Andrew Chan and Myuran Sukumaran were transferred to the island of
Nusakambangan in Central Java, Indonesia.

Public campaign
Although their July 2012 appeal had failed, there did
not seem to be a rush to execute Andrew Chan and
Myuran Sukumaran. This changed in October 2014,
with the election of President Joko Widodo, who had
run on a campaign of being tough to drug smugglers.
Public opinion in Australia about Chan and
Sukumaran had changed significantly since
2005: the Australian public now saw two quietly
Figure 14.8 Nusakambangan Island in Central Java,
spoken and thoroughly reformed men. Following
Indonesia.
President Widodo’s December 2014 statement
• Medical personnel were present, and that no mercy would be shown to drug dealers,
pronounced the prisoners dead after execution. supporters of Chan and Sukumaran strengthened
• Family members waited outside the prison; the public campaigns to pressure the Indonesian
bodies were cleaned and handed over to them president to pardon Chan and Sukumaran. The
after the execution. Mercy Campaign put together a petition – which
• In the early hours 29 April 2015, Andrew Chan, received over 200 000 signatures – that asked
31, and Myuran Sukumaran, 34, were on the President Joko Widodo for clemency. Newspapers,
island prison of Nusakambangan, along with such as The Sydney Morning Herald, added their
six other death row prisoners. They were all led pleas to the cause, with an editorial on 23 February
outside and made ready for the execution. All 2015 stating that ‘two men who have apologised
eight prisoners decided to not be hooded or and atoned from their crimes, [who are] pioneers
blindfolded. They had made a promise to each of rehabilitation in Indonesia’s prison system, will
other that they would all look their executioners be killed senselessly’. The NSW Premier Mike
in the eyes. The firing squad used laser Baird added his voice to the cause stating that,
pointers on their rifles and aimed their rifles at ‘We all understand the need for justice – but not
their hearts. After a volley of shots, all like this. I stand for mercy.’ Radio broadcasters,
eight men were dead. news commentators, journalists, actors and
Review 14.3
1 Discuss why Kerobokan Prison had a bad reputation when the Bali Nine arrived there.
2 Outline the different avenues of appeal taken by Chan’s and Sukumaran’s lawyers.
3 Identify the outcomes of the appeals for the other members of the Bali Nine.
Research 14.2
Source online the article, ‘Death for Bali ringleaders’ (by Mark Forbes and Neil McMahon, The Age,
15 February 2006), which was published just after Chan and Sukumaran were given death sentences.
1 Identify which court heard the case.
2 Outline the reasons the judge, Arief Supratman, gave for giving the two men the death penalty.
3 Outline how prominent Australians reacted to the news of Chan’s and Sukumaran’s death sentences.
4 Identify the comment made by the Australia Federal Police Chief, Mick Keelty.
5 Discuss the next legal move for Chan and Sukumaran, according to their lawyers.
6 Outline the chance of Chan and Sukumaran reciving a presidential pardon.

musicians also added their voices to the Mercy

Campaign.
On 29 April 2015, when all hope was gone, people
gathered in Australia and in Bali in all-night vigils
until the time of execution.
International diplomacy
There were various diplomatic attempts to prevent
the executions:
• In January 2015, Prime Minister Tony Abbott
made a direct appeal to Indonesian President
Widodo to show mercy. 14
• On 5 March, Foreign Minister Julie Bishop
again attempted to stop the executions by
offering to repatriate to their homeland three
Indonesian drug criminals in return for sparing
Figure 14.9 A Mercy Campaign rally in Melbourne. the lives of Chan and Sukumaran.
The Mercy Campaign attracted over 200 000 signatures • United Nations Secretary General Ban Ki-Moon
on a petition asking for clemency for Andrew Chan and directly appealed to President Widodo.
Myuran Sukumaran.
Legal Links
The Mercy Campaign was an Australian-based campaign that focused on Andrew Chan and
Myuran Sukumaran. More information about the Mercy Campaign is available on its website.
Research 14.3
Foreign Prisoners Support Service

Use a search engine to find the ‘Wayback Machine’, which stores old websites that are no longer in use.
To find the old website, http://bali9.foreignprisoners.com’, type ‘Foreign Prisoner Support Service’ into
the search box. Read the webpage about the Bali Nine and then respond to the following questions.
1 Outline if there are any further significant details of the Bali Nine cases.
2 List the various types of support that prisoners in Kerobakan Prison can access.
3 Outline the advice given about:
a writing to the Indonesian authorities
b writing to the Australian Government
c writing to prisoners
d visiting a prison.
4 Identify the criticism of the Australian Federal Police’s (AFP) handling of the Bali Nine.
5 Assess if this criticism of the AFP is warranted. Discuss to what extent the AFP should be bound
by international human rights obligations.
Foreign Prisoner Support Service: Aims and policies
To find out more about the Foreign Prisoner Support Service, visit the ‘About us’ page on the
organisation’s website (https://cambridge.edu.au/redirect/9044).
1 Identify when this organisation was established.
2 Outline the organisation’s aims.
3 Outline the organisation’s policies.

Figure 14.10 The Foreign Affairs Minister, Julie Bishop (left), and Deputy Opposition Leader, Tanya Plibersek (right),
during a candlelight vigil for Andrew Chan and Myuran Sukumaran.
There was a diplomatic fall-out after the executions. ACU campus. The scholarships are awarded on
The then Prime Minister Tony Abbott announced the basis of an essay on the sanctity of human life.
that Australia would withdraw its ambassador from Professor Gregory Craven, the Vice-Chancellor of the
Indonesia and relations between the two countries ACU, was one of the founders and co-spokesmen of
soured. the Mercy Campaign. Professor Craven has said that,
Memorials
Many people tried to take something positive from While our calls for mercy for Mr Chan
the lives of these young men or tried to honour their and Mr Sukumaran were ultimately
memory in some way. Others were motivated to rejected, we strongly believe that hope
campaign for an end to the death penalty altogether. remains for prisoners around the world
One attempt to memorialise the men for a good who face a similar fate. In memory of
cause was the Australian Catholic University’s (ACU) Mr Chan and Mr Sukumaran, each of us
creation of two scholarships to be made available to can take action to end this punishment.
Indonesian undergraduate students. The scholarships
offer the equivalent of full tuition for four years at any
Research 14.4
Source online for the article, ‘Bali Nine: Julie Bishop, Tanya Plibersek plead for clemency
for Andrew Chan and Myuran Sukumaran’ (by James Bennett and Louise Yaxley, ABC News,
12 February 2015).
1 Outline what occurred in federal parliament and why this was unusual.
2 Identify the arguments that Tanya Plibersek used in her address to federal parliament.
3 Identify the arguments that Julie Bishop used in her address to federal parliament.
4 Describe how the Indonesian Foreign Minister reacted to Bishop’s plea for mercy.

Review 14.4
1 Identify some of the public figures who publically supported Andrew Chan and
Myuran Sukumaran.
2 Describe the Mercy Campaign.
3 Outline the offer Julie Bishop made to the Indonesian Government.
4 Describe the initiative Professor Craven announced in honour of Chan and Sukumaran.
14.4 Effectiveness of responses cooperation while dealing with transnational crime

and Australia’s own anti-death penalty stance,
14
The case of the Bali Nine is a significant example
as well as our international obligations in regard
of transnational crime affecting Australian citizens.
to human rights law? If Australia is serious about
It brings to the fore two competing interests of the
working for the international abolition of the death
Australian legal system: the protection of its citizens
penalty, then is it prepared to be consistent in
abroad, and the fight against transnational crime.
its opposition to the use of the death penalty in
Political leaders and the legal system need to find
Indonesia in all circumstances?
the right balance between these two priorities.
This study raises the issue of the sanctity of life
and the extent to which international law, with its Australian–Indonesian cooperation
clear statements against the death penalty, can In the case of the Bali Nine, it seems that the
deliver certainty in the protection of this principle AFP’s actions gave preference to cooperating with
in practice. Indonesian police over Australia’s human rights
This case also raises the issues that confront obligations.
Australians abroad who have to navigate the legal From the early days of the case, the AFP was
system of a foreign country, which is a situation that under fire for its role in facilitating the arrest of
a growing number of Australians who live or work the Bali Nine by INP in Bali. The two letters sent by
overseas have to face. Therefore, it is important that Paul Hunniford of the AFP on 8 and 12 April 2005,
Australia has good relations with as many countries handed over all the key information to the INP. The
as it can, and has in place, understandings with AFP left it up to their Indonesian counterparts to
those countries on how they should treat Australians decide whether the INP would intercept and
in their justice systems and how we should treat arrest the young Australians in Bali, or let them
their nationals in the Australian justice system. leave Bali for the AFP to arrest when they arrived
Th Bali Nine case also concerns the purpose and in Australia. The AFP claimed that fighting
effectiveness of punishment. Is punishment in the transnational crime demanded close cooperation
legal system only about retribution and deterrence? between countries, and that they could not put
To what extent should rehabilitation have an impact conditions on the release of information to their
on a prisoner’s sentence? Both Andrew Chan Indonesian counterparts.
and Myuran Sukumaran were considered to be In fact, in their letter of 8 April 2005, the AFP
rehabilitated in the 10 years they were in prison, yet did indicate their preference that the Bali Nine be
it appears this was not taken into account in regard allowed to return to Australia for arrest (although it
to their death sentence. was not a precondition of sharing the information).
Andrew Chan and Myuran Sukumaran were the However, after the INP had arrested the Bali
first Australians ever to be executed in Indonesia. Nine, the INP then asked the AFP to send on the
Is the Australian public and the government evidence that they had compiled in Australia;
comfortable with the idea that this could happen the AFP sent this information without requesting
again? So, the question is: how effective is the law that the young Australians be exempted from the
in dealing with the tension between international death penalty.

Most commentators agree that the AFP’s actions Although Lorraine Finlay’s 2011 article, ‘Exporting
in this matter were lawful, and that there are benefits the death penalty? Reconciling international police
to having a good relationship with Indonesia; for cooperation and the abolition of the death penalty in
example, terrorist plots have been foiled and threats Australia’ questioned why after the arrest the AFP
to both countries have been removed. sent information without requesting an exemption
However, others feel that by sharing information from the death penalty, she ultimately argued that
with the INP, while knowing the death penalty was the AFP could not put conditions on the information:
almost certain, the AFP may have acted lawfully but
they did not act morally. It is arguable that the APF’s
actions do not comply with Australia’s obligations Restricting police-to-police cooperation
under international law. by the application of the extradition
framework to potential death penalty
Arguments for and against sharing matters would prevent the sharing
information without conditions of a significant volume of useful and
A report by the Australian Strategic Policy Institute important information, and have the
(ASPI) in March 2014, called Partners against Crime: counter-intuitive effect of allowing
A Short History of the AFP–POLRI Relationship information about relatively trivial
concluded with the following: criminal activity to be freely shared while
at the same time restricting cooperation
aimed at preventing and prosecuting the
The assistance given by Australia to most serious offences … [Also] it would
Indonesia to develop police capacity is significantly restrict counter-terrorism
not charity. There is a clear expectation cooperation with both Indonesia and the
that such assistance will allow both forces United States of America, and would
to better deter, disrupt and prosecute prevent the exchange of drug-trafficking
transnational crime. Nor is this a one-way intelligence with countries such as
street … Indonesia has and continues to Indonesia, Singapore and Vietnam.
provide Australia with direct assistance
and benefits. These benefits include
foiled terrorist plots, the removal of
mutual threats and help with combatting It may have been lawful, but others suggest that it
transnational crime. Without that was not moral and it did not fit in with Australia’s
assistance, it’s plausible to assert that more obligations under international law.
Australians could have been killed by However, others disagree wholeheartedly and
terrorists, that Australia’s border security believe that the AFP could have done better and
challenges would be even greater, and that Australia can and should put conditions on
even more crime would make its way to the information shared with other countries. Ronli
Australia. So the relationship between Sifris’ 2007 article, ‘Balancing abolitionism and
the AFP and INP is in the direct interest cooperation on the world’s scale: The case of the Bali
of both countries, and benefits of this Nine’ argues that the AFP was negligent in sharing
cooperation can be seen at the police-to- the information with the INP in full knowledge
police, bilateral, and regional levels. that if the young Australians were arrested in Bali
they would face the death penalty. Sifris says that
this may have been lawful, but it was not moral.
The AFP prioritised cooperation above Australia’s
For the authors of the ASPI report, there is no doubt
commitment to the abolition of the death penalty.
that the current policy of the AFP not putting any
Sifris goes even further, stating that:
conditions on intelligence given to its Indonesian
counterparts is satisfactory.

Each human being has a moral right For years I interviewed them in jail and
to life. By placing members of the Bali visited and interacted with them. As I
Nine in a position where the violation of watched their transformation there was
their right to life was a clear possibility, no doubt their rehabilitation was genuine.
the AFP violated their rights. … They had become decent and honourable
Consequently, in accordance with the young men who were trying, every day, to
moral paradigm expounded in this make amends for their crime. They knew
section, even if the actions of the AFP in they deserved to be in jail … Sukumaran
providing information to the INP were and Chan were not the same people who
not illegal, they were surely immoral. were arrested on 17 April 2005. They had
reformed and helped reform so many
14
other lives. By killing them Indonesia lost
its best chance yet to fight the scourge of
Sifris also says: drugs. The world is a poorer place. RIP
Andrew Chan and Myuran Sukumaran.
In light of this growing global trend

[towards the abolition of the death
penalty], it is difficult to understand
why, in the case of the Bali Nine, the Australian law
AFP voluntarily provided information to Australia’s position on the death penalty in domestic
the INP with the knowledge that there law has been crystal clear for many years. In 1967,
was a real risk that the provision of this Ronald Ryan was the last person to be executed in
information would result in Australians Australia. The Death Penalty Abolition Act 1973 (Cth)
being subjected to death by firing squad states that ‘a person is not liable to the punishment
and did not seek assurances that the death of death for any offence’. No Australian jurisdiction
penalty would not be imposed. uses the death penalty today. In parliament, there
is a bipartisan approach to the death penalty
with the major parties opposed to any return of
capital punishment.
The death penalty International law

Cindy Wockner, one of the authors of the The situation regarding the death penalty in
comprehensive book on the nine Australians, Bali 9: international law is unresolved. While it is not illegal,
The Untold Story, had this to say about the execution we can see a movement towards its global abolition.
of Chan and Sukumaran: The International Covenant on Civil and Political
Legal Links
The full text of the articles mentioned in this chapter are available online:
• ‘Partners against crime: A short history of the AFP–POLRI relationship’ (by David Connery,
Michael McKenzie and Natalie Sambhi, published by the Australian Strategic Policy Institute,
March 2014).
• ‘Exporting the death penalty? Reconciling international police cooperation and the abolition of
the death penalty in Australia’ (by Lorraine Finlay, published by Sydney Law School, 2011).
• ‘Balancing abolitionism and cooperation on the world’s scale: The case of the Bali Nine’
(by Ronli Sifris, published by the Federal Law Review, 2007).

However, the Second Optional Protocol of the

International Covenant on Civil and Political Rights
(1989) leaves no doubt as to the United Nations’
position on the death penalty. In Article 1, the
Protocol states:
Second Optional Protocol of the

International Covenant on Civil and
Political Rights (1989), Article 1
No-one within the jurisdiction of a

State Party to the present Protocol shall
be executed.
Each State Party shall take all
necessary measures to abolish
Figure 14.11 On 28 April 2015, a protester holds a placard the death penalty within its
that reads ‘death row is a murder and death penalty is Video
jurisdiction.
not justice’ during an anti-death penalty rally in front
of Merdeka Palace in Jakarta, Indonesia. The families of
Andrew Chan and Myuran Sukumaran paid an anguished
final visit to their loved ones, wailing in grief as ambulances
carrying empty white coffins arrived at the prison. Numerous other treaties and covenants enshrine
opposition to the death penalty. It is also to be noted
Rights (1966) does allow for it, but only in limited
the Rome Statute of the International Criminal Court
circumstances, as listed in Article 6.2:
(1998), which led to the creation of the international
Criminal Court, excludes the use of the death penalty.
So it is clear that there is a movement towards the
International Covenant on Civil and
global abolition of the death penalty. Since 1990, it
Political Rights, Article 6.2
has been abolished in over 40 countries, and has
In countries which have not abolished the
generally not been reintroduced.
death penalty, sentence of death may be
However, the increased amount of transnational
imposed only for the most serious crimes
crime means that cooperation between national
in accordance with the law in force at
police forces in the fight against transnational crimes
the time of the commission of the crime
is steadily increasing. This has resulted in many
and not contrary to the provisions of the
mutual assistance treaties between governments,
present Covenant and to the Convention
which in turn has led to tension in the international
on the Prevention and Punishment of
sphere between the recognition of human rights in
the Crime of Genocide. This penalty can
the extradition process and the need for cooperation
only be carried out pursuant to a final
when dealing with international crime. Currently, the
judgment rendered by a competent court.
balance is tipping in the direction of human rights
being given the priority in the extradition processes
between countries. In extradition cases, it seems that
Legal Links
View the following international instruments online:

• International Covenant on Civil and Political Rights (1966), Article 6.2
• Second Optional Protocol of the International Covenant on Civil and Political Rights (1989), Article 1.

countries are able to resolve the tension between hard-line policies in a number of areas. Widodo’s new
international cooperation and the commitment to Attorney-General, Sanitiar Burhanuddin, has vowed
the abolition of the death penalty. The question is to resume executions in Indonesia (an unofficial
whether cooperation between national police forces moratorium has been observed since 2016). At the
should also move in this direction. end of 2018, there were 308 people on death row in
Indonesia and around 70 people had been executed
Australia’s policy on global abolition by the end of 2019. This was at the same time that
of the death penalty Indonesia was appointed to the United Nations
If Australia wants to work towards the abolition of the Human Rights Council. By 2020, it was clear that the
death penalty in countries in which large numbers of death penalty had returned as a possibility for any
Australians work or holiday, then it needs to follow
a consistent and long-term approach. Australia’s
Australian, or any foreigner, caught breaking the law
in Indonesia.
14
position on the death penalty in regard to the Bali Nine In 2003, former High Court judge, Justice Michael
was compromised by its support for the execution of Kirby, said the following concerning the death
the Bali Bombers in 2008. To be effective with the penalty:
Indonesian Government in promoting the abolition
of the death penalty the Australian Government
needs to have a principled and consistent policy. We have set ourselves upon a path to
No advocacy will be effective if Australia further a higher form of civilisation. It is one
equivocates on capital punishment. committed to fundamental human
In a 2002 report for the Lowy Institute, Dr Dave rights. Such rights inhere [are invested]
McRae argued that Indonesia is the key to achieving in the dignity of each human being.
the abolition of the death penalty in the south-east When we deny human dignity we
Asian region. In comparison to other countries in diminish ourselves. We become part of
the region (e.g. Malaysia and Singapore), Indonesia the world of violence. Judges and lawyers
is in fact moderate in its use of the death penalty. stand for the rational alternative to a
There are strong lobby groups within Indonesia both world of terror and violence. The law
for and against the death penalty. However, the one will often fail. But inflicting the death
factor that could tip Indonesia in the direction of penalty is the ultimate acknowledgment
abolition is the fact that there are many Indonesian of the failure of civilisation.
nationals on death row in other countries and the
Indonesian Government has been working hard in
opposing the imposition of the death penalty on
these people. Indonesia could be won over by the
argument that if they abolished the death penalty
at home, it would be easier to plea for mercy for Figure 14.12 On 23 July 2019, two Australians, William
Cabantog (centre) and David Van Iersel – who had been
Indonesians facing execution in other countries.
arrested in Bali for possessing cocaine – were paraded in
Dr McRae also argues that the abolition of front of local media.
the death penalty in Indonesia would contribute
to the protection of Australians in Indonesia and
would minimise the threat to relations between
the two countries. Also, it would build momentum
towards death penalty abolition in the south-east
Asian region.
Since the execution of Chan and Sukumaran in
2015, it seems that no progress has been made in
regard to the death penalty in Indonesia. Since the
re-election of Joko Widodo as president in 2019, the
Indonesian Government has been pursuing more

Research 14.5
Find Amnesty International’s website; locate the section on the site about the campaign to end the
death penalty. Access the latest report.
1 Find out how many executions have taken place in each of Australia’s south-east Asian
neighbours.
2 Identify which countries have carried out the death penalty in recent years and how many
executions have taken place.
3 Outline what the report identifies as the trends for the death penalty in our region.
4 Compare this with the global trends on executions.
5 Describe what concerns the report expresses and if there are any signs of hope that the death
penalty could be ended worldwide.
Legal Links
Search online for the article, ‘A key domino? Indonesia’s death penalty politics’ (by Dr Dave McRae,
Lowy Institute, March 2012).
Review 14.5
1 Assess why the executions of Andrew Chan and Myuran Sukumaran are significant for
Australia.
2 Outline the criticism of the AFP’s role in the Bali Nine case.
3 Assess if the AFP’s actions in regard to the Bali Nine were lawful:
a in domestic law
b in international law.
4 Describe Cindy Wockner’s opinion of the execution of Chan and Sukumaran.
5 Identify the domestic actions and laws that have ended the death penalty in Australia.
6 Outline how the death penalty is viewed in the:
a International Covenant on Civil and Political Rights (1966)
b Second Optional Protocol of the International Covenant on Civil and Political Rights (1989).
7 Discuss the current situation in regards to ending the death penalty globally.
8 Outline Australia’s policy on the death penalty.
9 Recall what Dr McRae recommends should be Australia’s policy and actions concerning the
death penalty.
10 Reflect on Justice Michael Kirby’s view of the death penalty.

Figure 14.13 Co-curator Ben Quilty and friend of Myuran Sukumaran speaks to the media at the 'Another Day in
Paradise' exhibition preview at Campbelltown Art Centre on January 11, 2017 in Sydney.
14

Chapter summary
• The Bali Nine case is an example of a • The Bali Nine had to navigate a totally
transnational crime involving different national different legal process in Indonesia that is
police forces. based on the inquisitorial system.
• The Australian Federal Police (AFP) and the • Andrew Chan and Myuran Sukumaran were
Indonesian National Police (INP) have been considered to be reformed after 10 years in prison,
cooperating since the late 1990s. but it appears this carried no weight in their
• Information the AFP gave to the INP made it appeals for clemency to the Indonesian president.
possible for the Bali Nine to be arrested in Bali, • If Australia is serious about working
Indonesia. towards the abolition of the death penalty
• Indonesia has a mandatory death sentence for internationally, it needs to have a far more
drug smugglers. consistent approach to this issue.
Questions
1 The Australian Federal Police was established c closed down.
after: d expanded.
a the bombing of the Hilton Hotel in 1979. 4 The Australian Federal Police’s role in the Bali
b World War II. Nine case has been criticised for:
c the September 11 terrorist attacks in 2001. a prioritising cooperation with Indonesia
d the Bali Bombings in 2002. above human rights concerns.
2 The highest court in the Indonesian judicial b failing to work effectively with the
system is the: Indonesian National Police against
a High Court. transnational crime.
b District Court. c involving themselves in Indonesian politics.
c Supreme Court. d being too slow to act when tipped off about
d Administrative Court. the Bali Nine in Australia.
3 Since 2005, Kerobokan Prison has been: 5 The death penalty has not been used in
a riddled with corruption and dominated Australia since:
by gangs. a 1967. c 1990.
b reformed and focused more on b 1975. d 2005.
rehabilitation.
1 Outline the Bali Nine’s plan to smuggle heroin 5 Describe the role Australian politicians played
into Australia. in the attempt to save Andrew Chan and
2 Recall the surveillance methods the Myuran Sukumaran.
Indonesian National Police used to gather 6 Discuss how the existence of the death penalty
evidence on the Bali Nine before their arrest. in Indonesia poses an increased threat to
3 Describe the conditions in Kerobokan Prison. Australians.
4 Outline the structure and processes of the 7 Recall what the international covenants state
Indonesian judicial system. about the death penalty.
Evaluate the argument that the Australian Marking criteria for extended-response questions
Government needs to take a far more proactive role in can be found on the Cambridge GO website. Refer
working towards the abolition of the death penalty. to these criteria when planning and writing your
responses.
Issue 2
legal issues
Chapter 15
Alcohol and violence

Issue 2
legal issues
Chapter 16
The Port Arthur massacre
Chapter objectives
• describe the key features of Australia’s courts and parliaments
• identify the relevant legal terminology in investigating and discussing case and statute law
• evaluate the effectiveness of Australia’s legal system in achieving reform of gun laws
• investigate the relationship between society and the legal system
• recognise different perspectives on issues related to the reform of gun laws
• locate quality information from authoritative sources using the internet.

Relevant law
Firearms Act 1996 (NSW)
National Firearms Agreement (1996)
National Firearms Program Implementation Act 1996, 1997 & 1998 (Cth)
Weapons Prohibition Act 1998 (NSW)
National Firearm Trafficking Policy Agreement (2002)
National Handgun Control Agreement (2002)
United Nations Security Council, Resolution 2117 (2013)
Arms Trade Treaty (2014)
SIGNIFICANT CASES
R v Bryant [1996] TASSC

16.1 A
brief history of the In the United States, anti-gun coalitions were
Port Arthur massacre encouraged and increased their efforts towards
reform of gun laws. Meanwhile leaders in the gun
On Sunday 28 April 1996, a Tasmanian man called
lobby warned the US Government might try to do the
Martin Bryant ate a meal on the deck of the Broad
same as Australia.
Arrow Café located at the Port Arthur historical site.
When he was finished, he entered the café, took massacre
a rifle from his bag and started indiscriminately the intentional killing of a large number of people
shooting. He then moved to the gift shop and then
on to the car park, where he pulled out an automatic The effectiveness of gun law reform in Australia in
weapon, firing at the people there. Driving up the the wake of the Port Arthur massacre stands in stark
road, he continued shooting. By the time he was contrast to the lack of reforms thus far in the United
finished, he had killed 35 people. States. In his visit to the United States, Pope Francis
The horrific massacre at Port Arthur sent shock made a speech to the Joint Session of Congress, on
waves around the nation and set in motion a chain 24 September 2015, in which he identified a number
of events that eventually led to a complete reform of concerns about the United States and the world.
of Australia’s gun laws. This reform revealed a On the issue of guns, the Pope criticised them as
significant division in Australian society between ‘deadly weapons’ and said that we all had a duty to
those for and against gun control. Not everyone stop the arms trade. He asked the congress members
agreed with the reforms, or saw gun control as a sitting before him: ‘Why are deadly weapons being
solution to the incidence of violence. Other critics sold to those who plan to inflict untold suffering
even suggested that a conspiracy was in play and on individuals and society?’ The answer he said
that the massacre had been orchestrated as a was greed. It was for money, the Pope said, and
catalyst for law reform. The swift response of the this money was ‘drenched in blood, often innocent
Australian legal system to the problem of automatic blood’. The Pope in this speech echoed the hopes of
weapons engendered enormous international many in the United States who have been crying out
interest, winning both praise and condemnation. for gun reform legislation.
Figure 16.1 The Australian MP, Colonel Mike Kelly, signed the Arms Trade Treaty (2014) when it opened for signatures
at the United Nations on 3 June 2013. Australia used its seat on the UN Security Council (2013–2014) to champion
the creation of this treaty, which aims to regulate the multibillion-dollar arms industry. The UN General Assembly
overwhelmingly approved the treaty. While the treaty does not control the domestic use of weapons in any country, it
does require the countries that signed the treaty to establish national regulations to control the transfer of arms.

Chapter 16 The Port Arthur massacre
In the international context, the trade in small four people, wounding others. Bryant continued
arms used for illegal activity remains a current issue. shooting people on the grounds of the historic site,
Recently, on the international scene, some progress then got into his car and drove past the tollbooth
was made with the Arms Trade Treaty that entered and onto the main road. Before exiting, he had killed
into force in 2014. Australia played an active role in seven more people, including Nanette Mikac and
the adoption of the treaty while a temporary member her two young daughters, Madeline and Alannah,
of the UN Security Council-led negotiations on the aged three and six. Bryant chased Alannah behind a
first ever resolution on small arms (UNSC 2117). tree in order to kill her. Bryant then drove up the main
However, small arms and light weapons continue road to a service station located at a general store.
to proliferate around the globe and threaten the He used the BMW he was driving – having killed the
peace and security of many societies. Dealing with driver and passenger and stolen it – to block a Toyota
the threat of guns to human security is an ongoing Corolla from leaving the pump area. He forced the
concern and the law plays a central role in this male occupant into the boot of the BMW, shot the
campaign. In its legal responses to the Port Arthur female occupant of the Corolla, dragged her body out
Massacre, Australia has shown the world that it is of the car, got into the driver’s seat of the BMW and
possible to minimise the threat of guns to civilian took off down the road with the male hostage locked
populations, and Australia showed in its time on the in the boot. A police officer arrived soon after and
UN Security Council (2013–2014) that it was willing went in chase of Bryant a few minutes later. 16
to play a global role on this issue. Bryant returned to the Seascape guesthouse
where he had begun his murderous killing spree
The events earlier that morning. At the house, he took his
The facts of the Port Arthur massacre reveal the hostage inside and set fire to the stolen BMW. At
deliberate and intentional nature of Bryant’s crimes. around 2 pm police officers arrived, but were forced
On the morning of the massacre, Bryant left his home to take shelter for a few hours in a ditch while
in Hobart and drove to Port Arthur, approximately one Bryant fired on them with an automatic weapon.
hour’s drive to the east. Port Arthur is one of Australia’s At 9 pm, a Special Operations police team arrived
most significant historic sites, as it was the site of one from Hobart. An 18-hour standoff ensued because
of Australia’s most notorious convict colonies in the Bryant claimed he had hostages. The following day,
early 1800s. As was common, on the day in question, Bryant set fire to the house, taunting the police to
Port Arthur was overflowing with tourists. come in and get him. Eventually, Bryant
On his drive to Port Arthur that day, Martin ran from the house with his clothes alight
Bryant stopped off at a guesthouse called Seascape and was captured by police officers.
Cottage, where he entered and killed the owners, During the initial period of his police
David and Noelene Martin. Bryant then drove to questioning, Bryant admitted to hijacking the BMW
Port Arthur, arriving at about 1:10 pm. He parked car, but denied having shot anyone. He stated that
his car and entered the Broad Arrow Café, where he he had not visited Port Arthur that day. Bryant also
purchased a meal and ate it on the deck. After eating, claimed that the guns found by police were not his.
Bryant returned the tray and went back to his table During a bedside hearing in hospital, where he was
where he pulled an AR-15 semi-automatic rifle from being held because of his burns from the fire, Bryant
his bag. Entering the café, he began systematically was charged with just one murder. Police said
shooting people at close range. He moved into the additional charges would follow. On 22 May, Bryant
gift shop and did the same. Returning to his bag for appeared via a video link from Risdon Prison to the
additional ammunition, he reloaded and returned to Magistrates’ Court for a remand hearing.
shoot the people in the gift shop who had taken cover During the following weeks, the police
behind tables and furniture. In the first 90 seconds, investigated all the events of the day, which
20 people were killed and 12 people were injured. resulted in the final charges being laid against him:
Bryant continued into the car park behind the 35 counts of murder, 20 counts of attempted murder,
café. People could hear the commotion and had taken four counts of aggravated assault, eight counts of
cover behind the buses. He shot and killed another wounding, three counts of causing grievous bodily

harm, one count of arson and one count of unlawfully killing spree, focusing in large part on his childhood
setting fire to property. He was convicted on and his sanity. In 2006, Bryant’s lawyer, John Avery,
13 November 1996, and received multiple sentences was reported to be writing a book about his former
of life imprisonment without parole. client. Extracts were published in the Bulletin
The Port Arthur massacre attracted considerable magazine, along with transcripts of conversations
media attention and debate because of the magnitude between Bryant and Avery, school reports and
of the killings in a place that was popular with psychiatric assessments.
Australian and international tourists. There was The legal community and many in the media
interest also in Bryant himself. What kind of person condemned Avery’s behaviour and the magazine’s
would do this? Was he of sound mind? Those who publication of the material as being both professionally
knew Bryant were questioned by journalists eager questionable and inconsiderate of the feelings of
to paint a picture for the public of who Martin Bryant victims and their families.
was. A number of conflicting stories emerged. Distant In 2009, journalists Robert Wainwright and Paola
relatives provided an album full of photographs. Two Totaro published the book, Born or Bred? Martin
of Bryant’s ex-girlfriends provided some more. On Bryant – The Making of a Mass Murderer, which
30 April, the first photos of Bryant appeared on the front delved into his past.
pages of the nation’s press. The Australian newspaper One of the ideas about Bryant’s motives, put
enhanced a photograph of Bryant that exaggerated forward by the defence psychiatrist, Paul Mullen,
the whiteness of his eyes to give him an eerie, spaced- was that Bryant was inspired by a lone gunman’s
out look. Debate about Bryant’s early life, history of massacre of 16 children and one adult on 13 March
gun use, state of mind and motivations continue today, 1996 in the Scottish town of Dunblane. Other
as does curiosity about his life in prison. speculation has focused on Bryant’s below-normal
intellect and resulting social isolation and anger,
Motive desire for attention, and a long-term grudge against
Since the day of the Port Arthur massacre, there has his first victims, who had bought the Seascape
been speculation about Bryant’s motivation for the property that he had wanted to buy.
Figure 16.2 Linda White (left) and her fiancé, Mick Wanders (centre) – both survivors of the Port Arthur massacre –
leave the Supreme Court of Tasmania in Hobart on 20 November 1996, after the sentencing hearing of Martin Bryant.

Conspiracy claims it easier for terrorists to take over Australia if

From the beginning, conspiracy theories surrounded all of our guns have been confiscated. These
the Port Arthur massacre. These suggested that theories do not enjoy any credibility in legal or
the massacre was actually carried out by special scholarly circles.
operatives who framed Bryant. According to some
of the proponents of conspiracy theories, particularly Formative assessment:
those who are strong opponents of gun control, the Assessment for learning
purpose of the massacre was to provide a platform The activities in this chapter are designed to assist
for the federal government to bring about gun control you to build your understanding of the content
law reform. covered. You are encouraged to complete the
activities and seek feedback from your teacher on
conspiracy theory a regular basis to check your understanding. You
speculation that there is a cover-up of the information
are also encouraged to regularly review the ‘themes
surrounding a significant event by the government or other
authorities and challenges’ and the ‘learn to’ statements on
pages 15–16 of the syllabus. You can revisit these
A more recent conspiracy theory is that the types of activities a number of times to continue to
Port Arthur massacre was a plot: it would make build your knowledge and skills of the topic.
16
Review 16.1
1 Construct a timeline of events from the day of the Port Arthur massacre until Bryant’s arrest.
2 Discuss if you think people will ever know why Martin Bryant did what he did. Assess why a
murderer’s motives are a source of fascination and justify your response.
Forgetting Martin Bryant: What to remember when we talk about Port Arthur

By Robert Clarke
The Conversation
28 April 2016
Many Australians wish for nothing more than to forget Martin Bryant, the perpetrator of the Port
Arthur massacre. Others insist that remembering both Bryant and the massacre is necessary if a
proper reckoning is to be made with the events of 28 April 1996.
No matter where you stand, this is an important debate. How Bryant and, more importantly, the
dead and survivors of the massacre are remembered is vital if we’re to appreciate the impact of it.
The scale of the atrocity, the enigma of the perpetrator, the mystique of the setting, the dramatic
public consequences, and local protocols for referencing the event and the murderer have, in
different measures, traumatised and gripped many in Australia and beyond.
They’ve also served a series of myths about the massacre and the murderer. Common to many
renditions of the story is the idea that the national psyche and identity were violently altered by
Bryant’s vicious rampage. Indeed, the event’s power over the nation is such, it is often claimed, that
the story of that day demands constant retelling.

News (continued)
Looking at a monster
Consider the recent episode of Channel 7’s weekly current affairs program, Sunday Night. ‘Martin
Bryant: The interview’ (6 March 2016) opens with a dramatic montage of images and statements
emphasising Bryant’s demonic nature.
Acknowledging ‘Australia was scarred forever by the horrors at Port Arthur 20 years ago’, the
program promises ‘unseen’ video footage of Bryant’s police interviews that supposedly provide
insight into the murderer’s grip over the popular consciousness.
The health of the national psyche is again invoked to justify a planned film about the massacre. Of
his proposed venture, Bryant: The Port Arthur Massacre, producer Paul Moder is quoted as saying it
will be ‘balanced and respectful’ while nevertheless ‘hard hitting … very confronting and … horrific’.
Responding to the – understandable – lack of support from survivors of the massacre, Moder
apparently complains:
I am being warned off by those sympathetic to the desire by many to bury the event in
Australia’s collective memory.
Every retelling of a catastrophic event includes certain elements while excluding others. But
retelling the unfolding of the massacre with the focus strongly on Bryant and the ‘national psyche’
risks sensationalising the murderer as the epitome of evil. Rendering the story as a gothic drama
risks marginalising the voices of actual victims and survivors.
A different view
Other examples of retelling the Port Arthur massacre go some way to rectifying this. And, in doing
so, they remind us that there’s no single story here.
Earlier this month, the ABC’s Australian Story series presented an episode on Port Arthur. It
focused on stories of the suffering and resilience of people who were at the massacre, such as
Carolyn Loughton.
Loughton was visiting Port Arthur with her 15-year-old daughter Sarah when Bryant attacked
people in the Broad Arrow Café. Carolyn survived; Sarah was killed.
Bryant certainly features in the story. But the primary focus is stories of those who died and those
who survived, witnessing the shooting and its aftermath, as well as those who helped them. Here
the themes of solidarity and of community fashioned in response to the atrocity prevail.
In its retelling of the Port Arthur massacre, Australian Story downplays the significance of the event
in the national psyche while accentuating the theme of ‘compassionate citizenship’.
It returns constantly to the reactions of those who found themselves under fire, those who attended
to the dead and the wounded, and those who sought to change gun laws in the wake of the disaster.
Viewer attention is directed away from the menace and the mystery of Bryant. Instead, his victims
are presented as active and central. And they invite a compassionate response.
Understanding history
The theme of compassionate citizenship is evident in other representations of the massacre. In works
such as ‘Port Arthur’ and ‘Port Arthur triptych’, artist Rodney Pople brings together images of the
historic site’s convict and indigenous pasts, as well as acknowledging Martin Bryant and his actions.

News (continued)
Pople links the history of violence associated with Port Arthur to the European invasion of
Tasmania. His paintings create a confronting sense of empathetic unsettlement in the viewer.
In their deployment of images of Bryant, Pople’s re-visionings of the Port Arthur massacre invite
reflection on those other Australians, specifically Tasmanian Aboriginals, who’ve been subjected
repeatedly to acts of indiscriminate and brutal violence.
The retelling of the Port Arthur massacre in Pople’s work and Australian Story seek to reframe
what happened 20 years ago. But they are not without their limitations. Like other stories of what
happened at Port Arthur 20 years ago, they remain partial and incomplete.
Still, they try to refashion the memory of the massacre and invite audiences to shift their focus from
Bryant and idealistic notions of a national psyche or identity that prevail in other accounts.
They challenge us to renew our understanding of the impact of the event on the victims and
survivors. And they place the story of Port Arthur within a broader context of the history of violence
in Australia, and of our responses to it.
16
Review 16.2
Read the article, ‘Forgetting Martin Bryant: What to remember when we talk about Port Arthur’ (by
Robert Clarke, The Conversation, 28 April 2016), then answer the following questions.
1 Identify why Robert Clarke says it is important to debate how we remember the Port
Arthur massacre.
2 Outline the main ways of remembering Port Arthur put forward in the article.
3 Discuss if speculation about a murderer’s motivations serves any useful purpose.
4 Critically analyse the merit of focusing on the experiences of victims in recounting the Port
Arthur massacre.
16.2 Legal responses way, yet whose victims were selected randomly.
The judge remarked on the continuing effects of
Indictment and sentencing the killings on survivors, the families and friends
On 5 July 1996, 72 criminal charges were filed against of those whom he had killed; the eyewitnesses; and
Martin Bryant in the Supreme Court of Tasmania, the Port Arthur workers, ambulance officers and
in Hobart. Bryant did not enter a plea to any of police officers who had to cope with the injured
these charges. and dead.
The police obtained 551 statements from On 22 November 1996, Bryant received
witnesses in their investigations into the events of 35 sentences of life imprisonment without parole
that day in Port Arthur. In September 1996, Bryant’s for the murders, plus 21 years for each of the other
lawyer convinced him to plead guilty, and Bryant counts in the indictment. The ‘In Court’ box below
was convicted on 13 November 1996 of a long list shows the judge’s comments on passing sentence.
of crimes. The judge commented that he found it
indictment
difficult to imagine a more chilling catalogue of information presented for the prosecution of one or more
crimes that were carried out in a coldly premeditated criminal offences; a formal written charge

In Court
R v Martin Bryant [1996] TASSC

Justice Cox’s comments on handing down Martin Bryant’s sentence included:
In consequence of the tragic events at Port Arthur on 28 and 29 April of this year and of his plea
of guilty to the unprecedented list of crimes contained in the indictment before me, the prisoner
stands for sentence in respect of:
•• the murder of no less than 35 persons
•• of 20 attempts to murder others
•• of the infliction of grievous bodily harm on yet three more and
•• of the infliction of wounds upon a further eight persons.
In addition, he is to be sentenced for:

•• four counts of aggravated assault
•• one count of unlawfully setting fire to property, namely a motor vehicle which he seized at gun
point from its rightful occupants, all of whom he murdered
•• for the arson of a building known as ‘Seascape’, the owners of which he had likewise murdered
the previous day.
After having heard the unchallenged account of these terrible events narrated by the learned
Director of Public Prosecution and his Junior, an account painstakingly prepared by them from
the materials diligently assembled by the team of police and forensic investigators charged with
that task, it is unnecessary for me to repeat it in detail or to attempt more than a brief summary.
The prisoner, it is clear, a lengthy period of time before the day on which it was carried into effect,
formed the intention of causing the deaths of Mr and Mrs Martin, against whom he had long
harboured a grudge, and at the very least of causing mayhem among the large group of residents
and visitors he anticipated would be present at the Port Arthur Historic Site, by shooting at them.
Indeed he seems to have contemplated mayhem of such a drastic kind that it would in all probability
provoke a response which would result in his own death. In furtherance of his intention, he acquired
high-powered weapons and embarked with three of them, a very large supply of ammunition and
accessories such as a sports bag to conceal the weapons, a hunting knife, two sets of handcuffs
and rope. In addition, he carried large quantities of petrol in containers, fire starters and acquired a
cigarette lighter en route. As he was not a smoker, the inference is that he intended to arm himself
with the means of igniting the petrol and that this was intended to be used in unlawfully causing
damage to some property in the course of his expedition.
Arrived at the Martins’ home, he shot both of them dead and continued on to Port Arthur.
There, at the Broad Arrow Café, he consumed a meal on the balcony outside and then, re-entering
the café, placed the bag on an unoccupied table. He produced from the bag an AR15 rifle fitted
with a 30-shot magazine and commenced to fire at close range at patrons who were complete
strangers to him. In the first 15 seconds he discharged 17 rounds, thereby causing the deaths of
12 people, the infliction of grievous bodily harm to a thirteenth; wounds to five more; and injuries
to an additional four whom he attempted unsuccessfully to murder. Moving through the café to the
gift shop annexed to it, he continued to discharge the weapon at close quarters before leaving the
premises approximately one minute after firing the first shot. In that period of 90 seconds, 29 rounds
were fired, causing the deaths of 20 people and injuries, many of them severe, to another 12 who
fortunately escaped with their lives. In addition, the spectators who escaped physical injury were
subjected to emotional trauma of the most stressful kind. Although not the subject of any count in
the indictment, this form of injury was clearly a by-product of the prisoner’s wrongful conduct.

In the café he changed magazines and leaving it, he fired indiscriminately at various parts of the
historic site intending to hit and kill those who were within range. In the car park, where there were
a number of buses, he shot the driver of one in the back, killing him; and fired at groups of people
seeking shelter in them or in their vicinity. Here he killed another person and caused injuries to a
further three. He then exchanged the Armalite rifle for a semi-automatic .308 FN rifle or SLR, which
was in the boot of his car parked nearby, and fired across the water towards the ruins and back
towards the café. Still in the car park, the prisoner killed two further visitors and by firing at them
shots which, in some cases, connected, attempted to murder six others. From here he moved up the
road in his car and en route encountered Mrs Mikac and her two daughters, murdering all three in
the heartrending circumstances already described by the Director of Public Prosecutions.
At the toll booth, he murdered the four occupants of a BMW, pulling the two female passengers
seated in it from the car and shooting them at close range. He then commandeered the car,
transferring from his own car some of the items in it, including the AR15 rifle, a quantity of
ammunition, the two handcuffs and some petrol. Thereafter, he fired two shots at a car which had
been reversed by the driver on appreciating the situation. Near the toll booth, 11 spent cartridges
fired by the prisoner were later recovered.
16
A short distance from the toll booth, a white Corolla occupied by Mr Glen Pears and Miss Zoe Hall
was parked at the service station. The prisoner brought the vehicle he was driving to a halt on the
wrong side of the road and blocked the passage of the Corolla. He alighted with the SLR and tried to
extract Miss Hall from the passenger seat. When Mr Pears attempted to intervene, he was forced into
the boot of the prisoner’s stolen vehicle. Miss Hall was then murdered in a series of three rapid shots
from the hip and the prisoner moved on, returning to Seascape. On the way, and after his arrival,
he fired at a number of vehicles causing very grievous harm to the occupant of one of them and
endangering the lives of nine other people, including two police officers called to the scene.
[After he] arrived at Seascape, the prisoner forced Mr Pears, whom he was treating as a hostage,
to enter the house, placed handcuffs on his wrists and immobilised him by attaching a second
set of handcuffs to the first and some fixture in the premises. He then set fire to the stolen vehicle
and retreated to the house where, at some time before his apprehension, he murdered Mr Pears
by shooting him. Throughout the night he continued to discharge a number of weapons, his own
arsenal augmented by weapons belonging to the Martins, and kept at bay the police who were
surrounding the house, their response restricted by the belief that both the Martins and Mr Pears
could still be alive. Clearly the Martins were not alive at that stage, but the prisoner deceitfully
conveyed the impression that they were in telephone conversations with police negotiators. The
following morning he set fire to the house, destroying it and, while fleeing from it in an injured
condition due to burns, was apprehended.
Objectively, it is difficult to imagine a more chilling catalogue of crime. The prisoner, having
had a murderous plan in contemplation and active preparation for some time, deliberately killed
two persons against whom he held a grudge, and then embarked on a trail of devastation which
took the lives of a further 33 other human beings who were total strangers to him and which caused
serious injury, distress and grief to literally thousands more. The repercussions of these crimes
have been worldwide. His selection of victims was indiscriminate. He killed and injured men,
women and even children. He killed, or attempted to kill, local residents, visitors from other parts of
this state, from other parts of Australia and visitors from a number of overseas countries. He killed
individual family members, married couples and, in one case, all the members of one family save
the bereaved father left to mourn them. The learned Director of Public Prosecutions has mentioned

the impact these crimes have had on individuals immediately affected by the loss of a family
member or members, or who suffered physical injury in the course of this shooting rampage. He
has also mentioned the effect it had on eyewitnesses who experienced the nightmare as it ran its
course, or who came upon the scene or otherwise had to cope with the injured and dead.
This is not the place to acknowledge the contributions made by groups or individuals in dealing
with the aftermath of these crimes. No doubt that will be acknowledged elsewhere. Suffice to say
that there were many, many people who were severely affected by their distressing experiences and
who will continue to be so affected for many years to come. It is proper to record also the anguish
no doubt caused to the prisoner’s mother and immediate family. Then there is the effect on the
community at large: the shock and disbelief that criminal conduct on this scale could occur in
Australia, let alone Tasmania; the feelings of outrage, anger, grief and frustration at not being able
to do more to redress the wrong suffered by so many innocent victims. Though no way comparable
to the human suffering endured by those directly affected, very considerable financial loss has
also been occasioned to individuals and to the community at large. In the sentencing process, the
impact upon the victims of crime cannot be ignored. In this case, more than any other I have ever
experienced, they demand recognition.
In determining an appropriate punishment, the court is required to have regard to a great
many factors:
•• the gravity of the offence or offences
•• the moral culpability of the offender so far as that lies within the limited province of human
assessment
•• the effect upon the victims
•• the need to protect society from similar conduct by others, or repetition of it by the offender himself
•• his background and antecedents
•• any contrition or remorse on his part
•• a host of other considerations.
In the forefront of this case is the prisoner’s mental condition. The law recognises that if a person is
afflicted by a mental disease to such an extent that he is unable to understand the physical character
of what he is doing in, for example, firing a weapon at another person, or that he is rendered
incapable of knowing that such an act is one which he ought not to do, or if he acts under an impulse
which, by reason of mental disease, he is in substance deprived of any power to resist, then he should
not be held criminally responsible for an act which, in a sane person, would clearly amount to a crime.
Society is entitled to be protected from such a person, but he may not be held criminally responsible.
The great Australian jurist, Sir Owen Dixon, once observed that it was perfectly useless for the
law to attempt, by threatening punishment, to deter people from committing crimes if their mental
condition is such that they cannot be in the least influenced by the possibility or probability of
subsequent punishment; if they cannot understand what they are doing or cannot understand the
ground upon which the law proceeds. There is no utility, he said, in punishing people if they are
beyond the control of the law for reasons of mental health. Nevertheless, a great number of people
who come into a criminal court are abnormal. They would not be there if they were the normal type
of average, everyday, person. Many of them, he said, are very peculiar in their dispositions, but are
mentally quite able to appreciate what they are doing and quite able to appreciate the threatened
punishment of the law and the wrongness of their acts and they are held in check by the prospect of
punishment. It is clear on the materials before me that the prisoner falls into the latter category.

He is not suffering from a mental illness – certainly not one which rendered him incapable of
knowing what he was doing or of knowing that what he was doing was wrong, or one by virtue of
which he was deprived of any power to resist an impulse to do the things he did. He knew what he
was doing and that it was something he ought not to do.
Nevertheless, he clearly has a mental condition which rendered him less capable than those of
normal healthy mind of appreciating the enormity of his conduct or its effect upon others.
I accept the psychiatric evidence that he is of limited intellectual ability, his measured IQ being in
the borderline intellectually disabled range, but with a capacity to function reasonably well in the
community. From an early age, he has displayed severe developmental problems, being grossly
disturbed from early childhood. Whatever its precise diagnosis, as to which the psychiatrists differ,
he suffers from a significant personality disorder. Professor Mullen said of him that his limited
intellectual capacities and importantly his limited capacity for empathy or imagining the feelings and
responses of others left a terrible gap in his sensibilities which enabled him not only to contemplate
mass destruction, but to carry it through. Without minimising the gravity of his conduct or denying
his responsibility for it, it would appear to me that the level of his culpability is accordingly reduced
by reason of his intellectual impairment and the disorder with which he has been afflicted for so
16
long, notwithstanding his parents’ earnest endeavours to correct it, which the medical records
acknowledge. That the prisoner, through these handicaps, in combination with a number of external
factors beyond his control such as the loss of stabilising influences, has developed into a pathetic
social misfit calls for understanding and pity, even though his actions demand condemnation.
The prisoner has shown no remorse for his actions. Though he has ultimately pleaded guilty,
it has clearly been done in recognition of the undoubted strength of the evidence against him and
amounts to little more than a case of bowing to the inevitable. That his change of plea has saved
considerable distress, inconvenience and cost to those who would have had to be called as witnesses
and to the victims and community at large by the prolongation of the proceedings is a factor which
should be considered in his favour when weighing all the relevant considerations, but in the overall
scheme of things, it is, in my view, overwhelmingly outweighed by the factors militating against him.
Having regard to the nature and extent of his conduct, I cannot regard it as anything other than
falling within the worst category of cases for which the maximum penalty is prescribed. Taking
account of the medical evidence and of his lack of insight into the magnitude and effect of his
conduct apparent in all his appearances before this court, I have no reason to hope [otherwise]
and every reason to fear that he will remain indefinitely as disturbed and insensitive as he was
when planning and executing the crimes of which he now stands convicted. The protection of the
community, in my opinion, requires that he serve fully the sentences which I will shortly impose. That
consideration, as well as my belief that service of the whole of such sentence is the minimum period
of imprisonment which justice requires that he must serve having regard to all the circumstances of
his offences, leads to the conclusion that he should be declared ineligible for parole.
MARTIN BRYANT – on each of the 35 counts of murder in this indictment you are sentenced to
imprisonment for the term of your natural life. I order that you not be eligible for parole in respect of
any such sentence.
On each of the remaining counts in the indictment, you are sentenced to imprisonment for 21 years to
be served concurrently with each other and with the concurrent sentences of life imprisonment already
imposed. In respect of each sentence of 21 years, I order that you likewise not be eligible for parole.
Source: Reproduced with permission from the Chief Justice of the Supreme Court of Tasmania.

Figure 16.3 An aerial view of the Broad Arrow Café at the Port Arthur historic site in Tasmania, where Martin Bryant
shot and killed 35 people.
Review 16.3
Read Justice Cox’s sentencing comments in R v Bryant [1996] TASSC and write a report that
addresses the following questions.
1 Identify the comments made by the judge about Martin Bryant’s intellectual ability and
mental health.
2 Evaluate whether the judge’s observations about Bryant’s upbringing, his social isolation, his
intellectual ability and his mental health had any effect on the sentence.
3 Identify the comment made by the judge about remorse on the part of Bryant.
4 Identify the judge’s comments about Bryant having pleaded guilty. Assess if this affected
Bryant’s sentence.
5 Summarise the final sentence.
Research 16.1
View on YouTube the ABC’s broadcast, ‘Survivors, emergency responders recount their memories
of the Port Arthur massacre’ (ABC News, 27 April 2016).
1 Identify some of the different groups of people impacted by the Port Arthur massacre.
2 Outline some of the ways these people have been impacted by the Port Arthur massacre.
3 Assess if Justice Cox reflected the impacts on survivors and victims in his sentencing
comments; justify your response.
4 Outline some of survivors’ views on Martin Bryant’s capture.

Imprisonment that Bryant did not meet the criteria for admission to
After his arrest, Bryant was held in hospital under the Wilfred Lopes Centre.
police guard while he was treated for his burns. Their biggest objection, however, was the idea
While on remand for seven months, until the that Bryant would be able to move around hospital
conclusion of his trial, he was kept in near-solitary freely: they believed that he should be confined to a
confinement in a specially built cell at the medium prison cell for the rest of his life.
to maximum-security Risdon Prison. In 1997, Martin In a leaked letter from Tasmania’s Director
Bryant began his formal prison sentence at the old of Prisons, Graeme Barber, to Dr Crawshaw, the
Risdon Prison hospital and became one of its most reasons for transferring Bryant to the Wilfred Lopes
notorious inmates. He spent most of his time up to Centre were stated as concerns for Bryant’s health,
2006 alone in his cell. Though the prison authorities wellbeing and safety, and the need to protect other
did not consider Bryant mentally ill, they held the inmates. Those opposed to the move questioned
view that the prison hospital was the safest place for the validity of these concerns, given the recent
him because he was the most hated prisoner among $90 million redevelopment of Risdon Prison. Bryant
the inmates. Apparently, he had been the target of has been transferred back to maximum security
a number of assaults and many of the inmates had Risdon Prison on at least one occasion, in response
made death threats against him. to the public outcry about his being housed in the
Wilfred Lopes Centre. From May 2009, he was held at 16
on remand the Wilfred Lopes Centre, but in isolation.
(of an accused) in custody pending and/or during his or
On 25 February 2011, Martin Bryant’s mother was
her trial
interviewed on the television program 60 Minutes, in
which she discussed her son’s condition in prison.
In 2006, the Tasmanian Government moved Bryant
into the newly constructed Wilfred Lopes Centre,
Figure 16.4 Martin Bryant in Risdon Prison in Tasmania
a mental health facility a few hundred metres from in September 2015.
the prison. There are no guards inside the 35-bed
unit, only nurses, doctors and support staff, and
most inmates are not confined to cells but are
free to wander around the complex. The centre
was substantially a hospital with a therapeutic
environment.
Some relatives and friends of Port Arthur victims
were outraged that Bryant would be serving his
sentence in such a facility. They objected because
they felt they should have been told of the move
prior to its occurrence. Further, they believed that
it was inappropriate for someone who had not
been declared insane at the time of conviction to
be hospitalised. The previous year, the state’s chief
forensic psychiatrist, Dr John Crawshaw, had stated
Review 16.4
1 Identify the arguments for and against Bryant serving part of his sentence in a mental health
facility rather than in a prison. Discuss in small groups.
2 Recall the issues raised by the 2015 News Corp report on Martin Bryant in prison at 48 years
of age.
3 If a convicted murderer is found to be sane, describe the aims of the criminal sentence.

In the interview, she also made the controversial claim As a result, the Victorian Government introduced
that she now thought that her son did not commit a shooter’s licence, which, while weak by today’s
the crime, despite having believed he had done so standards, was nevertheless the first serious attempt
at the time. The video and full transcript of the 2011 to place some control on guns.
interview can be found on the 60 Minutes website. Then, in 1987, Australia experienced six gun-
In September 2015, a News Corp publication related massacres over the course of the year that
reported that 48-year-old Martin Bryant was in a resulted in 32 deaths. Each of these incidents
very depressed state and was a danger to his guards. was premeditated and were committed by people
Bryant, it was reported, weighed about 160 kg and who legally owned guns. The best known of these
was nicknamed ‘Porky Pig’ by fellow inmates. He was occurred in Melbourne: the Hoddle Street massacre
continually drugged and practically a ‘vegetable’, and the Queen Street massacre. The Victorian
spending most of his time in his cell. He was held Government acted swiftly to introduce tougher
in contempt by his fellow prisoners and had tried to gun laws. The Sporting Shooters Association
commit suicide on a number of occasions. of Australia (SSAA), an organisation formed to
promote sports such as target shooting and hunting
Gun law reform in Australia and which represents the interests of gun owners,
opposed this action. The SSAA organised a protest
Before 1996 march by 27 000 of its members through the streets
By the 1980s there were approximately four million of Melbourne. However, public sentiment against
privately owned guns in Australia and about 700 gun weak gun laws meant that the Victorian Government
deaths each year. These guns were owned primarily persevered with its reforms.
for hunting and by farmers who used them to kill pests These state reforms were complemented at
such as rabbits and feral animals. The majority of the federal level by the Hawke government’s
gun deaths occurred due to misuse of rifle-type guns establishment of the National Committee on
rather than handguns. The gun laws were fairly weak Violence, which produced a report in 1990
and varied greatly among the states and territories. containing 30 recommendations. Among these
The gun debate in Australia started in Victoria recommendations was registration of high-powered
after two separate incidents in which 14-year-old rifles. The reforms that followed represented a
girls were accidentally killed by sporting shooters. significant step towards gun control in Australia.
Figure 16.5 A police officer peers through the shattered window of a vehicle abandoned by Martin Bryant at the
tollgates to the Port Arthur historic site, after the Port Arthur massacre on 29 April 1996.

In 1991, a gunman shot six people in a shopping mall On 10 May 1996, a special meeting of the Australasian
at Strathfield, New South Wales, with an ex-military Police Ministers Council agreed to some resolutions
semi-automatic rifle that he had easily obtained. that evolved into the National Firearms Agreement
Widespread outrage and debate followed. In 1992, (1996) in which all the states and territories agreed to a
the NSW Government introduced tougher gun laws. ‘uniform system of firearms licensing and registration’.
Many pro-gun groups bitterly opposed these laws, The state governments and federal government signed
particularly since before the Strathfield massacre, the the National Firearms Agreement (1996). Some of the key
NSW Liberal government had been ready to introduce parts of this document stated that:
softer laws. The tougher gun laws led to the formation • gun ownership is a privilege and not a right
of the NSW Shooters’ Party. Since then, the party, now • semi-automatic weapons must be strictly
known as the Shooters, Fishers and Farmers Party, has controlled
held a seat in the NSW upper house. Also in reaction • all guns must be registered
to the tougher laws, the SSAA began looking to the • guns must be stored securely
National Rifle Association (NRA) in the United States • there must be a 28-day cooling-off period when
for ideas on how to counter the tougher legal regime buying guns.
for guns that was taking root in Australia. The NRA is a
powerful lobby group with the goal of promoting firearm The National Firearms Program Implementation Acts
ownership rights, relying on a broad interpretation of of 1996, 1997 and 1998 (Cth) followed this up. 16
the Second Amendment of the US Constitution, which Such proposals seemed sensible to the
gives people the right to keep and bear arms. average Australian; however, some National Party
Overall, the effect of the gun massacres that parliamentarians and pro-gun lobby groups, such
occurred in Australia between 1987 and 1991 was the as the SSAA, were horrified and did everything they
development of public concern about guns, which could to stop the proposed new laws. It was in this
coincided with leaders who were willing to enact the context that conspiracy theories about the Port Arthur
necessary legal reforms to put the nation on the path massacre sprouted. Some gun enthusiasts began to
of a sensible gun control regime. argue that the Port Arthur massacre was a government
conspiracy and that Martin Bryant was set up, all with
Tougher gun laws after the the aim of using it as an excuse to take guns away from
Port Arthur massacre all the law-abiding gun owners in the country.
By the 1990s, Tasmania was the odd state out in
terms of gun law reform. This made it quite easy for The government buy-back scheme
Martin Bryant to purchase the guns that he used to As part of the reform of gun laws and culture in
kill 35 people. In response to the public outcry about Australia, the Howard government in the aftermath
gun control after the massacre, former of the Port Arthur massacre introduced a buy-back
Prime Minister, John Howard, initiated scheme and amnesty. Money was given to people who
a discussion on tougher gun law willingly handed over guns that appeared on a list of
reforms. The Deputy Prime Minister, prohibited weapons – in particular, semi-automatic
Tim Fisher, backed him. Vedio rifles and shotguns. Approximately one million guns
were collected under the scheme.
Review 16.5
1 Construct a list of the reforms to gun law that occurred in Australia from 1980 to 1997.
2 Investigate the massacres (involving guns) that occurred in Australia in 1987 and how the
government responded to these.
3 Outline the reforms to gun law that occurred in Australia from 1997 to 2007.
4 Evaluate the effectiveness of the government’s response to public concern about gun use both
before and after 1996.

16.3 Non-legal responses Publicity

On 10 March 2012, Martin Bryant appeared in the
Alannah and Madeline Foundation headlines again (‘Bryant painting prize outrage’, The
The deaths of 35 people at the hands of Martin Bryant Mercury) when a controversial painting of Bryant at
shocked Australians. Of the stories that emerged the site of the killings was awarded a prize. This
from that day, the murder of Nanette Mikac and was a challenge to the attitude of many people in
her two young daughters, Alannah and Madeline, Tasmania, who felt that the best way of dealing with
aged six and three respectively, were particularly the events on that day at Port Arthur in 1996 was to
devastating. Australians were reminded of the give the killer no publicity at all, particularly since
fragile nature of human life and the destructive this is what Bryant seems to have craved. Since
potential of guns. 1996, many Tasmanians, particularly those affected
Walter Mikac lost his wife and daughters. These in some personal way by the massacre, have refused
events had a profound effect on another Australian to even utter Bryant’s name. Nowhere on the site of
father of two young girls, Phil West, who, along with Port Arthur is there any mention of his name.
a small group of volunteers, established the Alannah
and Madeline Foundation. The Foundation’s goal
is to keep children safe from violence. It does 16.4 Effectiveness of responses
not receive government funding, but relies on
fundraising events, private grants and individual Gun deaths
donations to continue its work. The Foundation From 1998, Australia experienced a marked decrease
runs programs to assist with the recovery of children in gun deaths when compared with the 1970s and
who have witnessed or experienced violence, and to 1980s. Handguns, however, appeared as a new
prevent violence and bullying in schools. It also acts menace in 2002. In a shooting that occurred at
as a children’s advocate before federal, state and Monash University in Victoria that year, a student,
local governments. HRH Crown Princess Mary of who was a licensed pistol shooter, fired handguns
Denmark is the International Patron of the Alannah in an econometrics class, killing two students and
and Madeline Foundation. injuring four students and a lecturer.
Figure 16.6 A sign erected at Port Arthur requesting visitors not to discuss the Port Arthur massacre. This photo was
taken on 4 April 1997.

Research 16.2
It has been approximately a quarter of a century since the Port Arthur massacre. There have been
many studies on the impact of the 1996 gun law reforms and suggestions that these reforms are
under threat.
Search the internet for the following two articles from Australian newspapers and then answer
the questions below:
• ‘Australia 20 years after gun reform: No mass shootings, declining firearm deaths’
(by Dan Gaffney, University of Sydney News, 23 June 2016)
• ‘Australia slipping backwards on National Firearms Agreement’ (by Dan Gaffney, University of
Sydney News, 5 October 2017).
1 Gaffney provides evidence of the success of gun law reform in Australia since 1996. Outline
this evidence.
2 Discuss why the National Firearms Agreement (1996) is under threat, according to Dan Gaffney.
3 Search for recent articles about the National Firearms Agreement (1996) and assess the level of
the threat to our gun laws today.
16
After the Monash shootings, the Australian Crime The author, Lenore Taylor, argued that the gun
Commission (now known as the Australian Criminal lobby has been steadily winning concessions since
Intelligence Commission) was formed. A statutory Port Arthur, and pointed out that though one million
body develops strategies for dealing with serious guns were handed in after 1996, the national gun
and organised crime. One of the first things on its inventory has crept back to 1996 level due to imports.
agenda was illegal trafficking in handguns. It had Taylor concluded with this ominous warning, ‘These
become apparent that there was an increase in things have happened while we rested on our
illegal handgun use. laurels, thinking the Howard government’s gutsy
While handguns were emerging as the new stand would continue to keep us safe, while the
threat in crime, the total number of deaths per year pesky detail of the [National Firearms] Agreement was
from suicide, unintentional killings and homicide
dropped dramatically. There were 614 firearms Figure 16.7 A security guard holds up an Armalite
deaths in 1990 while in 2016 there were 274. rifle that is similar to the one used in the Port Arthur
massacre. Behind him are some of the guns that had
suicide been handed in under the gun buyback scheme. After
the intentional taking of one’s own life the Port Arthur massacre, Australia banned all automatic
and semi-automatic rifles. In Victoria, during the first
homicide
the act of killing another human being
decade since the new laws were introduced, 20 000 guns
were handed in and their owners were reimbursed by
$12 million.
The buy-back scheme

The long-term effectiveness of this scheme has
been closely monitored. While the post-1996 laws
and the gun buy-back scheme have been widely
hailed as a success, there were concerns emerging
from 2015 that the gun lobby in Australia was
exerting considerable pressure on the government
to weaken the gun laws by reviews to the National
Firearms Agreement (1996). In 2015, an article, ‘After
20 years, Australia’s gun control debate is igniting
once again’, appeared in The Guardian newspaper.

discussed in obscure working groups and relegated have not been successful in countering the strong
to the shadows. But after 20 years, Australia’s gun pro-gun culture supported by the extremely effective
control debate is igniting again.’ Search for the full lobbying of the NRA. Gun massacres remain a feature
article on The Guardian website. of life in the United States, and the sale of firearms
In 2017, there was a three-month national firearms continues to grow every year. Websites set up to track
amnesty, during which time 51 000 unregistered gun crime and mass shootings in the United States
guns were handed in. Prompted by events such reveal startling statistics on the extent and the cost
as the Lindt Café siege in 2014, this was the first of gun crime. In 2018, there were 323 mass shootings
national amnesty since 1996, although there had recorded in the United States, which resulted in
previously been some state-based amnesties. New 1661 people being shot and 387 people dying. On
South Wales had amnesties in 2001, 2003 and 2009, 15 March 2019, tragedy struck in New Zealand. A
with 67 000 handguns surrendered. lone gunman killed 51 people in attacks on two
Mosques in Christchurch. This was one of the worst
Comparison: Firearms in the mass shootings in recent history. The Christchurch
United States and New Zealand attack had two connections to Australia. First, it was
While Australia has directly addressed the problem an Australian terrorist who committed the act, and
of gun deaths, other countries, such as the United second, the New Zealand Government followed the
States, have not been as effective in meeting this Australian example from 1996 and brought in tough
challenge. Political leaders in the United States gun laws and a gun buy-back scheme.
Figure 16.8 On 24 March 2018, students from the Marjory Stoneman Douglas High School in Florida, USA, led a nation-
wide protest demanding sensible gun-control laws. There had been a mass shooting at their school on 14 February
2018. The protest followed a nation-wide student walkout earlier in the month. This was followed on 20 April 2018 with a
protest to commemorate the nineteenth anniversary of the mass shooting at Columbine High School in Colorado.

Research 16.3
View online the television program, ‘How Australia stopped mass shootings after the Port Arthur
massacre in 1996’ (Democracy Now, 19 March 2019). After watching the program, answer the
following questions:
1 Identify who Rebecca Peters is and where Democracy Now is based.
2 Identify the recent event that prompted this interview.
3 Discuss why Americans are interested in Port Arthur. Construct a list of the actions that the
Australian Government took after the Port Arthur massacre, according to Rebecca Peters.
4 Assess if Rebecca Peters makes a good case for the success of gun reform laws in Australia.
Research 16.4
1 View the 2002 documentary, Bowling for Columbine, and outline the main points it makes about
guns in the United States.
2 Investigate the Second Amendment to the US Constitution. Discuss why gun law reform might 16
be difficult to achieve in the United States in light of this clause.
3 View the website of the US National Rifle Association (NRA). See what information you can
find about how the NRA can continue to justify opposing gun law reform even in the face of
massacres like the one at Columbine High School.
4 Analyse the responses of the Trump administration to gun violence.
5 Discuss why the United States has been unable to tighten its gun-control laws.
6 Investigate whether there have been any recent significant changes on gun law reform in the
United States.
Figure 16.9 In March 2019, Pauline Hanson held a press conference alongside fellow senior One Nation officials, James
Ashby and Steve Dickson. This press conference was in response to the screening of an undercover investigation
by news organisation Al Jazeera, which included hidden camera footage of Hanson appearing to suggest the 1996
Port Arthur massacre was a government conspiracy. Other footage from Al Jazeera’s investigation showed Ashby
and Dickson soliciting financial support in the United States from the National Rifle Association in a bid to seize the
balance of power in parliament and weaken Australia’s gun laws.

Chapter summary
• The Port Arthur massacre on 28 April 1996 was why Martin Bryant would indiscriminately kill
the worst gun massacre in Australian history. 35 people.
• The Port Arthur massacre set in motion • On 22 November 1996, Bryant was sentenced
a chain of events that led to gun reform in to 35 life sentences without the possibility
Australia at both state and federal levels. of parole.
• The Australian Government – in comparison • Before 1996, gun laws varied greatly among
to the governments of other countries, Australia’s states and territories.
especially the United States – acted quickly • After the Port Arthur massacre, state and
and decisively to reform Australia’s gun laws. federal governments signed the National
• The Sporting Shooters Association of Firearms Agreement (1996).
Australia opposed these reforms. • From 1998, Australia has experienced a
• Media coverage of the Port Arthur massacre decrease in gun deaths.
was concerned with trying to understand • Since the 1990s, the United States has failed to
deal with the issue of gun violence.
Questions
1 The high-powered semi-automatic weapons 4 The toughening of gun laws in Australia since
that Martin Bryant used on 28 April 1996 were: 1996 has led to:
a imported from the United States. a no change in the number of deaths from
b bought legally in Tasmania. firearms each year.
c acquired illegally. b a doubling of the number of deaths from
d illegal under existing Commonwealth firearms each year.
legislation. c a decrease of the number of deaths from
2 Martin Bryant’s motive for his crime: firearms each year.
a was that he had been bullied and abused as d the elimination of all deaths from acts of
a child. homicide using a gun.
b was that he had a hatred of foreign tourists. 5 Achieving reforms of the gun laws in the
c was that he was insane and did not really United States is extremely difficult because:
know what he was doing. a many politicians are against making
d is not known for sure. tougher laws.
3 The most probable reason for the growth of b the National Rifle Association has
conspiracy theories about the Port Arthur enormous cultural power and political
massacre is that: clout.
a Australian political leaders have refused to c arms manufacturers successfully lobby
speak publicly about the massacre. politicians against tougher laws.
b Martin Bryant was denied natural justice. d all of the above.
c pro-gun groups in Australia and overseas
oppose attempts by governments in
Australia to toughen the laws on guns.
d Martin Bryant was not capable of using
a gun.

1 In your own words, summarise the events of 5 Outline some of the events that prompted gun
28 April 1996. law reform in Australia before 1996.
2 Outline how Martin Bryant was brought 6 Outline the legal responses to gun-related
to justice. deaths in Australia before 1996.
3 Identify why Martin Bryant has been the 7 Describe the Tasmanian Government’s
subject of controversy since his imprisonment. attitude to gun law reform before 1996.
4 Identify why there are conspiracy theories
about the Port Arthur massacre.
Evaluate the effectiveness of the Australian legal Marking criteria for extended-response questions
system in dealing with the problem of gun-related can be found on the Cambridge GO website. Refer
deaths. to these criteria when planning and writing your
response.
16

Issue 3
Individuals or groups
in conflict with
the state
Chapter 17
Julian Assange
Chapter objectives
• explore legal concepts and legal terminology in relation to Julian Assange and the law
• investigate the legal system’s ability to address issues relating to Assange
• explore the differences in the laws relating to Assange
• investigate the role of the law in addressing and responding to change in relation to freedom of speech
• describe the legal and non-legal responses to the Assange case
• evaluate the effectiveness of legal and non-legal responses in achieving justice for Assange.

Relevant law
Espionage Act 1917 (US)
The Universal Declaration of Human Rights (1948)
Vienna Convention on Diplomatic Relations (1961)
Computer Fraud and Abuse Act 1984 (US)
Diplomatic and Consular Premises Act 1987 (UK)
Extradition Act 2003 (UK)
Uniform Code of Military Justice (US)
SIGNIFICANT CASES
The New York Times Co v United States (1971) (403 US 713)
Julian Assange v Swedish Prosecution Authority (2011)
United States v Bradley Manning (2013) (court martial)

17.1 A
brief history of the or individuals to publish such information and
Julian Assange case individuals’ right to know. Assange has been
painted by some as a man with a brilliant mind and
Julian Paul Assange (pronounced ah-sonje) is an
by others as an outstanding journalist. Indeed, he
Australian whistleblower widely known as the
won the 2010 Martha Gelhorn prize for journalism.
founder, editor-in-chief and director of WikiLeaks,
However, others label him a traitor, a vandal and
a website established in 2006 to ‘whistleblow’ on a
an irresponsible journalist because his actions
range of corporate and government activities.
compromise the ability of national governments to
whistleblower keep some information secret in order to ensure the
a person who raises a concern about wrongdoing occurring security of their citizens.
in an organisation, company or government department
WikiLeaks freedom of speech

an international organisation (originating in Australia) where citizens of a country are not restricted or controlled by
committed to anonymously publishing documents that are government censorship regarding what they say (except in
unavailable to the public terms of vilification, incitement and defamation)
Since 2010, Assange has been involved in a highly Assange has been in conflict with at least four
publicised and politicised legal case of international countries: they ranked his status as anywhere from
significance, involving Sweden, the United States, the ‘most dangerous person in the world’ to a ‘bail
United Kingdom and Australia. It relates to a series jumper’ who refused to face accusations of sexual
of releases of highly sensitive information about the assault. His health continues to deteriorate after
behaviour of the US military in Iraq. The information seven years living inside the Ecuadorian embassy
consists mostly of communications between staff (2012–2019).
and departments that are classified as ‘secret’.
His situation is interesting from a legal perspective Hacking
because it is not clear that he has broken any law. Julian Assange has highly sophisticated knowledge
He is an Australian citizen, but he remained inside and skills in computer technology, software design
the Ecuadorian Embassy in the United Kingdom, and encryption. However, he has a history – dating
in order to resist a Swedish extradition request, back to the 1990s – of computer hacking of company
which related to sexual assault charges. Ecuador databases and government departments, seeking
granted him asylum because Assange believed the out information that would not legally be available
US Government would seek his extradition from to him. His activities during this time have been
Sweden. The Swedish arrest warrant was rescinded described as ‘kind hacking’, in that his intention was
in 2017, but Assange remained in the embassy. In not to destroy databases or sabotage companies, but
late 2018, it was revealed that US prosecutors had to find information that related to his personal affairs
a sealed indictment (formal accusation by a grand and family.
jury) against him. As at May 2020, Assange awaits the In 1995, Assange was arrested and charged for
serving of these orders in Belmarsh prison. hacking into the computer systems of Nortel, a now
defunct Canadian telecommunications company.
extradition
the handing over of a person accused of a crime by the He pleaded guilty to 25 charges and was fined $2100.
authorities of the country where he or she has taken refuge Assange could have gone to jail for up to 10 years, but
to the authorities of the country where the crime was
committed
the judge took into account his disrupted childhood.
Later on, Assange created a group called ‘Parent
Assange’s situation raises a number of important Inquiry into Child Protection’; setting up a type of
social and political issues relating to freedom of database where protected legal records related to
speech, freedom of the press and information,
child custody issues in Australia could be accessed.
and the fine line between the government’s wish The group enabled parents involved in child custody
to keep some political and strategic information disputes to get information from the Children’s Court
confidential versus the right of news services and allowed them to raise issues of child protection

Chapter 17 Julian Assange
Release of US military documents

In 2010, WikiLeaks released a number of US military
documents. A US army soldier stationed in
Iraq, Specialist Manning, accessed databases
and downloaded secret information about
US Government operations in Iraq and Afghanistan.
It is alleged that over 250 000 documents or cables
were downloaded with intent to leak them to
WikiLeaks.
One of the most crucial leaks related to a video
of a horrific slaying of Iraqi citizens by US soldiers,
now known as ‘Collateral Murder’. Viewed from
the gunsights of a military helicopter, it includes
disturbing footage of an apparent ambush of civilians
Figure 17.1 The WikiLeaks logo. who do not appear to pose a threat to anyone. The
with government agencies. Court records also show clip can now be accessed on the internet, but it was
that in 1993 Assange provided technical advice to the a highly secret piece of military information not
Victoria Police Child Exploitation Unit and helped in meant for publication.
prosecutions. Assange has often put his computer Later in 2010, WikiLeaks launched another
technology skills to good use. embarrassing set of documents, entitled ‘Afghan
War Diary’, covering the period between 17
WikiLeaks January 2004 and December 2009. Most of the 75 000
Julian Assange set up the website/news service documents are classified as secret. The documents
WikiLeaks in 2006. He believes in publishing primary reveal how coalition forces have killed hundreds of
sources of information because he believes in the civilians in unreported incidents and were published
public’s right to know. by three major news publications including The
Wikileaks.org originally began as a ‘wiki’; that is, New York Times.
a website that allows multiple users to post, edit, and
collateral
delete content. Wikipedia is probably the most well- (damage) in a military context, damage to or destruction
known example of a ‘wiki’. The ‘Leaks’ in WikiLeaks of things other than the intended target such as civilian
property and civilians
refers to information being ‘leaked’ (secretly given
out) with the identity of the leaker remaining
There are SHIELD laws (Securing Human
anonymous. It is a long-held tradition for journalists,
Intelligence and Enforcing Lawful Dissemination)
news services and individuals to ‘not disclose their
in many Western nations that are designed to
sources’ so that they cannot be punished for passing
protect journalists’ sources from prosecution and
on information that may be considered confidential.
incarceration: journalists are not required to reveal
Many of us are placed in situations in which we
their sources. In New South Wales, this law is found
have information about others that may be important.
in the Evidence Amendment (Journalist Privilege) Act
You may know something about a neighbour,
2011 (NSW). Laws and principles are part of how
school friend or teacher. Even when you know the
countries protect freedom of speech and freedom
information is true, it is still difficult to know whether
of the press, both of which are fundamental to
to share the information and in what circumstances.
Western democracies. Without freedom from fear
Do we play ‘whistleblower’ or not? The definition
of persecution for publishing potentially damaging
of whistleblowing revolves around
information, journalists and news services may not
wrong or wrongdoing, but it is not
be able to present a balanced view of the news and
always easy to know whether or not
of politics. The weaknesses or faults of a government
something is wrong or whether or not
Video and of an opposition, as well as of business and other
the information should be shared.
groups, can be exposed by news services – this helps

the public decide on their future voting (and other) If your information is factual, and your opinion
behaviour. Governments usually have a right of reply does not incite violence or hatred or defame another
or are able to explain their behaviour or apologise for person or organisation, you are free to speak your
perceived mistakes. mind in public, publish material and challenge
As mentioned in Chapter 7, in 2019, the authority in legal ways (see the Anti-Discrimination
Australian Federal Police (AFP) raided the offices (Racial Vilification) Amendment Act 1989 (NSW)).
of the Australian Broadcasting Corporation (ABC) Julian Assange and WikiLeaks maintain that
to investigate potential criminal behaviour by two they have a right – sometimes a duty – to publish
journalists, Sam Clark and Dan Oakes. The AFP information if it is the truth.
claimed that the journalists had illegally obtained On the other hand, governments argue that
information to use in a story about the behaviour of some of their communications between agents
Australian Special Forces in Afghanistan between and departments must be confidential to keep
2009 and 2013. There are distinct similarities with citizens and military personnel safe and military
these events and the plight of Julian Assange information secret. This includes the protection
who has always maintained to be a journalist and of the identities of civilians or informants in war
publisher of information that is in the public interest. zones who have secretly passed information to
Both the US and Australian governments beg the US military. Indeed, governments do have a
to differ. responsibility to protect citizens and allies and
withhold information that may be to the detriment
freedom of the press of their citizens.
where the news services and media outlets of a country are
not restricted or controlled by government (except in terms Opinions differ on what constitutes protection of
of vilification, incitement and defamation) citizens and what is considered a national security
issue. In late 2019, President Trump tweeted a
Consider this in light of Assange’s belief that citizens photograph of a failed missile launch in Iran, which
have a right to know what governments have done was reportedly a classified image. This is not the first
so that they can make informed decisions at election time world leaders have used images for political gain
time or indeed make governments accountable for and may in fact be hypocritical when considering the
their actions. plight of Julian Assange.
Many governments have blocked the WikiLeaks The information published by WikiLeaks over the
website from their citizens. The US Government past few years has ranged from ‘mildly embarrassing’
remains in conflict with Julian Assange and appears to ‘highly sensitive’. Some governments are simply
to be pursuing him in order to prosecute him for embarrassed by what WikiLeaks has published
criminal offences related to his publication on and have moved to censor or ban their citizens’
WikiLeaks of classified diplomatic cables. access to WikiLeaks. However, laws regarding the
illegal exchange of information are now difficult to
Free speech enforce. Australia’s Anti-Terrorism Act 2005 (Cth)
‘This is a free country and I have a right to free speech’ and the National Security Legislation Amendment
is a statement that most Legal Studies students Act 2010 (Cth) aim to fight terrorist activities and
will recognise. We can express our opinions about deal with other issues of national security, and they
our leaders, religions, government decisions and a do not appear to have been breached by Assange’s
range of other situations or issues without fear of behaviour. However, legal opinion is divided in the
persecution. Article 19 of The Universal Declaration United States, and Assange appears certain to face
of Human Rights (1948) underpins this right. charges of sedition.
Legal Links
To learn more about WikiLeaks, how it works and why it was created, view the WikiLeaks website.

Figure 17.2 Supporters of WikiLeaks founder, Julian Assange – including one wearing a Donald Trump mask – hold
placards as they protest outside Westminster Magistrates Court in London, UK, on 30 May 2019 where there was a short
hearing in Assange’s extradition case.
17
Figure 17.2a The WikiLeaks website has been blocked by many
governments.
Formative assessment:
Assessment for learning
The activities in this chapter are designed to assist
you to build your understanding of the content
covered. You are encouraged to complete the
activities and seek feedback from your teacher
on a regular basis to check your understanding.
You are also encouraged to regularly review
the ‘themes and challenges’ and the ‘learn to’
statements on pages 15–16 of the syllabus. You
can revisit these types of activities a number of
times to continue to build your knowledge and
skills of the topic.
US response
Crucial to Julian Assange’s conflict with the
state is the US Government’s treatment of
Manning, who has been under arrest since July
2010. Facing 22 charges, Manning was willing to
offer a guilty plea to some of the lesser charges in
return for a reduced sentence. The most serious
accusation was that of ‘aiding the enemy’, which
carries a life sentence under the Espionage Act
1917 (US). The basis for this accusation was that
information passed to WikiLeaks was therefore
available to Al-Qaeda. Manning alleges that
there was no type of relationship with Julian

Review 17.1
1 Outline Julian Assange’s background and behaviour from the 1990s to 2006.
2 Consider to what extent military documents should be shared by private citizens or journalists.
Assess if the public has a right to know about conflicts in overseas countries.
3 Read the article, ‘In a tweet taunting Iran, Trump releases an image thought to be classified’.
Assess if US President Trump is justified in releasing military photographs of Iranian missile
bases.
Assange, and that WikiLeaks allowed material to be transition from male to female: previously known as
uploaded secretly without revealing the identity of Bradley, she asked that she now be referred to by the
the provider. name Chelsea and that female pronouns be used.
In early 2013, Manning’s sentence was reduced In January 2017, President Obama announced that
by 112 days by a military judge because Manning Manning’s sentence would be commuted to seven
suffered mistreatment in confinement: under years – he emphasised that this was not a pardon –
Article 13 of the Uniform Code of Military Justice and on 17 May 2017, she was released. Manning
(US), prisoners awaiting trial are to be protected appealed her original conviction, but on 31 May 2018,
from punishment on the grounds that they are the US Army Court of Criminal Appeals upheld the
innocent until proven guilty. However, Manning was first court’s decision.
sentenced to 35 years in jail in 2013 with an eight- There are unconfirmed reports that at some
year non-parole period. The day after sentencing, point in 2012–2013, a US Grand Jury (a panel of
Manning, who had been diagnosed with gender prosecutors) took place and prepared a prosecution
identity disorder, announced the intention to of Assange under the Espionage Act 1917 (US).
Figure 17.3 A billboard in support of American whistleblower, Chelsea Manning, and WikiLeaks founder, Julian
Assange, is driven around Westminster on 3 April 2019 in London, UK.

Research 17.1
1 Assess if Australian journalists Sam Clark and Dan Oakes are in a similar position to Julian
Assange.
2 Find the Espionage Act 1917 (US) online. Read the Act and use it to evaluate whether or not
Julian Assange’s actions are espionage.
espionage political asylum

the use of spies or spying to obtain information a fundamental human right affirmed by Article 14 of The
Universal Declaration of Human Rights (1948), ‘Everyone has
the right to seek and to enjoy in other countries asylum from
Sexual assault allegations persecution’
In 2010, WikiLeaks moved its head office to Sweden,
and in August of that year, two women, Sophia The key factor in Assange’s request for – and
Willen and Anna Ardin, said that they had had non- subsequent granting of – asylum was the treatment
consensual sexual relations with Julian Assange. of Manning. Assange feared similar treatment and
Assange was interviewed by the Swedish police, believed that his extradition to Sweden was a guise
but was not detained. He maintained that his for a subsequent extradition to the United States to
encounters with both women were consensual. face the US justice system. Having been granted
Later that year, when Assange was in London, asylum, Assange was allowed to remain within the
the Swedish authorities issued a European Arrest embassy, where the UK authorities could not arrest 17
Warrant (EAW) for him. He surrendered to British him. However, he would not be protected if he left
police and was detained for 10 days. He was the embassy grounds.
released on bail of A$300 000, which was posted by In May 2017, the Swedish arrest warrant was
a variety of notable friends. Interpol issued a red rescinded, although the chief prosecutor said that
notice on him. the investigation could be re-opened if Assange
returned to Sweden before the statute of limitations
red notice expired in August 2020.
a request for the arrest and extradition of an individual for
whom an arrest warrant has been issued in the requesting Assange remained in the embassy, as he was
country; distributed by Interpol, the international police still subject to arrest by UK police for breaching his
authority; Osama Bin Laden had a red notice issued by the
US Government before he was captured and killed in 2011,
bail conditions. He gained Ecuadorian citizenship in
and Julian Assange is currently subject to a red notice December 2017, but in October 2018, the Ecuadorian
President threatened him with eviction from the
Assange fought the EAW through the British legal embassy. In November 2018, US celebrity Pamela
system for over a year, with a number of appeals Anderson, in an interview with 60 Minutes, called
through the lower courts. On 14 June 2012, the on Prime Minister Scott Morrison to bring Assange
UK Supreme Court ruled that he must be extradited home, but the prime minister rejected the request.
to Sweden. Julian Assange sought political asylum On 16 November 2018, the US Department of
and entered the Ecuadorian Embassy in London on Justice accidentally revealed that prosecutors have
19 June 2012, after breaking his bail conditions in the an indictment against Assange, although because the
United Kingdom. He was granted political asylum by document is sealed the exact nature of the charges
the Ecuadorian Government and resided inside the has not been made public. Britain could therefore
embassy for seven years. be pressured to extradite Assange to face criminal
charges in the United States.

TABLE 17.1 Timeline of events

Date Event
WikiLeaks is founded as a wiki edited by a number of anti-government individuals.
2006
Julian Assange is listed as a director of the organisation.
WikiLeaks establishes its head office in Iceland, a country with liberal internet
2009 censorship laws. The US Embassy in Iceland’s capital city of Reykjavík becomes
one of the first ‘targets’ of leaked information.
‘Collateral Murder’ (allegedly leaked by US Army intelligence analyst, Specialist
Manning) shows shocking footage of Iraqi civilians being gunned down by a
2010
US helicopter. Manning is arrested in the United States on 22 charges of treason
and aiding the enemy.
June 2010 WikiLeaks moves its head office to Sweden.
Early August 2010 Sexual assault allegations against Assange emerge.
Confusion surrounds the nature of the complaint to police by one of Assange’s
Late August 2010 sexual partners. Assange goes to the Swedish police but is not detained and is
free to leave the country.
September 2010 Assange flies to London for a number of WikiLeaks-related conferences.
WikiLeaks launches another embarrassing set of documents, entitled ‘Afghan War
October 2010
Diary’.
Swedish authorities issue a European arrest warrant for Assange. He surrenders
December 2010 to British police and is detained for 10 days. He is released on bail of A$300 000,
which is posted by a variety of notable friends. A red notice is issued by Interpol.
A 500-day legal process that involves fighting the European arrest warrant ends on
2011–2012 14 June 2012. After a number of lower court appeals, the UK Supreme Court rules
that Assange must be extradited to Sweden.
There are unconfirmed reports that a US Grand Jury (a panel of prosecutors) has
2012–2013
decided to prosecute Assange under the Espionage Act 1917 (US).
Assange takes refuge in the Ecuadorian embassy in London claiming diplomatic
June 2012
asylum.
August 2012 Ecuador grants Assange diplomatic asylum.
Assange lives inside the Ecuadorian embassy with London police guarding the
2012–August 2015
embassy ‘around the clock’.
September 2015 London police stop guarding Assange.
Ecuador and Sweden reach a bilateral agreement for Assange to be interviewed
December 2015
inside the Ecuadorian embassy rather than be extradited to Sweden.
Assange releases thousands of emails of US presidential candidate Hilary Clinton.
March 2016 Clinton used her private email address to send and receive top secret information
when she was Secretary of State.
Swedish arrest warrant rescinded; Swedish authorities no longer seeking
May 2017
extradition on sexual assault charges
December 2017 Assange gains Ecuadorian citizenship.
October 2018 Ecuadorian President threatens to evict Assange from the embassy in London.
November 2018 It is revealed that US prosecutors have a sealed indictment against Assange.
Assange is evicted from the Ecuadorian embassy; he begins a 50-week UK jail term
November 2019 for skipping bail in 2012. UK’s home secretary, Sajid Javid, approved an extradition
request from the United States for Assange to face criminal charges.

Review 17.2
1 Describe the events leading up to the granting of asylum to Assange by the Ecuadorian
Government in 2012.
2 Using the timeline in Table 17.1 above, identify in chronological order the three most important
events that occurred between 2009 and 2019. Justify your selection.
3 Assess the fate of Julian Assange at the present time.
17.2 Legal responses However, many observers of the Assange

case ponder the question of whether the British
Government could have legally seized Julian Assange
Political asylum
from within the embassy itself. Under the Diplomatic
If an individual feels threatened by living in a country,
and Consular Premises Act 1987 (UK), ministers
they may seek asylum in another country. Julian
have power to withdraw recognition from diplomatic
Assange sought political asylum in the Ecuadorian
premises.
Embassy in London – technically, embassies are a
part of their country, not their host country, so the
Figure 17.4 An artist’s portrayal of Julian Assange being
Ecuadorian Embassy is part of Ecuador, not of the evicted from the Ecuadorian Embassy in London, UK,
United Kingdom.
Countries have granted asylum to individuals
in 2019.
17
who fear political and physical persecution from
their governments in numerous other cases. One
example is Cardinal Joszef Mindszenty, who spent
15 years in the US Embassy in Budapest, from 1956
to 1971. He was given a life sentence in Hungary in
1949 for treason and conspiracy to overthrow the
communist government. He sought political asylum
during the 1956 Soviet invasion of Hungary and is
possibly the most famous of all political asylum
cases since World War II. It is not unprecedented
for a foreign embassy to grant asylum under The
Universal Declaration of Human Rights (1948).
Julian Assange and his legal team used a
range of legal avenues to avoid being extradited to
Sweden; seeking asylum in the Ecuadorian Embassy
was a successful one. He was legally entitled,
under the Vienna Convention on Diplomatic Rights
(1961), to stay within the confines of the Ecuadorian
Embassy. Because British authorities are unable
to enter the premises of the Ecuadorian Embassy,
police kept a 24-hour guard outside the embassy,
with the apparent intention of arresting Assange the
moment he stepped onto UK land. This surveillance
ceased in August 2015 but Assange was not
released until 2019, into the Belmarsh prison in the
United Kingdom.

iplomatic and Consular Premises Act

D (4) The Secretary of State shall
1987 (UK), section 1(3–5) only give or withdraw consent
(3) In no case is land to be regarded as a or withdraw acceptance if
State’s diplomatic or consular premises he is satisfied that to do
for the purposes of any enactment so is permissible under
or rule of law unless it has been so international law.
accepted or the Secretary of State has (5) In determining whether to
given that State consent under this do so he shall have regard to
section in relation to it; and if: all material considerations,
(a) a State ceases to use land for the and in particular, but without
purposes of its mission or exclusively prejudice to the generality of
for the purposes of a consular post or this subsection:
(b) the Secretary of State withdraws his (a) to the safety of the public
acceptance or consent in relation (b) to national security and
to land; it thereupon ceases to be (c) to town and country planning.
diplomatic or consular premises for
the purposes of all enactments and
rules of law.
The British Government could have determined that the
asylum granted to Julian Assange was not the intended
purpose of the Ecuadorian Government’s mission and
withdrawn the consent or acceptance of using that
land for that purpose. The government appeared to be
Julian Assange’s extradition to the US will be decided by the UK courts in 2020

By James Vincent and Colin Lecher
The Verge
14 June 2019
The question of whether or not Julian Assange will be extradited to the United States is still
unanswered after a London court ruled today that the WikiLeaks founder will face a five-day hearing
on the matter in 2020.
Earlier this week, the UK’s home secretary Sajid Javid approved an extradition request from the
United States for Assange to face criminal charges. But the final authority to obey the request lies
with the courts, which will hold a full hearing sometime after 24 February next year.
Assange faces 18 charges related to the leaking of classified information published by WikiLeaks. US
prosecutors allege that he conspired with former US Army private Chelsea Manning to obtain the material,
which included State Department diplomatic cables and documents on the wars in Iraq and Afghanistan.
The 47-year-old Assange was too ill to appear at his last hearing in London, but spoke in court
today via video-link, reports Sky News. He told the court that ‘175 years of my life is effectively at
stake,’ and defended the actions of WikiLeaks, saying that the website was not involved in hacking
classified information and is ‘nothing but a publisher’.

locked in a dilemma between respecting international 403 US 713), who leaked secret documents known as
law and responding to the European arrest warrant, the Pentagon Papers. The Pentagon Papers revealed
until April 2019, when the Ecuadorian embassy evicted that the US Government knew from a very early stage
Assange to waiting police. that the Vietnam War could never be won, and that
if they continued with the war there would be many
United States espionage law more casualties than were ever openly admitted to.
Meanwhile, in the United States a hearing or ‘grand In addition, as an editor of The New York Times would
jury’ is alleged to have taken place, preparing a later write, the Pentagon Papers:
prosecution of Julian Assange. The hearing was
investigating ‘possible violations of federal criminal law
involving, but not necessarily limited to, conspiracy to … demonstrated, among other things,
communicate or transmit national defense information that the Johnson Administration had
in violation of the Espionage Act’. The Espionage Act systematically lied, not only to the public
1917 (US) was introduced to protect the United States but also to Congress, about a subject
from traitors or spies undermining the government’s of transcendent national interest and
attempts to defend its territories. significance.
President Woodrow Wilson, on 7 December 1915,
asked Congress to pass this law because:
Daniel Ellsberg came into possession of the

There are citizens of the United States …
who have poured the poison of disloyalty
Pentagon Papers in much the same way as Julian
Assange came into possession of the documents
17
into the very arteries of our national life; from Manning. He passed the documents on to The
who have sought to bring the authority New York Times correspondent Neil Sheehan, who
and good name of our government into had given him a promise of confidentiality. However,
contempt … to destroy our industries Sheehan broke this promise, and wrote a major
… and to debase our politics to the uses story built on material he had received from Ellsberg
of foreign intrigue … We are without and from other contacts. The US Government was
adequate federal laws … I am urging furious and obtained an injunction to prevent The
you to do nothing less than save the New York Times publishing further articles based
honor and self-respect of the nation. on the papers. The New York Times appealed the
Such creatures of passion, disloyalty, and injunction, but in the meantime, The Washington Post
anarchy must be crushed out. gained access to the papers and began publishing
its own articles. After this, 15 other newspapers
received copies of the Pentagon Papers and began
publishing. In The New York Times Co v United States
The legislation has been challenged and amended the Supreme Court found that the press had a right to
since 1917 but was most famously applied, publish the papers. This ruling has been described
unsuccessfully, in a 1971 case against Daniel as one of the ‘modern pillars’ of US citizens’ First
Ellsberg (see The New York Times Co v United States Amendment rights in relation to freedom of the press.
Legal Links
The Daniel Ellsberg case from over 40 years ago – which pre-dates the internet and digital forms
of technology – has glaring similarities to Julian Assange’s and WikiLeaks’ conflict with the
US Government. The article, ‘Yes, Julian Assange actually is a criminal’ (by Michael Lind, Salon, 22
December 2010) argues for the US Government’s right to keep information confidential. By releasing
sensitive and important information without prior consent or appropriate authority, Assange is seen
as a traitor and a spy. Interestingly, Daniel Ellsberg was not convicted of espionage.

Figure 17.5 The former CIA employee and whistleblower, Edward Snowden, speaks during a video conference to
present his book, Permanent Record on 17 September 2019 in Berlin, Germany.
In 2013, another high-profile whistleblower, At the time, he was travelling to the Republic of
Edward Snowden received widespread media Ecuador (it is believed to seek asylum) via Russia,
coverage for his actions in revealing secret but the lack of a valid passport meant that he was
documents to the public in much the same manner unable to leave the transit area of Moscow airport.
as Julian Assange. Snowden has been charged The Russian authorities subsequently granted
on two counts of breaching the Espionage Act 1917 him asylum, enabling him to leave the confines
(US), and in June 2013, his passport was cancelled. of the airport.
Review 17.3
1 Discuss your understanding of the term ‘political asylum’. Outline some examples from
overseas.
2 Outline the main factor that led to Ecuador’s granting of political asylum to Julian Assange.
3 Read the extract from the article, ‘Julian Assange’s extradition to the US will be decided by
the UK courts in 2020’. Justify the actions of the UK and US governments in pursuing Julian
Assange.
4 Discuss the validity of a US grand jury in bringing Assange to justice.
5 Explain the reasons given for the passage of the Espionage Act 1917 (US).

Research 17.2
1 Source online the article, ‘Yes, Julian Assange actually is a criminal’ (by Michael Lind, Salon,
22 December 2010). Describe the main arguments for the prosecution of Julian Assange in
comparison with the exoneration of Daniel Ellsberg in the Pentagon Papers case of 1971.
2 Explain the argument in the article that news organisations should be able to publish
information but private citizens may not. Consider what you personally post on social media.
17.3 Non-legal responses There have also been a number of documentary

films on the subject, including Mediastan (2013),
Media We Steal Secrets: The Story of WikiLeaks (2013), Risk
The Australian Broadcasting Commission (ABC) (2016) and Hacking Justice (2017).
closely covered the issues in the Julian Assange
case as they developed. An episode of its current Politics
affairs show, Four Corners that aired on 12 August In 2012, Julian Assange announced that he would run for
2012 discussed the issues in the case. The Channel the Australian Senate in the 2013 election. The WikiLeaks
Ten network in 2012, also broadcast the telemovie, Party was formed, and several candidates, including
Underground: The Julian Assange Story, which traced Assange, were fielded, but none received enough votes.
the early life and activism of Assange. Had Assange been successful in winning a seat, there 17
The 2013 film, The Fifth Estate, was a biographical is some question as to whether his relationship with
thriller starring Benedict Cumberbatch as Assange. Ecuador would have disqualified him.
Figure 17.6 Julian Assange supporters rally outside the British Home Secretary’s office in September 2019 to demand
Assange’s freedom. During the rally, Roger Waters performed his Pink Floyd song, ‘Wish You Were Here’ and the
journalist and documentary filmmaker, John Pilger, gave a speech in support of Julian Assange.

Research 17.3
Source and view different websites devoted to Julian Assange. Investigate the purpose of each
sites. Discuss each organisation’s contribution to the Assange case.
Community support limit to the legal actions the federal government can
There are a number of internet-based support take because a person’s nationality does not mean
groups that are attempting to raise the profile of the laws of another country can be ignored when a
Julian Assange and encourage support for him in person is overseas. The current Australian federal
a number of ways. Individuals can make donations government appears to have little sympathy, time or
to help fund Assange’s living and legal expenses. resources to assist with Assange’s defence.
They can also spread the word about his situation In a post-September 11 world, with higher alerts
and raise more support through social from governments genuinely concerned about the
media pages. safety and welfare of their citizens, Julian Assange
could be considered a threat to national and
international government security. Those who oppose
17.4 Effectiveness of responses Assange brand him a highly dangerous criminal: for
The Assange case is receiving widespread attention them, capturing and shutting down WikiLeaks are
internationally, particularly in the United States, paramount.
the United Kingdom, Sweden and Australia. The Conversely, Assange can be perceived as a
Australian Government has remained relatively champion of international relations. If governments
inactive in the Assange case. While Julian Assange all over the world were subject to scrutiny by
remains within Ecuadorian territory, there appears to WikiLeaks or other news organisations, they may
be little the Australian Government can do through be inclined to act more responsibly or indeed make
international law. apologies or pay compensation to victims of military
Law professor Natalie Klein states that while activity or government mistakes that in the past may
Julian Assange is an Australian citizen, there is a have been covered up.
Figure 17.7 Julian Assange circulated online an encrypted cache of uncensored documents as ‘insurance’. Assange
vowed that the secrets in the documents will be revealed if the website is shut down or Assange is arrested. The
US ambassador to Lebanon at the time condemned the release of diplomatic cables by WikiLeaks as ‘illegal and
irresponsible’, saying they only increased tensions in the turbulent country.

Legal Links
The Julian Assange case has exploded in the wider media, provoking opposing views on the issue
of freedom of speech and international human rights. The public, along with prominent officials
and those in the media, have expressed their views through social media and opinion articles. In
their opinion article, ‘WikiLeaks and free speech’ (The New York Times, 20 August 2012), prominent
film directors, Oliver Stone and Michael Moore, express their concern over how the Julian Assange
case could perhaps be infringing the basic ideals of free speech.
Review 17.4
1 Identify the laws that apply to Julian Assange’s stay in the Ecuadorian embassy and his
departure from the United Kingdom.
2 Discuss the idea that if Assange was prosecuted in the United States, an important precedent
would be set for journalists worldwide.
3 Construct a table with two columns, with ‘for’ and ‘against’ as headings. From your own
perspective, list points under each heading in relation to Julian Assange’s actions since 2009.
4 Discuss how the national and international community has responded to the case of Julian
Assange. Assess if the responses have been negative or positive. Choose one opinion from each
side and explain why each person or organisation holds the opinion it does.
17
Figure 17.8 Julian Assange speaks to the media from the balcony of the Ecuadorian embassy in London on May 19, 2017.

Figure 17.9 Human rights lawyer Jennifer Robinson speaks to the media outside Woolwich Crown Court, in London, during
a break in Julian Assange's extradition hearing on February 25, 2020.

Chapter summary
• Julian Assange created WikiLeaks as a way • A free press is important for journalists and
to ‘whistleblow’ on a range of corporate and news services. Without it, the media may not be
government activities that would arouse public able to present a balanced view of the news.
interest. • WikiLeaks is built on the hope that the
• Some think Assange is an outstanding publication of otherwise unavailable
journalist. Others label him a traitor, a documents will encourage governments to
vandal and an irresponsible journalist, as his behave more ethically and/or to apologise or
actions compromise the ability of national pay compensation to those who deserve it.
governments to keep their citizens safe. • As at May 2020, Assange was held in a UK
Eric Snowden is another individual under prison and was awaiting extradition to the
investigation for activities known as ‘leaking’. United States.
• Interpol issued a red notice against Assange
after he turned himself in to the British police
then skipped bail. He then applied for political
asylum in the Embassy of Ecuador.
Questions
1 WikiLeaks established itself in Iceland initially 4 The Ecuadorian embassy granted Julian
because: Assange asylum because:
a Iceland has few censorship restrictions on a his passport had expired.
internet activities. b he was likely to be treated unfairly by
b The Australian Government strictly Swedish authorities.
controls internet traffic. c the British Government is unable to grant
c Internet data prices are cheap in Iceland. political asylum to Australians.
d The Director of WikiLeaks is Icelandic. d Ecuador and Australia have a bilateral
2 Julian Assange was convicted of criminal agreement on political asylum.
charges in: 5 The case of the Pentagon Papers is similar
a the Victorian Supreme Court in the 1990s. to the case of Julian Assange and WikiLeaks
b a NSW Magistrates Court in 2010. because:
c the British Supreme Court in 2012. a both cases involve The New York Times.
d a Swedish local court in 2010. b both cases involve government secrets
3 The US Government: being released without authorisation.
a detained Chelsea (then known as Bradley) c both cases led to criminal convictions.
Manning on 22 charges. d both Daniel Ellsberg and Julian Assange
b detained Julian Assange on 22 charges. sought political asylum.
c requested that Julian Assange be
extradited from Sweden.
d requested that Julian Assange be
extradited from Australia.

1 Define the term ‘whistleblowing’. 6 Explain why Julian Assange was evicted from
2 Discuss how whistleblowing applies to the the Ecuadorian embassy in London.
Julian Assange case. 7 Explain why Julian Assange was given a red
3 Discuss when you or others should ‘blow the notice. Identify another individual/s who have
whistle’. received red notices.
4 Define the terms ‘freedom of speech’ and 8 Assess if we need different laws for
‘freedom of the press’. Assess if Australia government information. Explain your
has a free press. In your assessment, refer to a response using the Assange case as
media article that criticises a government. an example.
5 Comment on the Ecuadorian Government’s
decision to grant diplomatic asylum to Julian
Assange. Discuss the reasoning behind the
decision. Assess if it was justified.
Evaluate the effectiveness of the law in resolving Marking criteria for extended-response questions
conflict between individuals and the state. can be found on the Cambridge GO website. Refer
Use the Julian Assange case to illustrate to these criteria when planning and writing your
your response. responses.

Issue 3
Individuals or
groups in conflict
with the state
Chapter 18
Outlaw motorcycle gangs

Issue 3
in conflict with the
state
Chapter 19
Behrouz Boochani
Chapter objectives
• identify the legal terminology that is relevant when investigating and discussing an individual who is
in conflict with the state
• describe the legal and non-legal responses to the detention of Behrouz Boochani and other people
seeking asylum
• describe the role of the law in promoting human rights
• discuss the effectiveness of legal and non-legal means in addressing violations of human rights.

Relevant law
International law
The Universal Declaration of Human Rights (1948)
Convention relating to the Status of Refugees (1951)
International Covenant on Civil and Political Rights (1966)
United Nations Convention on the Law of the Sea (1982)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
Convention of the Rights of the Child (1989)
Domestic law
Migration Act 1958 (Cth)
Border Protection (Validation and Enforcement Powers) Act 2001 (Cth)
Migration Amendment (Urgent Medical Treatment) Bill 2018 (Cth) (‘Medevac Bill’)
Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Cth)

19.1 F
rom seeking asylum to an
Australian detention centre
Overview of the case of

Behrouz Boochani
Behrouz Boochani is a Kurdish Iranian refugee who
was caught between international human rights law
and Australian domestic migration law. This is a
story of one individual who has challenged the state
by using his voice and his journalism skills.
refugee
A person who has been forced to leave their home area due
to a well-founded fear of persecution based on religion, race,
political opinion, nationality, ethnic or social group
Behrouz Boochani survived six years in Australia’s

offshore detention system that was created
specifically for people seeking asylum. He finally
left the detention centre in November 2019 but his
future remained uncertain as he was on a one-month
visa issued by New Zealand. By the time he gave his
lecture at the WORD conference in Christchurch in
November 2019, the 36-year-old had become one of
the most well-known refugees in the world. This was
Figure 19.1 Behrouz Boochani is a writer, journalist and
due to his journalism that detailed his and others’
a Kurdish Iranian refugee.
experiences in detention and the media attention this
attracted. The Iranian asylum seeker communicated scars from their incarceration; some have died, while
directly with journalists about events on Manus Island many others remain in indefinite detention. Amazingly,
but also produced a full-length film on his mobile over the six years of imprisonment, Behrouz did not tell
phone (Chauka, Please tell us in Time) and wrote an his family in Iran anything about his imprisonment or
award-winning book, No Friend but the Mountains his fame.
(Picador, 2018). Boochani’s aim has been to let the
asylum
Australian people and the world see what he considers
protection granted by a state
to be an inhumane system in the Australian detention
asylum seeker
centres for people seeking asylum. Many of his fellow someone who is seeking protection as a refugee
inmates have suffered and bear physical and mental
Research 19.1
1 On a map, locate the city of Ilam in Iran.

2 Describe Ilam’s geographical location.
3 Identify other areas in the Middle East that the Kurds live in. What countries do the Kurds live in?
4 Access the website, ‘The Kurdish Project’. Using the information in this website, discuss why
the Kurdish people are a persecuted minority.
5 Find the article, ‘The Kurds: A bitter history of betrayal’ (by Michael Safi, The Guardian,
13 October 2019). Describe what further information this article gives about the problems of the
Kurdish people up to the current time.

Chapter 19 Behrouz Boochani
Life in Iran Mountains, Boochani details the difficult boat

Behrouz Boochani was born in the Kurdish Ilam journey and how close they all came to death. Two
region in western Iran in 1983. He was born in the weeks after being returned to Indonesia, in July 2013,
middle of an eight-year long war between Iran and Iraq Boochani boarded another boat bound for Australia
that was fought mainly across his Kurdish homeland. along with 60 people seeking asylum. This boat did
Some of Boochani’s earliest childhood memories not sink but it lost its way and the passengers nearly
are of fighter planes in the sky. After completing his starved. The boat was spotted by a British cargo
studies at Tarbiat Moallem University and Tarbiat ship, which gave them some supplies, notified the
Modares, he achieved a Master’s degree in political Australian Navy, and waited with the people seeking
science, political geography and geopolitics. After asylum until an Australian Navy boat arrived.
university, Boochani got a job as a journalist, writing
for a student newspaper. He regularly wrote articles In detention: Christmas Island
about politics in the Middle East, Kurdish struggles In August 2013, an Australian Navy ship picked
to keep their culture alive, and the rights of other up the people in Boochani’s boat and took them to
minorities in Iran. In secret, Boochani taught the Christmas Island where they were detained for a
Kurdish dialect to children. Boochani also co-founded month. In Chapter 5 of his book, Boochani recounts
Werya, a Kurdish-language magazine that promoted the rude shock at being taken to a detention centre
Kurdish culture and politics. In February 2013, the and recounts being placed in cages, strip-searched
Iranian Revolutionary Guard raided the Werya office and observed by CCTV continuously, even in the
and arrested 11 of his colleagues. Boochani went into toilet. The people seeking asylum were then given
hiding for three months. the news that they had arrived four days after a new
law had been enacted that declared that no-one who
Fleeing Iran arrives in Australia by boat will ever be allowed into
On 23 May 2013, the young Kurdish journalist got on the country.
a plane and fled Iran. Boochani arrived in Indonesia Boochani and the other refugees were then
where he paid $5000 to a people smuggler for a informed that they would be exiled to Manus Island
place on a boat to Australia. After a harrowing in Papua New Guinea (PNG). Immigration officials
journey during which the boat’s engine failed and gave briefings about how bad conditions were on 19
the pump stopped working, the asylum seekers on Manus Island, especially about the island’s malaria-
the boat were rescued and taken back to Indonesia. carrying mosquitoes. Boochani recounted that
In the second chapter his book, No Friend but the being exiled to Manus Island was like a ‘club that
Figure 19.2 Christmas Island, Manus Island and Nauru are key locations for Australia’s policy of processing asylum
seekers offshore.
BRUNEI
MALAYSIA
SINGAPORE Manus Island

Nauru
Jakarta
INDONESIA PNG
Lombok
Bogor
Mataram
Christmas Island
1000 km AUSTRALIA

has been raised above my head for a whole month Boochani began documenting his experiences on
and is waiting to bash down on me’ (No Friend but Manus Island. He documented life in the detention
the Mountains, p. 89). The asylum seekers from centre and compiled information on what he viewed
Boochani’s boat were then flown to Darwin where as human rights abuses, which he sent (using a
they were put through what Boochani considered to secret mobile phone) to journalists. Over a period
be a de-humanising process by immigration officials of five years, Boochani also transmitted thousands
and journalists. Boochani was given the number of WhatsApp text messages, in his native Farsi
that he would now be known by – MEG45. From the language, that would later form the basis of his 2018
perspective of the immigration officials, the people book, No Friend but the Mountains.
seeking asylum were ‘nothing more than number’ In his writing, Boochani detailed all the aspects of
(No Friend but the Mountains, p. 96). The refugees life in detention from the mundane and boring to the
were then put on a plane to Manus Island. terrifying and horrific. To Boochani, the most striking
thing about Manus Island was the debilitating heat,
In detention: Manus Island from which there was little respite as the fans in the
The detention centre on Manus Island is located living quarters made little difference. He outlined
on the eastern tip of the island on the PNG naval the different sections of the Manus Island detention
base at Lombrum. The Australian authorities named centre and how the centre appeared to function.
the detenion facility the Manus Island Regional Boochani described each day as a ‘meaningless cycle
Processing Centre or MIRCP. Once on Manus Island, of repeated struggles’ in which all they had to do was
Boochani quickly concluded that they were political reflect on their own lives ‘always moving between
hostages who were ‘being made examples to strike the darkest, dullest and most worn out’ scenes (No
fear into others, to scare people so they won’t come Friend but the Mountains, p. 131). The inmates played
to Australia’ (No Friend but the Mountains, p. 107). games such as cards and made up a backgammon
Soon after arriving, Boochani met Reza Berati, game drawn on plastic. Sometimes in the evening,
someone who he came to admire deeply and who he they got away with some raucous dancing that the
nicknamed the ‘gentle giant’ in his book. Eventually, guards were not game to stop.
Figure 19.3 People attend a candlelight vigil in Sydney on 23 February 2014. The vigil was held in response to the death
of a 23-year-old Iranian man, Reza Berati, who died in a detention centre on Manus Island on 18 February 2014.

Research 19.2
Access ‘A speech from Manus Island – Behrouz Boochani’ (6 December 2018).

1 Assess what Boochani means when he says asylum seekers are both outside the law and a
victim of the law.
2 Identify the evidence Boochani provides to back up his opinion that Australia’s relationship with
Manus Island is colonial in nature.
3 Recall what happened to the people who murdered Reza Berati in February 2014.
4 Recall the propaganda the asylum seekers were subjected to on Manus Island.
5 Discuss why Boochani considers the following to be forms of humiliation:
a queuing
b medical treatment.
According to Boochani, the way the authorities While he was detained on Manus Island, Boochani’s
organised the daily routines was a further example creativity and activism kept him sane. When riots
of the regimentation and humiliation inflicted on erupted at the detention centre in February 2014,
the people in detention. The asylum seekers had to Boochani kept journalists informed, particularly about
queue for hours for everything (meals, the toilets, the the murder of his friend, Reza Berati. By then, Boochani
showers, medicine). No food was allowed to be taken had become the voice for the men imprisoned in the
out of the meal area. To get medical attention, the Foxtrot section of the detention centre.
prisoners had to fill out a request form. A few days
later, someone would see them but seldom could The campaign to free the asylum
have their medical conditions dealt with properly. seekers on Manus Island
In an atmosphere of what Boochani saw as absolute In September 2015, an international campaign was
despair, self-harm became a ‘cultural practice’. launched on Boochani’s behalf to pressure Australia
In some instances, the electricity generator was
mysteriously turned off, ‘Within minutes the prison
to abide by the Article 33 of the Convention relating
to the Status of Refugees (1951) that prohibits the
19
is transformed into a living hell’ (No Friend but the expulsion or return of refugees. Boochani had asked
Mountains, p. 171). Detainees were also subject to repeatedly to be handed over to the United Nations.
being placed in solitary confinement; Boochani On 20 June 2016, Prime Minister Malcolm Turnbull
described being in solitary confinement for was surprised to receive a question via video-link on the
three days in the ‘Chauka’, which was made out of ABC Q&A program from Behrouz Boochani. Boochani
shipping containers. asked Turnbull, ‘What is my crime? I am a refugee who
Boochani catalogued a ‘twisted system’ governing fled injustice, discrimination and persecution. Why am
the prison and a ‘deranged logic that confines the I still in this illegal prison after three years?’ The prime
mind of the prisoner’ (No Friend but the Mountains, minister failed to directly answer Behrouz’s question so
p. 208). He described the detention centre as being Boochani immediately penned an article that appeared
run according to a ‘kyriarchical system’, which is in The Guardian newspaper the following day detailing
an idea coined by Elisabeth Schüssler Fiorenza in everything that had been happening at Manus Island.
1997. From a legal perspective, Boochani asserted In 2018, Boochani made a full-length film with his
that Australia’s management of the Manus Island secret mobile phone. The film, Chauka, Please tell
detention centre routinely broke both international us in Time, was an investigation into the ‘Chauka’,
humanitarian law and international conventions. a prison within a prison on Manus Island where
inmates were placed in solitary confinement. The
kyriarchy
film also highlighted all the other aspects of life in
a social system based on domination, oppression
and submission the detention centre and the mental torture caused
by the deprivation of hope.

Research 19.3
Access the following article, ‘Malcolm Turnbull, why didn’t you answer my question on Q&A about
Manus Island?’ (by Behrouz Boochani, The Guardian, 21 June 2016).
1 Recall what Boochani accuses Prime Minister Turnbull of doing.
2 Identify the court decision that Boochani accuses Prime Minister Turnbull of ignoring.
3 Identify the recent adverse changes.
4 Describe the injustice and double standards attested by Boochani.
5 Critically analyse the complaints system.
6 Identify the 2014 event that Boochani accuses the Australian Government of failing to address.
Legal Links
The PNG Constitution is available online.
As Boochani outlined in his article to Prime Minister now famous phone call between Prime Minister
Turnbull on 26 April 2016, the Supreme Court of PNG Malcolm Turnbull and President Donald Trump on
found the Manus Regional Processing Centre was 28 January, the new president was highly critical
illegal because it breached the right to personal of the refugee swap arrangement and stated that
liberty in PNG’s Constitution. Later that month, the United States has become a ‘dumping ground’
PNG Prime Minister Peter O’Neill announced he for 2000 ‘troublesome’ people coming from Manus
would immediately ask the Australian Government Island and Nauru. In August 2017, Greens MP Adam
to make alternative arrangements for people seeking Bandt questioned Prime Minister Morrison about a
asylum. Australia’s Immigration Minister Peter leaked transcript of the January phone call. In the
Dutton responded in August 2016 that the centre account, Morrison attempted to explain to Trump
would close but gave no timeline. Meanwhile, as why these people seeking asylum could not be let
Boochani had asserted in his article, the treatment into Australia:
of inmates was harsher than ever, with the inmates
having no effective means of making any complaint
about this treatment. ‘The only people that we do not take are
people who come here by boat. So, we
US refugee swap deal would rather take a not very attractive
In November 2016, the Australian Government guy [from the United States] that helps
appeared to have made a deal with the you out than to take a Nobel Prize
US Government in the last days of the Obama winner that comes by boat. That is the
administration. According to the deal, the United point.’ To this, Trump replied: ‘That’s a
States would resettle the refugees on Manus good idea. We should do that too. You
Island and Nauru in return for Australia taking are worse than I am.’
refugees from the United States. However, the US (Source: ‘“You’re worse than I am,” Trump told
Government would be able to choose who they took Turnbull he admired offshore detention’, by Ben
by using ‘extreme vetting’ procedures. This deal Jacob, The Guardian, 4 August 2019.)
was tested in January 2017 when Donald Trump
was inaugurated as the new US president. In the

The closure of a detention centre At the new facilities, the men had limited
On 31 October 2017, the Manus Island detention freedom. The asylum seekers could visit the nearby
centre on the PNG naval base at Lombrum was town of Lorengau, but they could only travel there by
closed. However, the 600 men detained there official bus and were searched getting on and off the
refused to move, claiming they feared for their bus. They also could not leave Manus Island without
safety from some hostile locals. The Australian travel documents.
authorities shut off the power, and cut off food At this time, Boochani was placed in the Lorengau
and water supplies. The PNG military laid siege to jail for eight days as punishment for reporting the
the centre for 23 days. During this harrowing time, 23-day siege. On his release, he was ordered to
Behrouz Boochani kept in constant communication stop reporting. However, after all these years of
via WhatsApp with Omid Tofighian, a Sydney resistance, Boochani was not deterred. It was now
University academic who had been acting as harder for the authorities to control his actions and
Boochani’s translator. In the constant urgent harder for them to confiscate his phones, which they
messaging, and in some longer articles, Boochani had done on many occasions before.
detailed the resistance of the refugees during the On 28 November 2017, Boochani sent a message
siege. However, the men were gradually worn down to the Asylum Seeker Resource Centre thanking
and overpowered by the PNG military and were them for their support and again described the 23-
forcibly transferred to three new detention facilities day protest that had been stopped by force. The
close to the town of Lorengau in PNG. Asylum Seeker Resource Centre published this
Legal Links
The article, ‘The last days in Manus Prison’, written by Behrouz Boochani and Omid Tofighian, is
available on the Meanjin Quarterly website.
Figure 19.4 Behrouz Boochani stands outside the abandoned naval base on Manus Island in June 2018. This is where
he and other asylum seekers were locked up for three years. 19

account on their website. Boochani claimed that Manus Island and Nauru for the last six years. When
Immigration Minister Peter Dutton was incorrect accepting the award on Boochani’s behalf, the book’s
in saying that the refugees only wanted to come to translator, Omid Tofighian, said that:
Australia. They just wanted freedom to go anywhere.
No Friend but the Mountains This is one of the most vicious forms of
On 31 July 2018, after five years of collaboration neocolonial oppression that is taking over
with his translator, Omid Tofighian, via WhatsApp, the world at the moment – and to address
Boochani’s book, No Friend but the Mountains, was this book in this way and to recognise
released to wide acclaim both in Australia and it and draw attention to the narrative it
around the world. In his book, Boochani claims to is presenting will have repercussions for
have witnessed deaths, riots, suicide attempts, many generations to come.
murders and gun violence by intoxicated PNG (Source: ‘Behrouz Boochani: Detainee asylum
soldiers. Importantly, Boochani’s book is a piece of seeker wins Australia’s richest literary prize’, by
resistance and an analysis of the kyriarchal system, Calla Wahlquist, The Guardian, 31 January 2019).
which is designed to bring people to their breaking
point. Boochani said the Manus Island system was
designed to take away a person’s dignity. Writing
helped him to keep his humanity.
In January 2019, Behrouz Boochani won a literary Freedom
award for his book, No Friend but the Mountains. On 14 November 2019, Behrouz Boochani left PNG
He could not attend the Victorian Premier’s and travelled to New Zealand to speak at the Word
Literary Award ceremony in Melbourne because Christchurch literary festival on 29 November 2019.
he was still being held on Manus Island. Boochani In a daringly executed plan facilitated by the UN
communicated to the event via text message as the Refugee Agency (UNHCR) and Amnesty International,
internet connection was slow. He said his main aim in Boochani was able to get a one-month visa to speak
writing the book was to show the people of Australia at the festival in New Zealand. To get to Christchurch,
and around the world how Australia’s system of Boochani undertook a series of secretive plane flights
offshore processing had tortured innocent people on over 19 hours.
Legal Links
On 1 April 2019, Boochani’s story was broadcast to the Australian people via the ABC television
program, Australian Story. The story was a celebration of a life of resistance and hope in the face
of despair and horror. The aim was also to explain how a stateless refugee from the Middle East
fleeing persecution was placed in indefinite imprisonment on a distant island. This Australian Story
can be viewed online.
Research 19.4
Access one of the following on YouTube:

• ‘How refugee Behrouz Boochani challenged a system, one text at a time’ (Australian Story,
1 April 2019).
• ‘Writing is an act of resistance’ (Behrouz Boochani, TEDxSydney, 30 July 2019).
1 Identify what further information can be obtained about Boochani’s six years on Manus Island.
2 Identify the legal and non-legal means by the Australian Government, the PNG Government, and
by supporters of the asylum seekers to address the situation on Manus Island.


Review 19.1
1 Outline Behrouz Boochani’s family and life in Iran.

2 Recall why Boochani left Iran.
3 Describe Boochani’s journey from Indonesia to Manus Island.
4 Identify what features of the Manus Island detention centre created a sense of despair in
the inmates.
5 Outline the human rights abuses Boochani documented.
6 Discuss how Boochani resisted the detention system.
7 Recall how Boochani took his resistance to the highest level of political leadership.
8 Identify what sort of people outside Australia supported Boochani.
9 Identify the legal decision in PNG that started the gradual unravelling of the Australian
detention centre regime on Manus Island.
10 Describe the revelations that emerged as a result of the refugee swap with the United States.
11 Outline some of the awards won by Boochani.
12 Discuss how Boochani eventually escaped from detention.
When he arrived in Christchurch, Boochani just 19.2 Legal responses

wanted to enjoy life as a free man. After spending
2269 days in an Australian detention centre, he was Competing legal responses 19
free. However, even though he had escaped Manus to asylum seekers
Island and was no longer in detention, Boochani’s It is difficult to understand how the Australian
future remained uncertain as he only had a one- Government could detain an innocent man fleeing
month visa. Boochani had been accepted by the persecution and treat him inhumanely. It is even
United States in the refugee-swap deal, but he did more difficult to understand how the Australian
not know whether that would still hold now that he Government could create a whole system for
had left PNG. He felt a deep sense of duty to the men detaining thousands of people like Boochani. This
he left behind on Manus Island and the 46 men in system is unique in the world and is admired by
the Bomana detention centre in Port Moresby. He some world leaders who pursue blatantly racist
particulary felt a duty to the 12 men who had died policies. Three questions need to be asked here:
in detention and the over 1000 people who were • Why was such a policy created?
psychologically and physically damaged. • How was this policy legally justified in
Through his tireless activism, Behrouz Boochani domestic law?
has been able to shine a light on the Australian offshore • How is this policy in conflict with key
processing system, be a voice for all his fellow detainees, international treaties that the Australian
and keep the world and the Australian public informed Government has voluntarily signed up to?
about the realities of life on Manus Island. While the
story for all those caught in this system continues, To seek the answers to these questions, we need to
for Boochani, this chapter of his story was at an end. consider key developments that have occurred after
Boochani’s story is one of an individual who resisted World War II (1939–1945).
the power of the state, documented what he perceived
as an inhumane system, and made a difference.
to totally remove race as a factor in immigration. The

Whitlam government also radically began changing
the culture surrounding race by introducing the
Multicultural Policy. This was then capped off by
the passing of the landmark Racial Discrimination
Act 1975 (Cth). In theory, Whitlam ended race as a
factor in immigration. However, it was his successor,
Malcolm Fraser, who ended racism in immigration
in practice.
Liberal Prime Minister Malcolm Fraser (PM from
1975–1983) was faced with the issue of ‘boat people’
arriving on Australian shores from Indochina. In the
years after the Vietnam War ended in Indochina in 1975,
waves of people seeking asylum fled from Vietnam,
Cambodia and Laos. They were fleeing persecution
from the newly installed communist governments and
Figure 19.5 Australia helped to establish the United
some Vietnamese of Chinese descent fled because
Nations and was a strong supporter of United Nations
of racist persecution. Between 1976 and 1982, the
treaties in the decades after the end of World War II.
Fraser Coalition government admitted approximately
In the years since the end of World War II, Australia 70 000 refugees from Indochina, with 2500 of these
has been a strong supporter of the United Nations arriving by boat. Another 80 000 people followed them
and the values encapsulated in a number of its in later years from Indochina through an immigration
key treaties. In the post-war decades, Australia program. This effectively ended the White Australia
voluntarily ratified several United Nations treaties. Policy. In the Labor governments of Bob Hawke (PM
from 1983–1991) and Paul Keating (PM from 1991–
ratify
to formally confirm that the country intends to be bound by
1996), a bipartisan policy was maintained concerning
the treaty both immigration and racism.
The following treaties (ratified by Australia) are Changed approach since 2001
relevant to the issue of refugees and asylum seekers:
• The Universal Declaration of Human Rights (1948) The Tampa Incident, 2001
• International Covenant on Civil and Political In 2001, two events occurred that, combined, set
Rights (1966) Australia on the path of creating a system for
• United Nations Convention on the Law of processing asylum seekers that was increasingly
the Sea (1982) at odds with international law. The first of these
• Convention against Torture and Other Cruel, events was the Tampa incident in 2001. On
Inhuman or Degrading Treatment or 24 August 2001, a boat carrying 433 mainly Hazara
Punishment (1984) asylum seekers form Afghanistan was stranded
• Convention on the Rights of the Child (1989). in international waters 140 kilometres north of
the Australian territory of Christmas Island. A
Until 2001, there was a bipartisan policy towards Norwegian container ship, the MV Tampa, came
refugees and asylum seekers in Australia. Racism and rescued the people seeking asylum – this was
had effectively been removed as a factor in regard the expected procedure under international law,
to migrants and immigration. Prime Minister Harold as outlined in the United Nations Convention on
Holt (PM from 1908–1967), who introduced changes the Law of the Sea (1982). The captain of the ship
to the Migration Act (1958), officially ended the White took the people to Christmas Island. However,
Australia Policy. Then in 1973, Prime Minister Gough Australian authorities refused to allow them to be
Whitlam (PM from 1972–1975) introduced legislation dropped off at Christmas Island.

Figure 19.6 An Australian Navy ship approaches the ship, the MV Tampa, off Christmas Island on 2 September 2001.
On 29 August 2001, Prime Minister John Howard protections of Australian law. Secondly the Australian
ordered Australian Army troops to capture the Tampa Defence Force intercepted boats carrying asylum
and take control of the people seeking asylum. On the seekers and took them to the enlarged Christmas
same day, the prime minister attempted to create a new Island detention centre. Thirdly they were then sent to 19
law. However, the Senate knocked back the Border Manus Island or Nauru to have their claims as refugees
Protection Bill 2001 (Cth) on 30 August. Undeterred, processed. In 2001, 43 boats carrying 5000 people
Prime Minister Howard made arrangements with seeking asylum arrived in Australia. However, after
the governments of Nauru and New Zealand to send the implementation of the Pacific Solution, over the
the asylum seekers there. Australian Navy ships next six years, only 23 boats arrived. The Howard
transported 131 asylum seekers to New Zealand and government claimed the Pacific Solution to be a great
302 to Nauru. On 27 September 2001, the Howard success as it was deterring people from making the
government successfully passed the Border Protection hazardous journey to Australia by boat.
(Validation and Enforcement Powers) Act 2001 (Cth).
Portraying asylum seekers as a security
border protection threat and people of poor character
the name given to the policy of preventing asylum seekers
On 11 September 2001, terrorists flew planes
arriving in Australia for the reason that they represent a
threat to national security into the two World Trade Center towers in New
York, and in the Pentagon located outside of
The Pacific Solution 2001–2007 Washington DC. Prime Minister Howard was
September 2001 marked the beginning of a new policy in Washington DC when the attacks occurred.
that became known as the Pacific Solution. Firstly He immediately pledged Australian support in
the Migration Act 1958 (Cth) was amended to excise assisting the United States to respond to these
Christmas Island and other islands from the migration acts of terrorism.
zone so people arriving there by boat seeking asylum Meanwhile, back in Australia, the Coalition had
could not apply for visas to enter Australia and were been flagging in the opinion polls during 2001. In
denied access to legal representation or to the the federal election campaign, which commenced

on 8 October 2001, John Howard made border • were ‘queue jumpers’ taking the place of
protection and national security the centrepieces of refugees who had applied to come to Australia.
the Coalition’s election policy. During his speech on
the night of 28 October 2001, Prime Minister Howard In the years after the launch of the Border Protection
made this statement, ‘We will decide who comes policy, the Howard government continued to link
here and the circumstances in which they come.’ This asylum seekers to terrorism. This is despite the
statement was then printed on thousands of Liberal fact that in May 2002, the Director-General of ASIO,
how-to-vote pamphlets. Dennis Richardson, said there was no evidence that
This was a major turning point in Australian terrorists were trying to come to Australia as asylum
politics. Some political commentators have seekers. Richardson questioned why terrorists
suggested that the government of the time, led by would do this if they knew they would be subject to
John Howard, purposely linked two very separate mandatory detention.
issues – first, the fear of terrorists and terrorism
brought about by September 11 and, second, concern ‘Border Protection’ since 2001
that asylum seekers arriving by boat were a threat to
national security – for their own political gain. Howard government 2001–2007
This link implicitly suggests that some asylum The Howard government’s response to asylum
seekers could be terrorists and, therefore, terrorists seekers in the Tampa incident, the Pacific Solution,
could come to Australia as asylum seekers. This link combined with his government’s framing this as
was made despite there being no facts to support a national security matter, was a key factor in the
this notion and despite the fact that people seeking Liberal party winning the November 2001 federal
asylum are fleeing persecution by people who use election. The Coalition government believed that
violence (e.g. terrorists). they had a winning formula with this policy and
Unfortunately, the fact that many people seeking so continued with their harsh treatment of people
asylum were Muslim – the same religion as the seeking asylum over the following years. The Labor
September 11 terrorists – added to these fears in the opposition and human rights groups were highly
minds of some Australians. critical of this policy. Due to intense lobbying in
Further insinuations made about people arriving 2005, the government ceased the policy of mandatory
in Australia by boat seeking asylum were that they: detention for children. For the next two decades, the
• tried to ‘intimidate’ the Australian people debate of policy on asylum seekers attempting to
• ‘threw their children overboard’ to be rescued travel to Australia by boat was framed in terms of
• deliberately sunk their boat to be rescued national security and ‘border protection’.
• were a ‘pipeline for terrorists’
Offshore processing discontinued under the
• were ‘illegal immigrants’ and there was ‘an
Labor government: 2007–2012
undeniable link between illegals and terrorists’
After winning the federal election in December 2007,
Figure 19.7 Former Australian prime minister, the Prime Minister Kevin Rudd ended the Pacific
John Howard, launched the Liberal Party campaign Solution and closed the Nauru detention facility.
on 28 October 2001. There was an increase in asylum seekers coming by
boat and so the Labor government started to seek
other solutions. Tragedy struck when a boat carrying
90 asylum seekers sank off the coast of Christmas
Island causing the deaths of 48 people. In June 2010,
Julia Gillard replaced Kevin Rudd as prime minister.
The Gillard Labor government – under pressure from
the opposition as being ‘soft’ on border security –
reinstalled the Pacific Solution after reaching dead
ends in its attempts to find other solutions (e.g.
regional processing in Malaysia).

Labor’s PNG solution: 2012–2013 on 7 September 2013. Immediately, the Abbott

In late 2012, the Gillard government re-opened both Coalition government implemented ‘Operation
the Nauru and Manus Island detention facilities. In Sovereign Borders’. Operation Sovereign Borders
another leadership coup, Rudd replaced Gillard as is a militarised border-protection policy that involves
prime minister. In July 2013, with only a few months the Australian Defence Force preventing people
until the next federal election, Prime Minister who are seeking asylum from reaching Australia.
Rudd turned up the get-tough policy on asylum The Immigration Minister (first Scott Morrison
seekers to the highest level so far, by pledging then Peter Dutton) trumpeted a ‘zero tolerance’
that no-one who comes to Australia by boat will be policy, in which any means were used to stop boats
eligible for asylum. The major reasons given were coming to Australia (including not only turning
to stop people drowning at sea and to stop people boats back to Indonesia but also towing them
smuggling. Behrouz Boochani arrived at Christmas back). This policy also made all ‘on water matters’
Island three days after this announcement. secret so there could be no scrutiny of any of the
Political expediency greatly influenced both tactics used. The Coalition government pledged
sides of the political spectrum in the treatment of that no asylum seeker held in Australia’s offshore
asylum seekers arriving by boat with their continued detention facilities would ever be allowed to come
detention offshore for processing. to Australia.
Operation Sovereign Borders: 2013–present US refugee swap deal: 2016

The Liberal opposition leader, Tony Abbott, ran a Operation Sovereign Borders continued unchanged
‘Stop the Boats’ policy as one the major components under the new Coalition prime minister, Malcolm
of his election campaign. He won the federal election Turnbull (PM from 2015–2018), but the problem
Figure 19.8 On 23 September 2013 at a press conference in Sydney, the then Australian Government Minister for
Immigration and Border Protection, Scott Morrison, spoke about the federal government’s Operation Sovereign
Borders policy. He promised a tougher approach on asylum seekers arriving by sea as part of the government’s
promise to ‘stop the boats’.
19

Legal Links
For the latest information about asylum seekers in detention, go to the Refugee Council of
Australia website.
Legal Links
To find this key legislation relating to asylum seekers, access the Australian Government’s Federal
Register of Legislation:
• Border Protection (Validation and Enforcement Powers) Act 2001 (Cth)
• Australian Border Force Act 2015 (Cth)
• Migration Amendment (Urgent Medical Treatment) Bill 2018 (Cth).
Legal Links
Access the following research paper from the Parliament of Australia’s online library: ‘Asylum
seekers and refugees: what are the facts?’(by Janet Phillips, Social Policy Section Research Paper
Series, 2014–2015, updated 2 March 2015).
remained of where to send the 1000 asylum seekers Dr Kerryn Phelps proposed a Bill (the Migration
on Manus Island and Nauru. At a cost of over Amendment (Urgent Medical Treatment) Bill 2018
$55 million, seven asylum seekers were resettled in (Cth) (‘Medevac Bill’)) that would allow doctors to
Cambodia. have a greater say in bringing asylum seekers from
In December 2016, Malcolm Turnbull negotiated Manus Island or Nauru to Australia for medical
a deal with the then President of the United States, treatment. On 12 February 2019, with the support of
Barack Obama, which involved the United States the Labor Party (currently in opposition), the Greens
taking 1250 refugees in return for Australia taking a and Independents, the Bill was passed in parliament
similar number of refugees from Central America. against the government’s wishes. Human rights
However, this was a very slow process and in early supporters hailed this breakthrough and the majority
2017, Prime Minister Turnbull had a difficult time of public opinion seemed to support the idea of giving
convincing President Trump to honour the deal. treatment to sick asylum seekers.
In the following three years, 600 people were The Morrison government’s response to the
resettled in the United States. At the end of 2019, Medevac Bill was one of hostility, particularly as it
over 562 people were still detained on Nauru and was the first time in many years that legislation had
Manus Island, with another 47 people in the Bomana passed parliament with the support of the opposition
detention centre in Port Moresby. and the minor parties. This Bill was contrary to
government policy and was also an affront to their
The Medevac debate: mandate to govern. There were incidences of
February to December 2019 regrettable commentary. Home Affairs Minister
Peter Dutton claimed that people on waiting lists in
Medevac Bill passed, 12 February 2019 public hospitals and those living in public housing
The Australian Government’s hard-line policy would be disadvantaged if sick asylum seekers were
towards asylum seekers has been challenged by brought to the mainland. Some government ministers
many groups that have consistently advocated also suggested there were potential terrorists,
for human rights and for compliance with the paedophiles and criminals among the remaining
international treaties Australia has ratified. refugees held on Manus Island and Nauru.

Figure 19.9 Independent members of parliament (left to right) Adam Bandt, Andrew Wilkie, Kerryn Phelps, Julia
Banks and Rebekha Sharkie celebrate passing the Medevac Bill in the House of Representatives on 12 February 2019
in Canberra, Australia.
For this reason, Prime Minister Morrison justified Repeal of the Medevac Bill, 5 December
reopening the Christmas Island detention centre at 2019
a cost of $185 million. The government said that any
sick asylum seekers would be taken to Christmas
Island instead of to the mainland, as the Medevac On 5 December 2019, the Medevac Bill 19
Bill had intended. However, after spending of was repealed. Dr Kerryn Phelps was
$185 million to reopen Christmas Island, it was shut scathing in her condemnation of the
in April 2019, as it had not taken a single sick refugee. repeal of the Medevac Bill: This repeal
For most of 2019, sick refugees from Manus Island signals a return to the government’s
and Nauru were transferred temporarily to Australia unambiguously cruel and inhumane policy
for medical treatment. However, the Morrison in the treatment of a small cohort of
government determined to repeal the Medevac Bill people seeking asylum. These are among
and pressured independent members of parliament the most vulnerable people on the planet.
to vote for a repeal. This decision to repeal medevac is an
absolute violation of Australia’s obligations
Legal Links under international law to provide these
refugees with safe asylum and medical
To read the Refugee Council of Australia’s care. It also strikes at the heart of our
view of the Medevac legislation, visit the medical training and ethical principles.
council’s website and access this media (Source: ‘To those stuck in offshore detention:
release: ‘Australians demand the humane We will keep fighting for you. The medevac
treatment of people seeking asylum and repeal is not the end’, by Kerryn Phelps, The
refugees as historic vote passes parliament’ Guardian, 6 December 2019.)
(Refugee Council of Australia, media
release, 13 February 2019).

Legal Links
Dr Kerryn Phelps’ scathing condemnation of the repeal of the Medevac legislation can be read
online in full (‘To those stuck in offshore detention: We will keep fighting for you. The medevac
repeal is not the end’ (Kerryn Phelps, The Guardian, 6 December 2019)).
Research 19.5
Using media reports from December 2019 until the present, construct a timeline of the key
developments concerning offshore processing and asylum seekers.
1 Identify and comment on any legal developments.
2 Assess the effectiveness of any non-legal developments.
3 Discuss the viability of offshore processing into the future.
Review 19.2
1 Identify the international treaties that Australia has signed that relate to refugees and
asylum seekers.
2 Describe the Tampa incident.
3 Outline the Pacific Solution.
4 Assess the effectiveness of the US refugee-swap deal.
5 Describe the aim of the Medevac legislation.
The United Nations High Commissioner for Journalism

Refugees was critical of the repeal of the Medevac Throughout this period, journalists have sought to
Bill. On 5 December, this UN agency released a do their job and seek the facts about Australian
statement saying that the medevac mechanism had Government policies and the plight of asylum seekers
‘proven to be a timely, effective and often life-saving in offshore detention centres. Behrouz Boochani, a
safeguard’ and the UNHCR was concerned that the journalist himself, in his six years of imprisonment
‘health situation of asylum seekers and refugees will was able to develop relationships with journalists in
continue to deteriorate’ (source: ‘UN refugee agency Australia and overseas. Various media organisations
laments axing of ‘life-saving’ medevac laws’ (SBS – such as The Guardian Australia, The Saturday Paper,
News, 5 December 2019)). The Financial Times, The Sydney Morning Herald and
the Huffington Post – published articles written by
Behrouz Boochani. In this way, the media has played
19.3 Non-legal responses a very positive role in agitating for change in the way
For over two decades, the Australian Government the Australian Government treats asylum seekers.
has implemented what many consider to be
harsh policies towards people seeking asylum The media
who travel to Australia by boat. There have been Print media has played an important role in informing
sustained campaigns by many people, groups and the Australian public about the situation of asylum
organisations to bring refugee policies in line with seekers in offshore processing facilities. However,
human rights and with Australia’s international this was made very difficult after the implementation
obligations. of Operation Sovereign Borders in September 2013.

Research 19.6
Access the profile of Behrouz Boochani in The Guardian newspaper.

1 Identify the range of topics that Boochani wrote about.
2 Read any two of Boochani’s articles. Discuss the main points or arguments made in these articles.
3 Assess the effectiveness of this type of journalism in bringing about legal reform.
The government placed a veil of secrecy over all Universities

components of its offshore processing system. The Behrouz Boochani was appointed an adjunct
media was not able to access information about boat associate professor of the University of New South
arrivals as the immigration minister claimed these Wales in the Faculty of Arts and Sciences. In this
were ‘on water matters’. Similarly, journalists and position, it was envisaged that he could participate
politicians were denied free access to Manus Island in lectures and events as part of the Forced Migration
or to Nauru. Research Network. At the time, Boochani was
still in detention in PNG. During his six years of
Writers and filmmakers imprisonment, using a contraband mobile phone, he
Behrouz Boochani has won awards for his book, No maintained an active presence at conferences and
Friend but the Mountains, and for his film, Chauka, workshops run by various universities.
Please tell us in Time, and he has been invited to
partake in many public forums and conferences. Civil society groups
People working in the publishing and film industries Many civil society and human rights groups have
became strong supporters of Boochani and of all waged determined campaigns to humanise the
the asylum seekers in offshore detention centres. government’s offshore processing regime. The
For instance, one campaign launched in April 2019 following are a selection of these groups:
included signatories from a Nobel laureate, several • the Australian Human Rights Commission
Booker Prize winners and multiple Walkley award • the Asylum Seeker Resource Centre 19
winners. A letter signed by these people wanted to • the Refugee Council of Australia
acknowledge the fact that Behrouz Boochani and his • the Catholic Alliance for People Seeking Asylum
story are now an integral part of Australia’s history. • Welcome to Australia
(Source: ‘Bring Behrouz home to Australia: He is • Save the Children
one of us’, by Arnold Zable, The Age, 4 April 2019.) • Amnesty International New Zealand.
Figure 19.10 On 20 July 2019 in Sydney, demonstrators

Medical professionals
gathered at a protest rally to demand the humane Throughout the two decades of asylum seekers being
treatment of asylum seekers and refugees. The rally ‘processed’ offshore, numerous doctors and other
marks six years of Australia’s detention of asylum seekers medical professionals have voiced their concerns
on PNG’s Manus island, a practice that has drawn
about the impact of the system on the health and
international criticism with news of alleged widespread
wellbeing of the asylum seekers. In November 2019,
abuse and an ‘epidemic of self-harm’ and suicide.
over 5000 doctors signed a petition urging senators
to not repeal the medevac legislation.
Protests
Over the years, there have been numerous protests
in support of the asylum seekers locked up on Nauru
and Manus Island.

Review 19.3
1 Explain how Behrouz Boochani’s own journalism has contributed to highlighting the plight of
people in offshore detention.
2 Outline some of the difficulties the media has faced since 2013 in keeping the public informed
on this issue.
3 Identify the role each of the following has played in advocating for the humane treatment of
asylum seekers:
a doctors
b universities
c writers
d mass protests.
19.4 Effectiveness of responses Cost

There are a number of perspectives to consider The cost of offshore processing over the last
when assessing the effectiveness of the various two decades has been in the billions: $9 billion were
responses to people seeking asylum, like Behrouz spent on offshore processing just between 2016 and
Boochani, who are caught up in Australia’s offshore 2019. It is estimated that for the next three years, the
processing system. cost of keeping the remaining 500 or so people in
offshore detention will be $1.2 billion, which equates
Mental, psychological and to $573 000 per detainee per year.
physical toll on asylum seekers
One perspective is that of the people caught up in Damage to international law
Australia’s offshore processing regime. From their International law is based on mutual respect.
perspective, they were fleeing persecution and Treaties are voluntary agreements that govern
going to another country to legally seek asylum how nations agree to treat each other and how
under international law. Some of the detainees governments agree to treat their people. In
were also aware that their inhumane treatment in international forums, Australia regularly invokes
detention violated human rights law and a number the importance of respecting international law and
of international conventions. However, there were promoting a rules-based order.
others that weren’t aware of their rights. In the last two decades, as it has pursued a policy
They were allowed no legal rights or legal that the United Nations Human Rights Committee
representation. Furthermore, many suffered has said violates international human rights,
mentally, psychologically and physically as a result Australia has been seen by some as a hypocrite
of their lengthy imprisonment. For the detainees in the international arena. The more that countries
of Manus Island and Nauru, the Australian violate key aspects of the liberal international order,
Government’s refusal to abide by international the more damage this does to the legitimacy of the
human rights law left them with no hope. international rule of law.
Legal Links
The following sources are available online:

• ‘Offshore detention costs taxpayers up to $573 000 each person a year, report finds’ (by Sarah
Martin, The Guardian, 3 December 2019)
• ‘The cost of Australia’s refugee and asylum policy: A source guide’ (Kaldor Centre,
12 September 2019).

Legal Links
To read move about the Global Compacts, source online the article, ‘The Global Compacts on
Refugees and Migration’ (Kaldor Centre, 23 January 2019).
19
Figure 19.11 On 25 August 2019, Rohingya refugees gathered in the open field at the Kutupalong refugee camp to
commemorate the second anniversary of the 2017 crisis when they were forced to flee their homes in Myanmar to
escape a brutal military crackdown. According to the UNHCR, over 742 000 people from the persecuted Rohingya
minority have escaped to Bangladesh since 25 August 2017.
Damage to international reputation sight of the big picture. This is that there are more
refugees in the world than ever before. The number of
By and large, Australia has a good track record
refugees is fast increasing due to wars, persecution
of doing good things in many areas, but these are
overshadowed in the minds of many people and
Figure 19.12 On 21 May 2015, when former prime
organisations by the Australian Government’s
minister, Tony Abbott, was asked about the prospect of
treatment of some of the most vulnerable people on
resettling some Rohingya refugees in Australia, his reply
the planet. It must be recognised that Australia is was, ‘Nope, nope, nope!’.
the only country in the world that has an offshore
processing system for asylum seekers. Many other
countries, far poorer than Australia, accommodate
refugees in the hundreds of thousands.
Failure to develop long-term

strategies both internationally
and for our region
There is a view that by having a self-centred focus
on the relatively small number of people seeking
asylum in Australia, some Australians have lost
Research 19.7
Access the website of the UN Refugee Agency (UNHCR). On this website, find the ‘Figures at a
Glance’ webpage.
1 Describe the scale of the refugee problem at a global level.
2 Identify the total funding for UNHCR programs for 2019. Assess how this compares to how much
Australia spends on a relatively small number of people seeking asylum.
and instability in many locations around the world. A policy in line with our values?
Some say that Australia could be providing greater Many critics argue that Australia’s offshore detention
leadership in this area, particularly in our region, policy is not in line with our national values. They ask
while also protecting the security interests of our how can we say that Australia provides a ‘fair go’ for
country. all? According to Jane McAdam and Fiona Chong
(Refugee Rights and Refugee Wrongs, 2019, p. 201),
Damage to social cohesion this policy has:
Finally, many critics of Australia’s two- ...undermine community cohesion and

decade long policy of offshore detention tolerance for diversity, and challenge
point to the damage to the social cohesion fundamental conceptions of dignity and
of Australian society. These critics argue humanity. When a six-year-old asks
that political rhetoric portraying people why refugee children are trying to kill
seeking asylum as representing threats themselves, how do we as parents, teachers
to national security has been deceptive and a community respond?
to say the least; it’s the classic political
sleight of hand: create a problem and
then provide the solution in order to look
like a hero. This tactic has inflicted a Finally, in the words of Behrouz Boochani (‘Human
high price in terms of Australia’s social rights dinner keyote address’, Human Rights Law
cohesion. The irresponsible branding of Centre, 18 May 2018):
asylum seekers as potential jihadists has
so infected our collective psyche that we
now feel threatened by the mere presence Do not give up. The refugees have no
of Middle Eastern men or Islamic choice but to persevere.
accoutrements like the Burqa. We cannot stop resisting. Until we are free
(Source: ‘How we’re exploiting the our struggle will never end.
terrorism threat’, by Paula Matthewson, Never forget that we have endured all
The Drum, ABC News, these years, the consequences of physical,
29 September 2015.) emotional and psychological pain and
affliction will never end.
We cannot stop resisting.

Chapter summary
• Behrouz Boochani fled from persecution in enacted the Border Protection (Validation and
Iran in 2013 and was imprisoned on Manus Enforcement Powers) Act 2001 (Cth).
Island in PNG for six years. • There has been criticism that people seeking
• The Australian Government had changed its asylum have been demonised and linked to the
policy on asylum seekers three days before threat of global terrorism.
Behrouz Boochani arrived on Christmas Island. • Many civil society groups opposed government
• Behrouz Boochani clandestinely documented policies on people seeking asylum because
his six years imprisonment on Manus Island these policies undermined human rights
in a film, a book, in newspaper articles and via and Australia’s obligations under various
online talks with various organisations. international treaties.
• Behrouz Boochani came to the attention of • Behrouz Boochani has influenced the debate
the world and to the Australian public – even about asylum seeker policies though his
challenging then Prime Minister Malcolm writing and his journalism.
Turnbull directly on TV. • The repeal of the Medevac legislation in
• In November 2019, Behrouz Boochani secured a December 2019 ensured the continuation of
passage to New Zealand and a one-month visa. Australia’s offshore processing policy.
With his future uncertain, he pledged that he • Australia’s legal system has been criticised as
would not return to detention in PNG. being ineffective in ensuring the wellbeing of
• The Howard government, using the 2001 Tampa asylum seekers in offshore locations.
incident, radically reframed Australia’s policy • Australia’s polices have damaged its
on asylum seekers who arrived by boat and international reputation and its credibility
according to some critics in the region.
Questions
1 Behrouz Boochani was persecuted in Iran 3 In June 2016, Behrouz Boochani challenged
because he: the Australian prime minister with a question
a was a Kurdish freedom fighter. on the ABC’s Q&A program. Which prime
b was promoting Kurdish language and minister did he challenge?
culture in his publications. a Scott Morrison
c was caught in a war zone between Iran b Malcolm Turnbull
and Iraq. c Tony Abbott
d was born in a Kurdish region in Iran. d Julia Gillard
2 Behrouz Boochani claimed that Manus Island 4 Behrouz Boochani’s book, No Friend but the
functioned according a ‘kyriarchal system’. A Mountains, was written via:
‘kyriarchal system’ is: a Facebook.
a a system that used to exist in medieval b Instagram.
times. c WhatsApp.
b based on domination, suppression d a hand-held computer.
and submission. 5 Australian Government’s policy on asylum
c one in which only those with money are seekers was radically transformed by the:
treated well. a Tampa incident.
d all of the above. b US refugee-swap deal.
c repeal of the Medevac legislation.
d PNG’s High Court decision.

1 Identify the three locations in which Behrouz 5 Identify the Australian prime ministers who
Boochani was in detention. have played a role in Australia’s asylum
2 Identify how much time Behrouz Boochani seekers policies.
spent in each of the three detention locations. 6 Identify the international treaties that
3 Describe Operation Sovereign Borders. Australia’s offshore protection policies are at
4 Outline the daily routine experienced by odds with.
inmates imprisoned on Manus Island.
Assess the implications of the repeal of the Marking criteria for extended response questions
Medevac legislation up to the current time. can be found on the Cambridge GO website. Refer
to these criteria when planning and writing
your responses.

Issue 3
Individuals or
groups in conflict
with the state
Chapter 20
Mohamed Haneef

Issue 3
Individuals or
groups in conflict
with the state
Chapter 21
The Northern Territory
National Emergency
Response

Issue 4
Criminal or civil
cases that raise issues
of interest to students
Chapter 22
The Christchurch Massacre
Chapter objectives
• identify the relevant legal terminology used in investigating and discussing an Australian citizen who
is subject to New Zealand law
• describe the legal and non-legal responses, both in New Zealand and Australia, to a terrorist attack
• describe the role of the law in encouraging international cooperation in dealing with the underlying
causes of extremism and hate
• discuss the effectiveness of legal and non-legal means in addressing hatred, terrorism and
gun violence.
Relevant law
Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill 2019 (NZ)
Terrorism Suppression Act 2002 (NZ)
SIGNIFICANT CASES
New Zealand Police v Tarrant [2019] NZDC 4784

Note
NZ Prime Minister Jacinda Ardern vowed never to say the name of the Christchurch mosque gunman, ‘He
sought many things from his act of terror, but one was notoriety – that is why you will never hear me mention
his name’. As a mark of respect, we have intentionally removed his name from most of this chapter. Instead
of using his name, he is usually referred to as ‘the terrorist’.

22.1 T
he crime: Friday These weapons had been modified with high-
15 March 2019 capacity magazines so they could hold more
bullets. Brandishing these weapons, the terrorist
The mass shooting of 100 people at two mosques
entered the Al Noor Mosque in central Christchurch
in Christchurch, New Zealand, on the afternoon
at 1:41 pm during Friday prayers. Within minutes,
of Friday 15 March 2019, sent shockwaves around
he had shot 42 people. By the time police arrived
the world. The gunman killed 51 people, wounded
six minutes later, the terrorist had gone to another
49 people, and left a community in fear and a nation
mosque in a nearby suburb, where he shot more
in crisis. This crime is significant for Australia
people. After three minutes, he left the second
because the alleged killer is an Australian citizen
mosque and, according to his manifesto, he was on
and a self-declared white supremacist. Not only
the way to a third target, a mosque on the outskirts
was this one of the worst mass shootings in
of Ashburton.
recent times – surpassing even the Port Arthur
Before he reached his next destination, two
massacre of 1996 – but it was also a calculated act
police officers – after a radio call out – intercepted
of terrorism aimed at appealing to far-right groups
him. When they spotted the terrorist’s 2005 Subaru
and encouraging others to carry out similar attacks.
Outback they forced the car to pull over and arrested
massacre him. He was taken to the Central Police Station
the intentional killing of a large number of people in Christchurch for questioning. The terrorist’s
terrorism rampage had lasted no more than 20 minutes, yet
violence or the threat of violence, directed at an innocent bodies were strewn at two mosques and countless
group of people for the purpose of coercing another party,
such as a government, into a course of action that it would lives had been shattered.
not otherwise pursue All 16 minutes and 55 seconds of the massacre
were live-streamed by the gunman; this footage
On 15 March 2019, Brenton Tarrant armed himself was then shared by likeminded people on YouTube,
with semi-automatic rifles, including an AR-15. Facebook and Twitter. In the first 24 hours after the
Figure 22.1 The Christchurch Botanic Gardens in Christchurch, New Zealand. In the days following the terrorist
attack, people left messages of support for the Muslim community.

Chapter 22 The Christchurch Massacre
massacre, Facebook removed 1.5 million videos of had online contact with Martin Sellner, the leader of
the terrorist attack. The terrorist also uploaded a a far-right identitarian group. It is unclear whether
73-page manifesto titled, ‘The Great Replacement’, they ever met face-to-face. However, Sellner did
and links to it were shared on Twitter and 8chan receive a donation of 1500 Euros from the terrorist.
(8chan is an online forum where members can post Authorities in both Austria and Germany have
anonymously and their posts vanish after a short been investigating any possible links between
time). He also emailed his manifesto to more than identitarian groups in their countries and the
30 recipients, including media outlets and the Prime Christchurch terrorist.
Minister’s office.
The NZ Police were not sure whether the gunman identitarianism
a recent extreme right-wing ideology that slickly repackages
had acted alone. For all they knew, there may have old fascist ideas into more socially acceptable forms;
been more terrorists involved in the attack. In addition, often espouses the exclusion of Muslims and other
minority groups
police were now aware that the terrorist was being
followed in real time on Facebook and on other online
Once back in Dunedin, New Zealand, the terrorist
forums. They did not know whether he was part of
returned to his small duplex but he did not appear to
a coordinated attack by a number of extremists.
have a job. He regularly visited the shooting range at
Christchurch was placed in lock-down until the police
the Bruce Rifle Club. In October 2017, he applied for
were sure that there was only one terrorist.
a gun licence and bought four guns and ammunition
The terrorist at the Gun City store.
At some point, the terrorist began working on
The terrorist was born in 1990 in the town of Grafton
his manifesto, ‘The Great Replacement’. He claimed
in northern New South Wales. When his father died
that his first draft was 250 pages long but then he
of a lung disease in 2010, the son received $500 000 in
cut it back to 74 pages. This document was full of
insurance compensation. He then quit his job at a gym
the racist ideas of identitarianism and neo-Nazism,
and travelled around Australia during 2013 and 2014.
such as white supremacy and hate speech directed
After possibly spending some time in Asia, he went to
at immigrants. He took the title from a 2012 book
Europe in 2014, visiting sites of historical significance
by a French white nationalist conspiracy theorist,
for far-right groups in Serbia and France. References
Renaud Camus, who drew on existing traditions of
to these sites appear in his manifesto.
racism directed at migrants and merged them with
Back in Australia, he participated in a number of
the Eurabia conspiracy theory.
online far-right groups such as the United Patriots
Some Australia journalists had this to say about
Front (UPF) and expressed support for the UPF’s
the terrorist’s manifesto:
leader, Blair Cottrell. In May 2016, he posted violent
language online directed at a critic of the UPF. The
terrorist was also familiar with the far-right white
What was most disconcerting was its
nationalist group Lads Society. According to an
clarity. Stripped of the memes, chan gags
ABC ‘background briefing’ report on 23 March
2019, he livestreamed via Facebook a celebratory
and patchy grammar, it [the manifesto] 22
was a direct statement of mangled history,
video with Tom Sewell, leader of the Lads Society,
vile ideology and deadly intent. Online
from Melbourne’s Federation Square. ‘Simply one
plagiarism software checks suggested that
of the most important events in modern history’, he
his writing was original … Crucially, he
commented in the livestream. He went on to declare
intended to inspire further atrocities and
that, ‘Globalists and Marxists on suicide watch,
help foment broader conflict.
patriots and nationalist triumphant – looking forward
(Source: ‘White Bred Terrorist’ by
to Emperor Blair Cottrell’.
Nick O’Malley, Tim Barlass and Patrick Begley,
In August 2017, he moved to New Zealand where
Sydney Morning Herald, 10 August 2019, p. 24.)
he started planning a terrorist attack on Muslim
people. In 2018, he travelled to Pakistan, North Korea
and Austria. It was while he was in Austria that he

It was clear that the terrorist was part of an online Plymouth. Over the next 90 minutes,
community that promoted fascist views, conspiracy the full horror of what had happened
theories and the use of violence. He also had became apparent, including the
links with fascist groups both in Australia and in livestreaming of the terrorist attack on
Video
Europe. The Christchurch massacre was a carefully Facebook.
planned terrorist attack that was designed to go At 4 pm on 15 March, barely two hours after the
viral and to influence people in dark online far-right attack, Prime Minister Ardern made her first public
communities. statement:
far right
(politics) similar to ‘extreme right’ – this describes
right-wing political groups that are willing to institute Many of those who will have been directly
extreme measures to deal with the perceived ills of society affected by this shooting may be migrants
to New Zealand, they may even be
refugees here. They have chosen to make
Response from the New Zealand their home, and it is their
NZ Prime Minister home. They are us. The person who has
Ten minutes after the shooting began on Friday perpetuated this violence against us is not.
15 March 2019, NZ Prime Minister Jacinda Ardern They have no place in New Zealand. There
received a call telling her the news. Police had only is no place in New Zealand for such acts
just arrived at the first mosque and the gunman of extreme and unprecedented violence,
was on his way to his second target. Ardern and her which it is clear that this act was.
staff immediately went to the police station in New
Figure 22.2 Hours after the terrorist attack on two mosques in Christchurch on 15 March 2019, NZ Prime Minister,
Jacinda Ardern, spoke to the media at a press conference at parliament in Wellington, New Zealand. She said that one
person was in custody and police were searching for another gunman.

Legal Links
To read Prime Minister Jacinda Ardern’s speeches from 15 March 2019, go to the NZ Foreign Affairs and
Trade website, under Media & resources - Ministry statements & speeches.
In a second address to the media four hours later, The NZ Prime Minister reiterated her approach in an
Prime Minister Ardern labelled the massacre a interview on the Today Show on 24 September 2018:
terrorist attack:
I really rebel against the idea that politics

We, New Zealand, we were not a target has to be a place full of ego and where
because we are a safe harbour for those you are constantly focused on scoring
who hate. We were not chosen for this hits against one another. Yes, we need a
act of violence because we condone robust democracy but you can be strong
racism, because we are an enclave for and you can be kind.
extremism. We were chosen for the very
fact that we are none of these things.
The funerals and vigils

In response to the Christchurch massacre, there
A few months earlier, in September 2018, Prime
was a wave of support from around the world for
Minister Ardern had given a speech at the United
New Zealand and its Muslim community. Vigils
Nations. This speech stands out for its direct
were held to remember the victims. A vigil was
analysis of where the world is today and what we
held in the Auckland Domain on 22 March. Another
need to do to make things better. Ardern said that
vigil held in North Hagley Park in Christchurch on
what the world needs to pursue is kindness. This
24 March was attended by 3000 people. This vigil
is consistent with Ardern’s whole approach to
was called the ‘March for Love’ and was organised
leadership since taking office:
by the same students who had organised the School
Strike for Climate march. Incidentally, the School
Perhaps then it is time to step back from Strike for Climate march on 15 March 2019 was the
the chaos and ask what we want. It is same day as the shooting and in Christchurch was
in that space that we’ll find simplicity. cut short by the massacre.
The simplicity of peace, of prosperity, A week after the massacre, funerals were
of fairness. If I could distil it down into held in New Zealand and in the countries of
one concept that we are pursuing … it is origin for some of the victims. More than 1000 22
simple and it is this. Kindness. people gathered at Christchurch’s Memorial
Park cemetery for the burial of 26 of the victims
In the face of isolationism, protectionism, in accordance with Islamic Law. An imam from
racism – the simple concept of looking the Al Noor Mosque said that the attacks had left
outwardly and beyond ourselves, of kindness the country ‘broken but not broken-hearted’ and
and collectivism, might just be as good a he thanked the people of New Zealand for their
starting point as any. So let’s start here with support, love and compassion. Many women in
the institutions that have served us well in New Zealand wore headscarves in solidarity with
times of need, and will do so again. Muslim women, including the Prime Minister.
(Jacinda Ardern, Speech to the United Nations,
28 September 2018.)

Figure 22.3 On 17 March 2019 in Wellington, New Zealand, Prime Minister Jacinda Ardern hugged a woman
at the Kilbirnie Mosque. Ardern received support from around the world for her resolute and compassionate handling
of the government’s response to the massacre. An article in The New York Times praised Ardern, declaring that her
‘moral clarity is inspiring the world’ (‘Why Jacinda matters’, by Surshil Aaron, The New York Times, 22 March 2019).

activities and seek feedback from your teacher on build your knowledge of the topic.
Review 22.1
1 Outline the evidence that the Christchurch terrorist had spent some time planning the attack.
2 Describe how the NZ Police and the NZ Government responded to the Christchurch massacre.
3 Identify the far-right sentiments the terrorist displayed before 2019.
4 Describe how NZ Prime Minister Jacinda Ardern responded to the terrorist attack. Assess why
she responded this way.
5 Outline the support the Muslim community in New Zealand received from the wider
New Zealand community.

22.2 Legal responses Court appearances

On 16 March 2019, the terrorist was taken to court
The terrorist’s manifesto and was charged (initially) with one count of
On 23 March 2019, the Chief Censor of New Zealand murder. This was because the court only needed
declared that the terrorist’s manifesto, ‘The Great evidence of one killing to keep the terrorist in
Replacement’, was ‘objectionable’ and that it was prison. As he was brought into the courtroom, he
unlawful to possess or distribute the manifesto in made a white supremacist gesture with his hand.
New Zealand. However, in August 2019, NZ Police He was remanded without bail until his next court
discovered that copies of the manifesto were being appearance on 5 April.
printed and sold outside the country. On Friday 5 April 2019, the terrorist appeared
in the Christchurch High Court via video-link from
Websites prison. Many victims and relatives were present.
In September 2019, Australian internet service The judge ordered that two assessments be carried
providers (ISPs) were told by the Australian out to determine the terrorist’s mental health. The
Government to block eight websites hosting videos terrorist listened intently to the judge and made
of the Christchurch massacre. Back in March 2019, no comments. He was remanded in custody at the
Australian ISPs had taken a proactive approach and maximum security Auckland Prison until his next
had begun blocking 43 websites that were on a list court date (14 June).
provided by Vodaphone New Zealand. The eSafety In the lead-up to the suspect’s court appearance on
Commissioner in Australia assumed responsibility 14 June 2019, media organisations in New Zealand took
for monitoring the objectionable websites identified. the unprecedented step of agreeing to a voluntary set
It was acknowledged that this was not a ‘silver of principles that were designed to limit the exposure
bullet’ in dealing with extremism online. of the terrorist’s ideals and beliefs. The media agreed
Research 22.1
Research the trial of the Christchurch terrorist using the Courts of New Zealand website, and a range
of media reports from New Zealand, Australia and other countries:
• from during the trial
• from the end of the trial (i.e. the summing up stage)
• from after the terrorist had been sentenced.
After you have completed your research, answer the following questions:
1 Identify significant moments in the trial of the Christchurch terrorist.
2 Outline what the survivors and relatives of victims thought about the trial.
3 Outline how the trial was viewed by the public in New Zealand, Australia and in other parts
of the world. 22
4 Identify to what extent the discussion in court and in the media was about the terrorist’s
ideological motivation, and the danger of white supremacist and other hate groups.
5 Read the sentencing judgment. Identify what aspects were highlighted.
6 Identify if there was any discussion about the fact it was an Australian who carried out this
act of terrorism.
7 Compare the trial with the 1996 trial of Martin Bryant for the Port Arthur massacre. (See Chapter 16).
8 Assess if it was a good idea for the survivors and the victims’ relatives to have their day in court
and if this trial provided closure for these people.

to limit coverage of statements that promote white This case now shares a similar conclusion to that
supremacy or terrorism and not to quote from the of the mass killer, Martin Bryant, who also pleaded
terrorist’s manifesto or broadcast imagery of white- guilty in 1996. This guilty plea spared the families of
supremacist symbols. The media pledged to adhere the victims the harrowing experience of a lengthy
to these principles during the terrorist’s trial. court case.
On 14 June 2019, the terrorist again appeared in
court via video-link from prison. He pleaded not guilty Reform of New Zealand’s gun laws
to all 92 charges including: On 21 March 2019, just six days after the Christchurch
• 51 counts of murder terrorist attack, Prime Minister Jacinda Ardern
• 40 counts of attempted murder announced that New Zealand would ban all types of
• one count of terrorism under the Terrorism semi-automatic weapons. She said that, ‘our history
Suppression Act 2002 (NZ). has changed forever. Now, our laws will too’. The ban
also covers accessories that enable semi-automatic
On 26 March 2020, the defendant changed his plea to weapons to be loaded with high-capacity magazines.
guilty of all charges. This came as a surprise as his Prime Minister Ardern also announced an amnesty for
trial – which had been due to start in the High Court those who already owned these weapons so they could
of New Zealand on 2 June 2020 – had been cancelled hand them in; under a weapons buy-back scheme. At
due to New Zealand being in a nationwide lock-down the end of the amnesty period, anyone caught with a
due to the coronavirus pandemic. banned weapon would face a fine of up to NZ$4000
Due to this sudden change in plea, the terrorist and three years in jail. Prime Minister Ardern said
will proceed straight to sentencing. This means that a later round of amendments would legislate for
there will be no jury trial and no need for evidence a register of all firearms and their owners, and other
to be provided to prove his guilt. Instead, a judge will issues of licencing and registration.
determine his sentence. Ardern said gun-reform legislation would be
This is normally a quick process. However, the introduced into parliament in the first week of April
coronavirus pandemic has held up the process. As a 2019 and she expected the laws would be in effect
result, the sentencing hearing has been delayed until by 11 April. On 10 April, the NZ Parliament passed
late 2020 when the majority of the survivors of the the Arms (Prohibited Firearms, Magazines, and Parts)
massacre can attend. Prime Minister Jacinda Ardern Amendment Bill 2019 (NZ) and it received royal assent
has said the guilty plea is a relief for the families of from the NZ Governor-General on 12 April. The vote
the victims. for the Bill was 119–1. In a speech to parliament,
Figure 22.4 In an otherwise light-hearted and humorous interview on 18 November 2019 by The Late Show host on a
visit to New Zealand, Stephen Colbert turned serious and asked about New Zealand’s response to the Christchurch
massacre. Colbert said, ‘You immediately passed laws outlawing semi-automatic weapons. That was inspiring for us
living here in the United States. How did you do it? I’m asking for 315 million friends of mine.’

Research 22.2
1 Access the website of the NZ Police.

a The gun amnesty only applied to certain types of weapons. Identify these types of weapons.
b Outline the conditions for handing in weapons to the NZ Police.
c Describe what would happen to the weapons that were handed in to the NZ Police.
d Outline the conditions for receiving compensation for any weapons surrendered.
2 Access the article, ‘New Zealand gun buyback: 10 000 firearms returned after Christchurch
attack’ (by Eleanor Ainge Roy, The Guardian, 12 August 2019).
a Assess the effectiveness of the 2019 gun buy-back scheme.
Prime Minister Ardern talked about the horrendous • what government agencies knew about the
physical and psychological injuries suffered by the terrorist before the attack
survivors, who would carry disabilities for the rest • what actions they took (if any)
of their lives. She said ‘she could not fathom how • what could have been done to prevent
weapons that could cause such destruction and large- the attack
scale death could be obtained legally in this country’. • what can be done to prevent similar attacks in
New Zealand’s gun-law reform drew reactions from the future.
around the world. US Senator Bernie Sanders tweeted
that, ‘This is what real action to stop gun violence looks The Royal Commission had to sift through highly
like’. However, unsurprisingly, the US National Rifle classified information. For this reason, many of the
Association (NRA) did not welcome the reforms – the hearings were held behind closed doors.
NRA has been trying for years to discredit Australia’s The Royal Commission’s hearings looked at:
gun laws (enacted in 1996 in response to the Port Arthur • the terrorist’s activities before the attack
massacre). Dana Loesch, from the NRA tweeted, ‘The • his life in Australia
US isn’t NZ. While they do not have an inalienable • the time he spent in New Zealand
right to bear arms and to self-defense, we do.’ • his overseas holidays
• the people he mixed with
The Royal Commission • his use of social media
On 13 May 2019, the NZ Royal Commission of Inquiry • how he obtained his gun licence, weapons
into the Attack at Christchurch Mosques was and ammunition.
established to find out:
Research 22.3
Locate the website of the NZ Royal Commission of Inquiry into the Attack at Christchurch Mosques.
22
Also locate media reports about this Royal Commission’s findings.
1 Summarise the Royal Commission’s main findings.
2 Discuss how the findings were received by:
a the media
b the NZ Government
c the Muslim community.
3 Identify any reforms or changes to government policy that occurred as a result of the Royal
Commission’s findings.

Figure 22.5 Armed police officers patrol the grounds of parliament on 18 March 2019 in Wellington, New Zealand.
Judging by the 1100 public submissions received arms. In addition, Armed Response Teams were set
by the Royal Commission, there is significant up in Auckland, the largest city in New Zealand.
public interest in the commission’s findings. The
commission’s final report was originally due on Concern in Australia
10 December 2019. However, there were concerns During October 2019, there was a concern in
that this date was too early, that the December Australia about the perceived complacency of our
deadline did not allow enough time for the Government in the wake of this terrorist attack
survivors and the Muslim community to be properly committed by an Australian citizen. There has
consulted, and that the commission’s conclusions been little soul-searching or sense of responsibility
would be rushed. In response to these concerns, about the fact that this attack was carried out by
on 30 November 2019, the NZ Government extended an Australian far-right white supremacist terrorist.
the due date for the commission’s final report to Labor member of parliament, Anne Aly, said the idea
30 April 2020 and provided an extra NZ$3 million that the shooter was not ‘one of us’ was wrong. ‘No
in funding. actually, he is one of us,’ she said. Aly said this sort
of attack was bound to happen eventually due to
Arming NZ Police officers the upsurge in brazen extreme white supremacist
In the months after the Christchurch massacre, the activity in recent years. She also cited ASIO reports
proposal that all NZ Police officers should be armed that a future terrorist attack would most likely
at all times was considered. Up to 2019, New Zealand be committed by a lone person, or a small group
was one of the few countries in the world where police mobilised via social media or some online forum.
officers did not carry guns, like in the United Kingdom Furthermore, Aly said that Australia needed to
and Norway. Police officers had handguns, rifles and tackle the rhetoric used to justify and embolden
Tasers locked in their vehicles, which could be used right-wing extremism. Aly gave evidence at the
with permission of a superior officer. Trials were NZ Royal Commission of Inquiry into the Attack at
conducted in three areas of police officers carrying Christchurch Mosques.

Research 22.4
Locate recent media reports about Australia’s response to the Christchurch massacre.
1 Identify any similar concerns to those of Australian members of parliament Anne Aly and
Ed Husic that are raised in the media reports.
2 Outline the Australian Government’s response to the Christchurch massacre.
3 Identity if concerns about far-right extremism have increased or decreased since 2019.
4 Assess whether the Christchurch massacre has affected the relationship between Australia and
New Zealand.
Review 22.2
1 Outline how the terrorist’s court appearances were handled.

2 Outline the action taken by the NZ Government on the issue of firearms.
3 Identify the task of the NZ Royal Commission of Inquiry into the Attack at Christchurch Mosques.
4 Describe the changes made to policing in New Zealand.
5 Discuss the concerns raised in Australia about the perceived complacency of the Australian
Government in the wake of this terrorist attack committed by an Australian citizen.
According to another Labor member of 22.3 Non-legal responses

parliament, Ed Husic, there were 50 terror-related
deaths in 2018 in the United States because of Christchurch Call
far-right extremism. He also raised concerns that The Christchurch massacre was livestreamed and
the Christchurch massacre had already been the then went viral; and despite attempts to remove it
inspiration for copycat attacks around the world. from the web, the video footage remains online. In
Husic was also concerned that Australia’s law response to this, on 15 May 2019, Prime Minister
enforcement agencies were not given adequate Ardern met with French President Macron to
resources to keep track of these threats. launch an initiative to deal with terrorist and
Figure 22.6 At the Élysée Palace in Paris, France, on 15 May 2019, the French President, Emmanuel Macron, and New
Zealand’s Prime Minister, Jacinda Ardern, attended a launching ceremony for the Christchurch Call, an initiative
pushed by Ardern.
22

Research 22.5
Locate the Christchurch Call website. Explore the website and read the information about
Christchurch Call.
1 Assess which of the government measures are:
a the easiest to achieve.
b the hardest to achieve.
c should be the highest priority.
2 Identify which of the online service providers’ measures are:
a the easiest to achieve.
b the hardest to achieve.
c should be the highest priority.
3 Look up the following item on the website of New Zealand Foreign Affairs & Trade: ‘Significant
progress under Christchurch Call announced at UN Leaders’ Week’ (26 September 2019).
4 Critically analyse the progress made on the Christchurch Call at the United Nations in
September 2019.
5 Find some recent media reports about the Christchurch Call. Describe to what extent the
Christchurch Call has been followed up by governments and tech companies since 2019.
violent extremist content online. Macron and why he livestreamed the attack on Facebook and
Ardern launched the Christchurch Call, which is a disseminated a 74-page manifesto.
commitment by governments and tech companies These concerns were heightened with other
to eliminate violent extremist and terrorist content attacks in the months after the Christchurch
online. The tech companies were asked to pledge to massacre:
enforce their terms of service and re-evaluate their • Arson attack on a mosque – Escondido
algorithms that directed users to extremist content. California, United States, 24 March 2019
The Christchurch Call acknowledges that the The fire was started at 3:15 a.m., while seven
right to free expression is fundamental. However, people were inside the mosque, but was put
no-one has the right to create or share violent extremist out before anyone was injured. There was no
content. The Christchurch Call also asked national significant damage to the building.
governments to adopt and enforce laws banning • Shooting at a synagogue – Poway,
extremist material online. Governments were asked California, United States, 27 April 2019
to give media outlets guidelines on how to report One person was killed and three others injured.
terrorist acts without giving the atrocitites too much The killer claimed responsibility for this attack
publicity. The meeting between Ardern and Macron and for the fire in Escondido. Disturbingly, this
dovetailed with an initiative launched by Macron killer also left a manifesto, and in it he praised
called ‘Tech for Good’ that brought together 80 tech the Christchurch terrorist. Both were users of
leaders to explore ways in which new technologies 8chan.
could be made to work for the common good. • Shooting at a Walmart store – El Paso,
Texas, United States, 3 August 2019
Community concern about the rise 22 people were killed and 24 people were injured.
of far-right extremism On 8chan, the killer claimed that he was inspired
In Australia and New Zealand, there was concern by the Christchurch massacre.
about the rise of far-right extremism and the • Shooting at a mosque – Bærum, Norway,
risk of further acts of violence. In the case of the 10 August 2019
Christchurch attack, what was most concerning One person was injured. The offender
was that the terrorist hoped the attack would attempted to livestream the attack on
inspire others to commit similar atrocities. This is Facebook. He described himself online as being

Research 22.6
Find a transcript of the speech Sacha Baron Cohen made to the Anti-Defamation League in
November 2019 (‘Facebook: Greatest propaganda machine in history’). Read the speech, then answer
the following questions.
1 Outline the claims Sacha Baron Cohen makes about Facebook.
2 Identify Sacha Baron Cohen’s criticism of Mark Zuckerberg.
3 Assess the validity of Baron Cohen’s criticisms.
4 Assess to what extent the law can deal with Facebook not addressing the fact that far-right
groups use the platform to promote violence.
chosen and said, ‘We gotta bump the race war On 14 August 2019, geopolitical and strategic
threat into real life.’ risk expert, Paul Buchanan, warned that the
On 6 August 2019, while on an official trip to Christchurch massacre has become a touchstone
New Zealand, Jens Stoltenberg, the NATO Secretary for far-right white supremacists around the world.
General, stated that the Christchurch massacre had According to Buchanan, there are three reasons
similarities to the 2011 attack in Norway where a far- for this:
right extremist killed 77 people. Stoltenberg rejected • the location of the attack in a house of worship
the view that terrorist attacks are always something gave it a higher status than random attacks in
that are organised from outside the country. shopping malls
He said they are home-grown too. Stoltenberg also • the attacks were livestreamed
said recent attacks were increasingly connected • a large number of people were killed.
and un-moderated message boards – like 4chan,
8chan and Endchan – are a key factor in the Buchanan said that he monitored the 8chan website
spread of extremism. 4chan and Endchan, like while the shootings occurred and noted that there
8chan, are online forums where members can post were users who urged the gunman on. Significantly,
anonymously and their posts vanish after a short the Christchurch massacre was the first mass
time. These forums foster a toxic culture and are the murder that was livestreamed for ideological
favoured forums for fostering extremist views and reasons. Furthermore, Buchanan declared, ‘To this
conspiracy theories. generation of sociopaths, that really rung a bell
because they are an audio-visual generation.’
Figure 22.7 Sacha Baron Cohen attends the seventy-first Emmy Awards on 22 September 2019 in Los Angeles, the
United States. Two months later, the actor slammed Facebook for promoting online extremism.
22

Understanding far-right extremism
Christchurch attacks show Islamophobia is real, deadly and spreading around the world
By Imran Awan
The Conversation
20 March 2019
When I woke up to the news that 50 people had been killed and at least 20 wounded in shootings
at two mosques in Christchurch, I couldn’t help but reflect upon the words of those who refuse
to accept that Islamophobia exists. In the United Kingdom, the columnist, Melanie Phillips, has
argued that Islamophobia is a fiction used to shut down debate. Douglas Murray called it the
Islamophobia ‘problem’, arguing that it was created by fascists.
Islamophobia is the fear, prejudice and hatred of Muslims and people perceived to be Muslim that
leads to provocation, hostility and intolerance. A working definition, published in late 2018 by a
group of British MPs, defined is as: ‘Islamophobia is rooted in racism and is a type of racism that
targets expressions of Muslimness or perceived Muslimness.’
It is motivated by institutional, ideological, political and religious hostility, and can merge with
racism to target the symbols and markers of a being a Muslim.
I’ve been researching Islamophobia for more than a decade and found it has a devastating effect on
victims, their families and wider communities. Such hatred is very real, and it has become globalised.
A STRING OF ATTACKS TARGETING MUSLIMS
The past few years have seen a number of deadly Islamophobic attacks in Europe and North
America. In 2015, Zack Davies was sentenced for life after he attacked Sarandev Bhambra with a
claw hammer and a 30 cm-long machete at a supermarket in Wales. A witness told the court that
during the attack Davies had said it was for Lee Rigby – the soldier murdered by Islamist extremists
in south-east London in 2013.
In 2017, Jeremy Joseph Christian became enraged when he saw a young Muslim woman wearing
a hijab on a commuter train in the United States. He began verbally abusing her and used a knife
to kill two passengers who tried to intervene. Christian defended the killings in a courtroom rant
that included the following, ‘Death to the enemies of America. Leave this country if you hate our
freedom,’ he said. ‘You call it terrorism, I call it patriotism.’
The same year, Darren Osborne carried out a van attack against Muslim worshippers in Finsbury
Park in London. At his trial, it was revealed he had previously threatened to kill all Muslims and had
searched for material posted online by both far-right group Britain First and the far-right activist
known as Tommy Robinson. In court, it was reported that Osborne had received a group email from
Robinson in reference to the recent Manchester arena attack, which read: ‘There is a nation within
a nation forming just beneath the surface of the United Kingdom. It is a nation built on hatred,
violence and on Islam.’

News (continued)
In the United Kingdom, extreme right-wing activity jumped by 36% in 2017–2018, according to data
from Prevent, the country’s terrorism-prevention program. Statistics released by the Home Office
showed more than half of religiously motivated attacks in 2017–2018 were directed at Muslims.
RHETORIC THAT BREEDS HATRED
In the US, between January and September 2017, the Council for American-Muslim Relations
recorded 1656 so-called ‘bias incidents’ and 195 hate crimes, an increase in both cases on the
previous year. The council suggested President Donald Trump’s ‘toxic campaign rhetoric’ towards
Muslims was a contributing factor.
Trump has singled Muslims out as a suspect community. In his campaign for the presidency, he
proposed a total and complete shutdown of Muslims entering the United States. Despite concerns
raised about these statements, the US Supreme Court ruled in mid-2018 that a Trump administration
travel ban aimed predominantly at people from Muslim-majority countries could come into full effect.
In the wake of the Christchurch attacks, security services are investigating whether the man charged with
the attack had links to far-right groups in Europe. Details have begun to emerge of how the manifesto he
published was influenced by the far-right ideology of Anders Behring Breivik, who murdered 77 people in
Norway in 2011, and carried passages that praised Trump as a ‘symbol of white identity’.
The view that all Muslims are dangerous and not part of society – amplified by politicians such
as Trump and the radical far-right in Europe – has the ability to ignite further racial and
faith-based schisms.
The attack in New Zealand outlines the international spread of Islamophobic hate crime, which
becomes highly pertinent in a globalised world. There is a fear that what happened in Christchurch
could spill over, and those with radical right sympathies could feel emboldened by the incident in
order to promote their own warped version of what Islam is. In the days following the attack, two
people were charged in Rochdale in northern England after a taxi driver was ‘abused and threatened’
with references to the Christchurch shootings, though this case has still to be tested in court.
So please don’t tell me Islamophobia doesn’t exist. It does and it can kill. What happened in New
Zealand was not an isolated attack against Muslims. It is about time we started to hold the media,
and those that peddle far-right hatred, to account.
Islamophobia
the fear of, and hatred towards the Islamic region and Muslim
limiting media exposure for far-right extremists in
the same way they do for jihadists.
22
people generally, which has grown in the wake of the ‘war
Statements by right-wing populist politicians
on terror’ since 2001; Islamaphobia is a form of xenophobia,
racism, and shares common elements with anti-Semitism; or commentators provides fertile ground for far-
many groups that espouse Islamophobia also are anti-Semitic right groups to flourish. One example was Andrew
Bolt’s assertion in August 2018 that there was a
It is important that we understand far-right ‘tidal wave of immigrants flooding the country’
extremism because it represents a serious threat and that these immigrants refused to assimilate.
to Australia, New Zealand and the world. Whenever In response, the president of the Australian Jewish
political leaders leverage racial hatred and bigotry community, Jennifer Huppert, warned that, ‘There
to attract support, this creates an environment is a rise in ultra-right-wing activity in Victoria and
in which far-right extremism thrives. To dampen this type of activity can fuel anti-Semitic, anti-
far-right extremism, terrorism experts advocate Islamic and general racist debate and language in

Research 22.7
1 Access the following article, ‘Terror and rage: What makes a mass murderer different to a
terrorist?’ (by Jeff Sparrow, The Guardian, 4 August 2016). After reading this article, attempt the
a Explain the autogenic massacres, according to Paul Mullens.
b Compare the similarities between ‘lone wolf’ terrorists and ‘deranged shooters’.
c Identify the role war has played in driving both Islamic terrorism and Islamophobia.
d Identify the ‘burning moment’ in Julian Grenfell’s poem from the Great War.
2 Access the following article, ‘What induces man to imitate the Christchurch massacre?’
(by Jeff Sparrow, The Guardian, 5 August 2019). After reading this article, attempt the
a Identify the effect of the ongoing ‘War on Terror’.
b Identify the main beneficiaries of the new racism.
c Outline what made fascists decide to move from the online to real-world activism.
d In the author’s view, identify what is needed to genuinely counter fascist violence.
Review 22.3
1 Explain the purpose of the Christchurch Call.

2 Identify two terrorist attacks that were inspired by the Christchurch massacre.
3 Outline concerns expressed by experts about the Christchurch massacre.
4 Discuss what we need to understand about far-right extremism.
5 Describe how the Christchurch massacre has increased the threat of far-right terrorism.
our community.’ Huppert said that this sort of thing fascism

undermined cohesion in society. contemporary fascism is an anti-democratic ideology that
promotes ultra-nationalism, hatred of immigrants, and the
Jeff Sparrow, a journalist from The Guardian
redemptive qualities of war and violence
newspaper has been writing about far-right groups
for many years. In 2019, he wrote a book called,
Fascists among Us: Online Hate and the Christchurch
Massacre. In this book, he wrote about the nature of
contemporary fascism:
New Zealand’s response
In assessing the effectiveness of the responses
If racial murder were gamified murder, to the Christchurch terrorist attack, we need to
terrorism itself could become a meme, a review the actions of the NZ Government led by
concept that would replicate and spread Prime Minister Jacinda Ardern. Ardern showed
online, so that fascist gun murders became a admirable leadership in shaping the response of
constant temptation for the damaged young her government and of the people of New Zealand.
men already committed to far-right ideas. She took a moral stance from the outset with the
(Source: ‘The internet SS: How the Halle following four key elements:
murders follow a template established in
Christchurch’, by Jeff Sparrow, The Guardian,
16 October 2019.)

Figure 22.8 On 20 March 2019, Prime Minister Jacinda Ardern spoke to students at Cashmere High School in
Christchurch. She asked the students to make New Zealand a place with no tolerance for racism and extremism.
• Showed empathy for the victims attack New Zealand’s immigration policies or

From her first actions and words, Ardern to criticise the Muslim community. She sought
demonstrated empathy for and solidarity to ensure that the terrorist would fail in his
with the Muslim community. To counter any attempts to sow division and promote hate.
possible ‘othering’ of the victims, in her first • Denied publicity to the terrorist
press statement she said of the terrorist, ‘this From the outset, Ardern chose to never utter
is not us’ and of the Muslim victims, ‘they are the terrorist’s name.The New Zealand and
us’. Within hours, she identified the massacre Australian governments took measures to shut
as an act of terrorism and went to visit the down websites hosting videos and the terrorist’s
survivors and relatives. In all of this, Ardern livestream video. The terrorist’s manifesto
was seeking to ensure that the division the
terrorist was seeking to make would not happen.
was also banned in New Zealand. Ardern was
successful in directing the media coverage. The
22
At the funerals and at public gatherings for media agreed to abide by a code that meant that
the first two weeks, Ardern wore a hijab and they would limit coverage of the terrorist at his
many women in New Zealand copied this. The trial.
NZ Government also paid for relatives of the • Identified New Zealand as the target
victims to travel from from overseas to attend In saying that ‘they are us’, Ardern identified
the funerals. New Zealand as the target of the attack as well
• Identified racism as the cause of the attack as its Muslim community. This was to counter
Ardern recognised the need to head off a the prospect of any revenge attacks, at least in
potential culture war in which some may New Zealand.

The NZ Government then took practical measures Global response

to deal with the aftermath of the attack and the The global response has been a mixture of strong
ongoing threat: and lukewarm support:
• enacted gun-law reform to ban semi-automatic • Many countries supported the Christchurch
weapons Call. It received strong support from the United
• initiated a gun buy-back scheme Nations, and protocols and mechanisms were
• established a Royal Commission established to deal with any future attacks and
• initiated the Christchurch Call, which was to counter online groups that promote violence
taken to international forums, gaining strong and hatred.
support from many world leaders, the United • From global technology companies like
Nations and global tech companies Facebook and Google, there were expressions
• directed forceful words to the heads of social of good intentions and promises to take action.
media companies to reign in far-right groups However, though they have successfully been
that promote hatred and violence. able to counter Islamic extremism from their
platforms, they have only just started doing so
Australia’s response with far-right and extremist groups.
The response in Australia has lacked the unity of • US President Trump refused to back the
the New Zealand response. There was no rallying Christchurch Call. In 2017, he had refused to
around Prime Minister Scott Morrison’s response, condemn the attack by a far-right terrorist
and within the community, there was fierce debate in Charlottesville.
about the underlying causes of this terrorist attack • Many people around the world and in the
and how Australia should respond. United States admired the response of
Prime Minister Scott Morrison offered full Jacinda Ardern and her government to the
support to New Zealand, and Australian intelligence Christchurch attacks. New Zealand has
and police cooperated with their counterparts in attracted a lot of goodwill from other countries
New Zealand to deal with the ongoing terrorist threat. because of this approach.
A 20-year-long culture war in Australia over
Islamophobia, asylum seekers and immigration was
fanned by the terrorist attack. For instance: The victims
• Former One Nation senator, Fraser Anning, In determining the effectiveness of the responses
blamed the attack on Muslims to the Christchurch terrorist attack, it must be
• Waleed Aly, from Channel Ten’s The Project, recognised that for the victims, while appreciative
said ‘we all knew this was coming’; Aly criticised of what the government has done, life will never be
Prime Minister Morrison because while he was the same and they will always be affected in some
immigration minister in 2010, he advocated way by this horrific experience.
using anti-Muslim sentiment for political gain In an article published in The Guardian on
• many people were concerned with the 27 November 2019, titled ‘Anxious and in pain,
racist xenophobic language used within survivors of Christchurch massacre call for new
mainstream political debate and by certain approach’, journalist Charlotte Graham McLay
sections of the media; there were calls for the explained how the survivors of the Christchurch
Australian Government to do more to counter massacre will be affected for the rest of their lives
Islamophobia and divisive speech by this horrific experience. The victims are affected
• there were calls for the Coalition to do more to in the following ways:
counter racism within its own ranks • some victims were paralysed and will have
• there were many protests and rallies against to live the rest of their lives in wheelchairs
racism and in support of the Muslim requiring specialised service and disability
community both in New Zealand and appropriate housing
Australia.

Figure 22.9 Zaid Mustafa who was wounded in the Christchurch massacre, attends the funeral of his father,
Khalid Mustafa, and brother, Hamza Mustafa, at the Memorial Park cemetery in Christchurch on 20 March 2019. Zaid
will have to deal with the impact of his wounds for the rest of his life as well as mourn the loss of his father and brother.
Review 22.4
1 Describe Jacinda Ardern’s response in the first days after the Christchurch massacre.
2 Identify the measures taken to ensure safety and security in New Zealand.
3 Outline the debates in Australia following the Christchurch massacre.
4 Discuss how Jacinda Ardern’s response to the Christchurch massacre has influenced the way
the world sees New Zealand.
5 Assess what New Zealand learned from Australia.
6 Assess what Australia can now learn from New Zealand.
• some victims have to live with bullet fragments agencies that they have to deal with; many of 22
in their bodies and the constant fear that these victims are from refugee backgrounds and
a fragment may shift and they will need simply do not understand how the system works
emergency surgery • victims will have to rebuild trust and rebuild
• many victims cannot sleep properly, have panic supportive communities
attacks, and suffer from depression • victims will have to deal with the sentencing of
• many victims have lost incomes or have been the terrorist and the difficult memories that this
forced to close their businesses; many families will revive.
have lost their main breadwinner; financial
In all of our thinking about the Christchurch
stress is now a constant factor for most survivors
massacre, we must never forget the victims.
• victims may have experienced difficulty in
navigating through the various government

Chapter summary
• The Christchurch terrorist was a • The Christchurch Call attempts to deal with
self-confessed fascist who aimed to encourage the promotion of hatred and violence on global
others to carry out similar attacks. internet platforms.
• The Christchurch terrorist had links with • There have been a number of massacres
far-right groups in Australia and Europe. that have been inspired by the Christchurch
• NZ Prime Minister Jacinda Ardern responded massacre.
with empathy for the Muslim victims and • Understanding far-right extremism is important
showed a determination to take the necessary to be able to counter this type
steps to prevent future attacks. of terrorism.
• At the funerals and vigils for the victims of the • The survivors and relatives of the victims of
massacre, there were massive outpourings of the Christchurch massacre will be affected
support for the Muslim community. for the rest of their lives by this
• The New Zealand media agreed to a voluntary terrorist attack.
set of principles to limit the exposure of the • The response of the NZ Government to the
terrorist in their coverage of the terrorist’s trial. Christchurch massacre was seen as being
• The Ardern government quickly passed laws to appropriate and effective and a good example
ban semi-automatic weapons and to implement for the rest of the world.
a buy-back scheme. • The Australian Government struggled to
• There was concern in Australia that the deal effectively with the implications of the
government was not doing enough to tackle Christchurch massacre being carried out by
right-wing extremism. an Australian.
Questions
1 The high-powered semi-automatic weapons c were supported by pro-gun groups in the
used by the terrorist on 15 March 2019 were: United States.
a brought with him from Australia. d did not follow the example set by the
b bought legally in New Zealand. Australian Government after the Port
c acquired illegally. Arthur massacre in 1996.
d banned in New Zealand at the time. 4 The Christchurch Call:
2 The terrorist’s motive for the Christchurch a was supported by the 4chan and
massacre: 8chan webbites.
a was that he had been bullied and abused as b was totally rejected by Facebook
a child. and Google.
b was that he had a hatred of foreign tourists. c was strongly supported by the
c was to encourage others with far-right United Nations.
views to commit similar attacks. d was supported by all countries.
d is not known for sure. 5 Contemporary fascism and far-right groups:
3 Reforms to New Zealand’s gun laws were a are no longer a threat after the
passed after the Christchurch massacre. These Christchurch massacre.
reforms: b reject the use of violence to achieve
a banned semi-automatic weapons and their aims.
instituted a gun buy-back scheme. c thrive in an environment where there
b were passed by a small majority in the is Islamophobia.
NZ Parliament. d all of the above.

1 Summarise the events of 15 March 2019 in your 5 Identify the key features of the gun
own words. reforms instituted in New Zealand after the
2 Outline the stages in the court process in the Christchurch massacre.
prosecution of the terrorist. 6 Outline the main features of contemporary
3 Discuss what it is about the Christchurch fascism.
massacre that makes it attractive to 7 Describe the international measures taken to
other extremists. deal with the threat posed by far-right groups.
4 Outline the role of the internet in radicalising
the Christchurch terrorist.
Assess the role of the leadership Jacinda Marking criteria for extended-response questions
Ardern in creating an effective response to the can be found on the Cambridge GO website. Refer
Christchurch massacre. to these criteria when planning and writing.
22

Issue 4
Criminal or civil cases
that raise issues of
interest to students
Chapter 23
Facebook and social media
privacy issues
Chapter objectives
• explore the legal concepts and terminology relating to Facebook and social media privacy and the law
• investigate the legal system’s ability to address issues relating to Facebook and social media privacy
• explore the differences between Australian and international law on privacy issues
• investigate the role of the law in addressing and responding to changes in relation to social
media privacy
• describe the legal and non-legal responses to social media privacy infringements
• evaluate the effectiveness of legal and non-legal responses to social media privacy infringements.

Relevant law
National Health Act 1953 (Cth)
Freedom of Information Act 1982 (Cth)
Telecommunications (Interception and Access) (New South Wales) Act 1987 (NSW)
Data-matching Program (Assistance and Tax) Act 1990 (Cth)
Criminal Records Act 1991 (NSW)
Telecommunications Act 1997 (Cth)
Privacy and Personal Information Protection Act 1998 (NSW)
State Records Act 1998 (NSW)
Access to Neighbouring Land Act 2000 (NSW)
Crimes (Forensic Procedures) Act 2000 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Workplace Surveillance Act 2005 (NSW)
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
Surveillance Devices Act 2007 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Healthcare Identifiers Act 2010 (Cth)
Health Records and Information Privacy Regulation 2017 (NSW)
SIGNIFICANT CASES
Damien O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good Guys [2011] FWA 5311

23.1 Social media and the law sportspeople use them to keep a high profile in the
public eye.
However, social media users are not all corporate.
What is social media?
It began – and continues to be – a tool for individuals.
The term social media is heard a lot these days,
Snapchat, a popular video and photo-messaging app,
but what does it mean? A simple definition is the
is used among friends to share ordinary events that
interactions between people in which they create,
occur throughout the day and allows users to view
share, exchange and comment on content among
different clips from around the world. The messages
themselves. Two researchers of social media,
are intended to be private and are deleted after a set
Andreas Kaplan and Michael Haenlein, define it as
time limit, although external apps have found ways to
‘a group of Internet-based applications that build
allow recipients to save messages without the sender
on the ideological and technological foundations of
knowing. Instagram also allows you to share videos
Web 2.0, and that allow the creation and exchange of
and images, but posts are intended to be shared
user-generated content’.
widely in order to get more ‘likes’ and all content is
social media displayed on your profile. Followers can like photos
a web-based form of social interaction where users can and videos, comment and direct-message anyone on
share, comment on and discuss topics
their feed. Users with a large amount of followers can
be extremely influential and possess a large group of
Types of social media include blogs, collaborative supporters. Brands have caught on to the power these
projects such as Wikipedia, content communities influencers have and many Instagram users have
such as YouTube and social networking sites such made careers out of promoting brands and product
as Facebook and Twitter. The use of social media is through their photos. For example, digital influencer
a growing. According to the Australian Bureau of Nicole Warne built a business posting her outfits and
Statistics, there are about 9.3 million Facebook users promoting her personal blog on Instagram. Her page,
and 1.2 million Twitter users in Australia. Gary Pepper Girl, now has over 1.7 million followers
and she reportedly is paid up to $8000 for featuring a
content community
a group of people who upload, share, comment on and product or brand on her Instagram account.
discuss content online; for example, YouTube and Tumblr Despite the explosion of different types of social
media, Facebook continues to be the dominant
Social networking has become a powerful source platform, worldwide. An analysis by eBusiness
of news updates, and a way to influence decision- guide eBizMBA found that, as at January 2016,
making, in the past few years. Businesses and Facebook’s estimated number of unique monthly
politicians use such forums as Facebook, Twitter, visitors was more than three times the size of the
Instagram, LinkedIn, Blogger and Tumblr to sell next placed site. In Australia, the use of social
products and ideas, and musicians, actors and media is just as popular; in April 2017, Facebook
TABLE 23.1 Top 10 most popular social networking sites in Australia (October 2018)
Social media platform Estimated unique monthly visitors
1 Facebook 15 000 000
2 YouTube 15 000 000
3 Instagram 9 000 000
4 WhatsApp 7 000 000
5 Snapchat 6 400 000
6 WordPress 5 700 000
7 Twitter 4 700 000
8 LinkedIn (14s and above) 4 500 000
9 Tumblr 3 700 000
10 Tinder (18s and above) 3 000 000

Chapter 23 Facebook and social media privacy issues
other colleges in the Boston area. As other university

students heard about it, they were also allowed to join.
It was eventually opened up to high school students
and then to anyone over 13 years of age (which is the
minimum user age for most social media platforms).
In September 2012, Facebook had over one billion
members and over 800 million active users.
As it grew, Facebook became increasingly
commercialised. In 2007, Microsoft paid $240 million
to acquire a 1.6% share, including the rights to place
ads on Facebook. In 2012, Facebook listed on the stock
exchange and became a public company. In the last
decade, more and more businesses have been using
Facebook to advertise and sell their products.
Figure 23.1 The Facebook logo is one of the most commercialise
recognisable social media logos. to make/give an organisation or an activity more public
awareness for financial gain
stated that an average of 12 million people accessed
it on a daily basis.
Social media law
The Facebook story As with many things to do with technology, changes
An American college student, Mark Zuckerberg, to social media occur at a faster rate than laws can
founded Facebook with fellow Harvard University develop to protect people using these technologies.
students Eduardo Saverin, Andrew McCollum, Dustin It is very hard for lawmakers to be proactive in many
Moskovitz and Chris Hughes. It was originally limited areas of society, but is especially difficult in terms of
in use to only Harvard students, but soon expanded to anything that involves using the internet.
Figure 23.2 Facebook co-founder and CEO, Mark Zuckerberg, testifies before the House Financial Services Committee
in Washington on 23 October 2019. Zuckerberg gave evidence about Facebook’s proposed cryptocurrency, Libra, how
his company will handle false and misleading information by political leaders during the 2020 election campaign and
how it handles its users’ data and privacy.
23


Review 23.1
1 Define the term ‘social media’. Identify four different types of social media.
2 Discuss the popularity of social media in Australia and identify which site is the most popular.
3 Discuss the issues involved in social media use.
4 Assess why it is difficult for the law to protect social media users.
In addition, some of these sites, such as Facebook, The legislation that is most relevant to social media
are not physically located in Australia, or owned by is that relating to privacy; however, as is the case
Australians, so making laws to govern their behaviour with most legal action in Australia, it can be costly
is almost impossible; so is enforcing such laws and in terms of time and money for an
the outcomes of court cases. individual to prove that their privacy
has been compromised. It is often even
Privacy issues harder to prove when an intangible
One of the biggest areas of concern about social thing such as the internet is involved. Video
media, and especially Facebook, is how to protect
the privacy of users. Data breaches
Social media networks are generally not run In 2018, Facebook experienced two very public data
by governments, and are rarely run by benevolent breaches. In March, it was revealed that consulting
people or organisations. Profit-making companies firm Cambridge Analytica had mined the personal
operate most sites (for example, Facebook, Google data of over 80 million Facebook users without their
and LinkedIn), and so have shareholders who expect consent (see Chapter 8).
a return on their investment. This was followed in September by a discovery
As noted, the fact that Facebook is not an that unknown hackers had exploited a vulnerability
Australian-based business owned by Australians
Figure 23.3 Christopher Wylie is a Canadian data
means that making and enforcing laws to cover
scientist. On 31 August 2019, Wylie spoke at the Antidote
actions carried out by and on Facebook is very festival in Sydney about his role in exposing the work
difficult. In addition, the ability of an individual of Cambridge Analytica, an international marketing
to take civil action against an infringement of consultancy that used personal Facebook data to influence
their privacy rights is extremely limited in the the outcome of the 2016 US presidential election.
international arena.
civil action
a lawsuit brought by a collective or a large group of people
affected by the same crime
infringe
to disregard or violate an agreement
privacy rights
the natural right of individuals to keep their own
affairs private

Research 23.1
Investigate one social media site, and then respond to the following questions.
1 Identify the owner of the site.
2 List how many users access the site.
3 Assess how easy it is to join the site.
4 Outline the rules that cover its members.
5 Identify how your privacy is protected.
6 Discuss if you would join this social media site. Justify your response.
in the system to steal ‘access tokens’ which would and messages sent by them through electronic
let them take over other people’s accounts. Facebook media, and when workers are seen to use social media
confirmed that the data of at least 50 million users to bring their employer’s reputation into disrepute.
was at risk, with another 40 million potentially Employers may be able to access messages sent
affected. Facebook logged all of these people out by staff to friends and family, and this may affect
of their accounts: when they logged in again, this a manager’s opinion about the worker. Supervisors
reset the access token and the previous one could may become ‘friends’ with employees on Facebook
no longer be used. and then take exception to comments made or make
inappropriate comments themselves. A worker may
Social media and privacy in post a derogatory comment after a bad day at work.
the workplace This can damage workplace relationships and affect
As technology progresses, more and more employees future employment opportunities. Sometimes these
have access to the internet as part of their job. It is actions can constitute an invasion of privacy.
only natural that many will access their social media
invasion of privacy
sites in the course of their workday. Just as in the
to violate an individual’s privacy by intruding into their
past workers would use the office phone to make a private affairs
call to family or friends, they will now use the office
computer or their own phone or tablet to make or get
a social media update.
In the same way that workers love social media, 23.2 Legal responses
businesses are finding that it is a very good vehicle
to promote their products. These new areas of Federal and state privacy laws
e-communication have provided terrific channels As is the case with many areas of law in Australia, not all
for information to flow both inside and outside the federal privacy legislation regulates state or territory
workplace. Nevertheless, while there are benefits to agencies, except for the Australian Capital Territory.
having an increasingly connected workforce, there Each state has its own laws for these purposes.
are also potentially negative consequences. As the
barriers between workplace and personal activities privacy legislation
laws to set, uphold and protect the privacy rights of individuals
become increasingly blurred, there are concerns
that an employer’s ability to monitor staff can border
23
In Australia and New South Wales, the following
on the invasive.
laws cover privacy:
e-communication • Commonwealth:
(electronic communication) any transmission of • Crimes Act 1914 (Cth)
communication using computers or other digital products
• National Health Act 1953 (Cth)
• Privacy Act 1988 (Cth)
Problems arise when businesses are seen to invade
• Data-matching Program (Assistance and Tax)
their workers’ rights by accessing the information
Act 1990 (Cth)

• Telecommunications Act 1997 (Cth) boundaries. In Australia, extraterritorial jurisdiction

• Anti-Money Laundering and Counter- of the state parliaments is authorised by section 2 of
Terrorism Financing Act 2006 (Cth) the Australia Act 1986 (Cth).
• Healthcare Identifiers Act 2010 (Cth)
• New South Wales: jurisdiction
the powers of a court, depending on its geographic area,
• Telecommunications (Interception and the type of matters than can be decided, and the type of
Access) (New South Wales) Act 1987 (NSW) remedies that can be sought
• Criminal Records Act 1991 (NSW)
• Privacy and Personal Information Protection The extraterritorial operation of the Privacy Act 1988
Act 1998 (NSW) (Cth) (s 5B) is aimed at regulating acts done, or practices
• State Records Act 1998 (NSW) engaged in, outside Australia by an organisation
• Access to Neighbouring Land Act 2000 (NSW) seeking personal information about an Australian
• Crimes (Forensic Procedures) Act 2000 (NSW) citizen or permanent resident. It also aims to stop
• Health Records and Information Privacy Act organisations avoiding their obligations under the Act
2002 (NSW) by transferring the handling of personal information
• Workplace Surveillance Act 2005 (NSW) to countries with lower privacy protection standards.
• Surveillance Devices Act 2007 (NSW) The Act cannot override the privacy laws of another
• Government Information (Public Access) Act country. Now, this Act only serves as a watchdog,
2009 (NSW) reminding businesses to behave in an ethical way – it
• Health Records and Information Privacy is yet to be tested in an international court of law.
Regulation 2017 (NSW).
Australian privacy law tries to protect Australian Trans-border data flows
users of global social media in two ways: Embodied within the Privacy Act 1988 (Cth) are
• giving extraterritorial application to the 13 Australian Privacy Principles (APPs). These APPs
Privacy Act 1988 (Cth) are the baseline privacy standards for organisations
• regulating trans-border data flow. that hold personal information. All private sector health
service providers, as well as some other private sector
extraterritorial application
the ability of a government to exercise authority outside organisations, need to comply with these principles.
its borders Principle 8 covers the sharing of personal
trans-border information across borders; however, as most of the
beyond the border principles relate to collection of personal data, it can
be argued that they are all applicable, because these
days most people share huge amount of personal
Extraterritorial jurisdiction details on their social media sites. This has allowed
Extraterritorial jurisdiction is where a government businesses to access a huge amount of information
can legally exercise authority outside its normal about individuals and market products to them.
Legal Links
The website of the Office of the Australian Information Commissioner (OAIC) has a Privacy Law
section, which contains details of the Privacy Act 1988 (Cth) and other relevant legislation.
The OAIC’s website provides advice to people about the appropriate use of social media, their
rights in regards to this use (and abuse) and actions to take in dealing with issues. There is an
underlying message of using caution and common sense.
However, once again, these principles only serve as a deterrent, and only apply to businesses
that operate in Australia. It has not yet been tested in an Australian or international court.

Review 23.2
1 Australian federal and state privacy laws cover many areas. Identify the laws that are relevant to
social media.
2 Outline which areas of privacy are covered by laws in all Australian states and territories. Assess
if it would be more relevant to just have federal laws. Justify your answer.
3 Describe how the Australian Government has tried to make the Privacy Act 1988 (Cth) relevant to
social media use. Assess the practicalities of this.
Research 23.2
1 View the website of the Office of the Australian Information Commissioner (OAIC). Outline the
responsibilities of the OAIC. Discuss how easy it is to make a privacy complaint.
2 Investigate two privacy laws and then complete the following tasks:
a Outline the actions covered by these laws.
b Identify what penalties are incurred for disobeying these laws.
c Identify if there are any reported prosecutions under these laws. If there are, write a brief
summary of one case.
Workplace social media policies social media is the most appropriate way to handle
Business owners and managers can ban their staff this issue.
from using social media at work, but if the business SmartCompany, an online business website
is using Facebook to promote products, this would based in Melbourne, reported that a survey carried
seem hypocritical. Just as with all other areas of law, out by Hays Personnel showed that workers wanted
a proactive approach to employee use of social media access to social media while at work. Of 840 workers
is the best policy. Most human resource experts are surveyed, 19.7% said they would turn down a job if
telling businesses that having a workplace policy on told that ‘reasonable access’ was not allowed.
Figure 23.4 At a protest at police headquarters in Philadelphia, United States, on 7 June 2019, council-member
Dereck Green joins community members and activists to demand the removal of 330 police officers from street duty.
Philadelphia Police Department Commissioner, Richard Ross, announced that an outside law firm would review racist
or offensive social media posts by (past and current) police officers.
23

Of the businesses surveyed, 44% stated that they from work colleagues within social media. The
felt allowing access to social media created staff Fair Work Commission has adjudicated on several
satisfaction and thus retention. matters regarding this issue, with the commission’s
The report stated that the workplace policy anti-bullying jurisdiction, which began on 1 January
needs to ‘not only detail how social media can be 2014, allowing a person who believes they have
used during work hours, and if it will be monitored, been bullied at work to apply for an order to stop
but if employees can use their work emails for the behaviour. Interestingly, the posts do not have
social media accounts and how complaints about to be made during work time or at the workplace to
the company should be handled’. A solid policy, be seen as offensive.
containing appropriate grievance procedures and Employers are not only concerned about what
an adequate training program, should be able their employees may say about them on social
to resolve many social media usage problems in media. An individual’s social media profile may
the workplace. include the name of their employer, and thus their
This is especially needed now as employees online behaviour, and the personal values this
have complained about bullying and harassment demonstrates, may reflect back on the employer.
In Court
Stutsel v Linfox Australia Pty Ltd [2011] FWA 8444

In this case, a disgruntled employee had vented his anger at his supervisors on his Facebook page.
Unfortunately, some of his colleagues who were his Facebook friends were not happy with these
comments and reported him to their employer. His employer argued that the employee’s use of
derogatory terms was discriminatory and brought the business into disrepute and so dismissed him.
The worker took the case to Fair Work Australia (FWA) and was successful in his complaint
of unfair dismissal. FWA upheld the employee’s complaint because, among other reasons, the
company did not have a social media policy. Thus, company’s employees had no guidelines to
follow in regard to their use of social media, especially when discussing issues related to the
company using this platform.
Another relevant case is Damien O’Keefe v Williams Muir’s Pty Ltd T/A Troy Williams The Good
Guys [2011] FWA 5311.
Case Study
Commonwealth Bank social media policy causes Figure 23.5 The Commonwealth Bank has
problems adjusted its social media policy.
The importance of management understanding social

media can be seen in a case involving the Commonwealth
Bank. Its social media policy required workers to inform
the bank if they saw any negative commentary about
the bank on social media. This included comments on
employees’ own Facebook pages. Failure to do so would
lead to termination of employment. Employees were upset
by this as they felt they were always on duty.
The Financial Services Union (FSU) negotiated with
the bank to change the wording of the policy as it made

Case Study (continued)
employees responsible for comments made by others and blurred the distinction between being on
duty and off duty. The bank softened its stance: negative comments should still be reported, but failure
to do so would not lead to dismissal. The FSU representative, Mr Carter, urged union members to
take care with their own online postings, since employers or potential employers could be watching.
Case Study
NSW Police Force policy

The NSW Police Force has taken a strong approach to the use of social media by its employees.
This is stated in its ‘Personal Use of Social Media Policy and Guidelines’ and ‘Official Use of Social
Media Policy’ documents (both are publically available online). The NSW Police Force does not ban
employees from using social media but it does set out what they can and cannot comment on. The
NSW Police Force has realised that social media can play a vital part in carrying out police work.
Israel Folau’s rugby union contract terminated as punishment for players’ code of
conduct breach
By Shaun Giles and staff
ABC News
17 May 2019
Israel Folau’s Australian rugby union career appears over, after a three-person panel ordered that
the Wallabies star’s four-year contract be terminated as punishment for his breach of the players’
code of conduct.
The panel, which this month ruled that Folau was guilty of a ‘high-level breach’ of the players’ code
over his controversial Instagram posts, including one proclaiming hell awaits ‘drunks, homosexuals,
adulterers, liars, fornicators, thieves, atheists and idolaters’, decided to rip up the 30-year-old’s
four-year, $4 million contract.
Rugby Australia chief executive Raelene Castle said the decision had not been directly
communicated to Folau.
‘Rugby Australia did not choose to be in this situation, but Rugby Australia’s position remains that
Israel, through his actions, left us with no choice but to pursue the course of action resulting in 23
today’s outcome,’ Castle said.

News (continued)
‘People need to feel safe and welcomed in the game, regardless of their race, background
or sexuality.’
Castle confirmed Folau has 72 hours to appeal the decision, but would not comment on reports he
plans to take the case to the Supreme Court.
She said the Wallabies star knew his social media posts would have wider implications ‘when he
pressed that button’.
‘This is a decision that will change the landscape for sport across Australia and perhaps
internationally’, she said.
‘It will be landmark, it will be important, and it is a big decision.’
‘He is a very important player in our game and he has been for a long period of time and we wanted
to make sure we took the time to get it right.’
Review 23.3
1 Discuss the issues associated with employees using social media in their workplace.
2 Outline why employees of the Commonwealth Bank were unhappy with the bank’s social
media policy.
3 Explain why it is important that a company/organisation has a social media policy. Identify some
key components you believe should be in such a policy.
4 Read the article (‘Israel Folau’s rugby union contract terminated as punishment for players’ code
of conduct breach’) and explain why the Rugby Union panel terminated Israel Folau’s contract.
23.3 Non-legal responses speech. However, with the growth of the internet,
it has moved into the protection of privacy. It runs
campaigns to educate users on how to protect
Electronic Frontier Foundation themselves when using the internet, including social
The Electronic Frontier Foundation (EFF) is a non- media. EFF also ‘names and shames’ businesses that
profit organisation that was established in the are seen to use the internet inappropriately to gain
United States in 1990, initially to protect freedom of information about users.
Research 23.3
View the Electronic Frontier Foundation’s website and complete the following tasks.
1 Outline the activities carried out by the Electronic Frontier Foundation.
2 Go to the ‘Our work’ section of the site and check out their legal cases. Choose a case and
describe why it has been nominated.

23.4 Effectiveness of responses media at work and less than one-third indicated they
had received training around the use and intent of
Taking legal action in Australia against Facebook is
such a policy.
very difficult and so, as with much consumer law, it
An underlying theme associated with this
is a case of ‘let the buyer beware’ when it comes to
research is the issue of employee privacy. Along
protecting individual rights.
with the development of technology within the digital
There have been few cases of legal action
workplace, the amount of information an employer
being taken in other countries against Facebook,
holds on an employee continues to increase. With this
and they have had little success. However, where
in mind, during their study, the research team asked
legal action has been threatened, the owners of
employees about their views on the information their
Facebook have responded by fixing the problem
employer holds on them.
being complained about.
In terms of an employee’s rights to access their
In 2011, the US Federal Trade Commission
own personal information held by the employer, 72%
investigated privacy complaints against Facebook.
reported they understood their access rights on this
It found Facebook to be seriously lacking in this
important issue. Yet only 51% understood what this
area – there were eight serious complaints – and
personal information was used for, and only 53%
demanded that the problems be remedied. Although
knew who within the organisation had to it.
it did not fine the owners of Facebook, it noted that
Of the respondents, 62% indicated they were
any future violations of the terms of the settlement
not at all concerned about how their employer used
would see Facebook liable for a penalty of $16 000 per
this personal information; a further 20% were only a
day for each count.
‘little’ concerned.
Only 57% of organisations were reported to
Employer–employee privacy
have a privacy policy or statement for employees
Evidence suggests that many workers are a bit too
and, in these organisations, only around six out of
relaxed in their attitude to using social media in
10 respondents had read the policy or statement.
the workplace. In 2012, Monash University and the
These results indicate that use of social media
University of Tasmania published research into
and workplace privacy is likely to be a growing area
employees’ attitudes to electronic monitoring and
for conflict between employees and their employers.
surveillance by employers across Australia.
The amount of information that employers obtain
on employees is increasing, and employers want
electronic monitoring
any form of surveillance using electronic devices such as to exercise greater control over the manner and
cameras, microphones and computers purposes for which their employees use electronic
media. The desire by individuals to discuss their
A number of employee attitudes towards privacy, personal and professional lives on social networking
personal data and social media concerned the report sites can increasingly lead to clashes with their
The Electronic Workplace: 31% of those surveyed employers.
admitted to using social networking sites during It is difficult to garner accurate numbers on
work hours. Facebook was the most used site at worker use of social media during work hours as
work (94%) and only 14% acknowledged using many employees will not admit to using it, and
social media solely for work-related activities, with if they do use it, many will use their own device
42% using it just for personal (non-work related) to access it. However, a Google search of ‘social 23
activities, a three to one ratio. media in the workplace’ indicates that more and
Of those surveyed, 45% used social media for more organisations are implementing policies in
both work and personal activities, highlighting this area. In fact, Monash University has a Law
the issue of blurring the workplace/private space course unit called ‘Digital workplace law’, which
boundaries and the work and private life boundaries. ‘analyses the contemporary employment and
Only 35% of respondents reported the presence of labour law issues relating to the modern workplace
a policy or statement concerning the use of social in the electronic era’.

Figure 23.6 Employees work at the headquarters of security system developer, Staqu Technologies, in Gurugram,
Haryana, India, on 10 September 2019. India is planning to set up one of the world’s largest facial-recognition systems,
which is a lucrative opportunity for surveillance companies and a nightmare for privacy advocates.
Personal privacy activities on Facebook. This makes them especially

Users of Facebook must remember the Latin vulnerable to being targeted by businesses, stalkers,
expression caveat emptor when using Facebook, cyberbullies and identity thieves.
and be aware that online, every conversation, every Consumers must use common sense if they do
photo uploaded, every item shared and even every not want to be pestered by businesses and other
web search goes into a database. groups who have used the same websites to find
their target markets. Part of this involves users of
caveat emptor social media setting their privacy settings high,
(Latin) ‘buyer beware’; buyers are responsible for
so that only those they want to see the information
their actions
can access it. Alternatively, they could take a deep
database
breath and not post the information at all, because
the place or program where collected data is organised
and stored if it is not on Facebook, no one can use Facebook to
find it.
Businesses will pay for this data, so sites such as Following the Cambridge Analytica scandal in
Google and Facebook make their money by giving March 2018, the hashtag #DeleteFacebook started
advertisers access to their enormous databases. trending on Twitter, and users around the world
With this information, advertisers can target made the decision to completely shut down their
people making specific searches or discussing accounts. This included a number of public figures,
specific topics. such as Elon Musk, Cher and Brian Acton (founder
Facebook has been globally criticised for the of WhatsApp, which had been acquired by Facebook
fact that its settings allow access to personal in 2014). Websites began giving step-by-step
information and thus invasion of privacy. Young instructions on how to completely close a Facebook
people, especially, seem to have a nonchalant account (as distinct from deactivating it),
attitude to posting information about their everyday as this is not a straightforward process.

Figure 23.7 A person tries Facebook gaming during the 2019 Thailand Game Show in Bangkok, Thailand, on
26 October 2019.
Review 23.4
1 Describe the ways in which Australian workers may be too carefree in their use of social media.
2 Define caveat emptor. Discuss why this term is important for users of social media.
3 Describe all the ways that an individual can place himself or herself at risk by using social media
sites such as Facebook.
4 Construct a list of five important personal rules for someone using Facebook.
23

Chapter summary
• The use of social media is growing, with • Privacy laws go some way to protecting users
Facebook being the most popular site. of social media.
• Because of the fast rate of change in the area • The use of social media in the workplace
of the internet, and the international nature has created new problems that need to be
of social media, it is difficult to create and addressed by workplace policies.
enforce laws related to its use. • Consumer awareness provides the best
protection for those using social media.
Questions
1 Which of the following is a meaning for c by signing an agreement with the United
‘social media’? Nations and by regulating trans-border
a Social media is a website to data flow
organise parties. d by having all international businesses sign
b Social media is a website where people can an agreement that they will do the right thing
create, share and exchange content 4 Which of the following statements about the
and comments. Fair Work Commission’s role is accurate?
c Social media is a newspaper where people a The Fair Work Commission investigates
can create, share and exchange content allegations of wrong behaviour by employees
and comments. when using social media in the workplace.
d Social media is a blog where people can b The Fair Work Commission investigates
create, share and exchange content allegations of wrong behaviour by
and comments. employers when using social media in
2 Why is it difficult to make and enforce laws the workplace.
about social media use? c The Fair Work Commission investigates
a the owners of social media are the advantages and disadvantages of using
outside Australia social media in the workplace.
b technology moves so fast d The Fair Work Commission investigates
c technology changes rapidly and the owners allegations and makes decisions about
often are not Australian-based unfair dismissal in the workplace.
d the internet is intangible and technology 5 What does caveat emptor mean for users of
moves so fast social media?
3 How has the Australian Government tried a It is difficult to apply the law to social
to deal with the international dimension of media, so wise decision-making is needed.
privacy and social media? b The government is not able to legislate
a by giving the Privacy Act 1988 (Cth) for social media users so wise decision-
extraterritorial application and regulating making is needed.
trans-border data flow c Consumers need to take responsibility for
b by signing an agreement with the United their social media use.
Nations and by giving the Privacy Act 1988 d Social media owners just want to make a
(Cth) extraterritorial application profit from users.

1 Identify the domestic and international 6 Assess why the use of social media and
protection that is provided for Australians in workplace privacy is likely to be a growing
relation to social media privacy. area for conflict between employees and
2 Discuss with your class why there are issues their employers.
with social media and the workplace. 7 Discuss why making and enforcing laws to
3 List other sectors where social media and cover actions carried out by and on Facebook
privacy could be an issue. is very difficult.
4 Define the term caveat emptor.
5 Discuss the way caveat emptor allows
social media networks to deny or refuse any
responsibility concerning the distribution of
their users’ personal details.
‘ “Let the buyer beware” is the best form of legal Marking criteria for extended-response questions
redress for social media users.’ Discuss this can be found on the Cambridge GO website. Refer
statement with reference to the responsibility of the to these criteria when planning and writing
law in relation to social media and privacy issues. your responses.
23

Answers to multiple-choice questions
Part I Part III
Chapter 1 Chapter 9
1A2B3C4C5C 1C2C3C4C5C
Chapter 2 Chapter 10
1D2A3B4B5C 1D2C3B4D5D
Chapter 3 Chapter 11 (digital only)

1B2B3A4A5C 1A2D3C4B5A

1C2D3B4B5C 1A2A3A4C5C

Topic 1: 1 A 2 B 3 B 4 A 5 B 1C2A3B4D5A
Topic 2: 1 C 2 D 3 B 4 B 5 D
Topic 3: 1 D 2 A 3 C 4 B 5 B Chapter 14
Topic 4: 1 B 2 A 3 D 4 B 5 B 1A2C3B4A5A
Chapter 15 (digital only)

Part II 1A2C3A4D5B
1C2A3C4C5D 1B2D3C4C5D
1B2A3C4C5A 1A2A3A4B5B

1B2B3D4B5D 1A2C3A4D5D
Chapter 19
1B2B3B4C5A

1C2A3B4D5A

1B2C3A4C5A
Chapter 22
1B2C3A4C5C
Chapter 23
1B2C3A4D5A
Glossary
access assimilation
the right or opportunity to make use of something a policy based on the idea that the minority group
should adopt the language and traditions of the
Act of Parliament majority group
statute law, resulting from a Bill successfully
passing through parliament and gaining royal asylum
assent protection granted by a state
adoption order asylum seeker
a court order that establishes a new legal someone who is seeking protection as a refugee
relationship between potential adoptive
parents and a child eligible for adoption;
Australian Federal Police
the federal police agency of the Commonwealth of
an adoption order also severs the legal
Australia, set up to enforce the federal laws and to
relationship that existed between the adoptive
protect the interests of Australia both domestically
child and his or her natural or legally recognised
and internationally
parents or guardians prior to the adoption process
adversarial system balance of power
the power held by the political party whose vote is
a system of resolving legal conflicts – used
needed to pass legislation; under the Westminster
in common law countries such as England
system of government in Australia, usually
and Australia – that relies on the skill of
determined in the upper House of Parliament
representatives for each side (e.g. defence and
prosecution lawyers) who present their cases to an balance of probabilities
impartial decision-maker the standard of proof required in a civil case for a
plaintiff to succeed in proving the case against the
affirmative action
defendant
a policy designed to address past discrimination
and thus improve the economic and beyond reasonable doubt
educational opportunities of women and the standard of proof required in a criminal
minority groups case for the prosecution (the state) to obtain a
conviction against the accused
alternative dispute resolution
dispute resolution processes, such as mediation, bicameral
arbitration and conciliation, that do not involve containing two chambers or houses of parliament
courts
Bill
anarchy a drafted law that has not yet been passed by
the absence of laws and government parliament
appeal Bill of Rights
an application to have a higher court reconsider a a statement of basic human rights and privileges
lower court’s decision, on the basis of an error of
law bipartisan
having the support of the two major political parties
appellate jurisdiction
the ability or power of a court to hear appeals of blood-alcohol concentration (BAC)
the decisions of lower courts and to reject, affirm blood-alcohol concentration measured in grams of
or modify those decisions alcohol per 100 millilitres of blood
Apprehended Domestic Violence Order bookmaking

a court order used for the protection of a person the activity of calculating odds on sporting and
involved in an intimate, spousal or de facto other events and taking bets
relationship border protection
Apprehended Violence Order the name given to the policy of preventing asylum
a court order to protect a person who fears seekers arriving in Australia for the reason that
violence or harassment from a particular person; they represent a threat to national security
in New South Wales, Apprehended Personal bridging visa
Violence Orders prohibit violence between a permit to stay in Australia for a temporary period
members of the public and Apprehended of time so that arrangements can be made either to
Domestic Violence Orders prohibit violence leave the country or to apply for permanent residency
between family members
burden of proof
arbitration the responsibility of a party to prove a case in court
a form of alternative dispute resolution in which
the disputing parties present their cases before an C-class licence
arbitrator, who makes a decision that is binding on C stands for car; an unrestricted driver licence
the parties often known as a ‘black’ or ‘full’ licence in terms
of restrictions on speed, mobile phone use,
passengers carried and blood-alcohol readings
capital punishment complainant

the practice of sentencing a person to death by a person making a formal complaint in a court
judicial process; also referred to as the ‘death of law
penalty’
conciliation
caution a form of alternative dispute resolution in which
a formal notice given to a young offender where the disputing parties use the services of a
the offence is more serious than one appropriately conciliator, who takes an active role advising
dealt with by a warning the parties, suggesting alternatives and
encouraging the parties to reach agreement;
caveat emptor the conciliator does not make the decision for
(Latin) ‘buyer beware’; buyers are responsible for
the parties
their actions
concurrent powers
chapter existing at the same time; powers held by both
a local branch of a motorcycle club
state and federal parliaments
children consent
generally, persons aged 15 years and younger,
free and voluntary agreement by a rational person
depending on the legal context
who is able to understand and make a decision
civil action about the matter to which he or she agrees
a lawsuit brought by a collective or a large group
conspiracy theory
of people affected by the same crime
speculation that there is a cover-up of the
civil jurisdiction information surrounding a significant event by the
the power of a court to hear matters involving government or other authorities
disputes between private individuals and to award
content community
civil remedies
a group of people who upload, share, comment on
civil liberties and discuss content online; for example, YouTube
basic rights of individuals that are protected by and Tumblr
law; for example, freedom of religion and freedom
control order
of speech
an order made by a court, government official or
civil litigation police officer to restrict an individual’s liberty; for
court action brought to remedy a wrong or a example, from doing a specified act or being in a
breach of contract law specified place
coercive powers conveyancer

special powers sometimes given to a commission or a person who deals professionally with the legal
police task force that allow it to summon any witness and practical matters involved in the transfer
to give evidence or produce any documents – these of titles to property when real estate is sold and
powers are usually only vested in courts purchased
collateral copyright
(damage) in a military context, damage to or an exclusive right to publish, copy, publicly
destruction of things other than the intended perform, broadcast or make an adaptation of
target such as civilian property and civilians certain forms of expression; namely sounds, words
or visual images
colours
a motorcycle club’s standard vest showing coronial inquest
the club’s patches on the back as a mark of an investigation into a death that has occurred
identification in unusual circumstances, held in the Coroner’s
Court and overseen by a magistrate called the
commercialise coroner
to make/give an organisation or an activity more
public awareness for financial gain corporal punishment
the physical punishment of people, especially of
committal hearing children, by hitting them
an inquiry held in the Local Court or Magistrate’s
Court to determine whether there is enough corporations law
evidence against the defendant to warrant a trial in legislation that regulates corporations and the
a higher court (this is called establishing a prima securities and futures industry in Australia; it is
facie case) administered by the Australian Securities and
Investments Commission
common law
law made by courts; historically, law common to correctional patient
England someone on remand, or serving a term of
imprisonment, who is transferred to a mental
Commonwealth Director of Public health facility, who is not a forensic patient, and
Prosecutions who the NSW Mental Health Review Tribunal has
independent prosecuting agency established by not classified as an involuntary patient
a federal Act to prosecute alleged offences under
federal laws

GLOSSARY
credibility digital dossier

trustworthiness, reliability, believability all the types of information about a person that he
or she has deliberately or unintentionally put onto
cross-examination the internet, held in multiple locations
questioning of a witness called by the other side
to produce information relevant to one’s case or to digital piracy
call the witness’s credibility into question unauthorised reproduction and distribution of
digital music, software, videos or other material,
customary law often for profit
principles and procedures that have developed
through general usage according to the customs digital technology
of a people or nation, or groups of nations, and are computerised devices, connected to the internet,
treated as obligatory that are used to generate, store and process data
customs direct discrimination
collective habits or traditions that have developed a practice or policy of treating a person or group
in a society over a long period of time of people less favourably than another person or
group in the same position, on the basis of sex,
cyberbullying race, national or ethnic origin, age, sexuality or
harassment using digital media such as websites,
other characteristic
email, chat rooms, social networking pages or
instant messaging disability
mental or physical impairment that can limit a
cyberspace person physically, emotionally and psychologically
the ‘environment’ in which electronic
communication occurs; the culture of the Disability Support Pension
internet financial support for people who suffer from
mental illness and/or intellectual disability
cyberstalking
repeated harassment using email, text messaging discrimination
or other digital media with the intention of causing the unjust treatment of a person or a particular
fear or intimidation group of people based on their race, sex, sexuality,
marital status, disability and other factors
damages
monetary compensation for harm or loss suffered disinhibition effect
the tendency to say and do things in cyberspace
database that the person would not ordinarily say or do in
the place or program where collected data is
the face-to-face world
organised and stored
dispersal
de facto relationship the distribution of people over a wide area
(Latin) ‘existing in fact’; a relationship between two
adults who are not married but are living together dispossession
as a couple the removal or expulsion of people from their
traditional lands
declaration
a formal statement of a party’s position on a doli incapax
particular issue; a declaration is not legally (Latin) ‘incapable of wrong’; the presumption
binding under international law that a child under 10 years of age cannot
be held legally responsible for his or her
defamation actions and cannot be guilty of a criminal or civil
the act of making statements or suggestions that
offence
cause damage to a person’s reputation in the
community domestic environment
the household a person lives in
defendant
the person who is accused of a crime or a civil domestic law
wrong; in a criminal case, the defendant is also the law of a state
referred to as ‘the accused’
draconian laws
deinstitutionalise laws that are excessively harsh or severe – from
to remove people from long-stay psychiatric Draco, a Greek legislator (seventh century BCE)
hospitals and provide outpatient mental health whose laws imposed cruel and severe penalties
care for them in their communities (they visit the for crimes
health professional and then return home, rather
than staying in a hospital)
Dreaming, The
the source of Aboriginal peoples customary law
delegated legislation
laws made by authorities other than parliament,
drug mule
a person who transports drugs; either by
which are delegated the power to do this by an Act
concealing drugs in their luggage, by ingesting
of parliament
drugs in pouches, or strapping drugs to their body,
or concealing them in some other way

e-communication external affairs power

(electronic communication) any transmission of the power of the Commonwealth to legislate
communication using computers or other digital on international matters involving Australia;
products interpreted by the High Court to mean that when
the Commonwealth signs an international treaty
elder abuse or convention, it has the authority to enact laws
an act or failure to act to the disadvantage of
to give effect to this international law within
an older person occurring in a relationship
Australia
of trust
extortion
elders obtaining money or property from a person or
older men and women of recognised wisdom
group by force, intimidation or illegal power
and authority, who are the keepers of traditional
knowledge within Aboriginal and Torres Strait extradition
Islander communities; they are responsible for the handing over of a person accused of a crime
such things as initiations and the handing down of by the authorities of the country where he or she
punishments when community laws are broken has taken refuge to the authorities of the country
where the crime was committed
electronic monitoring
any form of surveillance using electronic extraterritorial application
devices such as cameras, microphones the ability of a government to exercise authority
and computers outside its borders
entered into force fairness
(of a treaty) having become binding on those freedom from bias, dishonesty or injustice;
states that have consented to be bound by it a concept commonly related to everyday activities
equal opportunity far right
the right to equivalent opportunities regardless of (politics) similar to ‘extreme right’ – this describes
race, colour, sex, national origin, etc. right-wing political groups that are willing to
institute extreme measures to deal with the
equality perceived ills of society
the state or quality of being equal; that is, of
having the same rights or status fascism
contemporary fascism is an anti-democratic
equity ideology that promotes ultra-nationalism, hatred
the body of law that supplements the common law
of immigrants, and the redemptive qualities of war
and corrects injustices by judging each case on its
and violence
merits and applying principles of fairness
federation
espionage the process of uniting several states to form a
the use of spies or spying to obtain information
single national government
estate feminism
all of the property that a person leaves upon death
the advocacy of rights for women on the basis of
ethics the equality of men and women; there are many
(1) rules or standards directing the behaviour of a varieties of feminist ideas in political and social
person or the members of a profession; (2) a major thought
branch of philosophy that investigates the nature
feme sole
of values and of right and wrong conduct
(French) a single woman
ex-nuptial children First Australians
children born of parents who are not legally
Aboriginal and Torres Strait Islander peoples; the
married
original inhabitants of Australia
examination in chief forensic
questioning of a witness by the barrister who
relating to the detection and investigation of crime
called that witness
forensic patient
exclusive powers a person who is confined in an institution such as
powers that can be exercised only by the federal
a mental health facility or correctional centre, or
parliament
who is released from custody subject to conditions
exemption foundling
being immune from certain duties and obligations
a deserted infant whose parents’ identity is unknown
express consent fraud
consent given directly, either orally or in writing
a dishonest act, done intentionally in order to
express rights deceive
civil and political rights that are clearly and
absolutely outlined in the Australian Constitution

GLOSSARY
freedom of information homicide

the principle that people should be able to have the act of killing another human being
access to information relating to the administration
of government decision-making and information
hung jury
a jury that is unable to reach agreement
held by the government; freedom of information
legislation governs the process of obtaining this identitarianism
information, at state and federal level a recent extreme right-wing ideology that slickly
repackages old fascist ideas into more socially
freedom of speech
acceptable forms; often espouses the exclusion of
where citizens of a country are not restricted or
Muslims and other minority groups
controlled by government censorship regarding
what they say (except in terms of vilification, identity theft
incitement and defamation) obtaining or using the identity of another person
in order to commit a range of fraudulent activities,
freedom of the press
usually to obtain financial gain
where the news services and media outlets of
a country are not restricted or controlled by implied rights
government (except in terms of vilification, civil and political rights that can be inferred from
incitement and defamation) the Australian Constitution, rather than being
expressly stated
gender segregation
the separation of people according to their gender in camera
(Latin) ‘privately’; only specified persons (e.g. a
General Assembly
judge) can be present during the testimony or
the main body of the United Nations, made up of
proceeding
all of the member states
glass ceiling incarceration
being detained or imprisoned as punishment for
an invisible barrier that prevents women from rising
committing a crime
in an organisation through promotion; on the face
of it, a company may not directly discriminate, identitarianism
but subtle practices may still discourage women a recent extreme right-wing ideology that slickly
or prevent them from being promoted to more repackages old fascist ideas into more socially
responsible and better-paid positions acceptable forms; often espouses the exclusion of
Muslims and other minority groups
graduated licensing system
a licensing system in which drivers pass through indictable offence
stages leading to the granting of a full C-class a serious criminal offence that requires an
licence indictment (a formal, written charge) and a
preliminary hearing; it is typically tried before a
guarantor
judge and jury and is subject to greater penalties
a person who gives a formal promise that someone
than non-indictable offences
else’s contract will be fulfilled, often backed by
some form of asset that will stand as collateral to indictment
secure the promise information presented for the prosecution of one
or more criminal offences; a formal written charge
guardian
a person who is legally responsible for another indirect discrimination
person who is unable to take care of themselves a practice or policy that appears to treat everyone
in the same manner, but which adversely affects
guilt by association
a higher proportion of people from one particular
criminal liability imposed for associating with
group
another person who commits a crime, rather than
for committing that crime oneself Indonesia National Police
in Indonesia, the police force is called the
Hansard
Kepolisian Negara Republik Indonesia (POLRI)
a full account of what is said in parliament or in
parliamentary inquiries; named after the English infringe
printer, T. C. Hansard (1776–1833), who first to disregard or violate an agreement
printed a parliamentary transcript
injunction
harmonisation a court order requiring an individual or
agreement among the laws of different organisation to perform, or (more commonly) not to
jurisdictions perform, a particular action
healthcare system inquisitorial system
the network of facilities and other agencies that a legal system where the court or a part of the court
organise and meet the healthcare needs of people (e.g. the judge) is actively involved in conducting
the trial and determining what questions to ask;
homelands
used in some countries that have civil legal systems
small communities that were established so that
rather than common law systems
Aboriginal and Torres Strait Islander peoples can
maintain their connection to their land and culture

intellectual property law

intangible property that has commercial value and a set of rules imposed on all members of a
can be protected by law; for example, text, images, community that are officially recognised, binding
designs, inventions and computer programs and enforceable by persons or organisations such
as the police and/or courts
internet
a global network of interconnected computer law enforcement agencies
networks that allows users to obtain and share those bodies that have the role of enforcing
information in a number of ways the law; they are created by Acts of parliament
and include the police and some government
Internet Service Providers (ISPs) departments
companies that offer customers access to the
internet legal system
the system of courts, prosecutors and police within
invasion of privacy a country
to violate an individual’s privacy by intruding into
their private affairs legislative power
the legal power or capacity to make laws
Islamophobia
the fear of, and hatred towards the Islamic region lockout laws
and Muslim people generally, which has grown a general term used to describe the liquor
in the wake of the ‘war on terror’ since 2001; licensing reforms that were brought in to deal
Islamaphobia is a form of xenophobia, racism, and with the issue of alcohol and violence in the Kings
shares common elements with anti-Semitism; Cross area in Sydney
many groups that espouse Islamophobia also are
anti-Semitic
mandamus
a court order compelling a government official or
jurisdiction organisation to perform a particular task
the powers of a court, depending on its geographic
area, the type of matters that can be decided, and
mandatory reporting
a person working in child-related employment
the type of remedies that can be sought
must, by law, report to care and protection
jury agencies a child who he or she believes to be at
a group of people who listen to all of the evidence ‘risk of harm’
in a court case and decide on the verdict
martial law
justice law enforced by the military over civilian affairs;
the legal principle of upholding generally overrides civil law
accepted rights and enforcing responsibilities,
ensuring that equal outcomes are achieved for
massacre
the intentional killing of a large number of people
those involved
juvenile mediation
a form of alternative dispute resolution designed
a child or young person, generally under 18 years
to help two (or more) parties, in the presence of a
of age, although this may vary depending on the
neutral third party, to reach an agreement
context
kinship mental illness
an illness of the mind that affects the
family relationships, including all extended family
psychological, emotional and behavioural state of
relationships; an important part of Aboriginal and
a person
Torres Strait Islander cultures and values, which
dictate how all people in the group behave towards merits review
each other analysis of the facts presented in a case, and often
the policy choices that led to the decision
kyriarchy
a social system based on domination, oppression metadata
and submission the data about data; it is information that identifies
individuals through phone and internet activity
laissez-faire
giving a detailed picture of their lives and
(French) ‘allow to do’; may be used in a broad
relationships
sense of minimal government intervention in most
aspects of society ministerial discretion
power granted to a minister under an Act to make
larceny
a specified decision or order
taking another person’s property with the intention
of permanently depriving them of it; also known as mitigation
stealing making the severity of an offence or a sentence
milder or less severe
money laundering
disguising money obtained from illegal activities to
make it appear legal

GLOSSARY
mule recruitment optional protocol

the attempt to procure a person (the ‘mule’) to an addendum to a treaty, agreed to by the parties
receive and deliver illegal funds to criminals at a later date, to create enforcement provisions or
abroad or at home without the knowledge of to interpret the treaty in light of later developments
the ‘mule’; this is usually done through a fake
company and may involve getting an unsuspecting
organised crime
illegal activities organised by criminal groups or
employee to sign a contract and transfer funds on
enterprises, most commonly for the purpose of
behalf of organised criminals
generating financial profit
native title
the right of Aboriginal and Torres Strait Islander
original jurisdiction
the ability or power of a court to hear a case in the
peoples to their traditional lands
first instance
negligence
carelessness; a tort that involves breach of a duty
outlaw motorcycle gangs
organisations whose members use the structure of
of care resulting in harm that could be foreseen
a motorcycle club as a front for criminal activity
negotiation
any dialogue intended to resolve disputes and/or
over-stayer
a person who comes to Australia on a temporary
produce an agreement on further courses of action
visa but continues to stay when their visa expires
nomadic
a term used to describe people who tend to travel
P1
red provisional plates
and change settlements frequently
obiter dicta P2
green provisional plates
(Latin) comments from a judge in a case that are
not directly relevant to the case and, therefore, not pastoralists
legally binding (singular: obiter dictum) farmers raising sheep or cattle, usually on large
areas of land
on remand
(of an accused) in custody pending and/or during patch
his or her trial a symbol or club logo attached to the back of a
motorcycle club member’s vest
one-hit punch
(also known as a ‘king hit’ or a ‘coward’s punch’) patents
a blow made with a closed fist, usually made rights granted for a device, method, substance or
without warning so that the recipient has no time process that is new, inventive or useful
to prepare or defend him or herself
penalty unit
one-punch laws a statutory financial penalty for an offence,
general term used to refer to changes to arrived at by multiplying a monetary amount by
mandatory sentencing in response to alcohol- the number of penalty units for the offence; the
related violence monetary amount can change over time without
requiring amendments to the statute
online predator
a person with malicious intent (e.g. a sex offender people smuggling
or paedophile) who gives false and misleading the organised illegal movement of people across
identities with the aim of enticing their victims into international borders, usually for a fee
harmful encounters online or in real life
permit system
onus a system that requires people to have permits to
the burden or duty of proving a case to a court enter or remain on Aboriginal and Torres Strait
Islander peoples’ land
opened for signature
(of a treaty) negotiations have concluded and plaintiff
the treaty is ready for parties’ signatures; many the person who initiates a civil action
treaties, especially those convened by the
United Nations, will be open for signature only plea in mitigation
until a certain date; others, such as the Geneva any type of information that can help the court
Conventions, are open for signature indefinitely decide on an appropriate sentence
operational area pleadings

a local government area that can apply for police written statements of the parties to a civil
to be given additional powers under the Children dispute that set out the issues to be decided
(Protection and Parental Responsibility) Act 1997 by the court
(NSW) political asylum
opinio juris sive necessitatis a fundamental human right affirmed by Article
(Latin) ‘opinion that an act is necessary by rule of 14 of The Universal Declaration of Human Rights
law’; the principle that for the practice of a state (1948), ‘Everyone has the right to seek and to enjoy
to be customary international law, the state must in other countries asylum from persecution’
believe that international law requires it

political autonomy protectionism

self-determination, independence a government’s power to control and limit the
behaviour of a group of people in the name of
portfolio protecting them
a key area of government responsibility headed by
a minister public law
the body of law governing relationships
poverty line between individuals and the state, and the
the minimum level of income needed to meet
structure and operation of government itself;
basic necessities and below which a household
for example, criminal, administrative and
is defined as poor; the poverty line is different in
constitutional law
different countries
public morality
precedent standards of behaviour generally agreed upon by
a judgment that is authority for a legal principle
the community
and that serves to provide guidance for deciding
cases that have similar facts public space
areas set aside in which members of the
presumption of parentage community can associate and assemble
outlines a specific condition whereby a man and/
or a woman are presumed to be the parents of quarantining
a child a system under which the government can allocate
a portion of welfare income for specific uses such
prima facie as food and clothing
(Latin) ‘on the face’; at first sight, having sufficient
evidence established against a defendant to question of law
warrant a trial in a higher court of law a disputed legal contention that is left for the
judge to decide; for example, whether certain
privacy legislation evidence is admissible
laws to set, uphold and protect the privacy rights
of individuals racial hatred
abuse or denigration of a person because of his or
privacy rights her race, or verbal abuse or denigration of a race
the natural right of individuals to keep their own
generally
affairs private
racial vilification
private law a public act based on the race, colour, national or
the body of law governing relationships between
ethnic origin of a person or group of people that
individuals; for example, contract law, torts, family
is likely to offend, insult, humiliate or intimidate;
law and property law
types of behaviour can include racist graffiti,
pro bono speeches, posters or abuse in public
(Latin) ‘for the public good’; used to describe work
rail gauge
that is done by a lawyer or barrister on a voluntary
the distance between the inner sides of the two
basis and without payment, where there are issues
rails of a train track
of community concern or significant effect on
disadvantaged groups ratify
to formally confirm that the country intends to be
procedural fairness bound by the treaty
the body of principles used to ensure the fairness
and justice of the decision-making procedures of ratio decidendi
courts; in Australia, it generally refers to the right (Latin) the legal reason for a judge’s decision
to know the case against you and to present your
case, the right to freedom from bias by decision-
real property
property consisting of land and the buildings on it
makers and the right to a decision based on
relevant evidence reckless
able to foresee negative consequences of
prohibited person
doing something but carrying on with the
a person prohibited from working in child-related
act regardless; recklessness implies a state
employment because of a conviction of a serious
of mind that is not as strong as an intention
sex offence, murder of a child, or an offence
to do something; for some criminal offences,
involving violence towards a child
recklessness is considered equivalent to
prohibition intention for the purpose of establishing fault
a court order that forbids a lower level court from
hearing or taking further action in a case or matter
reconciliation
getting two parties to correspond, or make peace
prosecutor
the person formally conducting legal proceedings
against someone accused of a criminal offence;
the prosecutor acts on behalf of the state or the
Crown

GLOSSARY
red notice separation of powers

a request for the arrest and extradition of an the doctrine that the powers and functions of the
individual for whom an arrest warrant has been judiciary are separate from those of the legislature
issued in the requesting country; distributed by and the executive
Interpol, the international police authority; Osama
Bin Laden had a red notice issued by the US
sexual assault
a general term for criminal offences involving
Government before he was captured and killed in
unwanted sexual contact; acts include unwanted
2011, and Julian Assange is currently subject to a
touching or groping, indecent acts of other kinds,
red notice
and rape
referendum
the referral of a particular issue to the electorate
sexual harassment
any unwelcome sexual behaviour, such as sexual
for a vote
advances, suggestive comments, unwanted
refugee touching, written communications or gestures,
A person who has been forced to leave their home especially in the workplace
area due to a well-founded fear of persecution
based on religion, race, political opinion,
social media
a web-based form of social interaction where users
nationality, ethnic or social group
can share, comment on and discuss topics
reservation a statement made by a state
when signing or ratifying a treaty that allows social values
ethical standards that guide people in their
it to exclude certain provisions or modify
thinking about aspects of their society
them as they apply to the state’s own practice
residual powers special leave
where the High Court grants approval for the case
those matters on which the states can legislate,
to come before it in its appellate jurisdiction
as they are not referred to in the Australian
Constitution specific performance
an order requiring the defendant to perform
responsibilities
the acts that the contract obliged him or her to
legal or moral obligations to others
perform
rights
legal or moral entitlements or permissions
sponsorship
the support of an individual, event or organisation
risk of harm financially or through the provision of products or
concerns about the safety, welfare and wellbeing services
of a child or young person because of sexual,
physical or emotional abuse and/or neglect
standard of proof
the degree or level of proof required for the
rule of law plaintiff (in a civil case) or the prosecution (in a
the principle that nobody is above the law; this criminal case) to prove their case
can be seen in the requirement that governmental
authority must be used in line with written,
stare decisis
(Latin)‘the decision stands’; the doctrine that a
publicly disclosed laws, for which established
decision must be followed by all lower courts
procedural steps (due process) have been taken in
the adoption and enforcement state
rules
regulations or principles governing procedure or state police
controlling conduct law enforcement agencies with state-wide
jurisdiction
sanction
a penalty imposed on those who break the law, statute law
usually in the form of a fine or punishment law made by parliament
Security Council suffrage
the arm of the United Nations responsible for the right to vote, guaranteed by the law
maintaining world peace and security
suffragette
self-determination a term used to describe a supporter (whether male
the right of people to determine their political or female) of the suffrage movement
status or how they will be governed based on
territory or national grouping suicide
the intentional taking of one’s own life
self-executing
(of a treaty) automatically becoming binding on a summary offence
state party to the treaty as soon as the treaty has a criminal offence that can be dealt with by a
been ratified single judge without a jury and does not require a
preliminary hearing

surety tyranny
a sum of money provided to support an accused rule by a single leader holding absolute power in
person’s undertaking that he or she will return to a state
court for a hearing at a later date, as a condition
of granting bail; it is agreed that the money will be
ultra vires
(Latin) beyond the power or authority legally held
forfeited if the accused fails to appear
by a person, institution or statute to perform an act
table
to place on the table for discussion
United Nations (UN)
a world organisation dedicated to world peace and
tariff the sovereignty and equality of all its members
a tax that must be paid on imports or exports
unito caro
task force (Latin) ‘one in flesh’; meaning that when a woman
a special group or committee of experts formed married, in the eyes of the law, she assumed the
for the express purpose of studying a particular legal identity of her husband
problem
values
terms of reference principles, standards or qualities considered
a set of guidelines used to define the purpose and worthwhile or desirable within a society
scope of an inquiry
warning
terrorism a formal notice given to a young offender, usually
violence or the threat of violence, directed at for a first minor offence
a group of people for the purpose of coercing
another party, such as a government, into a course
whistleblower
a person who raises a concern about wrongdoing
of action that it would not otherwise pursue
occurring in an organisation, company or
the state government department
a term that is used to refer to the government and
the people that it governs
White Australia Policy
the government policy of allowing only Europeans
tort law and English-speaking people to immigrate to
the body of law that deals with civil wrongs Australia; so-called ‘undesirables’ were kept out
including negligence, defamation, trespass and by use of the infamous ‘Dictation Test’
nuisance
whole of government response
tortious actions that go beyond just changing laws and
wrongful; constituting a tort or breach of duty to include all areas of government such as transport
others and policing
trademarks WikiLeaks
words, names, symbols or devices, used an international organisation (originating in
individually or in combination, to identify and Australia) committed to anonymously publishing
distinguish the goods or services of one company documents that are unavailable to the public
from those of another
working with children check
trans-border a check by the NSW Office of the Children’s
beyond the border Guardian on the appropriateness of a person
in New South Wales to work in child-related
transnational crime employment
crime that occurs across international borders,
either in origin or effect young people
in New South Wales, persons aged between 16
treaty and 18 years
defined by the Vienna Convention on the Law of
Treaties (1969) as ‘an international agreement Youth Justice Conference
concluded between states in written form and a meeting of all the people who may be affected
governed by international law’; treaties may also by a crime committed by a young offender; used to
be referred to as conventions or covenants help the offender to accept responsibility for their
actions while avoiding the court system
trespass to the person
a tort involving direct contact with a person’s body
without that person’s consent

Acknowledgements
The author and publisher wish to thank the following sources for permission to reproduce material:
Images: © Getty Images / William West, Chapter 1 Opener / AFP Contributor, p.3 / Jeff Greenberg, 1.1 / Peter
Parks, 1.2 / Brendon Thorne, 1.3 / Saheed Khan, 1.4, p.163, Chapter 6 Opener / Billy H.C. Kwok, 1.5 / SOPA Images,
p.15 / Drew Angerer, p.16 / Torsten Blackwood, Chapter 2 Opener, 4.8 / Ryan Pierse, 2.1 / Sony Tumbelaka, 2.2
/ William West, 2.3, 3.1, 9.4, 11.3, 16.7, 19.8 / Mark Metcalfe, 2.5 / Tracey Nearman, 2.6 / Scott Barbour, 2.11 /Ted
Mead, 2.12/ George Lipman/The Sydney Morning Herald/Fairfax Media, 2.13 / Arterra/Universal Images Group,
2.15 / Alex Ellinghausen/The Sydney Morning Herald, 2.17 / Abdullah Asiran/Anadolu Agency, 2.18 / Fabrice
Coffrini, 2.20 / Fairfax Media, Chapter 3 Opener / Fairfax Media, 3.2, 20.7 / Paul Jeffers, 3.3 / Saeed Khan, 3.4, p.110
/ Lane Turner/The Boston Globe, 3.6 / Pscar K.Barroso/Europa, 3.7 / PhotoNews International Inc, p.82 / James
Gourley, Chapter 4 Opener /Daniel Munoz, 4.1 / California Department of Corrections and Rehabilitation, 4.2 /
Jennifer Polixenni Brankin/WireImage, 4.3 / Lisa Maree Williams, p.94 / Kathryn Scott Osler/The Denver Post, 4.4
/ Tracey Nearmy, 4.5 / Quinn Rooney, 4.6 / Fairfax Media, 4.7 / Anadolu Agency, p.105 / Brook Mitchell, Chapter
5 Opener / DEA/ICAS94, 5.1 / Fairfax Media, 5.2 / John Borren, 5.3 / Daniel Berehulak, 5.4 / Mark Baker-Pool, 5.5
/ Anthony Au-Yeung, p.126 / Darrian Traynor, 5.6 / Adhley Feder, 5.7 / Michael Dodge, 5.8 / Charly Triballeau,
5.12 / Amal Hindustan Times, 5.14 / Beto Barata, 5.14 / Education Images/Universal Images Group, p.152 / Jerry
Driendl, 5.15 / Baden Herbertson Mullaney/Fairfax Media, 5.17 / Mayall/ullstein bild, 5.19 / Mark Kolbe, 6.1 /
Sean Davey, 6.2 / Getty, 6.3 / Darrian Traynor, 6.4 / Lev Radin/Pacific Press/LightRocket, 6.5 /Jenny Evans, 6.6 /
Bastiaan Slabbers/NurPhoto, Chapter 7 Opener / Wendell Teodoro, 7.1, 7.7 / Peer Parks, 7.2 / Anwar Amro, 7.3
/ Hyoung Change/The Denver Post, 7.4 / Fairfax Media, 7.5, 19.6, 19.7 / Fabrice Coffrini, 7.8 / Alex Brandon-Pool,
Chapter 8 Opener / Christopher Morris/Corbis, 8.1 /. Peter Macdiarmid, 8.2 / Adek Berry, 8.3 / Chip Somodevilla,
8.4 / Frederick Florin, 8.5 / Mandel Ngan, 8.6 / Emmanuel Dunand, 8.7 / Rosdiana Ciaravolo, 8.8 / Kirill Kukhmar,
8.9 / Paul Hennessy/SOPA Images/LightRocket, 8.10 / Valery Sharifulin, p.226 / Jenny Evans, Chapter 9 Opener /
Jakovo, p.231 / Bettman, 9.1 / Juancho Torres/Anadolu Agency, 9.2 / Frederick J. Brown, 9.5 / Peter Kneffel/DPA,
9.6 / Matt Jelonek/Wire Image, 9.8 / Susan Stocker/Sun Sentinel/Tribune News Service, 9.9 / Mehedi Hasan/
NurPhoto, 9.10 / Luiz Rampelotto/NurPhoto, 9.11 / Pedro Pardo, p.225 /Cait Miers/WSL, Chapter 10 Opener / H.
Armstrong Roberts/ClassicStock, 10.1 / Jeff Greenberg/Universal Images Group, 10.2 / Leisa Tyler/LightRocket,
10.3 / Steve Christo – Corbis, 10.4 / Altan Gocher/NurPhoto, 10.6 / Monica Schipper/FilmMagic, 10.8 / Jung Yeon-
Je, 10.11 / Erik McGregor/LightRocket, 10.12 / Carlos Mandujano, 10.14 / Marvin Joseph/The Washington Post,
10.15 / Speed Media/Icon Sportswire, Chapter 11 Opener / Getty, p.298 / James D. Morgan, 11.1 / James Gourley
Pool, 11.2 / Sean Davey, 11.4 / Peter Parks, 11.5 / Stringer, 11.6 / Michael Dodge, 11.7 / Asanka Ratnayuake, 11.8 /
Bay Ismoyo 11.9 / Spencer Platt, 11.10 / Greg Wood, 11.11, 11.13 / Erik McGregor/Pacific Press/LightRocket/, 11.12 /
Rohan Thompson, p.299 / Don Arnold, Chapter 12 Opener / Hulton Archive, 12.1 / Peter Rae/The Sydney Morning
Herald/Fairfax Media, 12.2 / Justin McManus/Fairfax Media, 12.3 / Chris Hopkins, 12.4 / Alex Ellinghausen/The
Sydney Morning Herald, 12.5 / Justin McManus/Fairfax Media/, 12.6 / Peter Morris/Fairfax Media, 12.7 / Brook
Mitchell, 12.8 / Richard Milnes/Pacific Press/LightRocket, 12.9; Robert Nickelsberg, p.300 / Saeed Khan, Chapter
13 Opener / David L. Ryan/The Boston Globe, 13.1 / Lisa Maree Williams, 13.4 / Peter Rae/The Sydney Morning
Herald, 13.5 / Daniel Vorley, 13.6 / Noorullah Shizada, 13.7 / Dimas Ardian, Chapter 14 Opener / Jewel Samad/
AFP, 14.1, 14.2 / Dimas Ardian, 14.2 / Jason Child, 14.5 / Ulet Ifansasti, 14.7 / Scott Barbour, 14.9 / Bay Ismoyo/AFP,
14.11 / Yida A Riyanto/AFP, 14.12 / Matt Blyth, p.323 / Saeed Khan, Chapter 15 Opener / Richard Ashen/Pacific
Press/LightRocket, 15.3 / Cole Bennetts, 15.6 / Fairfax Media, Chapter 16 Opener, 16.2, 16.5, 16.6 / Spencer Platt,
16.1 / Bruce Postle/Fairfax Media, 16.3 / Michael Nigro/Pacific Press/LightRocket, 16.8 / Bradley Kanaris, 16.9 /
Leon Neal, Chapter 16 Opener / Bildquelle/ullstein bild, 17.1 / Tolga Akmen/AFP, 17.2 / Jack Taylor, 17.3 / Jorg
Carstensen/DPA/AFP, 17.5 / Andres Pantoja/SOPA Images/LightRocket, 17.6 / Paul J. Richards/AFP, 17.7 / Jack
Taylor, p.363 / Peter Summers, p.362 / Geoff Robins, p.367, Chapter 18 Opener / Getty, 18.1 / Joye Marshall/Fort
Worth Star-Telegram/Tribune News Service, 18.2 / Adrian Dennis, 18.3 / Bruce Milton Miller/Fairfax Media/, 18.4 /
Tobias Schwarz, 18.5 / Robin Van Lonkhuijsen, 18.5 / Tobias Schwarz, 18.5 / Robin Van Lonkhuijsen, 18.6 / Sergio
Dionisio, 18.8 / Muhammad Farooq, 19.3 / Jonas Gratzer/LightRocket, 19.4 / Tayfun Coskun/Anadolu Agency, 19.5
/ Tracey Nearmy, 19.9 / Peter Parks, 19.10 / KM Asad/Lightrocker, 19.11 / Ryan Pierse, 19.12 / Dibyangshu Sarkar,
p.391, Chapter 20 Opener / Bri Heppel, 20.1 / Strdel 20.2 / Jeremy Hogan/SOPA Images/LightRocket, 20.3 / Bradley
Kanari, 20.4 / Heather Faulkner, 20.5 / Dibyangshu Sarkar, 20.6 / Alex Ellinghausen/The Sydney Morning Herald,
Chapter 21 Opener / Jason South/The AGE/Fairfax Media, 21.1 / Ian Waldie, 21.2, 21.3 / Saeed Khan, 21.4 / Greg
Wood, 21.5 / Carl Court, 22.1 / Hagen Hopkins, 22.2, 22.3, 22.5 / CBS, 22.4 / Charles Platiau, 22.6 / Frazer Harrison,
22.7 / Peter Adones/Anadolu Agency, 22.8 / Anthony Wallace, 22.9 / VCG, Chapter 23 Opener / Chesnot, 23.1 /
Dominic Lorrimer/The Sydney Morning Herald, 23.3 / Bastiaan Slabbers/NurPhoto, 23.4 / Mayall/ullstein bild,
23.5 / Sompong Rattanakunchon, 23.6 / Anusak Laowilas/NurPhoto, 23.7 / Barcroft Media, 17.2a / Nurphoto, p.63
/ James D. Morgan, p.159 / Ryan Pierse, 15.1. © AIATSIS, 2.16; © Kydpl Kyodo, AAP, p.140; © Safework Australia
/ CC BY 4.0 International Licence, p.3; © WGEA, 10.9; Kim Sith / Newspix, 14.10; © Fiona Morris / Fairfax, 15.2; ©
Ewina Picles / FAIRFAX, 15.4 / © Gary Ramage / Newspix, 16.4.
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government legislative powers section 51’, CC BY 3.0 ND, pp.39–40; ‘Coles to pay $300 000 to woman after supermarket
slip’, By Emma Partridge, 22 February 2016 © SMH, p.72; ‘M.D. Kirby, Reform the Law: Essays on the renewal of

the Australian legal system’ (Oxford University Press, Melbourne, 1983), p.88; ‘Mistakes and medical negligence
claims in Hunter New England Health cost taxpayers $69 million in two years’ by Anita Beaumont 1 July 2019 ©
The Northern Daily Leader, p.168; ‘AFP raid on ABC reveals investigative journalism being put in same category
as criminality by John Lyons, 15 July 2019. Used by permission of ABC Library Sales © ABC. All rights reserved,
p.172; ‘Pedestrian Council of Australia calls for $200 fines for crossing the road while on your phone, wearing noise-
cancelling headphones’ by Ben Jaffrey 4 July 2019 © Muswellbrook Chronicle, 173; ‘Israel Folau offered to apologise
over anti-gay Instagram post, court documents reveal’ by David Mark 26 September 2019. Used by permission of
ABC Library Sales © ABC. All rights reserved, p.175; ’Geoffrey Rush wins defamation case against Nationwide News,
publisher of The Daily Telegraph’ by Jamie McKinnell 11 April 2019. Used by permission of ABC Library Sales
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release 24 June 2019, p.199; ‘Man accused of murdering neighbour in Parkes after argument over barking dogs’ by
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p.190; ‘Australia makes big strides in closing gender gap, global survey finds’ by Laura Chung 11 October 2019 The
Sydney Morning Herald, p.276; ‘New steps in a nation’s quest to end violence’ by Jewel Topsfield 13 October 2019
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on asylum seekers must change’ Alex Reilly – Director of the Public Law and Policy Research Unit, Adelaide Law
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27 May 2019, Ch 12, p.18; ‘Psychiatric assessment ordered for South Australian mother who fatally shook baby’ by
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p.6; ‘Here’s what needs to happen to get the NDIS back on track’ by Helen Dickinson. The Conversation 30 May
2019. Used under the Creative Commons ND License, Ch13, p119; ‘Partners against crime: A short history of the
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All rights reserved, p.425.
Every effort has been made to trace & acknowledge copyright. The publisher apologises for any accidental
infringement & welcomes information that would redress this situation.

Index
Aboriginal affairs 115–16 appellate jurisdiction 30–1, 49 Australian Strategic Policy

Aboriginal and Torres Strait Islander Apprehended Domestic Violence Institute (ASPI) 318–19
Heritage Protection Act 1984 Orders (ADVOs) 96, 184 Australian Tax Office (ATO) 189
(Cth) 122 breach 93 autonomy 15, 178
Aboriginal and Torres Strait apprenticeships 263 award wages 235
Islander peoples 9, 42–3, 92, 111, arbitration 135, 189–92
114–16, 174, 178–9, 199, 268 arguments 20 backbenchers (parliament) 33–4
cultural heritage and Arms Trade Treaty 329 bail 93, 95
connections with land 114 arrests 249, 304, 307–8 Bail Act 2013 (NSW) 93
government policy effects artefacts 112 balance of power 103
112–13 Assange, Julian 350–63 balance of probabilities 75, 93, 130
Aboriginal Land Rights Act 1983 case history 350–6 Bali Bombings 306
(NSW) 121–2 community support 362 Bali Nine, The 186, 304–21
Aboriginal Land Rights (Northern timeline 356 cooperative efforts 304–6, 317–19
Territory) Act 1976 (Cth) 116 assault 29, 92, 127 history/overview 304–8
Aboriginal Protection Act 1869 assimilation 112 bankruptcy 31
(Vic) 112 asylum seekers 355, 357–8, 370–4, bans 11–13, 127, 130, 195, 352, 402–3
Aborigines Protection Act 1909 377–8, 385–6 barristers 80–1
(NSW) 112 Attorney-General 97 behaviour 5, 7, 12–13, 88, 111, 127–8,
abortion 7 Australian Border Force (ABF) 185, 200
abuse 233, 238–9 186–7 unacceptable 111
abuse of power 184 Australian Broadcasting Corporation Bennell v Western Australia [2006]
access 6, 8–9, 421 v Lenah Game Meats Pty Ltd FCA 1243 120
accessibility (land) rights 111 [2001] HCA 63 218 beyond reasonable doubt 75, 77,
accountability 68, 100 Australian Childhood Foundation 92–3, 98
activism 373, 377 246 bias 10, 21
Acts, amending 103–4, 122–3 Australian Citizenship Act 2007 bicameral parliaments 32
Acts of Parliament see statute law (Cth) 235 bilateral treaties 56
Administrative Appeals Tribunal Australian Communications and Bill of Rights Act 1990 (NZ) 169–70
(AAT) 31, 49 Media Authority (ACMA) 211 Bills 34–5, 175
Administrative Decisions Australian Constitution 31–2, 36–49, Bills of rights 169–71, 174
Tribunal 196 61, 69–70, 113, 115, 166, 168, 171, binding precedent 26–7
administrative law 68–9 174, 184 bipartisan support 43
adoption orders 235 Australian Council of Trade Unions birth technologies 94
adult material 222 (ACTU) 195 Births, Deaths and Marriages
adulthood 232 Australian Crime Commission Registration Act 1995 (NSW)
advantage, unfair 8 (ACC) 187–8 234–5
adversarial system 20–3, 74, 92, 308 Australian Criminal Intelligence blocked materials 222
advertisements 211 Commission (ACIC) 187–8 Board for the Protection of
advocacy 7, 195, 243 Australian Federal Police Act 1979 Aborigines 112
‘Afghan War Diary’ 351 (Cth) 186 Boochani, Behrouz 370–88
age 198, 238 Australian Federal Police (AFP) 171, case overview 370
agreements 70, 122–3, 194–5, 215, 186, 306, 352 detentions 371–3
237 Australian High Tech Crime Centre film/publications 370–3, 376
aliens 46 (AHTCC) 188 freedom 376
Al-Qaeda 354 Australian Human Rights Iranian home 371
alternative dispute resolution Commission Act 1986 (Cth) 201 border protection 379–82
(ADR) 189–92 Australian Human Rights botnets 212
Amnesty International 61, 254 Commission (AHRC) 134, 200–1, brain disease 138
anarchy 14–15 273 brand positioning 132
anonymity 207, 225 Australian Iron & Steel v Banovic brands 208
Anti-Discrimination (Racial [1989] HCA 56 294 breach of contract 71, 128, 175
Vilification) Amendment Act 1989 Australian Labor Party 116 breach of duty 166
(NSW) 352 Australian Law Reform breach of privacy 218
Anti-Discrimination Act 1977 (NSW) Commission (ALRC) 97–8, 141, burden of proof 77–8
131, 198, 237, 261, 273–4 218 buyer beware 427
Anti-Discrimination Board of NSW Australian Marriage Law Postal by-laws 36
(ADB) 198–9 Survey 169
anti-discrimination laws 130, 198–9, Australian Privacy Principles Cabinet 33
261, 286–90 (APPs) 422–3 cache 217
Anti-Terrorism Act 2005 (Cth) 352 Australian Security Intelligence cancer 268
appeal 28, 30, 49, 312–13 Organisation (ASIO) 188 capital punishment 57, 91

carers 264 civil wrongs 71 content communities 418

case law 26 claims 24, 30, 78, 114–17, 192 contract 25, 70–1, 128, 137, 175, 191,
cases 15, 27, 79–80, 94, 120, 198, climate change 7, 194 237, 265
396–413, 418–29 coalition 33 contract law 70–1
also under specific cases/case codes 24, 68, 128, 186, 188 Convention on Cybercrime (2001)
types; see also stare decisis codes of conduct 128 225
cautions 241 breach 425–6 Convention on the Elimination of All
caveat emptor 428 coercion 212–13 Forms of Discrimination against
censorship 224, 352 ‘cold cases’ 94 Women (1979) (CEDAW) 137, 201,
census 42–3, 113, 115 ‘Collateral Murder’ 351 269–71
ceremony 53 collective rights 123 convention(s) 55, 59, 215, 373
certiorari 197 colonisation 268 also under specific convention
Charter of Indigenous Human Combined Pensioners and conveyancers 196
Rights 178 Superannuants Association of convictions 94–5
Charter of the United Nations 58–9 NSW (CPSA) 195 ‘spent’ 197
‘chatting’ 217 commerce 40 copyright 214–16
child abuse 199, 233, 238, 246, 251 commercialisation 419 Copyright Act 1968 (Cth) 215
child executions 57, 252–5 commissions of inquiry 199 coronavirus pandemic 206, 210, 402
child labour 232, 251 committal hearings 29, 76 Coroner’s Court 29
child pornography 188, 220, 222 common law 20, 24–8, 52, 70, 82, coronial inquests 29, 77
child protection 29, 220–2, 238, 350 166–8 corporal punishment 252
child sexual assault 239 see also case law corporations law 30
children 8, 94, 185–6, 232–55 common law systems 25, 82 corrective services officers 81
best interests of 234–6 common law tests 236 corruption 199–200
care, control and protection common sense 26 Council of Australian Governments
238–9, 250–1 common-law courts 24 (COAG), national framework 245
in criminal justice system 247–9 Commonwealth Electoral Act 1918 counselling 23, 94
international issues 251 (Cth) 112 court hierarchy 28–32
law and 232–4 Commonwealth government Court of Arbitration for Sport (CAS)
legal definition 232 39–40, 68 135–6
protection of see child Commonwealth law 89, 115, 122, court officers 81
protection 186, 421–2 court reporters 81
registration 234–5 prevailing over law courts 6, 22–4, 60, 74–82, 102–4,
safety of 235–6 inconsistencies 69 135–6, 147–8, 192, 197, 244
see also Stolen Generations; Commonwealth of Australia alternative processes see
young people Constitution Act 1900 (UK) 37 alternative dispute resolution
Children (Protection and Parental Commonwealth Parliament 45 court-made law 24
Responsibility) Act 1997 (NSW) Commonwealth v Tasmania [1983] interpretation and enforcement
242, 248 HCA 21 (Tasmanian dam case) of laws see legal system
Children and Young Persons (Care 41, 46 jurisdiction 27–32
and Protection) Act 1998 (NSW) Communications Decency Act 1996 lower court decisions standing
232, 236, 239, 243–4 (CDA) 221 see stare decisis
Children’s Court 29, 78 community 4, 6, 52, 68, 89, 191 roles 242–3
children’s rights 233, 252 Community Justice Centres (CJCs) state and territory 28–9
Christchurch massacre 396–413 191 covenants 56, 201
the crime 396–400 community service 21, 238 Creating a Nation for All of Us
funerals/vigils 399–400 compensation 25, 70–1, 78, [report] 113
NZ PM’s response 398–9 129, 192 credibility 76
Royal Commission/Australian complaints 69, 198, 222 credit rating 95
concern 403–5 compliance 88 crimes 10, 96, 188, 232, 307
suspect 397–8 compromise 190 Crimes (Criminal Organisations
terrorist’s manifesto/court conciliation 51, 134, 190, 198 Control) Act 2012 (NSW) 184
appearances 401–2 concurrent powers 39 Crimes (Domestic and Personal
Christmas Island 371–2, 383 conferences 91–2, 241, 250 Violence) Act 2007 (NSW) 93
circle sentencing 92, 178–9 confidentiality 95, 191, 352 Crimes (Forensic Procedures) Act
citizens/citizenship 9–10, 68, 112, conflict 55, 114, 116, 171–3, 350–63, 2000 (NSW) 94
114, 235, 332–3, 350, 352, 355 370–88 Crimes Act 1900 (ACT) 68
dual citizenship 48, 69 conflict resolution 40 Crimes Act 1900 (NSW) 68, 93, 96,
citizenship seven case 48, 69 see also dispute resolution 184, 222
civic duty 21 Conflict Resolution Service (CRS) Crimes Act 1914 (Cth) 172, 186
civil action 420 191 Crimes Act 1990 (NSW) 93
civil cases 30, 71, 78–80, 82, 189 consensus 53, 55 Crimes Amendment (Apprehended
civil law 70–4, 78–9, 82, 128, 234, 237 consent 92, 128–9, 145–8, 234, 236 Violence) Act 1999 (NSW) 93
civil law system 24 conspiracy 209 Crimes Legislation Amendment
Civil Liability Act 2002 (NSW) 130 conspiracy theories 331, 397 (Police and Public Safety) Act
civil liberties 44, 225 constitutional law 69 1998 (NSW) 241
civil litigation 128 constitutions 36, 57, 221 criminal cases 29, 77, 79–80
civil proceedings 70 consumer rights 207 Criminal Code 2002 (ACT) 68

INDEX
Criminal Code Act 1995 (Cth) 172, defence 76 drag racing 159–60
186, 209, 220 Defence Act 1903 (Cth) 172 drug detection 185–6
Criminal Justice Sexual Offences defence service disruptions 214 drug importation 30
Taskforce 143–5 defendants 25, 75–6, 78, 82 drug trafficking 59, 304–8
criminal justice system 247–9 delegated legislation 36 drugs 185, 187
criminal law 68, 74–6, 127–8, 240 democracy 9, 44, 100 duties 6, 21, 73–4, 167, 176
criminal offences 30–1, 68 denial-of-service (DoS) attacks 213 duty of care 72, 167
Criminal Records Act 1991 (NSW) Department of Aboriginal Affairs
197 116 eBay 222
criminal trial process 76–8 Department of Communities and ecommerce 223
criminality 172 Justice 244 e-communication 421
cross-examination 76 Department of Family and economic loss 71–2, 212–13
cultural practice 373 Community Services 238–9 education 61, 149, 167, 232–3, 235,
culture 93, 111, 216 Department of Health & Community 246, 261–3, 268
custody 199 Services (NT) v JWB & SMB Education Act 1990 (NSW) 167, 235
customary international law 55–61 [1992] HCA 15 (Marion’s case) elder abuse 98
customary law 5, 50, 52–4 236 elders 51–3, 111
customs 5, 13, 24–5, 111, 119–20 Department of Health and Social elections 34
customs–rules–laws Security (DHSS) 234 Electronic Frontier Foundation
interrelationships 7 Department of Home Affairs 189 (EFF) 426
cyberbullying 216 detention 240, 308, 370–3 electronic monitoring 427
cybercrime 186 detention centres 371, 375–6 emails 207, 210–11
Cybercrime Act 2001 (Cth) 209, 225 deterrent 91 unsolicited see spam
Cybercrime Legislation Amendment diabetes 268 emotional abuse 238
Act 2012 (Cth) 218 Dietrich v R [1992] HCA 57 166 employees 22, 427–9
cybercrimes 209–16, 222, 224–5 digital cameras 218 employer–employee privacy 427–9
cyberespionage 213 digital dossier 217 employment 129, 260–1, 267
cyberspace 206–17, 220, 222–4 digital media literacy 209 patterns 291
cyberspace laws 222–3 digital revolution 206 enabling Acts 36
cybersquatting 225 digital technology 206, 215 enforcement/enforcability
cyberstalking 216 diplomacy 315–16 4–6, 10–13, 53, 169, 186, 189, 209,
cyberterrorism 212–13 Diplomatic and Consular Premises 216–22, 420
cyberwarfare 213–14 Act 1987 358 English customary law 5, 20–3, 68
Director of Public Prosecutions environment 59, 194
damages 30, 70–1, 78, 129 (DPP) 76, 141, 200 environmental law 29
data 209–10, 212–13 disability 198, 403 environmental protection 59, 94
data breaches 420–1 Disability Discrimination Act 1992 equal opportunity 130–3, 137–9,
data collection 217, 422–3 (Cth) 166 260–1, 267, 292–4
data tampering 224–5 disadvantage 8, 96, 98, 216, 222, equality 8, 57, 89–90, 133, 261, 274–6,
data theft 224–5 232–55, 260–94 289
databases 428 disclosure 48, 217–18, 351 equitable remedy 25, 30
de facto relationships 89, 234 discrimination 89, 115, 130, 175, 196, equity 261, 290
De Facto Relationships Act 1984 198, 201, 237, 260–1, 269, 279 prevailing over common law 25
(NSW) 89 indirect and direct 272 errors of law 197
death 94, 342–3, 405 discussion 111, 189 espionage 188, 354–5, 359–60
preventable 199 disease 59, 138, 232 estate 89
unexplained/suspicious 29 disinhibition effect 217 ethical behaviour 7
death penalty 61, 91, 114, 254, 305, dispersal (forced) 114 ethical standards 88
309, 319–21 dispossession 112–13, 115, 123 ethics 6–7, 13, 422
deaths in custody 199 dispute 78 European Convention on Human
deception 95–6, 210 dispute resolution 10, 24, 26, 31, Rights 169–70
decisions 10, 20–1, 55, 57, 69, 80, 99, 51–3, 128, 175, 184–201, 225 European settlement 50, 111, 114,
195, 197, 234 District Court 30, 80 178
authorised (under Act) 197 diversity 50–1, 55, 133 European Union (EU) 218, 223
decison makers, jurisdiction 197 division of power 39–42 euthanasia 222
merits of 49, 69, 197 divorce 222, 264 evidence 21, 24, 80, 94, 141, 196–7,
overruling 27 DNA evidence 94–5 200
parts see ratio decidendi doctrine of native title see native examination in chief 76
unanimous versus majority 98–9 title exclusive powers 39–40
unchallengable 68 doctrine of precedent 26–7 execution 57, 252–4, 304, 313–16
unfair; unjust 193 doctrine of reception 114 executive 44
uninformed 232 doli incapax 8, 232 Executive Council 33
see also binding precedent; domain names 207, 223, 225 exemption 267
obiter dicta domestic law 54–5, 269, 370 exile 53
declarations 55–6, 177–8, 201 versus international 54–5 exploitation 232, 251
defamation 27, 73, 176, 238 domestic violence 92–4, 184 express consent 128–9
Dow Jones & Co Inc v Gutnick Donoghue v Stevenson [1932] AC express rights 166, 171
[2002] 26 562 73–4, 167 expression, freedom of 220–1, 224

external review 69, 196–200 global internet platforms 206 humanitarian law 373
extortion 209 global laws 224–5 hung jury 98
extradition 15, 224, 350, 355, 357–8 Goode v Angland [2017] NSWCA
extraterritorial jurisdiction 422 311 130 ICANN 225
extremism 401, 404–10 Google Inc v Australian identitarianism 397
Competition and Consumer identity 264
Facebook 132, 195, 217, 396–7, Commission [2013] HCA 1 49 identity fraud 188
418–29 Gove land rights case 115–16 identity theft 95–6, 428
facts 22, 81–2 government 6–7, 14, 44, 68–9, 94, illegal drugs 187
fair trial 166 189, 195–200, 209, 222, 350 illegal gambling schemes 211
Fair Work Act 2009 (Cth) 128, 175 buy-back (guns) scheme 341, immigration 187
fairness 8–10, 23 343–4 implied rights 166
see also procedural fairness detention centres closure 375–6 imprisonment 186, 210, 310–11,
fake news 214 expectations see Bills of rights 339–40, 370
false identities 220 right of reply 352 in camera 145–6
false imprisonment 73 strategies 223–4 Independent Commission Against
family 88–9, 191 structure and operation see Corruption (ICAC) 200
Family Court of Australia 31, 92, public law indictable crimes heard
186 government agencies 277–83 summarily 76
family law 31, 187 Government Information (Public indictable offences 29–30, 75–6,
Family Law Act 1975 (Cth) 89, 101, Access) Act 2009 (NSW) 195–6 128–9, 210, 241
186, 233–4, 238, 261, 264–5 government policy 38, 103, 111–14 indictment 333–7, 350
far right 398, 406–10 workplace social media policy indigenous customary law 52
fascism 410 423–6 indigenous societies 50–1, 53, 61
fatalities 236 Governor General 34 significance of land/bodies of
see also death as Queen’s representative 33–4 water to 52
fear 216 Great Replacement, the 397, 401 individuals 189–93, 206–25, 232–55,
Federal Circuit Court of Australia green bans 195 260–94, 350–63, 370–88
31 guarantors 237 individual–state relationship,
Federal Court of Australia 31 guardians 243–4 law governing see public law
federal courts 31 guilt/guilty plea 354, 402 interrelationships, law
federal legislation 122, 421–2 see also innocence governing see private law
federal offences 209 guilty verdict 77 law and 166–79, 184–201, 206–25
Federation 36, 38, 44 gun laws 328, 331, 340–1, 402–3 individuals’ rights/responsibilities
feminism 260 Gurindji land claim 115–16 168–76
fines 172–3 Indonesia National Police (INP)
firearms 187, 344–5 hacking 209–10, 350–1 304, 306–7
Firearms Act 1996 (NSW) 93 Hansard 100 industrial action 194–5
First Australians 50 Hanssen v Peninsula Private industrial relations 31, 42, 191,
First Fleet 111 Hospital [2012] VSC 167 194–5, 235, 267
force 29 harassment 220, 235, 261 industry rating 208
foreign relations 40 harm 88, 92, 128–30, 137, 167, 222, infant mortality rates 232
forensics 94–5 236, 239 infingements 15
foreseeability 167 harmonisation 97 information 78, 172, 195–7, 207,
foundlings 235 ‘hate’ sites 188 210–11, 318–19, 350–3, 403, 421
fraud 95–6, 188, 209–11, 222 hate speech 397 infringement 420
Free Trade agreement 195 hatred 208, 409 inheritance 237–8, 264–5
freedoms 56, 61, 169, 174–5, 195–6, Health Records and Information inhumanity 115
207, 220–1, 224–5, 350–2 Privacy Act 2002 (NSW) 197 initiatives 94
hearings 10, 21, 77–8 injunction 45, 70–1, 78, 197
gambling 127 Heaven v Pender (1883) 11 QBD 503 injury 30, 127, 167, 235–6
gangs 184, 232 73–4 innocence 20, 25, 91, 95
gender 89, 130, 262, 274–6 heroin 304, 306–7 inquisitorial systems 24, 308
gender gap 276–7 High Court of Australia 31, 49, 103, instant message services (IM) 211
General Assembly 59 118–20 instruments 56
optional protocol 286–7 Constitutional interpretation integration 112
General Data Protection 46–9 integrity 7
Regulation (GDPR) 218 jurisdiction 45–6 intellectual property 214
General Division of the roles 45–9 intent/intentionality 96
Administrative Decisions home schooling 235 interest groups 195
Tribunal 196 homemakers 260–1 intergovernmental organisations
Geneva Conventions 55 homicide 188, 343 (IGOs) 60, 104
genocide 55 hostage situations 329, 372 intermediaries 223–4
Gillick v West Norfolk & Wisbech House of Representatives 34 intermediate courts 28, 30
Health Authority [1985] 3 All ER human rights 55–7, 59, 62, 166, 169, internal review 69, 195–6
402 (Gillick case) 234 177, 200–1, 304, 370, 372, 382 international agreements 209
girl power 131–2 human rights treaties 174, 233 international bodies 200–1
glass ceiling 287–8 human trafficking 186 international conventions 215

INDEX
International Court of Justice (ICJ) land 50, 52, 122–3 Australia’s heritage 20–4
57, 60 see also native title British 24–5
International Covenant on Civil and Land and Environment Court 29 native title operations 114–17
Political Rights (ICCPR) 56–7, land councils 121–2 legal writings 55, 58
174, 178, 201, 319–21 land rights 89, 115 legality 197, 224
International Covenant on land tax 122 legislation 25–6, 68, 93–4, 112, 260, 328
Economic, Social and Cultural language 21, 111 ‘anti-hoon’ 159–60
Rights (ICESCR) 56, 201 larceny 30 British 37
international law 5, 54–7, 177, law 4, 6–8, 24–5, 68, 116, 120, 222–5 ‘clean feed’ 221–2
269–71, 319–21, 373, 386 absence see anarchy passing 34–5, 188
relevance to Australian law 61–2 applicability (to all) 10 see also law
rights protection limitations 178 assent to see royal assent legislative powers 39
international organisations 58–61 Australian 319 legislative process 34–5
international rights protection classification 68–82 legislature 44
177–9 colonial 113 liability 130, 236
internet 23, 27, 80, 188, 206, 213, contemporary Australian liberty 172, 374
218–19, 221–2, 419 sources 20–62 see also freedoms
global nature 209 court-created see common law licensing 94
ICANN’s potential authority 225 English system 5, 20–3, 68 life expectancy 268
as ‘marketplace of ideas’ 207–8 inconsistent 115, 201 lifestyle 111–12
Internet Assigned Numbers interrelationships 68 litigation 128, 192
Authority (IANA) 223 invalid 69 lobbying 61, 100–1, 121, 284, 328
Internet Corporation for Assigned parliament-created Local Court 29, 76
Names and Numbers (ICANN) 223 see statute law local courts 77
internet fraud 210–11 practical aspects 232–55, 260–94, lock-down 206
Internet Service Providers (ISPs) 304–21, 328–45, 350–63, 370–88, looting 14
221–2, 224–5, 401 396–413, 418–29 Love v Commonwealth of Australia
interpretation 26, 31, 46–9, 62 reasons for obeyance 10–13 [2020] HCA 3 46
interrogatories 78 as reflection of society 157–8 lower courts 27–9, 49
interventionist (rights) approach relevance of 11–13, 45
208–9 state and federal jurisdictions Mabo v Queensland [1988]
interviews 249 28–31 HCA 69 116
intimidation 212–13, 216 validity of 31 Mabo v Queensland (No 2) [1992]
invasion of privacy 421 see also legislation HCA 23 (Mabo case) 102, 111,
investigation 143, 200 law enforcement agencies 184–9, 116, 118, 121–2
IP number 207 306–7 magistrates 80
Islamophobia 408–9, 412 Law Enforcement (Police Magistrates’ Court 29, 77
Responsibilities) Act 2002 (NSW) malicious wounding 75
journalism 384 184, 186 malware 210
judges 20–1, 23, 31, 74, 80 law reform 88–104, 111–38, 141–8, Manado (on behalf of the Bindunbur
of High Court see justices 152–5, 328, 340–1, 402–3 Native Title Claim Group) v
trial remarks/comments commissions 97–8 Western Australia [2017] FCA 136
see obiter dicta impetus for 88–96, 111–13 120
judge’s associates 80 mechanisms 102–4, 135–6, 156–8 mandamus 45, 197
judicial review 49–50, 69, 197, 200 law reform agencies 97–101, 104, mandatory reporting 239–40
judiciary 44 117–23, 134–5, 156 manslaughter 30
Judiciary Act 1903 (Cth) 69 Law Reform Commission Act 1967 Manus Island 371–5, 382
juries 20–3, 74, 81–2 (NSW) 98 March for Love 399
unanimous versus majority law reform effectiveness 117–23, marriage 53, 264
decisions 98–9 137–8, 148–9, 159–60 Marriage Act 1961 (Cth) 88–90, 169,
Jury Amendment (Verdicts) Act 2006 legal action 71 238
(NSW) 98 legal advice 80, 191 marriage legislation 88–9
jury duty/service 20–3, 266–7 Legal Aid NSW 244 marriage rights 169
justice 8–9, 61, 91–4, 123 legal representation 20, 77, 80–1, married couples 234
miscarriage of 23 192, 196 Married Persons (Property and Torts)
see also natural justice legal responses/effectiveness Act 1901 (NSW) 265
justice system 21, 68, 149 234–45, 247–55, 269–83, 285–94, martial law 112–13
justices 70 308–14, 317–21, 333–45, 357–60, mass media 100
justness 8 362, 377–84, 386–8, 401–5, 410–13, mass murder 328–33, 396–413
juvenile offenders 57, 92, 249, 253 421–9 material loss 129
juveniles 240 competing responses 377–8 Medevac debate/Bill repeal 382–4
legal rights 235 media 79–80, 82, 99–100, 131–2, 144–5,
Kerobokan Prison 310–11 moral rights, distinction 168–9 153, 172, 193–4, 221, 280–3, 330–2,
Kids Helpline 245 see also rights 342, 350–2, 361, 370, 384–5, 401–2
kinship 53 legal status 114–16, 264 Keli Lane case 193–4
‘kyriarchical system’ 373 legal system 4–15, 20–62, 68–82, mediation 51, 53, 122, 184, 189–91
labels 208 88–104, 111–23, 127–38, 141–9, medical negligence 168
laissez-faire (rights) approach 207 152–5, 206, 304–21, 328–45 medical treatment 234, 236

members of parliament (MPs) Native Title Amendment Act 1998 outlaw 172–3
34, 38, 48, 121, 194 (Cth) 119 overruling 27
Members of the Yorta Yorta natural disaster 14, 59 ownership 50, 89, 94, 111, 114–15,
Aboriginal Community v Victoria natural justice/principles 9–10, 24, 122–3
[2002] HCA 58 (Yorta Yorta case) 50, 192, 197
119–20, 123 neglect 238 Pacific Solution 380
memorials 316 negligence 72, 130, 167–8, 237 pain 129
menace 220 negotiation 51, 111, 122, 190 pardon 354
Meriam peoples 116 neighbourhood disputes 189–92 parentage 237–8
metadata 219, 307 networks/networking 209, 217–18, parenting/parents 101, 235, 238, 246,
Metoo movement 261, 273 222, 418 264
migrants 267 New South Wales Drug Court 92 parenting orders 92
Milirrpum v Nabalco Pty Ltd (1971) nomadic lifestyle 111 parliament 32–5, 48, 103, 121–3, 136,
17 FLR 141 115 non-English-speaking backgrounds 145–6
mining 115 267 roles 32–4, 242–3
ministers 33 non-government organisations parliamentary committees 99–100
see also Members of parliament (NGOs) 60–1, 100–1, 195 passengers 186–7
minors 211, 232 non-legal responses/effectiveness pastor leases 122
Minors (Property and Contracts) Act 245–55, 284–94, 314–21, 342–5, pastoral leases 118
1970 (NSW) 236–7 361–2, 384–8, 405–13, 426–9 pastoralists 115
miscarriage of justice 23 NSW Administrative Decisions Patent Cooperation Treaty (1970)
misleading and deceptive conduct Tribunal 196 216
49 NSW Advocate for Children and patents 214, 216
mitigation 54 Young People 243 pay equity 290
mobile phones 218 NSW Bar Association 144 peace 55, 57
Model Criminal Code 68, 95–6 NSW Civil and Administrative penalties 6–7, 10
monetary damages 30 Tribunal (NCAT) 192–3, 196, 245 pensioners 195–6
money 210–11 NSW Department of Education and people 8–9
money laundering 96 Training 235 expectations of governement see
moral rights 168–9 NSW Land and Environment Court Bills of rights
morality 7, 88, 90 192 performance-enhancing drugs 127
Morris worm 210 NSW Law Reform Commission persuasive precedent 27
motive/motivation 330 98–9, 134–5 petition 25, 115
mules 188, 305, 308–10 NSW Office of Industrial Relations phishing 211
multilateral treaties 56 235 physical abuse 238
multimedia message service NSW Office of the Children’s plaintiffs 25, 70, 78, 82
(MMS) 211 Guardian 243–4 plea 76, 354
murder 75, 188, 328–33, 376 NSW Ombudsman 244–5 pleadings 78
Murphyores Inc Pty Ltd v nuisance 72 plebiscite 90
Commonwealth [1976] HCA 20 police 92, 184–6, 198, 200
(Fraser Island case) 47 oaths 25 arming NZ officers 404
Muslim people 380, 396–409, 412–13 obiter dicta 27, 46, 74 see also Australian Federal
Myall Creek massacre 114 observation 80 Police
offences 95, 220 policy 38, 115, 127, 185, 260
nation states 55, 207 also under specific offences colonial 113–14
national bodies 200–1 Office for Women 277 death penalty abolition policy
National Criminal Intelligence Office of the Ombudsman 197–8 321
Priorities (NCIPs) 188 offshore processing 380–1, 386 ‘Europeanising’ 112
National Native Title Tribunal (NTT) ombudsmen 244–5 government see government
118, 121 on- and off-field behaviour 127–8 policy
National Parks and Wildlife Act 1974 on remand 339 PNG solution 381
(NSW) 121 online business 222 social media policy 424–5
National Security Legislation online community 208 value-aligned 388
Amendment Act 2010 (Cth) 352 online forums 397, 418 political asylum 355, 357–8
Nationality and Citizenship Act 1948 online predators 220 political autonomy 178
(Cth) 112 onus 75 politics 352, 361–2, 372, 398
native title 102, 117–23 Operation Alliance 306 population 112–13
cases 120 Operation Sovereign Borders 381 populism 410
claims 114–16 operational area 242 pornography 188, 208, 211
as collective right 123 opinio juris 55 Port Arthur massacre 328–45
development 115–16 opposition 33 history 328–33
law reform and 111–23 oral law 111 portfolio 277
pastoral lease extinguishment oral tradition 53 poverty 59, 61, 232, 264
118 ordeal 25 power 15, 27, 39–42, 44–5, 184,
recognition 116–17 orders 92, 96, 184 195–201, 273
reforms of 111–13 also under specific order see also tyranny
system operations 114–17 ordinances 36 precedent 6, 24–7, 102
Native Title Act 1993 (Cth) 116, organised crime 188 see also doctrine of precedent;
118–19, 121–3 original jurisdiction 45 stare decisis

INDEX
prejudice 21 Racial Discrimination Act 1975 (Cth) Royal Society for the Prevention of
press 351, 359 116, 166, 174, 220 Cruelty to Animals (RSPCA) 101
see also media racial hatred 208, 220 rule of law 10–13, 158
presumption of parentage 238 racism 397, 411–12 rules 4–5, 7, 9, 13, 25, 27, 36, 69, 82
prima facie cases 80, 198 ransomware 210 law distinction 6
prime minister 33 Rape and Domestic Violence rules of evidence 196
principles and procedures 5, 9–10, Services Australia 144 rules of procedure 78
24, 71, 74–9, 197 ratification 56, 378 rulings 25, 111
Christian principles 25, 174–5 ratio decidendi 26–7
court etiquette 78 real property 264 sabotage 188
DNA testing procedures 94 reasonable care 73 Safe Work Australia (SWA) 236
High Court procedures 70 rebuttal 78 safety 72, 94, 127, 189, 220–1, 236–7
human rights principles 201 reconciliation 113 same-sex relationships 88–90, 169
legal 26 records/recording 100 sanctions 10, 53, 59, 111, 240
principles, sets of see red notices 355 sanitation, poor 232
constitutions referendum 37, 42–3, 113, 115 SBF v R [2009] NSWCCA 231 155
privacy principles 217–18, 422–3 reform see law reform scams 210–11, 222
review procedures 69 refugees 61, 370, 375, 382 schools/schooling 235
prisoners 354 big picture 387–8 security 55, 379–80
privacy 95, 207, 217–19, 420, 427–9 US swap deal 374, 381–2 Security Council 59–60, 329
Privacy Act 1988 (Cth) 197, 217–18, see also asylum seekers sedition 352
422 Regina (The Queen) 33–4 Seen and Heard inquiry 247
Privacy and Personal Information regulation (self) 53 segregation 263, 290–1
Protection Act 1998 (NSW) 197 regulations 36, 55, 218 seige 375
privacy bodies 197 rehabilitation 91 select committees 99
privacy issues 211, 418–29 relief 78 self-determination 116–17, 121, 178
privacy law 217–18, 421–2 see also compensation self-executing treaties 177
private law 68, 70–4 religion 52, 88, 174–5 self-regulation 53
probing attacks 213 Religious Freedom Bills 175 self-representation 77
procedural fairness 9–10, 30–1, 50 remedies 30, 69 Senate 34
professional misconduct 196 Reno v American Civil Liberties sensationalism 176
prohibition 45, 47, 197, 243–4 Union, 521 US 844 (1997) 221 sensitive information 352
proof see beyond reasonable doubt; repeal 103–4, 122 sentencing/sentences 77, 92, 178–9,
burden of proof; standard of proof reports/reporting 79–81, 92, 239–40, 249, 310, 333–7, 354
propaganda 213 246 separation of powers 44–5
Property (Relationships) Act 1984 reputation 27, 95, 176, 208, 387, 421 serious crime 188
(NSW) 89 residency 235 serious offences 10
Property (Relationships) Legislation residual powers 40, 42 see also indictable offences
Amendment Act 1999 (NSW) resources 142, 216, 246 sex 89, 198, 211
264–5 respect 52 Sex Discrimination Act 1984 (Cth)
property law 50, 73–4 responsibility 9, 68, 78, 104, 166–9, 57, 261, 272–4, 289
property ownership 89, 111, 115, 264–5 198 sexual abuse 199, 238
see also land rights see also rights; individual’s sexual assault 30, 75, 100, 127,
property rights 123, 264–5 rights/responsibilities 141–9, 239, 261, 350, 355
prosecutors 75, 77 review 49–50, 69, 195, 197, 200 sexual harassment 272–3, 288
prostitution 232 ridicule 53 sexual relations 355
protection 29, 94, 112, 166–7, 232, right to privacy 197, 225 sexual slavery 186
235, 352 right to religious freedom 171 shadow ministers 33
asylum 370 right to trial by jury 74, 171 slavery 55
see also child protection; rights rights 8, 61, 70, 89, 95, 132, 166–8, smoking ban 11–13
protection 178–9, 198, 207–9, 216–22, 420 smuggling 306–7
protests 15, 233, 340, 375, 385–6, 412 biological versus social 94 sniffer (detector) dogs 185–7
public goods 222 enshrined 169–70 sniffer dogs 308
public interest 6, 352 laws reflecting 6, 260 social cohesion 388
public law 68–70 also under specific right; see also social media 15, 23, 128, 188, 195,
public morality 88, 90 children’s rights; human rights; 208, 214, 418–26
public spaces 247–9 responsibility; individual’s ‘likes’ 418
publicity 342, 411 rights/responsibilities social media law 419
punishment 5, 15, 53–4, 68, 80, 91, rights protection 8, 70, 166–7, social networking 217–18, 418
252, 375 169–71, 177–9, 222, 261, 269–71 social norms 209
pyramid selling 211 riots 373, 376 social problems 114
risk 239 social security 263–4
quarantine 187 ritual 52–3 social values 88–90
questioning 92 road toll 153 society 4, 6, 50–1, 88, 157–8, 184, 232,
Roper v Simmons 543 US 551 (2005) 385–6
R v Brislan [1935] HCA 78 47 253 moral order of 68
R v Martin Bryant [1996] TASSC royal assent 33–5, 402 solicitors 80–1
333–7 Royal Commissions 94, 116, 199, solitary confinement 373
race 198 239, 403–4 sovereignty 54–5, 57, 59, 114, 120

spam 211–12 terms of reference 97 wages 22, 235

Spam Act 2003 (Cth) 211, 222 terra nullius 50, 102, 111, 114, 116, warnings 241
special leave 49 118, 123 warrant 350, 355
specific performance 71 terrorism 59, 96, 184, 186, 188, water 52
speech under freedoms 212–13, 225, 331, 352, 379, 396–9, waters (traditional) 114, 120
sponsorship 127 404, 406–10 weapons (of destruction) 61, 403
sport ‘new terrorism’ 212–13 websites 207–8, 210–11, 217–18, 401
law reform and 127–38 TG v R [2010] NSWCCA 28 155 whaling 58
value of 131–3 third parties 190 whistleblowers 172, 217, 219, 350–1,
Sporting Shooters Association of tipstaff 80 360
Australia (SSAA) 340 tort law/torts 71–3, 237 White Australia Policy 38, 378
stakeholders 208 tortious acts 166 white supremacy 396, 401–2, 407
standard of proof 75, 77–8, 99 torture 61, 279 Wik Peoples v Queensland [1996]
standards 7, 88 Township Leases 122 HCA 40 (Wik case) 118–19
standing 116, 197 trade 40, 59, 223 decisions 121–2
standing committees 99 trade unions 194–5, 245, 284 Wikileaks 214, 350–6, 362
stare decisis 26, 57 trademarks 214–16, 225 see also Assange, Julian
State, the 68 trade-offs 37 witnesses 81, 92
disputes with 193–201 tradition 7, 25, 55, 88, 111 women 9, 94, 260–9
non-legal methods of traditional lands 111–12, law and 260–8
challenging power 193–5 114, 119 roles, attitudes, challenges 261–8
state, the 5, 54–5, 75, 171–6, 269 traditional rights 116 Women NSW 277
state police 184 training 261–3 Women’s Legal Status Act 1918
statements of claim 78 trans-border data flows 422–3 (NSW) 261
statements of defence 78 transnational crime 224–5, 304 wording (legislation) 26
states/territories 33–4, 112, 115, 266, treaty 55–7, 61–2, 91, 104, 114, 201, workers/workforce 235–6, 261–3, 268
350–63, 370–88 223–4, 233, 269, 328–9 underpayment of 31, 235
courts 28–9 trespass 72 working with children check
criminal law responsibility 68 trespass to the person 130 243–4
interdependence 55 trials 20–4, 74, 76–8, 308–10 workplace agreements 194–5
legislation 121–3, 188, 210, ‘by ordeal’ 25 Workplace Gender Equality Act 2012
421–2 right to a fair trial see fair trial (Cth) 274–6, 290, 292
status 232–3, 235, 237, 261, 350 tribunals 60, 192–3, 196 Workplace Gender Equality Agency
statute 70, 166–7 trust 21 (WGEA) 277–83
statute law 20, 32–6, 168 ‘trust marks’ 208 workplaces 191, 235–6, 251, 267, 421,
constitutionality – Roach v Twitter 195, 217, 396–7, 418 423–6
Electoral Commissioner 69 tyranny 15 WH&S legislation 235
statutory bodies (NSW) World Heritage Properties
198–200 ultra vires 41, 47, 50 Conservation Act 1983 (Cth) 41
Stolen Generations 112, 122, 268 unemployment benefits 263–4 World Intellectual Property
storytelling 53 unicameral parliaments 33 Organization (WIPO) 223
strangulation 93 unions see trade unions World Trade Organization (WTO)
street racing 159–60 United Nations Convention on the 215, 223
Strike Force Tuno II 188 Rights of the Child (1989) 57, 201, worms 224–5
Stutsel v Linfox Australia Pty Ltd 232–3, 238 written complaints 198
[2011] FWA 8444 424 Australia’s obligations 252 written law 5
suffering 129, 268 United Nations (UN) 57–60, 104, wrongdoing 71, 265, 351
suffrage/suffragettes 265–6 201, 223, 373, 399 wrongful conviction/arrest 91–2,
suicide 343 roles 242, 269–71 95, 186
suing 176, 237, 265 unito caro 264
summary hearings 74 Universal Declaration of Human Yarmirr v Northern Territory (2001)
summary offences 29, 31, 74–5, 241 Rights 56, 177, 201 208 CLR 1 120
superannuation 265 universal suffrage 266 Yolngu people 115
superior courts 28, 30 young drivers 153–60
Supreme Court 30, 80, 237 values 4, 6–7, 13, 88–90, 209, 388 Young Offenders Act 1997 (NSW)
surveillance 187, 218–19, 307, 357 see also ethics; social values 91–2, 241
sustainability 53 verdict 21, 82 young people 29, 191, 232–49
unanimous 23, 76, 98 behavioural ‘circuit
tables 100 veto power 59 breakers’ 92
tagging 219 victimisation 220 care and protection 250–1
Tampa Incident 378–9 victims 92, 149, 411–13 in criminal justice system
tariff 38 violence 14, 114, 188–9, 232–3, 247–9
tax/taxation 122, 189 280–3, 376 law and 153–60, 232–4
technology 94–6, 187, 206–25, 350 personal versus domestic 93 legal definition 232
technology crimes 188 viruses 224–5 see also children
telecommunications network 209 voting 21, 37–8 youth conferencing 91–2, 250
telephone text messages (Short see also plebiscite Youth Justice Conferences 241
Message Service/SMS) 211 voting rights 112, 115, 265–6 YouTube 132

Issue 1
Chapter 11 (Digital-only chapter)
Migrants
Chapter objectives
• explore the legal concepts and terminology related to migrants
• investigate the place of the law in encouraging cooperation and resolving conflict with
respect to migrants
• investigate the role of the law in addressing and responding to change with respect to migrants
Relevant law
Extradition Act 1988 (Cth)
Discrimination Act 1991 (ACT)
Australian Citizenship Act 2007 (Cth)

RELEVANT INTERNATIONAL INSTRUMENTS
Convention relating to the Status of Refugees (1951)
International Convention on the Elimination of All Forms of Racial Discrimination (1965)
SIGNIFICANT CASES
A v Australia (1997) CCPR/C/59/D/560/1993

11.1 Migrating and

multiculturalism
Australia has a long history of migration. Events,
including the arrival of the First Fleet in 1788, gold
rushes and world wars, have seen Australia’s
migrant intake swell. This has changed the nature
of Australian society.
Like other countries, Australia has restrictions
on the types and numbers of people who can enter
the country and settle permanently here. In 2017–
2018, 237 200 new migrants settled permanently
in Australia.
For 2019–2020, the Australian migration program
was set at:
• 47 732 places for family migrants: people with
Figure 11.1 Performers prepare for the welcome parade
family members already in Australia who will for the 2019 Parramasala Festival in Parramatta.
sponsor them
Section 51(xxvii) of the Australian Constitution gives
• 108 682 places for skilled migrants: people
the federal parliament the power to make laws
who have business or work experience, skills
about immigration. The federal government allows
or qualifications, or who are sponsored by
people to travel to, enter and remain in Australia.
a business
This permission comes in the form of a visa. For
• 236 places for special eligibility migrants:
those who wish to come to Australia for a temporary
people who were previously citizens or
period, visas are issued for studying, short work
permanent residents of Australia, and who
placements and tourist travel.
have maintained close personal, cultural or
Current migration law is contained in the
business connections with Australia.
Migration Act 1958 (Cth). This Act has been amended
many times and contains over 500 sections and
Australia also has a humanitarian program that
200 regulations. In Australia, the federal Department
provides entry into Australia for people who can
of Home Affairs assesses all applications from people
not live in their own country for a range of extreme
who wish to migrate to Australia. In December 2017,
reasons. In 2018–2019, there were 18 750 places in the
the Australian Government combined many of its
humanitarian program.
agencies into one portfolio called ‘Home Affairs’. To
It needs to be noted that not all of these people
quote the website:
settle permanently in Australia; for example, a
skilled migrant may return to their original country
when their work visa expires.
The establishment of the Portfolio
D e s p i te a history of migrat ion an d
brings together Australia’s federal law
multiculturalism, newcomers to Australia have not
enforcement, national and transport
always been treated equally under the law and have
security, criminal justice, emergency
suffered many disadvantages. Authorities believe
management, multicultural affairs
that to maintain a harmonious, healthy and well-
and immigration and border-related
balanced society, the law must attempt to balance
functions and agencies, working together
the rights and needs of migrants with public opinion
to keep Australia safe.
relating to the numbers and types of migrants who
are granted visas and residency. These laws and
processes are covered by an area of law known as
immigration law.

Chapter 11 (Digital-only chapter) Migrants
Multiculturalism the needs of migrants and its findings were released

Multiculturalism, which sees the existence of many in the Galbally Report (1978), named after the chair 11
different cultures in one place, has had an enriching of the committee that produced it, Frank Galbally.
effect on Australian society. It has given the The report declared that migrants were socially,
Australian people access to a diverse range of arts, economically and politically disadvantaged and that
literature, food and music that is widely appreciated. the only way to overcome this discrimination was to
However, true multiculturalism needs to go further adopt a policy of multiculturalism.
than this to produce a cohesive and equal society. For people wanting to come to Australia on a
Multiculturalism, as we know it today, has permanent basis, there are two programs designed
developed over many years. First came the official to help them in this move: the migration program
policy of assimilation where migrants were expected and the humanitarian program.
to adopt the ‘Australian way of life’ and give up their
own cultural practices. This policy operated from
Federation in 1901 to the mid-1960s. From then until
11.2 The migration program
the mid-1970s, the guiding principle was integration.
Streams
This change was partly because migrants who felt
The migration program is made up of three streams:
excluded, even while living in Australia, made their
• Skilled stream – this stream has several
views known at the polls, and the government paid
categories for people with particular work-
attention. Reforms included some softening of
related or business skills. There are certain
the White Australia Policy, and more resources
occupations that at different times will be in high
dedicated to assisting people settling in Australia.
demand in Australia due to a domestic shortage.
Under integration, migrants weren’t expected to
These are listed on the ‘Skilled occupation list’
abandon their own languages and cultural practices;
on the Department of Home Affairs website. In
these were seen as enhancing their full participation
2020, these occupations included accountants,
in an integrated Australian culture.
air traffic controllers, interpreters, architects,
White Australia Policy dental occupations, engineers and those
the government policy of allowing only Europeans and involved in building trades.
English-speaking people to immigrate to Australia;
so-called ‘undesirables’ were kept out by use of the
• Family stream – this is the category for people
infamous ‘Dictation Test’ who can be sponsored by a relative who is an
Australian citizen or permanent resident.
In the 1970s, the term ‘multiculturalism’ came • Special eligibility stream – this allows
into common use. Multiculturalism celebrates former citizens or residents, and certain
the cultural diversity of a society and the benefits New Zealanders, to migrate to Australia.
that migration has brought to this society. In 1972,
the serving Minister for Immigration, Al Grassby, Skilled stream
called for the abandonment of the policies of Prospective migrants who can contribute to the
assimilation and integration. He called for a more economic wellbeing of Australia are accepted
tolerant approach to the cultures that existed in the under the Migration Act 1958 (Cth) as independent
community. The Australian Government investigated or skilled migrants. These people must pass a points
Research 11.1
View the website of the Australian Government’s Department of Home Affairs and answer the
1 Outline the types of information this website offers.
2 Choose one of the areas on the homepage and write a review evaluating its ease of use for a
prospective applicant.

test which allocates points according to the age, Parents of Australian permanent residents may
qualifications, work experience and language ability migrate to Australia if they pass the ‘balance of
of the applicant. An age limit of 45 years applies to family’ test. Under this criterion, half of their children
independent migrants and they must have proficient (including stepchildren) must live in Australia,
English skills. Thus, the points test favours young, or there must be more of their children living in
English-speaking professionals and tradespeople. Australia than anywhere else. Aged dependent
There are several independent immigration relatives are allowed to migrate to Australia if they
schemes, including business migration, employer are over retirement age and have been dependent
nomination, investment linked and distinguishing on their Australian relative for a period (usually
talent. In 2008, the Rudd Labor government finalised three years). If a person has their parents, siblings
the need to address the shortage of certain skills and children living in Australia, they can migrate
in the different Australian states, reflecting their to Australia under the remaining relative category.
different economic focuses. Applicants in all of the above categories
The 2019–2020 skilled migration program aims must meet the general requirements. For most
at providing the skills required by the economy, categories of family migration, the Australian
especially those needed in regional Australia. It is set relative sponsoring them must give an assurance
at 108 682 places (which is lower than previous years). of support. This means that the relative must sign
a contract agreeing to provide financial support
Family stream to the new resident for two years. However, this
The family stream, or family-sponsored immigration, assurance does not apply to dependent children,
covers people who are sponsored by relatives to fiancés/fiancées or sponsors, as it is expected that
come and live in Australia. The sponsor must be the family member will support them anyway. With
an Australian citizen or a permanent resident of the exception of dependent children and spouses,
Australia. Generally, people who are sponsored by any person applying for family migration must pay
Australian citizens will be favoured over those who a bond and a Medicare levy before their application
are sponsored by permanent residents. will be considered. Australian residents who sponsor
In 2019–2020, there were 47 732 family stream visas applicants under the family migration program can
provided, once again lower than previous years. appeal to the Migration and Refugee Division of the
Under the family migration program, certain people Administrative Appeals Tribunal if the application is
can apply to migrate to be with family members. rejected. A fee is charged for each type of visa. The
These include spouses, fiancés, fiancées, carers, amount differs depending on the visa. For example,
dependent children and other relations under the cost of a student visa in 2019 was $620 and a
certain circumstances. prospective marriage visa was $7715.
Spouses or de facto spouses of Australian
permanent residents can apply for a provisional Figure 11.2 The Australian Government Minister
for Immigration, Citizenship, Migrant Services and
visa. They may be granted permanent residency
Multicultural Affairs, David Coleman, speaks during a
two years after arrival in Australia if their relationship reception at the State Library of NSW on 9 October 2019
is ongoing. Fiancés/fiancées are granted a nine- in Sydney.
month conditional visa, in which time they are
expected to marry. Permanent residence may be
granted two years after the marriage.
Carers are allowed to come to Australia to care
for a relative with special needs. Dependent children
are allowed to come to Australia to be cared for by
their parents. Orphaned children and unmarried
relatives under the age of 18 are allowed to migrate
to be with family members if they have no one else
to care for them.


Assessment for learning are also encouraged to regularly review the ‘themes 11
Review 11.1
1 Briefly describe the three streams of Australia’s migration program.

2 Identify which applicants may have their migration sponsored by a relative who has permanent
residency in Australia.
3 Discuss why the Department of Home Affairs may make it easier for some family members to
reunite than others. Assess whether you agree or disagree with this policy. Justify your answer.
4 Describe the legal and social problems that prospective migrants encounter when trying to gain
residency in Australia.
Special eligibility stream that will bring contempt or hatred to members of

This stream provides an opportunity for eligibility if Australian society.
a person has:
• been an Australian permanent resident for nine
Health requirements
of his or her first 18 years Australia has strict health standards that all
• served in the Australian Armed Forces for applicants must meet. This is to protect Australia
three months at any time before 19 January 1981. from high health costs and risks. These health
standards are set out in the Migration Regulations 1994
Spouses and dependent family members who (Cth). To ensure that Australia’s health requirements
meet certain requirements may be included in the are met, applicants and dependent family members
application. In 2019–2020, 236 places were offered. have a medical examination, an x-ray (if aged 11 or
older) and an HIV/AIDS test (if aged 15 or older).
General requirements Points test

To be allowed to come to Australia, a person must People who wish to become permanent residents
meet certain requirements. Whether they are of Australia must complete a number of application
intending to stay for a short period of time or an forms and answer a range of questions. The answers
extended stay, all visa applicants must meet the are awarded points which, when added up, measure
requirements of being of good character. A person the desirability of the candidate in comparison to
who wishes to live in Australia on a permanent basis other applicants. Different categories of migration
must also meet health requirements and in most are assessed on different features. Some of the areas
cases pass the points test. that are assessed in the points test are:
• the applicant’s education level
Character requirements • the skills possessed by the applicant
All applicants must be of good character. The • the applicant’s English proficiency
character requirements are set out in the Migration • the qualities of the sponsor (such as the
Act 1958 (Cth). A visa can be denied to any person sponsor’s citizenship, employment and
who has been sentenced to at least a year in prison relationship to applicant).
for a criminal act, who has been involved in criminal
activities or associates with known criminals, The Citizenship Test
who will likely commit a crime in Australia or will In the mid-2000s, after much public comment about
behave or encourage others to behave in a way the eligibility of permanent residents wishing

to become Australian citizens, the government Forward … Improving Pathways to Citizenship,

announced that all migrants who wished to take out it was found that although there is a need for
citizenship would have to undergo a test. This test some form of test, ‘the present test is flawed,
would enable prospective citizens to demonstrate intimidating to some and discriminatory. It needs
their knowledge and understanding of being substantial reform.’ Because of the review, the
‘Australian’. The conditions of citizenship were set test has undergone several changes to eliminate
out in the Australian Citizenship Act 2007 (Cth). It was weaknesses.
amended by the Australian Citizenship Amendment The conditions of becoming an Australian citizen
(Citizenship Testing) Act 2007 (Cth) in September can be viewed on the website of the Australian
2007 to allow the testing of prospective citizens. Government Department of Home Affairs. Changes
In 2008, the Australian Government reviewed to the requirements and practice tests are found on
this Act and the tests. In a report titled, Moving this site.
Case Study
What happens if your character does not pass the test?

David Irving is a British historian who has regularly been denied a visa to enter Australia because
of his views. Irving has outraged Jewish communities and historians throughout the world with his
denial that the Holocaust took place. He was refused entry to Australia in 1993, 1996 and 2003 due to
failing the character test.
In denying his visa application in 2003, the Australian High Commission in London cited Irving’s
defiance and contempt for the law of other countries that he had visited, and that he had been deported
and excluded from these countries. It could not be assumed that he would behave differently in Australia.
In 1991, following several public speeches in Germany, Irving was convicted for Holocaust
denial: in 1992 his appeal failed and he was banned from the country. In 1992, Canada deported him
for lying to an immigration adjudicator. His previous unsuccessful appeals for an Australian visa
meant that he owed the Australian Government $35 140.
Figure 11.3 Hakeem al-Araibi – who was granted refugee status and residency in Australia in 2017 after fleeing
Bahrain – poses with his Australian citizenship certificate and a photograph of Queen Elizabeth II after a citizenship
ceremony in Melbourne on 12 March 2019.

Review 11.2 11
1 Outline the requirements that a person wanting to obtain a visa to come to Australia must meet.
2 Describe the points test and what types of areas are assessed.
3 Read the Case Study (‘What happens if your character does not pass the test?’) and answer the
a Identify who has been denied a visa to enter Australia and describe the reasons why he is
well known.
b Identify who denied him the visa and what reasons were given.
c Outline some of the problems he has met with around the world.
d Discuss if we should allow someone to enter Australia when we disagree with their views.
Research 11.2
Well-known identities (e.g. the rapper Snoop Dog, singer Chris Brown, activist Troy Newman and
boxer Floyd Mayweather) have had their applications for visas to visit Australia turned down. Carry
out some research and summarise the reasons why these people were denied visas.
11.3 The refugee and of a particular social group or political opinion’ if

humanitarian program he or she returns to that country of origin. Refugees
are different from migrants. Migrants can choose
Offshore component when they are leaving their country, where they are
The refugee and humanitarian program comprises the going and when they are returning. Refugees seek
following two categories for persons offshore (outside asylum in another country for their own safety, and
Australia) and also outside their home country: cannot return to their own country unless there is
• Refugee category – people needing an improvement in the circumstances that forced
resettlement because they are subject to them to leave. The humanitarian program is meant
persecution in their home countries. for refugees and others deemed to be in special
• Special Humanitarian Program humanitarian need.
category – people who, although not meeting
asylum
the criteria for refugee status, are subject to protection granted by a state
substantial persecution or discrimination in their
home country, which amounts to gross violation Those in special humanitarian need who wish to
of human rights. They must demonstrate family come and live permanently in Australia can apply
or other connections with Australia. to be allowed to migrate on humanitarian grounds.
A person who can prove refugee status or meet
To meet the criteria for either of these categories, other humanitarian criteria is given a protection
a person must be outside Australia. The refugee visa, which allows him or her permanent residency
program allows migration to Australia on the basis in Australia.
that the applicant is a refugee. To be considered a Under its refugee program, the Department
refugee, the applicant must meet the definition in the of Home Affairs seeks to help people overseas in
Convention relating to the Status of Refugees (1951) humanitarian need to resettle in another country in
(and the protocol 1968) (‘Refugee Convention’): a situations where this is the only option available.
person who is outside his or her country of origin It also aims to meet Australia’s international
and has a ‘well-founded fear of being persecuted for obligations onshore under the Refugee Convention.
reasons of race, religion, nationality, membership

In addition to the offshore resettlement program,

discussed above, there is also onshore protection.
Offshore resettlement
The offshore resettlement program was implemented
for refugees and other ‘humanitarian entrants’ who
applied for a visa from outside Australia, while already
outside their home country. The main categories of
visa given under this program included the following:
• Refugee visas – people who fall under
the definition of ‘refugee’ in the Refugee
Convention, who are in need of resettlement
because they can neither return to their home
country nor stay where they are.
• Special humanitarian program Figure 11.4 In July 2019, Papua New Guinea Prime
visas – people who have experienced substantial Minister, James Marape, met with Australian Prime
discrimination in their home country, to an Minister, Scott Morrison, to establish a schedule for
relocating several hundred would-be refugees who had
extent that amounts to a gross violation of human
been sent to Manus Island under Australia’s offshore
rights. Someone who is an Australian citizen, detention policy.
permanent resident, or eligible New Zealand
citizen must support their application. Offshore processing
• Temporary offshore humanitarian Between 2001–2008, people who arrived without a
visas – in September 2001, two new types of visa at an excised offshore place were detained on
temporary offshore humanitarian visas were Christmas Island or moved to offshore processing
created by changes to the Migration Act 1958 centres, which were established in September 2001
(Cth). The goal was to make people who had left in Nauru and in October 2001 in Manus Island (Papua
their home country remain in the first country in New Guinea). The governments of Nauru and Papua
which they could gain protection. These visas New Guinea cooperated in the establishment of
were only available to people who had spent the facilities, with the promise of assistance by the
fewer than seven days in a country where they Australian Government.
could have requested and gained asylum. The People seeking asylum were not detained under
two types of visa under this category were: Australian law, or the laws of Nauru or Papua
• secondary movement relocation New Guinea. Instead, they were granted special
visa – people who had left a safe first purpose visas by the countries while waiting to be
country of asylum, but had not yet entered processed and then resettled or returned. The claims
Australia. The visa lasts for five years – after of people seeking asylum in Nauru and Manus Island
four-and-a-half years, the holder may apply were assessed by either the UN High Commission for
for a permanent protection visa if they Refugees (UNHCR) or the Australian Government.
continue to need protection. The result saw resettlement in countries such as
• secondary movement offshore entry Australia, New Zealand, Sweden, Canada, Denmark
visa – people who entered Australia and Norway.
somewhere outside our migration zone The Rudd Labor government in 2008 wound
(such as Christmas Island, Ashmore Reef up the ‘Pacific Solution’ and the remaining
or the Cocos Islands). The visa lasts for people seeking asylum on Nauru were relocated
three years, but holders are not entitled to to Australia. However, the processing of asylum
permanent residence. However, they may seekers has remained a problem for the Australian
be able to get a further temporary protection Government and evokes much political and social
visa if they continue to need protection. debate in Australia. In 2011, there were discussions
held between the Gillard Labor government and

the Malaysian Government about refugees being Onshore component

processed in Malaysia, but this did not make it People who are already in Australia, either on
11
through parliament and the entire concept of offshore temporary visas or without a visa, and who are
processing resulted in a stalemate. found to be entitled to protection by Australia in
Under a High Court challenge, the ‘Malaysian terms of the Refugee Convention, are covered by the
solution’ was deemed ‘unconstitutional’. While these onshore protection component. They can apply for a
debates were occurring in parliament and the court protection visa. The application will be assessed to
system, more and more boats were arriving in Australian determine whether the person meets the definition
waters. In late 2012, the Gillard government and the of a refugee under the Refugee Convention, under
Opposition were finally able to reach an agreement Australia’s domestic laws, and taking into account
and offshore processing was reinstated in Nauru and all information about the conditions in the person’s
Manus Island. Following the 2013 election, the Liberal country of origin. If the application is refused, the
government implemented tough border protection person can seek a merits review of that decision
measures under its policy of removing unauthorised from the Administrative Appeals Tribunal. The
maritime arrivals. While this controversial policy has reviewing tribunal may exercise all of the powers of
stemmed the flow of migrants arriving to Australia the original decision-maker. It may then agree with
by boat, it has incited much discussion and even the decision, make changes to it, send back certain
condemnation within Australia and from overseas. matters for reconsideration, or set the decision aside
In addition, there has been much condemnation of and substitute a new one.
the conditions of the offshore centres. The detention
centre on Manus Island was ruled unconstitutional merits review
by the Papuan New Guinean courts and closed down analysis of the facts presented in a case, and often the policy
choices that led to the decision
in 2017. One of the newer solutions is an agreement
with the United States to take some of the refugees. It
is highly recommended that students keep up-to-date Proving refugee status can be difficult. The
with changes in migration policy (especially in regard Department of Home Affairs considers each
to on and off shore processing), as it is such a political application separately; however, children will not
and evolving issue. be granted refugee status just because a parent has
Figure 11.5 In Sydney on 20 July 2019, demonstrators gather at a rally to demand humane treatment of asylum seekers
and refugees.

been classified as a refugee and a spouse cannot the applicant is eligible for financial assistance for
assume that he or she will be given asylum with his basic living costs and health care.
or her partner.
Certain segments of the Australian community bridging visa
a permit to stay in Australia for a temporary period of time so
have expressed concerns about a ‘flood’ of arrivals that arrangements can be made either to leave the counrtry
fraudulently claiming refugee status or otherwise or to apply for permanent residency
entering Australia illegally. In late 2001, the federal
government under John Howard responded If they are granted a PPV, they will have access to
to these concerns by making a number of social services such as the Adult Migrant English
amendments to the Migration Act 1958 (Cth). These Program, age or disability pensions and family tax
changes made it harder not only for fraudulent benefit. They can also sponsor their families through
claims, but also for genuine claims for refugee the offshore humanitarian program.
status. The legislation and the policies adopted by
the Howard government to deter people entering Temporary protection visa
Australia without authorisation will be discussed In 1999, the Howard government introduced a
below. three-year Temporary Protection Visa (TPV) for
people who arrived in Australia without a valid
Onshore protection visa and asked for refugee status. Applicants had
When a person has arrived in Australia, they can to meet health and character requirements. Under
apply for a protection visa (PV) to be recognised as a TPV they had three years of temporary residence,
a refugee. The asylum seeker must show that she or after which they could reapply for another TPV –
he satisfies the definition of ‘refugee’ and that there or in some cases, apply for a PPV. Unlike other
is an obligation by Australia to protect him or her. protection visas, TPV only provided limited
There is only an obligation if: access to government assistance for settlement,
• the person has a well-founded fear of being and holders did not have an automatic right to
persecuted and they are covered by the sponsor their families to join them in Australia. If
Refugee Convention they left Australia, they needed special approval
• the person cannot be given protection that is to re-enter.
effective in another country In 2008, the Rudd government abolished
• the person is excluded from the Refugee TPVs, meaning that all border applicants who
Convention’s operation (e.g. because of were found to meet the criteria for refugee status
concerns about security). received a Permanent Protection Visa. However,
the number of applications received was greater
Whether the person gets a permanent or a than the number of available visas; for example,
temporary visa will depend on how he or she in 2013–2014, more than 54 000 people applied but
entered Australia. only 13 750 were granted visas. If someone did not
meet the conditions for refugee status, he or she
Permanent protection visa could be removed from Australia. In 2018–2019,
Permanent protection visas (PPVs) are for people the Australian Government granted approximately
who came to Australia on a valid temporary visa 18 750 refugee and humanitarian visas. This was
(e.g. a student visa or a tourist visa) and then asked higher than the previous year, but applications
for refugee status. When they lodge their PPV always outnumber places that are provided.
application, they will receive a bridging visa, which In 2014, the Abbott Liberal government sought to
normally allows them to remain in the community reintroduce the Temporary Protection Visa. Despite
while their PPV application is being processed. much opposition from the other political parties,
Some bridging visas allow the person to work in the TPVs were reinstated in December 2014 and
Australia. While the application is being processed, continue at the time of writing.

Review 11.3 11
1 Identify who the offshore component of the humanitarian program is designed for and the two
categories of people it covers.
2 Outline the criteria that a person must meet to be classed as a refugee.
3 Migration and border security is a very political issue in Australia. Discuss your thoughts on this
and outline some of the issues.
Research 11.3
Unauthorised migrants travel to many countries. Find a media item about another country that has
unauthorised migrants.
11.4 Unlawful non-citizens Because a large proportion of these people have

travelled by boat to the northern shores of Australia,
Under section 14 of the Migration Act 1958 (Cth),
they are sometimes called ‘border applicants’ or
people who are in Australia without the correct visa
‘boat people’. Since the 1990s, the majority of these
are called ‘unlawful non-citizens’. If they do not
unauthorised entrants have come from Afghanistan
leave Australia voluntarily, they can be detained
and Iran, and arrivals that are more recent have
(s 189) and removed from Australia (s 198). Under
been from Sri Lanka. Many arrive because
these circumstances, there are strict time limits on
of people smuggling.
further application for a visa to re-enter Australia
(s 195). There are two types of unlawful non-citizens people smuggling
in Australia: over-stayers and asylum seekers. the organised illegal movement of people across
international borders, usually for a fee
Over-stayers
The first includes those who enter Australia on To many people, the term ‘people seeking
temporary visas but do not leave when the visa expires. asylum’ is preferable to ‘illegal immigrants’ when
This group, known as over-stayers, makes up the referring to border applicants – especially as
largest number of unlawful non-citizens in Australia. people fleeing their countries may face a death
sentence there, and there are a variety of reasons
over-stayer why someone might not be able to obtain the
a person who comes to Australia on a temporary visa but
continues to stay when their visa expires
necessary documentation to be considered under
the offshore component of Australia’s refugee and
humanitarian program. Applying for a passport or
Border applicants and people visiting an Australian embassy may simply be too
seeking asylum dangerous, so they hope to get to Australia and
The second group comprises people who arrive be considered under the onshore component of
in Australia with no form of entry permit at all. the program.

Cruel, and no deterrent: Why Australia’s policy on asylum seekers must change
Alex Reilly – Director of the Public Law and Policy Research Unit, Adelaide Law School, University
of Adelaide
The Conversation
31 May 2019
The Coalition’s election victory on 18 May had an immediate psychological effect on the
refugees on Manus Island, with reports of several people attempting suicide.
Two class-action lawsuits currently before the High Court allege ‘torture’, ‘persecution’ and ‘other
inhumane acts’ in Australia’s offshore detention centres. This action follows an action for damages
in 2018 that the federal government settled for A$70 million, effectively admitting that the claims of
mistreatment were well-founded.
The Iranian-Kurdish journalist and poet Behrouz Boochani, who has been detained on Manus
for six years, has borne witness to a cruel system in his book, No Friend but the Mountain. Written
secretly on a mobile phone, the book has won a swag of major Australian literary awards.
As a result of the testimonials of Boochani and others, the terrible conditions on Nauru and
Manus are well-known. There are regular reports of physical and mental illness due to unsanitary
conditions, cruel treatment and hospitals with no capacity to deal with the extent and severity of the
health crisis among the refugee populations.
These reports reinforce the underlying cruelty of subjecting innocent human beings to indefinite
and arbitrary detention in the first place. And to what end?
THERE IS NO JUSTIFICATION FOR OFFSHORE DETENTION
For many years, there has been no justification for the detention of asylum seekers on Manus
and Nauru.
The original justification of deterring others from making the dangerous journey from Indonesia
to Australia carries no weight. The point has been well and truly made that attempting to reach
Australia by boat is a futile exercise. In the words of the allegations in the class action, the journey
will result in years of:
… arbitrary, indefinite detention in tents, barrack-style buildings, or small, hastily

constructed dwellings where living conditions lead to poor health […] physical,
sexual and psychological abuses, [and] systemic mental distress.
The government claimed that the medevac law passed in February risked a new wave of boat
arrivals and spent over A$180 million reopening the Christmas Island detention centre in
preparation for new arrivals. The government has since committed to closing Christmas Island
again. The expense involved in this political exercise is staggering, with absolutely no benefit to
the taxpayer.
There has also been no new wave of boat arrivals. Deputy Prime Minister Michael McCormack
revealed on Thursday that a boat from Sri Lanka had been intercepted near Christmas Island this

News (continued)
11
month. However, the details of who was on board, and why the boat was in Australian waters has
not been made publicly available.
There will always be the occasional refugee boat arriving in Australian waters for a variety of
reasons, but it is important to distinguish these isolated occurrences from a reigniting of the
people-smuggling trade.
It’s high time the government ceased linking detention on Manus and Nauru to stopping the boats.
The evidence does not stack up. As I, and others, have argued previously, the experience during the
Howard years suggests that simply the possibility of offshore detention is a sufficient deterrent.
When the government settled asylum seekers on Nauru in Australia and New Zealand from 2002–2004,
without dismantling the offshore detention regime, asylum seekers did not begin arriving by boat.
Most asylum seekers in Indonesia are registered with the UNHCR and are waiting for resettlement
through the UNHCR process. Their situation is admittedly desperate. Nonetheless, when
interviewed after the passing of the medevac law, asylum seekers in Indonesia testified that they
did not see taking a boat to Australia as an option.
It’s important to remember that asylum seekers have done nothing wrong in seeking our protection.
Australia is a signatory to the UNHCR Refugee Convention, which establishes a responsibility to
protect people who arrive on our border seeking protection. If offshore detention can be justified as
deterrence at all, it must surely be kept to the bare minimum, in the context of our
protection obligations.
Long-term detention is simply cruel and rightly labelled a ‘crime against humanity’.
ALTERNATIVES TO DETENTION Video
If there is even a remote possibility of a boat arriving in response to resettling refugees from Manus and
Nauru in Australia and New Zealand, the government has many deterrence strategies at its disposal.
One novel strategy that avoids the need for offshore detention is Labor’s 2011 Malaysia
arrangement. The deal was a simple one. In exchange for the transfer to Malaysia of 800 asylum
seekers who arrived in Australia by boat, Australia would provide financial assistance to Malaysia
and resettle 4000 UNHCR-recognised refugees on top of existing commitments to resettle refugees
from the region.
An important part of the arrangement was that those asylum seekers returned to Malaysia would
not be penalised, and would be provided with housing, the right to work, and access to education
for children.
The arrangement would act as an effective deterrent to people taking a boat to Australia to seek
asylum because their expensive and dangerous journey would just result in their return to Malaysia.
The Malaysia arrangement had the benefit of refocusing Australia’s response to asylum seekers
and drawing in our neighbours to a regional response.
It’s critical that the Australian Government take a new direction in refugee policy and move beyond its
tired and false rhetoric of deterrence as a justification for detaining refugees on Nauru and Manus.

Review 11.4
1 Outline the avenues that are available to someone who has entered Australia without a visa, but
fears persecution in his or her country of origin.
2 Describe what happens if a border applicant does not meet the criteria for refugee status.
3 Discuss why someone might not obtain the correct visa if he or she wants to seek asylum
in Australia.
4 The previous article challenges some of the main arguments raised for offshore detention.
Discuss your thoughts on this and justify your response.
Laws and policies relating The legal responses of the Howard government to
to border applicants these concerns will be discussed below. Whether
or not these responses were justifiable ways of
Ongoing government concerns addressing these concerns is a separate issue. It
In 2000 and 2001, the Australian Government under is clear, however, that some of the ideas expressed
John Howard expressed concerns about large numbers or suggested in the media at the time relied on
of border applicants coming to Australia by boat, and misconceptions and stereotypes. These include:
in particular those brought by people-smuggling • attempting to enter Australia without the
operations from Indonesia to Australia (6640 people proper entry permit is unfair to asylum seekers
arrived on 83 boats). Some of the concerns were: who do go through the legal channels and ‘wait
• they are a criminal risk and may pose a threat their turn in the queue’
to national security, a threat that could • by voluntarily paying people smugglers, would-
include terrorism be immigrants contribute to the continuation of
• processing costs are high this exploitative and illegal activity
• they pose a health and quarantine threat, to • if they can afford to pay people smugglers, they
persons and agriculture have money and are not genuinely needy
• they infringe Australia’s sovereignty • economic opportunities in Australia and limited
• people smugglers are criminals, often with links prospects in their home countries are the main
to organised crime. factors behind illegal immigration.
Case Study
The MV Tampa incident

In August 2001, a Norwegian tanker called the MV Tampa, sailing in international waters between
Indonesia and Australia, saved 433 asylum seekers from a sinking boat.
The Australian Government told the MV Tampa that it could not enter Australian waters. Despite
this, the captain headed in the direction of Christmas Island. The Special Armed Services was
ordered to board the vessel, there was an increase in naval and air force patrols of the waters
between Australia and Indonesia, and federal legislation was pushed through quickly to give the
government more definite legal backing for these actions.
The government refused to accept the asylum seekers, saying that as they had left from
Indonesia they either should go back to that country or be taken to Norway. The government
declared that as Australia was a sovereign state and had a right to protect its borders it should be
allowed to decide who could enter Australia. The world watched as the stand-off lasted for 10 days.
Eventually, Nauru and New Zealand took the group of people.

Whether these attempted arrivals were perceived Legislation and efforts to target
as wealthy ‘queue jumpers’ making a lifestyle people smugglers 11
choice or ‘economic migrants’ looking for a better Following the MV Tampa incident, a large number
life, a 2001 poll indicated that 77% of Australians of amendments to the Migration Act 1958 (Cth) were
agreed with the government that they should passed. Chief among these were amendments in 2001
be prohibited from entering Australian waters, and 2005 that changed the status of some Australian
as occurred in the MV Tampa incident (see the islands such as Christmas Island and Ashmore Island
Case Study above). In 2014, a poll found that to ‘excised offshore places’. This means that they
59% of Australians surveyed believed that most are not included as part of Australia for purposes of
boat arrivals were not genuine refugees and 60% immigration law. If people land on an excised offshore
thought that the government should be harsher on place in order to enter Australia, they will be ineligible
these arrivals. for a permanent Australian visa.
However, more recent surveys indicate that Other amendments limited the power of the
public opinion is softening. A survey conducted courts to use the common law in favour of asylum
by the Australian Institute in 2016 indicated that seekers. Section 474 of the Migration Act 1958 (Cth)
of the 1400 people polled, 63% thought that true declares decisions made under that Act to be final;
refugees arriving by boat should be allowed to stay that is, not subject to judicial review. Section 166
in Australia. states that persons arriving in Australia must
Figure 11.6 The Norwegian freighter, MV Tampa, anchored off Christmas Island on the morning of 3 September 2001
while a helicopter loads supplies for the 438 refugees onboard the ship.
Research 11.4
View the UN High Commissioner for Refugees website and carry out the following research.
1 Identify the work this agency does.
2 Outline its work in one of the identified geographic regions.
3 Describe how it helps: a) asylum seekers; and b) refugees. Write a summary about one of the
‘Our Stories’ issues.

present identification, and section 190 states that provide for criminal penalties of 10–20 years’
they can be detained if they fail to do so. imprisonment or 1000–2000 penalty units, or both,
It is not clear how making it more difficult for for bringing people to Australia.
people seeking asylum to gain entry to Australia, or
measures against them such as detention (discussed penalty unit
a statutory financial penalty for an offence, arrived at by
below), can be considered a reasonable means of multiplying a monetary amount by the number of penalty
deterring people smugglers. Unscrupulous people units for the offence; the monetary amount can change over
time without requiring amendments to the statute
taking advantage of others’ fear and desperation
do not care what conditions the others are sent to.
As for the people seeking asylum themselves, most
do not know the content of Australia’s domestic 11.5 C
onsequences of breaching
policies, and others are willing to take the risk given immigration laws
the conditions they are fleeing in their countries
of origin. It has been suggested that international Deportation and removal
cooperation and joint policing efforts against Deportation is the forcible removal of a permanent
people smugglers has a greater chance of success resident person from Australia. Under the Migration
and is more just than taking action against people Act 1958 (Cth), this can only be done legally if
seeking asylum. the person falls into the Australian Constitution
One such international initiative began in definitions of ‘immigrant’ or ‘alien’.
February 2002. The then Foreign Ministers of Section 200 of the Migration Act 1958 (Cth) gives
Australia and Indonesia, Alexander Downer and the Department of Home Affairs the power to
Dr N. Hassan Wirajuda, co-hosted a conference for deport a migrant who is convicted of a criminal act
regional ministers on ‘People Smuggling, Trafficking and sentenced to more than one year in jail. Those
in Persons and Related Transnational Crime’ in migrants who pose a threat to the security of Australia
Bali, designed to build regional cooperation on this can also be deported. The Department of Home Affairs
issue. The ‘Bali Process’ has been ongoing, with a only deports people under extreme circumstances.
Regional Support Office set up in Thailand in 2012 A person who is being deported can appeal the
to help facilitate ongoing efforts. decision to the Administrative Appeals Tribunal. A
Some amendments to the Migration Act 1958 (Cth) migrant who has become an Australian citizen cannot
do target people smugglers. Sections 233A–233E be removed.
Review 11.5
1 Recount the MV Tampa incident.

2 Outline how the MV Tampa incident changed Australian migration laws.
3 Describe the outcome for asylum seekers who are processed offshore.
Research 11.5
Information about people smuggling is available on the website for Amnesty International, and the
Australian Federal Police website.
1 Outline what the Australian Federal Police and Amnesty International agree on with respect to
people smuggling.
2 Discuss what they disagree about.
3 Write a one-page report summarising the points made and evaluating the arguments.

The reasons that permanent residents are were still living in Australia. Many people are in the
deported can be divided into three areas: process of appealing against their deportation. 11
• they have been imprisoned for certain crimes Under the Migration Act 1958 (Cth), a person who
• they have several convictions for crimes over a is not given legal permission to stay in Australia must
period of time be removed as soon as is practicably possible. Thus,
• they are considered a threat to the security those applying for refugee status must successfully
of Australia. prove their claim or they will be removed.
A person who is removed must meet the costs
A person cannot be deported without an order made of the removal, or owe the Australian Government
by the Minister for Home Affairs. Amendments that amount. The person is not allowed to re-enter
made to the Migration Act 1958 (Cth) in 2014 gave Australia for up to three years. A person cannot be
the minister greater powers to cancel visas. As a removed until all visa applications have been fully
result, between November 2014 and February 2015 determined. This can be a lengthy process, and
more than 200 permanent residents had their visas applicants will often have resided in Australia for
cancelled and were given notice that they must return many years as they pursue all avenues. They may
to their place of birth. With a focus on disrupting have formed relationships and had children during
organised crime, the minister had, by August 2017, their time in Australia. As a result, the removal can
cancelled the visas of 147 senior ‘bikies’ who were have severe impacts, both emotionally and financially.
born overseas. In 2018–2019, over 1200 visas were Removal from Australia does not necessarily
cancelled on character grounds: as well as ‘bikies’, mean that the person will be accepted into other
these visa cancellations included drug dealers, sex countries. To stay in Australia, people should apply
offenders, organised criminals and people who for a bridging visa, as they are available to unlawful
provide national security threats. Some people were non-citizens. This visa will allow the applicant to stay
overseas at the time of the cancellation but most in Australia while his or her application is assessed.
Figure 11.7 Jake King (former AFL Richmond player) (right) meets the father of Dustin Martin, Shane Martin (left).
Shane Martin had his Australian visa cancelled under section 501 of the Australian Migration Act 1958 (Cth), which
states that people can be deported if they have a ‘substantial’ criminal record.

Deportation is a political issue in Australia and Extradition

leads to much emotional debate. An example of Extradition happens when a person who is currently
this occurred in August 2019 when a Sri Lankan residing in one country and accused of a crime
Tamil husband and wife and their two Australian- in another country is handed over to that other
born children (referred to in the media as ‘the country for trial or punishment. In Australia, the laws
Biloela Tamil family’) were put on a plane in controlling extradition are contained in the Extradition
Melbourne to be deported to Sri Lanka. The couple Act 1988 (Cth). The Act covers everyone who lives in
had separately arrived in Australia through boat Australia. A person will only be extradited if the crime
smugglers in 2012 and 2013, met, married, and of which he or she is accused carries a punishment
settled in the Queensland town of Biloela. A legal of at least one year in both Australia and the country
challenge was mounted and the family was taken where it was carried out. The Australian Government
off the plane in Darwin. Public protests were will detain the person to be extradited and hand him
held around the country with demands that the or her over to the officials of the other country, to be
family be allowed to stay. The federal government taken there for trial (and punishment if found guilty).
claimed that allowing them to stay would The only person in Australia with the power to
undermine migration policy; the federal opposition order an extradition is the federal Attorney-General,
wanted an exception to be made. At the time of and the Attorney-General will not do so if he or
writing, a decision had not been made about the she has reason to believe that the accused will be
family’s fate. tortured or sentenced to death. Extradition is also
unlikely if a person is seeking refugee status in
Australia because of political considerations.
Research 11.6
There has been much media coverage of the government’s ability to deport long-term permanent
residents of Australia (including the Biloela Tamil family). Many of these residents came to
Australian when they were very young and know no other life. Discuss.
Figure 11.8 On 18 September 2019, protestors outside the Federal Court in Melbourne hold placards in support of the
Tamil family seeking asylum in Australia.

Detention Between 2000–2008, the majority of people held

The Migration Act 1958 (Cth) allows for the immediate in detention centres were Afghani, Iraqi, Iranian, 11
detention of any person who is in Australia without Chinese, Indonesian, Sri Lankan, Palestinian,
a valid passport. This covers unauthorised arrivals, Korean, Vietnamese and Bangladeshi.
people who stay beyond the expiry of their temporary The current federal government retains
visa and those who breach their visa conditions (e.g. by detention centres as an ‘essential component of
working when the terms of their visa prohibit it). strong border control’, but it does not automatically
Between 1992–2008, asylum seekers who came detain asylum seekers who do not have a visa.
to Australia without a visa were held in mandatory Instead, detention centres are mainly used for
detention – both adults and children. For most, the unlawful non-citizens who are considered to be
detention ended only when they were found to be a threat to the community, those who will not
refugees and given a protection visa, or when they observe visa conditions, or those who need to be
were deported. The government brought in its held so that health, identity and security checks
detention policy in 1992 for the following reasons: can be conducted.
• it is easier to question a person about his or her In recent years, both Labor and Liberal
application if the person is kept in detention governments have revisited the ‘Pacific Solution’
• applicants are less likely to become lost in the of carrying out offshore processing of unauthorised
community if they are detained during the migrants at detention centres in Nauru and Papua
application process New Guinea. This has caused much discussion and
• it is easier to remove an unsuccessful applicant debate in society, which was exacerbated by riots at
from a detention centre. the Nauru detention centre.
TABLE 11.1 People in immigration detention centres (IDC) and

alternative places of detention as at 31 March 2019
Place of immigration detention Men Women Children Total
Christmas Island IDC (used in extraordinary
0 0 0 0
circumstances)
Perth IDC 20 14 0 34
Villawood IDC 465 36 0 501
Yongah Hill IDC 315 0 315
Christmas Island APODs 0 0 0 0
Mainland APODs 10 14 Under 5 27
Total IDCs and APODs 810 64 Under 5 877
Adelaide immigration transit accommodation 17 10 0 27
Brisbane immigration transit accommodation 143 16 0 159
Melbourne immigration transit
232 16 Under 5 249
accommodation
Total in immigration transit accommodation 392 42 Under 5 435
Total community under residence
236 212 288 736
determination
Total community on bridging visa E
10962 1803 2375 15104
(including people in a re-grant process)
Republic of Nauru (RPC) 0 0 0 0
Manus Province, Papua New Guinea (RPC) 0 0 0 0
Total RPCs 264 38 36 338
Source: Department of Home Affairs

Review 11.6
1 Identify the circumstances under which a person can be deported from Australia.
2 Write a definition of ‘extradition’ and under what circumstances extradition takes place.
3 Identify which gender makes up most of the population in detention centres and discuss why
this may be the case.
4 Identify the types of detention centres and where they are located.
Research 11.7
The majority of people held in detention centres have been Afghani, Iraqi, Iranian, Chinese,
Indonesian, Sri Lankan, Palestinian, Korean, Vietnamese and Bangladeshi. Investigate one of these
groups and find out what has happened in their country of origin to make them leave, how easy it
has been to leave their country of origin, and the ways that they came to arrive in Australia.
Australia’s main types of detention centres are reality this does not always happen. For a number
the following: of reasons, migrants in Australia may face limited
• Immigration detention centres, which are access to services such as housing and social
used to hold people who are refused entry at services. Many also find themselves subject to unfair
Australian international airports, people who treatment because of their race, colour, descent,
have breached their visa conditions, and over- national origin or ethnic origin. This behaviour can
stayers. Those currently operating in Australia take the form of direct discrimination or indirect
are at Villawood in New South Wales (established discrimination.
1976), Perth (established 1981), and near Darwin,
which accommodates mostly persons caught direct discrimination
a practice or policy of treating a person or group of people
fishing illegally in Australian waters. There is less favourably than another person or group in the same
also a detention centre on Christmas Island, used position, on the basis of sex, race, national or ethnic origin,
age, sexuality or other characteristic
for unauthorised boat arrivals.
• Immigration residential housing, which is indirect discrimination
a practice or policy that appears to treat everyone the same
family-style accommodation available to people manner, but which adversely affects a higher proportion of
required to stay in immigration detention. people from one particular group
There are residential housing facilities in Perth
and in Sydney. Under the International Convention on the Elimination of
• Immigration transit housing, which houses All Forms of Racial Discrimination (1965), the government
people who are low security risk. There is obliged to stop racist behaviour. State and federal
are facilities in Brisbane, Melbourne governments have tried to meet this obligation by
and Adelaide. passing legislation that prohibits racially discriminatory
behaviour and by establishing legal processes and
institutions to address these inequalities. However,
access to these legal processes is limited by availability,
11.6 Issues faced by migrants funding and language problems.
When people legally migrate to Australia, it is Migrants may experience discrimination in their
expected that they will be afforded the basic rights search for somewhere to live and in their dealings
of all other Australian residents. However, in with the suppliers of other goods and services.

Access to housing and justice, certain factors render the court system
other services less accessible to migrants. When dealing with 11
When renting accommodation, landlords have legal issues, migrants face a range of problems,
the right to choose tenants but are not allowed to including language barriers, unfamiliarity with the
discriminate because of race. However, it is often Australian legal system, fear of police and authority
difficult to prove that someone was refused tenancy figures, ignorance of the law and their rights, and
because of race. financial issues.
New migrants are usually low-income earners Often the rights a migrant is entitled to in
and, as such, have difficulty renting adequate Australia are different from the rights that they had
accommodation, especially in expensive cities such in their country of origin. This ignorance of the law
as Sydney and Melbourne. Finding enough money often means that migrants will not try to enforce their
to pay bond and other costs is a hurdle. They have rights. Language difficulties not only add to this lack
even greater difficulty in saving and borrowing the of knowledge; they also increase the reluctance to
money necessary to purchase a home. pursue their legal rights.
Poor English skills and lack of legal knowledge On the other hand, this ignorance of the law
often mean that migrants are unaware of their can result in unintentional breaking of the law.
rights as renters and buyers. Waiting lists for Although ignorance is no excuse for breaking the
public housing are very long, and this only adds to law, the punishment applied can be a harsh penalty
the problems faced by migrants trying to provide for someone who was unaware of the law and whose
adequate housing for themselves and their families. language and cultural barriers prevented them from
finding out about it.
Social security Taking a case to court can be expensive and many
Social security is available to migrants in Australia; migrants are socioeconomically disadvantaged and
however, aspects of the law regarding social security cannot undertake a court case without financial
payments have undermined the effectiveness of assistance. Like other members of society, migrants
this measure. With the exception of refugees, most have access to legal aid, but resources are limited
migrants have to wait two years from the time of and they may not necessarily get a lawyer who
arrival before they can access welfare payments, can bridge the cultural and language barriers. As
including unemployment, sickness and student a result, many migrants are reluctant to take their
allowances. A 10-year wait applies to aged pensions case to court.
and disability allowances. Some visa types are Negative experiences that they may have
exempt from waiting periods for some payments. encountered with the court system in their home
More information about these can be found at the country only add to this reluctance. Attending
Department of Human Services website. court can be an intimidating experience for
Independent migrants are expected to support anyone, especially someone who is yet to gain a full
themselves and their sponsor must support family- understanding of the Australian legal system and is
sponsored migrants. A migrant can only claim social still coming to terms with the language. The use of
security payments during this waiting period if their interpreters helps to alleviate the problem, but can
circumstances have undergone unforeseen change also draw out the completely frightening process,
that was out of their control; for example, if they are especially as legal terms are very hard to translate
injured in an accident. This waiting period has been into different languages.
criticised as being discriminatory, as it restricts Migrants will often be disadvantaged during
access to those in need and only serves to further police investigations. Language barriers may cause
isolate migrants from society. some migrants to incriminate themselves if they do
not understand the questions being asked. Some
Issues of court access ethnic groups say that the police discriminate
While the courts should be a mechanism by against them; for example, Arabic and Asian groups
which all-Australian citizens and residents access have complained that police target them.

Figure 11.9 Asylum seekers, including those from Afghanistan and Pakistan, gather outside a disused building that
shelters refugees at Kalideres in Tangerang, Banten province, on 5 September 2019. Refugees in Indonesia claim they
have been stranded in the south-east Asian nation for years because of Australia’s tight border policies.
Challenging immigration rights in court. This has led to criminal actions and
decisions civil injustices against migrants (and other minority
Everyone living in Australia is subject to Australian groups) being allowed to occur without penalty.
law. Migrants, however, are also subject to
other consequences of the Australian legal
system, including deportation, extradition and 11.7 Legal responses
immigration detention. Legal responses to migrants include state and
federal laws as well as international treaties. Some
Bringing other cases before of these are discussed below.
the courts
Migrants have the same rights as other people Commonwealth legislation
in Australia to take a case to court. However, as The Racial Discrimination Act 1975 (Cth) prohibits
discussed above, limited knowledge of legal rights any behaviour that discriminates against a person
and court processes, fear of police and financial because of race. In addition, this Act was amended
issues will often mean migrants will not pursue their in 1995 by the Racial Hatred Act 1995 (Cth) to outlaw
Review 11.7
1 Explain what is meant by ‘indirect’ discrimination.

2 Identify what factors contribute to the difficulty migrants experience when seeking court access.
3 Discuss how the difficulty of accessing courts can affect one’s life as a migrant in Australia.

any act done because of a person’s or group’s International treaties

race, colour or national or ethnic origin and that International law protects the basic human rights of
11
is likely to offend, insult, humiliate or intimidate all people, and as such offers protection to migrants.
the person or group. A person who has been the This is important as ethnic minorities, who often
victim of racially discriminatory behaviour must make up migrant groups in a country, may lack the
prove that he or she has been treated differently political power to assert their rights. Human rights
or unequally because of his or her race, colour or are protected under a number of treaties to which
ethnic origin. As with most cases of discrimination, Australia is a party, including:
it is a lot easier to prove direct discrimination than • International Covenant on Civil and Political
indirect discrimination. Rights (1966), which asserts the right to
The Australian Human Rights Commission Act vote, freedom of expression and the right to a
1986 (Cth) established the Human Rights and Equal fair trial
Opportunity Commission (HREOC); now called the • International Covenant on Economic, Social and
Australian Human Rights Commission (AHRC). The Cultural Rights (1966), a treaty that protects
Act sets out how a person can make complaints to the basic needs that must be met (shelter,
the Commission, and other forms of legal redress education and employment) for a person to live
for discriminatory conduct. It defines ‘unlawful a dignified existence
discrimination’ as acts, omissions or practices that • Convention on the Elimination of All Forms of
are unlawful under the relevant parts of the federal Discrimination against Women (1979), which is
Acts prohibiting discrimination on the basis of discussed in Chapter 10
race, sex, age or disability. Migrants who believe • Convention relating to the Status of Refugees
they have suffered discrimination should contact (1951), discussed above
the AHRC. • International Convention on the Elimination of
If there is sufficient evidence that racial All Forms of Racial Discrimination (1965), which
discrimination has occurred, the Race Discrimination gives special protection to ethnic minorities,
Commissioner will carry out an investigation. The including migrants.
Commissioner does not have the power to force
people to stop their discriminatory behaviour and The UN Human Rights Committee or other UN
can only make recommendations and mediate to committees can hear complaints relating to abuse
resolve disputes. If a dispute cannot be resolved, it of human rights. For example, the Human Rights
is referred to the Federal Court, which will make a Committee hears complaints relating to the
legally binding decision and award compensation. International Covenant on Civil and Political Rights
(1966) and the International Convention on the
New South Wales legislation Elimination of All Forms of Racial Discrimination (1965)
The Anti-Discrimination Act 1977 (NSW) prohibits and has its own supervisory committee that can
direct and indirect acts of discrimination in the hear complaints. Each of these treaties contains an
areas of employment, the provision of goods and optional procedure that, if acceded to by a particular
services, education, and entry to or membership state, can be used by individuals to lodge a complaint
of a registered club. For example, in the area of that their rights (under the treaty) are being breached
employment, the Act provides that no person should by that state. Australia acceded to the First Optional
be denied promotion because of his or her race. Protocol to the International Covenant on Civil and
A migrant who feels that he or she has suffered Political Rights (1966) in 1991, which contains that
discrimination as covered by the Anti-Discrimination procedure, and recognised the complaints process
Act 1977 (NSW) can contact the Anti-Discrimination under the International Convention on the Elimination
Board. The Board will investigate the claim and of All Forms of Racial Discrimination (1965) in 1993.
organise mediation between the two parties. If the Australia has also acceded to the Optional Protocol
claim is particularly serious and is proved to have to the Convention on the Elimination of All Forms of
occurred, compensation will be awarded. Discrimination against Women (1979).

Figure 11.10 In Santiago, Chile, a police riot truck is set on fire during police clashes with protesters on Human Rights
Day on 10 December 2019.
Recourse to these committees is only available are not enforceable. However, they carry considerable
when all domestic avenues have been exhausted. persuasive force: see, for example, the discussion
In Australia, this may mean taking the matter before in Chapter 7 of the textbook on the Human Rights
the High Court. The decisions of the UN committees Committee’s decision in Toonen v Australia.
Review 11.8
1 Define ‘racial discrimination’.

2 Distinguish between direct and indirect discrimination. From your knowledge, give examples of
both forms of discrimination.
3 Identify the state and federal legislation that covers discrimination.
4 Identify in what ways migrants are limited in their access to social security benefits. Discuss.
5 Outline the conditions that must be satisfied before an individual in a particular country can
take a claim of racial discrimination before the UN Committee on the Elimination of
Racial Discrimination.

11.8 Non-legal responses in Australia, and over 340 submissions were sent

to it. It held public hearings in Victoria, Western 11
Government action Australia, South Australia, New South Wales and
Queensland, and oral testimony was given by
Federal, state and local governments have
experts who had experience in dealing with children
undertaken different ways to help migrants minimise
in detention. The inquiry also ran confidential focus
the difficulties of adapting to a new society. These
groups with former detainee children and young
include the following actions:
people. In its National Inquiry into Children in
• printing important information in many
Immigration Detention Report – A Last Resort? (May
different languages
2004), the AHRC (then known as HREOC) found
• providing this information in different
that Australia’s immigration detention policy failed
languages on the internet
on a number of levels, including protection of the
• providing interpreters where possible – a
mental health of children, provision of adequate
telephone interpreter service is available
health care and education, and protection of
• providing special English classes for children
unaccompanied children and those with disabilities.
and adults (although with funding cutbacks
The recommendations of the report centred on the
many of these are provided by volunteers)
following principles, summarised by the AHRC:
• providing for recognition of overseas
• children can only be detained as a measure
qualifications
of last resort and for the shortest appropriate
• developing multicultural policies and principles
period of time
• providing settlement programs to assist newly
• the best interests of the child must be a primary
arrived migrants.
consideration in all actions concerning children
• unaccompanied children must receive special
There are also a number of government bodies and
assistance so that they are in a position to enjoy
associations that support migrants.
the same rights as all other children
Australian Human Rights Commission • children have the right to family unity
As stated above, the Australian Human Rights • children must be treated with humanity and
Commission (AHRC) is a national government body, respect for their inherent dignity
set up under the Australian Human Rights Commission • children enjoy – to the maximum extent
Act 1986 (Cth) and forming part of the federal Attorney- possible – the right to development and
General’s responsibilities. It runs educational and recovery from past torture and trauma
public awareness programs for the government and • asylum-seeking children must receive
business sectors, as well as the general community. appropriate assistance to enjoy their rights,
This gives it an important role in ensuring Australia including the right to be protected under the
remains a tolerant, equitable and democratic society. Reguee Convention.
The key message is that the human rights of all
Australians make it essential to eliminate harassment The Howard government was slow to respond to the
and discrimination. A core responsibility of the recommendations of the report, drawing criticism from
AHRC is to provide education about human rights. HREOC. In fact, it was not until the end of July 2005 that
The AHRC is also responsible for investigating, and all children had been released from detention centres.
attempting to resolve, complaints about human rights This only came about because Prime Minister Howard
breaches under anti-discrimination legislation. was put under pressure from his fellow members of
In 2002, the National Inquiry into Children the Coalition to release all children who were still
in Immigration Detention examined whether detained. Despite this still being a controversial issue,
Australian laws on detaining children and how at the end of June 2015, there were still 215 children
they were treated in detention were in line with our being detained in immigration centres. Figures from
obligations under international law, in particular the Department of Home Affairs state that less than
the Convention on the Rights of the Child (1989). The five children are detained in Australian detention
inquiry visited all immigration detention centres centres as at 30 September 2019.

Figure 11.11 Refugee advocates held nation-wide protests on 10 June 2004 because former Australian Prime Minister,
John Howard, refused to release children from detention by the deadline set by the Human Rights and Equal
Opportunity Commission.
Legal assistance Aid can also represent persons who claim they
Pursuing legal rights is expensive for everyone; have experienced racial discrimination. Migrants
however, there is very little legal or financial can also seek legal advice and assistance from
assistance available to migrants, prospective community legal centres and, in some matters,
migrants and asylum seekers to pursue their from pro bono legal services.
applications or legal rights. The NSW Refugee
Advice and Casework Service provides free, Supporting multiculturalism
specialist legal services for people seeking asylum Many associations have been established at both
and refugees. Due to a lack of government funding state and national levels to promote the cultural
however, the Service rarely relies on donations and heritage of different ethnic groups. The federal
the work of volunteers. The Immigration Advice and government has also established several bodies
Application Assistance Scheme does provide advice to raise awareness of multiculturalism and
to asylum seekers during their application process, promote tolerance.
but cannot assist during appeals. The Commonwealth Parliament established
Migrants in New South Wales who use the the Australian Institute of Multicultural Affairs
courts to settle non-migration disputes are able (AIMA) in 1979. Its purpose was to raise awareness
to apply for legal aid if they meet the eligibility of cultural diversity and to promote social cohesion,
criteria. These criteria include a means test understanding and tolerance. The Office of
regarding income, and may include a merits test Multicultural Affairs replaced AIMA in 1986. It was
(whether the case is likely to succeed). LawAccess part of the Department of the Prime Minister and this
NSW provides telephone information, referral and meant that multiculturalism was given a national
advice, including how to apply for legal aid. Legal prominence. This office has since closed.

In 1989, the federal government produced a legislation currently lacks sufficiently severe penalties
statement of policies and goals titled National Agenda for racist behaviour, Australia’s multicultural policy 11
for a Multicultural Australia. All political parties has been limited in its effectiveness.
support it to this day. The agenda introduced many
measures to help recognise the cultural diversity of Use of interpreters
Australia, including the expansion of SBS television The Translating and Interpreting Service (TIS) is
services and the establishment of the National Office provided 24 hours a day by the Department of Home
of Overseas Skills Recognition. Affairs. It provides a free telephone interpreting
The Australian Multicultural Advisory Council and document translation service. It also provides
(AMAC) was established in 1994 with the task of free face-to-face translation services for certain
recommending policies for the implementation organisations such as medical practices and trade
of multiculturalism in Australia. It ceased its unions. For a fee, other people can also access a
operations in 1999. Before it stopped operating, three-way interpreting service, which involves
AMAC released a report called Australian English-speaking and non-English-speaking parties
Multiculturalism for a New Century: Towards and the TIS interpreter. This can be done face-to-
Inclusiveness (1999). The federal government face or using telephones.
responded to this report with the release of its own
multicultural statement in 1999, A New Agenda for Group action
Multicultural Australia. Often migrants can only force action by forming
The Council for Multicultural Australia groups that will organise demonstrations to protest
was established in June 2000 to assist with the unfair actions. They can also ask for help from non-
implementation of the New Agenda. It was given a government bodies such as Amnesty International,
three-year period to meet its goals. The Australian which will in turn lobby governments and the United
Multicultural Council has superseded this body and Nations on their behalf. This is very difficult because
is overseen by the Minister for Home Affairs. some cultures only have very small numbers in
The idea of multiculturalism has lost some of Australia, separated by large distances, and so
its force over the years, with cuts to government cannot create a very loud protest. Also, national and
spending in some areas such as English language international organisations have many demands on
classes. Some Australians have argued that because their time and financial support.
Figure 11.12 More than 40 members of the direct-action group, Rise and Resist, were arrested after shutting down
rush-hour traffic in New York City. The protesters were advocating for immigrants’ rights and demanding that the
public wake-up, take action and end the terror inflicted on immigrant communities.

Review 11.9
1 Outline the arguments against the detaining of children in detention centres. Assess if you can
recommend any arguments for keeping children in detention centres.
2 Outline the Australian Human Rights Commission’s response to the outcry over children in
detention centres.
3 Discuss the findings of its report.
4 Describe some informal responses to migrants in Australia and discuss their effectiveness.
Other organisations jurisdiction will look afresh at the facts of a case,

Non-government bodies such as church and consider whether the final decision was correct
community groups and migrant organisations and change the decision if appropriate. The new
also offer support and provide networks to assist review system consisted of two tiers: the Migration
new migrants. For example, migrant resource Internal Review Office, whose role was to provide
centres run by sponsored community groups independent internal review of a decision; and
supply information and assistance to new migrants. the Immigration Review Tribunal, which reviewed
St Vincent de Paul, the Salvation Army and other decisions by the Migration Internal Review Office
charitable organisations provide emergency shelter, and had the power to review on merits.
food and clothing. A review of the new system was followed by
a 1992 report that affirmed that it was working,
but recommended that refugee decisions should
11.9 Effectiveness of responses be handed over to an independent body. Thus,
Migrants can use the legal system to appeal decisions the Refugee Review Tribunal (RRT) was created
about their migration applications or status. As in in 1993 to review decisions regarding refugee
all cases, the legal system is limited in its ability to applications. Appeals from the RRT were heard by
come to a solution that is acceptable to all parties. the Administrative Appeals Tribunal (AAT) or the
For various reasons, migrants are at a comparative Federal Court, but only on matters of law.
disadvantage in relation to the government. Thus, In 1999, the Immigration Review Tribunal and the
the responsiveness of the legal system to migrants Migration Internal Review Office were amalgamated
can be questioned. and became the Migration Review Tribunal (MRT) in
an effort to make the review processes more efficient
Administrative review of and economical.
immigration decisions In 2015, the RRT and the MRT became the
Prior to 1989, it was very difficult for prospective Migration and Refugee Division of the AAT. Appeals
migrants to appeal decisions made about their from the AAT can be heard by the Federal Circuit
applications. Challenging a government decision Court, but only on matters of law. This means that
in court was a lengthy and expensive process. only the question of whether the law has been
However, in 1985, a review of the Migration Act correctly applied in the case can be reviewed, as
1958 (Cth) was carried out by the Human Rights opposed to whether a different view based on the
Commission, chaired by Commissioner Fitzgerald. facts could have been reached.
This review, called ‘Human Rights and the
Migration Act 1958 (Cth)’, was critical of the limited The Review process
availability of independent review of migration If prospective family-sponsored and independent
decisions. migrants feel that their applications have been decided
Under its recommendations, a system of merits incorrectly by the Department of Home Affairs, they
review by independent tribunals was established. can lodge a claim for further review in the AAT.
In a merits review, a tribunal with the relevant The AAT was established to hear appeals against

Commonwealth ministers, officers and authorities. in the Federal Circuit Court. This is not an avenue
In this capacity, the AAT hears appeals on decisions open to most unsuccessful applicants, as it is 11
made by the Department of Home Affairs. The AAT time-consuming and expensive, and not advisable
has the power to conduct merits reviews and allows without legal representation.
the parties involved to have legal representation. The Federal Circuit Court cannot make a
They must pay a fee to do this. A court-like hearing decision based on a merits review. It can only
will be conducted by the AAT. Written submissions consider whether the correct decision-making
and any evidence presented by the applicant and the process was followed. (Chapters 2, 3 and 7 contain
Department of Home Affairs will be considered. more information on the differences between
If an applicant fails in an appeal to the AAT, judicial review and merits review.)
he or she may choose to challenge the decision
In Court
SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119

SZKCQ, a Pakistani national, said that he feared persecution because of his membership of, and profile
within, the Pakistani People’s Party (PPP). He had applied to the Federal Circuit Court to review a decision
made by the Refugee Review Tribunal (RRT), but this was dismissed on the basis that Australia did not
have protection obligations towards him. He then appealed to the Federal Court of Australia.
At the original hearing, the RRT had asked the appellant, SZKCQ, to obtain confirmation from
PPP officials of his standing and situation in the party. On receiving two letters from officials,
Mr A and Mr K, the RRT sent the documents to the Australian High Commission in Islamabad,
asking, among other things, for information from the letters’ authors as to how the appellant
suffered because of his work for the party. The RRT wrote to SZKCQ under section 424A of the
Migration Act 1958 (Cth), stating that based on this information it was not satisfied that he faced
a real chance of harm. SZKCQ was given 14 days to provide comments on the information. In the
RRT’s opinion, the letter from Mr A was not genuine and, as Mr K did not refer to the appellant’s
claim of imprisonment, the evidence suggested he had exaggerated his role and the harassment
he suffered. They wrote to the appellant of their decision but the time between the date of the letter
and the date it arrived was quite lengthy.
In his appeal, SZKCQ contended, among other things, that the RRT had delayed the sending
of its refusal by post so that he did not have enough time to respond and had not ensured that he
understood why the information referred to was relevant to the review. The Federal Court judged
that the RRT had failed to give enough time for the appellant to appeal the initial decision and had
not properly informed him. SZKCQ’s appeal was upheld and the RRT decision was set aside.
Review 11.10
1 Explain the system of review.

2 Discuss the limitations of the review process.
3 Describe the role played by the Federal Court of Australia in the review process.
4 Summarise the case SZKCQ v Minister for Immigration and Citizenship. Assess if this was a
merits review or a judicial review of the Refugee Review Tribunal decision.
5 Research decisions made by the tribunal on its website at https://cambridge.edu.au/
redirect/9039. Review two of the Migrant and Refugee decisions and outline the arguments for or
against granting a visa to the applicant.

Criticism of detention Committee has criticised such things as the lack of

It is important to remember that the reason for review rights for those in detention. In its decision
keeping applicants in detention centres is as a in A v Australia (1997) CCPR/C/59/D/560/1993, the
form of immigration control and not as punishment. committee found that Australia had breached
More recently, these detention centres have also Article 9(4) of the International Covenant on Civil and
been a way to encourage potential applicants to Political Rights (1966). Article 9(4) provides for the
use different channels to apply to live in Australia. rights of people in detention to seek a determination
However, there has been much criticism both in on the legality of that detention immediately.
Australia and internationally about the conditions Australia’s response to the Committee’s finding
in the detention centres and the government’s right in this case was to reject the findings, as well as the
to keep people in them for extended periods. Committee’s view that compensation should be paid
One criticism is that, in practice, border applicants to Mr A. This response was criticised both nationally
are more likely to be subjected to detention, whereas and internationally. In January 2008, in its annual
other unlawful non-citizens such as over-stayers inspection report of detention centres, HREOC (now
are generally allowed to stay in the community known as the Australian Human Rights Commission)
while their applications to remain in Australia are stated that there had been improvements, but there
assessed. Another criticism is that only in certain was still work to do.
circumstances are bridging visas available to people Australia has also been criticised for its
in detention. They are only granted to those people detention of children of border applicants. From
who have applied for refugee status, and then only 1999, there was a significant increase in the
for children, people over 75 years of age, spouses number of children in detention, and a great deal
of Australians, and victims of trauma and torture. of community concern about their treatment. In
There have also been criticisms relating to the fact response to criticism from such bodies as the UN
that border applicants who are detained only have Committee on the Rights of the Child, HREOC
the right to appeal to the Administrative Appeals undertook a National Inquiry into Children in
Tribunal if they claim refugee status. In addition, Immigration Detention in November 2001. Its report,
people in detention are often unaware of their legal A Last Resort, was released in 2004. The inquiry
rights. Although all people in detention must be found that Australian laws requiring the detention
given the opportunity to obtain legal assistance of children had led to many and repeated breaches
upon request, immigration officers do not always of the Convention on the Rights of the Child (1989),
inform them of this right. and that children so detained were at high risk of
Many see detention as an abuse of human rights serious mental harm. It recommended the release
under international law. The UN Human Rights of children and their parents, and the amendment
Figure 11.13 Detainees sit on the roof of the Villawood Detention Centre near Sydney during a protest on 22 September
2010. A fresh rooftop protest broke out at the Australian immigration detention centre, officials said, just hours after the
end of another tense standoff that followed the suicide of a detainee.

Research 11.8 11
Research the progress that has been made on the issue of mandatory detention of border
applicants and their children. Use a search engine to research news articles from 1 January 2008 to
the present.
Key search terms could include various combinations of the following keywords:
• mandatory detention
• Australia
• children
• asylum seekers
• human rights.
Review 11.11
1 Outline some of the criticisms of Australia’s detention policies.

2 Discuss which international convention was the benchmark against which HREOC’s inquiry
measured Australia’s treatment of the children of border applicants.
of Australia’s laws to comply with the convention. federal and state legislation prohibiting hate speech
It also recommended that any unaccompanied and racial vilification strengthened these laws; for
child should be given an independent guardian, example, the Racial Hatred Act 1995 (Cth), discussed
that legislation should codify minimum standards above; section 20C of the Anti-Discrimination Act
of treatment for children in detention, and that the 1977 (NSW); and section 67A of the Discrimination
amendments to the Migration Act 1958 (Cth) should Act 1991 (ACT).
be reviewed to assess their impact on children. The legislation also sends a message that racist
With increasing public protest and pressure, attitudes and behaviour are not acceptable in
changes have been slowly brought about, and the Australian society.
federal government elected in 2007 took measures to
rectify some of these issues. However, a subsequent Limitations of the law
change in government meant that these measures Despite these laws, several factors limit their
have not been carried through. The AHRC’s 2015 effectiveness. Slow processing of complaints
report, The Forgotten Children, looked at children in reduces the effect of the legislation. It can take
migrant detention centres. The report was damning several years for a complaint to be finalised. As a
in its appraisal of the psychological and physical result, some migrants feel that it is not worth taking
impact on children when they were held indefinitely their complaint to the Anti-Discrimination Board.
in the centres. At first, the government as being Many people are also dissatisfied with the
politically motivated dismissed the report, but since outcome of their complaint and believe that the
then the government has made some changes in remedies available are not strong enough to stop
response. These include providing funds to set up further discrimination or send a strong message to
a school on Christmas Island. the public. The New South Wales legislation provides
heavy fines and imprisonment, but these penalties
Legislation sanctions against are rarely used. The AHRC has the power to make
discriminatory behaviour determinations, but is not empowered to make them
The very existence of anti-discrimination laws binding on the parties involved. However, the AHRC
indicates a recognition that discriminatory behaviour will investigate and conciliate when a dispute exists
exists and should be eliminated. The introduction of to try to bring about a satisfactory resolution.

Research 11.9
View the Australian Human Rights Commission website. Choose one of the areas that are relevant
to migrants. Prepare a fact sheet or brochure for migrants letting them know how their rights are
protected in this area. Remember that many migrants are not wholly fluent in the English language,
so your presentation of information should consider this.
Difficulty in proving that the discrimination took • increasing funding for English language
place and that the treatment was based on race programs
also means that migrants are reluctant to bring a • promoting public education about
complaint. Problems continue in the elimination of multiculturalism to reduce racially
racial discrimination because of limited government discriminatory behaviour and racist speech
authority and continued racist attitudes in the • increasing the availability of, and access to,
community, as well as language barriers and legal aid for migrants
migrants’ ignorance of their rights. • providing greater access to social security
for migrants
Future directions • providing greater access to legal assistance for
Although federal and state governments have done people in detention and increased availability of
much to recognise the needs of migrants and to review of immigration decisions
minimise the difficulties that they face in establishing • streamlining application processes for migration
permanent residency in Australia, inequalities still so that they are the same around the world
exist and there is still a need for greater reforms. • reforming the rules regarding mandatory
Possible reforms include the following: detention.

Chapter summary
• There are different categories of immigration • Concerns about ‘illegal immigrants’ led to
11
available to people who want to come to live changes in legislation and policy from 2000 to
permanently in Australia. These include 2013. The most significant of these involved
family-sponsored, work-related, refugee and amendments to the Migration Act 1958 (Cth),
humanitarian categories. some of which allowed for the mandatory
• Prospective applicants must go through detention of unauthorised arrivals.
certain procedures in their bid to migrate • There are procedures that must be followed
to Australia. before a person can be deported, removed
• New arrivals in Australia face disadvantages or extradited.
related to finances, employment opportunities, • Detention of unauthorised arrivals in
isolation and access to legal services. Australia, especially children, has attracted
• After the policies of assimilation and strong criticism from human rights advocates
integration, multiculturalism developed in the and organisations.
1970s in response to identification of certain • Prospective migrants can have decisions
advantages brought to Australia by migrants. on their applications reviewed under
• The refugee program allows immigration to certain conditions.
Australia if the person meets the definition • Responses to migrant issues include state
in the Convention relating to the Status of and federal legislation and international
Refugees (1951). treaties. The legislation includes the Racial
• Unlawful non-citizens include over-stayers and Discrimination Act 1975 (Cth) and the
border applicants. Anti-Discrimination Act 1977 (NSW).
Questions
1 Which of these statements about migration in 3 Which of these statements about racial
Australia is true? discrimination law is true?
a Migration has been an important part of a Racial discrimination law falls under
Australia’s history. federal jurisdiction.
b Migration has only been occurring b Racial discrimination law only covers
since 2001. discrimination in the workplace.
c Migration to Australia from Asia and Africa c Racial discrimination law prohibits
was encouraged by federal governments in discriminatory behaviour based on race.
the 1940s and 1950s. d Racial discrimination law dates from the
d The Australian migrant population is colonial period.
made up mostly of illegal immigrants who 4 Which of these statements about the Anti-
managed to jump the queue. Discrimination Act 1977 (NSW) is true?
2 Australia is a party to which of the a It only applies to Australian citizens.
following treaties? b It prohibits discrimination in the areas
a International Convention on the Elimination of employment, provision of goods
of All Forms of Racial Discrimination (1965) and services, education and entry to or
b Convention on the Rights of the Child (1989) membership of a registered club.
c Convention relating to the Status of c It prohibits discrimination on the basis of
Refugees (1951) race or national origin, but not sex.
d all of the above d It was repealed in 2005.

5 What does the administrative merits review c an unsuccessful candidate being allowed
system involve? to appeal to the Federal Court if his or her
a an unsuccessful candidate being application is rejected by the Department of
allowed to seek merits review from the Home Affairs
Migration Review Tribunal if his or her d an unsuccessful candidate being allowed
application is rejected by Department of to appeal to the Migration Review Tribunal,
Home Affairs but only on questions of law, not merits
b an unsuccessful candidate being allowed
to appeal to the High Court if his or her
application is rejected by the Migration
Review Tribunal
1 Explain what refugee status means and who 5 Summarise the review process for
determines it. immigration decisions.
2 Discuss the amendments made to the 6 Make a judgment about how effective
Migration Act 1958 (Cth) in 2001. legislative sanctions have been against
3 Analyse how you think the MV Tampa incident discriminatory behaviour. Justify your opinion.
affected Australia’s international reputation. 7 Propose other action, legal and non-legal,
Justify your opinion in one to two paragraphs. which could be taken to eliminate
4 Identify in what ways do migrants face racial discrimination.
discrimination in the following areas:
a employment opportunities
b finding housing
c being granted refugee status.
Outline the legal issues facing refugees and Marking criteria for extended-response questions
border applicants. Evaluate the effectiveness can be found on the Cambridge GO website. Refer
of the legal system in responding to the needs to these criteria when planning and writing
of each. your responses.

Issue 1
Islander peoples
Chapter objectives
• discuss the effectiveness of the legal system in addressing issues
• provide an explanation of the nature of the relationship between the legal system and society
• describe the role of law in encouraging cooperation and resolving conflict, and in initiating and
responding to change
• locate, select and organise legal information from a variety of sources, including legislation, cases,
media reports, international instruments and documents
• account for different perspectives and interpretations of legal information and issues
• communicate legal information using well-structured responses.

Relevant law
National Parks and Wildlife Act 1974 (NSW)
Aboriginal Land Rights Act 1983 (NSW)
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
Native Title Amendment (Technical Amendments) Act 2007 (Cth)
Northern Territory National Emergency Response Act 2007 (Cth) (repealed)
INTERNATIONAL INSTRUMENTS
United Nations Declaration on the Rights of Indigenous Peoples (2007)
SIGNIFICANT CASES
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (‘Gove land rights case’)
R v Williams (1976) 14 SASR 1
Mabo v Queensland (No 2) [1992] HCA 23 (‘Mabo case’)
Walker v New South Wales [1994] HCA 64
Wik Peoples v Queensland [1996] HCA 40 (‘Pastoral leases case’)

12.1 Aboriginal and Torres Strait it is not accurate or fair to categorise them into one
Islander peoples and the law cultural group. When the First Fleet arrived, the
belief at the time was that Aboriginal and Torres
Strait Islander people were ‘savages’ with no concept
History of government policy
of land ownership. There was no physical evidence
Australian students, through their school studies,
of fences, landlords, tenants or farms to be observed,
have a good understanding of Aboriginal and
and so the British Government declared the land to
Torres Strait Islander populations and their history.
be terra nullius and so claimed ownership rights.
From these studies, students are also aware that
Aboriginal and Torres Strait Islander peoples terra nullius
have not been treated as equally, or fairly, as other (Latin) ‘land belonging to no-one’; the idea and legal concept
that when the first Europeans came to Australia, the land
Australians in many situations. In this topic, you will was owned by no-one and was therefore open to settlement;
look at the role of the legal system in their treatment. this concept has been judged to be legally invalid
The term ‘aboriginal’ is an indication of the
treatment of Aboriginal and Torres Strait Islander A range of government policies as well as laws in
peoples by the white settlers who came after 1788. relation to Aboriginal and Torres Strait Islander
The term ‘aboriginal’ is a generic one meaning peoples have been in place since 1788; these are
‘native’, and by applying it to the Aboriginal and summarised in Table 12.1. The law-makers at this time
Torres Strait Islander peoples, the British showed believed that Aboriginal and Torres Strait Islander
that they had no real interest in the groups of people peoples needed looking after as they were not able
who were the traditional owners of the lands that to make meaningful decisions for themselves. Many
made up the enormous island of Australia. of the laws and policies were discriminatory, as was
The map in Chapter 2 makes it clear that the public attitude encouraged by them. This can be
Aboriginal and Torres Strait Islander peoples lived seen in a quote that appeared in a 1901 edition of the
in distinct clans and language groups and, therefore, Bulletin magazine:
Figure 12.1 A travel poster for Australia, showing Captain Cook landing with his soldiers at Botany Bay in 1770.

Chapter 12 (Digital-only chapter) Aboriginal and Torres Strait Islander peoples
been debated by modern academics. For example,

If this country is to be fit for our children consider the statement made in 1937 by Mr A.O.
and their children to live in, we must keep Neville, Commissioner for Native Affairs (formerly
the breed pure. The half-caste usually Chief Protector of Aborigines) in Western Australia:
inherits the vices of both races and the 12
virtues of neither. Do you want Australia to
be a community of mongrels? We have power under the Act to take
any child from its mother at any stage
of its life … Are we going to have a
population of one million blacks in the
Each state government appointed a Protector of Commonwealth or are we going to
Aborigines. This role resulted from a recommendation merge them into our white community
of the British House of Commons in 1838. In a report, and eventually forget that there were
it was recommended that Protectors of Aborigines ever any Aborigines in Australia?
should be engaged with Aboriginal and Torres Strait
Islander peoples and that they would be required
to learn the Aboriginal language. Their duties
would be to watch over the rights of Aboriginal and When considering the laws and their outcomes,
Torres Strait Islander peoples by guarding against as outlined in Table 12.1, we can see that the term
encroachment on their property and protecting ‘protection’ did have a very different meaning in
them from acts of cruelty, oppression and injustice. the eyes of colonial and past Australian law than it
The reality of how protective this role really was has does today.
TABLE 12.1 State and federal laws and policies relating to Aboriginal and Torres Strait
Islander peoples
Policy or law Effect or outcome
Dispossession and dispersal (1788–1800s)
Since Aboriginal and Torres Strait Islander peoples
There was a massive reduction in the Aboriginal
were not recognised as citizens, it was not a criminal
and Torres Strait Islander population.
offence to hunt, shoot and kill them. The general
Traditional Aboriginal and Torres Strait Islander
belief was that Aboriginal and Torres Strait Islander
areas were converted to farming lands.
peoples would eventually ‘die out’.
If an Aboriginal or Torres Strait Islander person
was armed with a spear, or unarmed but within
Martial Law 1816 (NSW) a certain distance of settlements or houses, they
Martial Law 1824 (Tas) could be shot on sight.
Settlers had the authority to shoot Aboriginal and
Torres Strait Islander peoples.
Citizens could be imprisoned with hard labour
Vagrancy Act 1835 (NSW) for ‘lodging or wandering in company with any of
the black natives of the colony’.
Protection (1869–1909)
These Acts allowed the appointment of a
‘protector’ of Aboriginal and Torres Strait
Aboriginal Protection Act 1869 (Vic)
Islander peoples. This ‘protector’ had the power
Aborigines Protection Act 1909 (NSW)
to remove children from their homes and place
them in missions.
(Continued)

TABLE 12.1 (continued)

Policy or law Effect or outcome
Assimilation and integration (1900–1970s)
The European majority attempted to teach the
Aboriginal and Torres Strait Islander population
By this time, Aboriginal and Torres Strait Islander
to be ‘white’. This was met with both submission
populations were a long way from ‘dying out’;
and resistance. The 1967 referendum recognised
the policy was to ‘Europeanise’ them. This meant
that Aboriginal and Torres Strait Islander
leaving behind their language, culture, artefacts and
peoples should be counted in the Census
traditions, and becoming ‘similar’ and ‘integrating’
numbers and transferred responsibility for
into mainstream society.
Aboriginal and Torres Strait Islander affairs to
the federal government.
Self-determination (1970s onward)
The policy of self-determination is founded on
the recognition that Aboriginal and Torres Strait
Self-determination is defined in the International
Islander peoples are Australia’s first peoples,
Covenant on Economic, Social and Cultural Rights
and that much of their current disadvantage
(1966) and also explicitly mentioned in the United
arises from the loss of a right to live by their
Nations Declaration on the Rights of Indigenous
cultural values. This is reflected in native title
Peoples (2007).
legislation and Kevin Rudd’s 2008 apology to
The Act appeared to overturn decades of law
reform, and has been widely criticised locally
Northern Territory National Emergency Response Act and globally.
2007 (Cth) (repealed) The Act ignored the policy of self-determination for
Aboriginal and Torres Strait Islander peoples living
in the Northern Territory.
dispossession peoples did not exist as citizens of their own country

the removal or expulsion of people from their traditional for hundreds of years. In fact, the statements made
lands
by the Bulletin magazine and the Chief Protector of
dispersal Aborigines highlighted the legal status of Aboriginal
the distribution of people over a wide area
and Torres Strait Islander peoples since 1788. There
assimilation were no criminal laws for European people to abide by
a policy based on the idea that the minority group should
adopt the language and traditions of the majority group in terms of harming or killing Aboriginal and Torres
Strait Islander peoples and, in the first 50 years or
self-determination
the right of people to determine their political status or how so, the government policy of dispossession and
they will be governed based on territory or national grouping dispersal tended to condone violence. Indeed,
native title martial law in both Tasmania and New South Wales
the right of Aboriginal and Torres Strait Islander peoples to allowed Aboriginal people to be shot and killed. One
their traditional lands
of the most significant and tragic events of the 1800s
occurred in New South Wales at Myall Creek, near
Bingara when in May 1838, 40 Aboriginal people set
Legal status
up camp on a cattle station.
Before the 1967 referendum martial law

The doctrine of terra nullius meant that in the eyes law enforced by the military over civilian affairs; overrides
civil law
of the law, Aboriginal and Torres Strait Islander

On 10 June 1838, they were brutally attacked and allowed for the removal of children from homes to
killed by stockmen who were angry about the missions. These children are now known as the
theft of their cattle. Twenty-eight men, women Stolen Generations.
and children were slaughtered, and the Governor Aboriginal and Torres Strait Islander peoples
of New South Wales ordered an investigation into had no recognised legal status under Australian 12
the massacre. Such a legal process was probably law until 1838 and only limited recognition for the
the first of its kind. Initially, 11 men were found not rest of the century. Until the 1967 referendum, the
guilty of the crime. However, a second trial sent Constitution referred to Aboriginal and Torres Strait
seven men to their death by hanging. Because of Islander peoples in only two sections: sections 51 and
this event, farmers perceived the message that if you 127. Section 51 gave the responsibility for Aboriginal
did kill Aboriginal and Torres Strait Islander people, affairs to state governments. Since there were no
you should hide any evidence, rather than telling federal laws governing the welfare of Aboriginal
the authorities. As a result, practically no further and Torres Strait Islander peoples, different states
massacres were recorded. interpreted their rights and legal status in various
In the ensuing years, Aboriginal and Torres ways. While most Aboriginal people were killed or
Strait Islander peoples were seen to be childlike removed from Tasmania by the 1840s, New South
and so needing care and ‘guidance’ in decision- Wales at the same time sentenced seven white men
making. State governments passed laws such to death for the Myall Creek massacre.
as the Aboriginal Protection Act 1869 (Vic) and the Section 127 of our Constitution excluded Aboriginal
Aborigines Protection Act 1909 (NSW), which gave and Torres Strait Islander peoples from the Census.
wide powers to govern where Aboriginal and They were also denied fundamental citizenship rights.
Torres Strait Islander peoples could live and work, These citizenship rights involved being able to enjoy
what jobs they could do and with whom they could individual freedoms such as freedom of speech, the
marry and associate. In New South Wales, this also right to stand for election and the right to education.
Figure 12.2 Activist, Faith Bandler, receives Australia’s highest honour, the Order of Australia, from the former
Governor-General, Quentin Bryce, at Admiralty House in Sydney. Bandler played a prominent role in the 10-year
campaign to have Aboriginal and Torres Strait Islander people recognised as Australian citizens. The campaign
culminated in the 1967 referendum.

By the 1960s, as attitudes, beliefs and policies their people’s rights to access Murray Island (Mer).
began to change, so too did the legal status of Although Eddie Mabo and one of his fellow plaintiffs
Aboriginal and Torres Strait Islander peoples. died during this time, this did not stop the case and
For example, the right to vote in federal elections in June 1992, the High Court ruled (by six judges to
was granted in 1962 and in all state elections one) that Australia was not terra nullius and that
by 1965. The 1967 referendum asked the non- the Meriam people clearly held native title to their
indigenous population to change section 51 and land. This meant that Australian law now contained
to totally remove section 127 of the Constitution. a legal doctrine of native title. Recognition of the
Over 90% of the population voted ‘yes’ to these Meriam people’s traditional rights to their islands in
requests and, from this point on, Aboriginal and the eastern Torres Strait meant that all Aboriginal
Torres Strait Islander peoples affairs became a and Torres Strait Islander peoples in Australia
federal issue and Aboriginal and Torres Strait before 1788 had native title.
Islander peoples’ information was recorded in This decision altered the foundation of land law
the Census. in Australia. The federal government responded to
this decision by passing the Native Title Act 1993
After the 1967 referendum (Cth). The Mabo case and the ensuing legislation,
Despite this recognition, progress was slow. including the Native Title Amendment Act 1998
For example, in 1968, Yolngu people from the (Cth), significantly changed the legal status of
Gove Peninsula, in eastern Arnhem Land, sent a Aboriginal and Torres Strait Islander peoples in
bark petition to the Commonwealth Government relation to native title and allowed some people
protesting the removal of 300 hectares of land for to access parcels of land throughout Australia to
bauxite mining without their permission. The practise their traditional way of life. It did not allow
petition failed to move the federal government to Aboriginal and Torres Strait Islander peoples to
recognise the rights of the Yolngu people and so ‘own’ these lands, as this could mean restricting
the Gove land rights case (Milirrpum v Nabalco Pty the use of current owners.
Ltd (1971) 17 FLR 141) commenced in the Northern In 1993, during the passage of the Native Title
Territory Supreme Court in 1971. In his ruling, Bill through parliament, Prime Minister Paul
Justice Blackburn stated that if the Yolngu people Keating said:
did have any type of native title rights, they would
have been extinguished under common law. Thus,
the doctrine of terra nullius prevailed and they could … as a nation, we take a major step
not prevent mining on the land. towards a new and better relationship
In 1972, the Australian Labor Party, led by between Aboriginal and non-Aboriginal
Gough Whitlam, was elected after 23 years in Australians. We give the indigenous
opposition. That year, the government established people of Australia, at last, the standing
the Department of Aboriginal Affairs in response they are owed as the original occupants
to the failure of the Gove land rights case. A Royal of this continent, the standing they are
Commission into Aboriginal land rights under owed as seminal contributors to our
Justice Woodward was established, and its findings national life and culture: as workers,
led to the drafting of the Aboriginal Land Rights soldiers, explorers, artists, sportsmen
(Northern Territory) Act 1976 (Cth). This legislation and women – as a defining element in
established a procedure for land claims, which the character of this nation – and the
meant that land listed as available could be claimed standing they are owed as victims of
by traditional owners. grave injustices, as people who have
Between 1982–1992, Eddie Mabo and four other survived the loss of their land and the
men challenged the Queensland Government in shattering of their culture.
legal action that eventually made its way to the High
Court (Mabo v Queensland (No 2) [1992] HCA 23) over


covered. You are encouraged to complete the types of activities a number of times to continue to 12
Review 12.1
1 Table 12.1 outlines the main stages in state and federal laws and policies relating to Aboriginal
and Torres Strait Islander peoples. Summarise each stage.
2 Recall what the Myall Creek massacre was and how people responded.
3 Outline the outcomes of the Gove land rights case and the Mabo case. Explain why these cases
are significant.
4 Evaluate the significance of native title legislation for Aboriginal and Torres Strait Islander peoples.
12.2 A
reas of disadvantage • males: 71.6 years (compared to all Australian
for Aboriginal and Torres males: 80.5 years)
Strait Islander peoples • females: 75.6 years (compared to all Australian
females: 84.6 years).
Compared to non-indigenous people, Aboriginal
and Torres Strait Islander peoples are more often
General health (2011–2016)
involved in the criminal justice system, while on
About 25% of Aboriginal and Torres Strait Islander
average having lower levels of health, education,
peoples reported their health as ‘fair or poor’ (22%),
employment and housing. The Royal Commission
which is at least twice as many as non-indigenous
into Aboriginal Deaths in Custody drew attention
Australians.
to this disadvantage, with Commissioner Elliott
Two-thirds (66%) of Aboriginal and Torres
Johnston QC stating:
Strait Islander peoples aged 15 years and over were
overweight or obese. This total was similar to the
general population, but looking at obesity alone,
… the consequence of the history of
the rate was 1.5 times higher than non-indigenous
Aboriginal people (since European
people. In terms of chronic disease, nearly twice
settlement) is the partial destruction
as many Aboriginal and Torres Strait Islander
of Aboriginal culture and a large part
peoples as non-indigenous Australians reported
of the Aboriginal population and also
suffering from asthma, and they were 3.3 times as
disadvantage and inequality of Aboriginal
likely to report some form of diabetes. There was
people in all the areas of social life
also a higher prevalence of hearing conditions for
where comparison is possible between
Aboriginal and Torres Strait Islander children.
Aboriginal and non-Aboriginal people.
Australian Institute of Health and Welfare reported
that in 2018 vision impairment and blindness among
Aboriginal and Torres Strait Islander adults were both
three times higher than in non-indigenous adults.
Health
Education (2017)
Life expectancy (2017) School retention – 62% of Aboriginal and Torres
In 2017, the life expectancies for Aboriginal and Strait Islander students completed Year 12 compared
Torres Strait Islander peoples were: to 93% of non-indigenous students.

Figure 12.3 Nigel Scullion, the former Australian Government Minister for Indigenous Affairs, carries student, Nikihas
Coulthard, to school in Mimili in the Anangu Pitjantjatjara Yankunytjatjara Lands in South Australia. A walking school
bus passes through the community each morning to take the children to school.
Care and protection of children September 2014 to June 2015, found that less than
The rate of removal of Aboriginal and Torres Strait half (46.0%) of Aboriginal and Torres Strait Islander
Islander children from their families still exceeds people aged 15 years and over were employed –
the removal of non-indigenous children per head of 27.7% working full-time and 18.3% working part-time.
population. According to the Australian Institute of Men were twice as more likely to be employed than
Family Studies, there are 10 times more Aboriginal women. The 2016 Census reflected little change in
and Torres Strait Islander children in care than these statistics and the Closing the Gap Report (2019)
non-indigenous children. As the availability of stated that targets were quite behind.
foster families in the Aboriginal and Torres Strait
Criminal justice system
Islander community is very low, these children may
An Amnesty International report, A Brighter Tomorrow
experience alienation from their culture, in addition
(2014), stated that Aboriginal and Torres Strait Islander
to other disadvantages that are sometimes faced
young people between 10–17 years of age were
by children in care (such as social and economic
26 times more likely than non-indigenous juveniles
disadvantage and abuse).
to be in juvenile detention. The Australia Institute of
Health and Welfare stated that in 2018, ‘indigenous
Employment young people aged 10–17 were 26 times as likely as
The National Aboriginal and Torres Strait Islander
non-indigenous young people to be in detention on
Social Survey (NATSISS), which was conducted from
an average night’. The NATSISS found that almost
Research 12.1
View online the article, ‘10 impacts of the NT Intervention’ (by Paddy Gibson, NITV, 21 June 2017). This
article discusses the Northern Territory National Emergency Response Act 2007 (Cth) (repealed), which
is also referred to as the ‘Northern Territory intervention’.

one in 10 (8.8%) Aboriginal and Torres Strait Islander (McMahon’s) legal costs. Visit the Australasian
people aged 15 years and over had been incarcerated Legal Information Institute website for details of the
in their lifetime, with males four times more likely to case, which can be accessed via the following link:
be locked up. https://cambridge.edu.au/redirect/9040.
There are exceptions to the Racial Discrimination 12
Racial vilification Act 1975 (Cth), including:
The Racial Discrimination Act 1975 (Cth) was amended • an artistic work (e.g. a book or a film in which a
in 1995 to include the Racial Hatred Act 1995 (Cth) and character expresses racist attitudes)
allows citizens to complain about offensive, abusive • a publication, discussion or debate made for an
or racially motivated behaviour. This legislation aims academic, artistic or scientific purpose (e.g. a
to balance two rights: the right to communicate freely publication about policies on immigration,
and the right to live free from racial vilification. The multiculturalism or affirmative action for
Act prevents public offence, insult, humiliation or migrants)
intimidation of people of a particular race, colour or • a fair and accurate report on a matter of public
national identity. interest (e.g. a news story about a person
behaving in a racially offensive manner)
racial vilification • a fair comment on a matter of public interest, if
a public act based on the race, colour, national or ethnic it expresses the person’s genuine belief.
origin of a person or group of people that is likely to offend,
insult, humiliate or intimidate; types of behaviour can
include racist graffiti, speeches, posters or abuse in public affirmative action
a policy designed to address past discrimination and thus
improve the economic and educational opportunities of
A case that highlights the intent of this legislation is women and minority groups
McMahon v Bowman [2000] FMCA 3 (13 October 2000).
Bowman shouted abuse from his front veranda to In the case of McMahon v Bowman, none of these
his neighbour, McMahon, because he tried to exceptions applied.
retrieve his children’s ball from Bowman’s front
yard. The magistrate noted that passers-by could Closing the gap
have heard them. Bowman was ordered to pay $1500 In 2015, Prime Minister Tony Abbott released a report,
in compensation, in addition to the complainant’s Closing the Gap (2015). This report looked at progress
Research 12.2
Find three cases of racial vilification. Cases can be found on the website of the Australasian Legal
Information Institute.
1 For each case, describe the events of the case and the judge’s decision.
2 Discuss the effectiveness of the law in dealing with racial vilification.
Review 12.2
1 Outline the differences in life expectancy between Aboriginal and Torres Strait Islander peoples
and non-indigenous males and females in Australia.
2 Describe the differences in general health between Aboriginal and Torres Strait Islander
peoples and non-indigenous people in Australia.
3 Discuss the reasons for the disadvantages experienced by Aboriginal and Torres Strait Islander
peoples, as outlined by Commissioner Elliott Johnston QC.
4 Propose why attempts to reduce the gap between Aboriginal and Torres Strait Islander peoples
and non-indigenous Australians have had little positive effect.

made in terms of key indicators for Aboriginal and in criminal courts four times more frequently than
Torres Strait Islander people. These included non-indigenous people. In terms of incarceration, 16%
education, employment and life expectancy. The of Aboriginal and Torres Strait Islander peoples who
report noted that, apart from infant mortality rates appeared in court received jail sentences, compared
and Year 12 completion rates, targets had achieved to just 6% of non-indigenous people.
limited progress. It has since become A government report, Youth Justice in Australia
an annual report to parliament on 2017–2018, reported that of the young people aged 10–
the progress made in closing the gap 17 in custody or on a community-based supervision
around the key indicators. order on an average day, 49% are Aboriginal and
Video Torres Strait Islander peoples, even though they
make up only 5% of the population in this age group.
12.3 Legal responses The Productivity Commission’s report, Indigenous
Disadvantage (2017), found that, ‘About four in five
Criminal law indigenous teenage boys and three in five indigenous
As with all law, Aboriginal and Torres Strait Islander teenage girls return to jail within a year of being
people have not been treated well by criminal law. In released from youth detention’.
the cases of R v Ballard (1829) and R v Murrell (1836), Thus, it would seem that energy and emphasis
in which Aboriginal men (Ballard and Murrell) were needs to go into breaking this cycle so that young
charged with murdering other Aboriginal men, the Aboriginal and Torres Strait Islander offenders do
defence counsel argued: not become adult prisoners. Indeed, it has been
estimated that if all Aboriginal and Torres Strait
Islander peoples who were sentenced to jail for
The natives were not protected by [the laws fewer than six months were released, Aboriginal
of Great Britain], they were not admitted and Torres Strait Islander peoples jail population
witnesses in Courts of Justice, they could numbers would fall by 56% over 12 months (Jopson
not claim any civil rights, they could not 2003). In addition, the Royal Commission into
obtain recovery of, or compensation for, Aboriginal Deaths in Custody 1987 found that:
those lands which had been torn from
them, and which they had held probably
for centuries. It therefore followed they … the more fundamental causes for the
were not bound by laws which did not at over-representation of Aboriginal people
the same time afford them protection. in custody are not to be found in the
criminal justice system but in those factors
which bring Aboriginal people into
conflict with the criminal justice system
In both cases, the prisoners were dismissed. However, in the first place. The view propounded
in the latter case, Justice Forbes reversed his decision by this report is that the most significant
and found the defendant guilty after consulting with contributing factor is the disadvantaged
three other judges. Throughout the twentieth century and unequal position in which Aboriginal
and into the twenty-first century, Aboriginal and Torres people find themselves in the society –
Strait Islander people continue to be significantly socially, economically and culturally.
over-represented in rates of arrest, charge and jail
sentencing. It is estimated that Aboriginal and Torres
Strait Islander people are between nine and 15 times
more likely to be arrested, charged and jailed for In recent years, a range of measures and policies
offensive language/behaviour, resisting arrest and to counter the statistics listed above have been put
assaulting police, and hindering police (‘the trifecta’ in place, including circle sentencing, which tries
of offences). Indeed, in 2004, Aboriginal and Torres to identify a more appropriate form of punishment
Strait Islander people in New South Wales appeared after an Aboriginal and Torres Strait Islander

person has been found guilty in an ordinary court. or pastoralists. The court also determined that, should
While circle sentencing continues in Dubbo and native title and pastoral leases come into conflict, the
Nowra, there are still criminal cases whereby pastoralists’ rights would prevail. The court found that
Aboriginal and Torres Strait Islander peoples are although pastoralists did not have exclusive rights to
not excused from the current criminal justice system possession of the land, they did have an exclusive 12
of assigning punishment. right to pasture. Following this judgment, the federal
government introduced the 10-point plan for native
Civil law title, with the Native Title Amendment Act 1998 (Cth).
Australia’s adversarial legal system means that
taking civil action against another person or Anti-discrimination legislation
company can be an extremely costly experience. The Discrimination in this legal meaning refers to treating
chances of winning a case with self-representation someone unfairly because they belong to a particular
are extremely low and, as a consequence, very few group of people. Discrimination includes harassment –
Aboriginal and Torres Strait Islander peoples or non- unwanted and unasked for behaviour that offends,
indigenous people can afford to act as plaintiffs in intimidates or humiliates. The Racial Discrimination
civil cases. However, in 1996, as a result of the Mabo Act 1975 (Cth) and Anti-Discrimination Act 1977
decision, the Wik peoples of Cape York challenged, (NSW) make this behaviour towards Aboriginal and
in the High Court, the legality of pastoral leases or Torres Strait Islander peoples unlawful. The Anti-
land formerly under pastoral leases (Wik Peoples v Discrimination Board of NSW (ADB), which is part of
Queensland [1996] HCA 40 (‘Pastoral leases case’)). the Attorney-General’s Department, was established
The major difference between the Mabo and under the Anti-Discrimination Act 1977 (NSW) to
Wik cases was that the Wik people were fighting administer that Act. The ADB’s role is to further
against farmers who also felt they had legal rights principles and policies for anti-discrimination and
and ownership. The High Court found in favour of the equal opportunity throughout New South Wales.
Wik people. The court found that native title could ‘co-
exist’ with pastoral leases. This effectively meant that equal opportunity
the Wik people could access their land for customary the right to equivalent opportunities regardless of race,
colour, sex, national origin, etc.
purposes and that this should not interfere with farmers
Figure 12.4 On 28 May 2016, members of ANTIFA marched up Sydney Road in Melbourne. Violence erupted when
participants in a ‘say no to racism’ rally who were protesting the forced closure of Aboriginal communities, off-shore
detention centres and Islamophobia met with members of a counter anti-Islam rally organised by the True Blue Crew
and backed by the United Patriots Front.

The ADB provides information about people’s and Torres Strait Islander peoples in New South
rights and responsibilities under anti-discrimination Wales and the Australian Capital Territory (ACT)
laws, and explains how they can prevent and deal in the areas of criminal and family law. It started
with discrimination. This is achieved through operation on 1 July 2006 and has 23 offices across
consultations, education programs, seminars, New South Wales and the ACT. The ALS replaced
talks, participation in community functions, and the the six Aboriginal and Torres Strait Islander Legal
production and distribution of information, through Services (ATSILS) and their peak body, the Coalition
printed publications and the ADB’s website. The of Aboriginal Legal Services (COALS). The ALS won
ADB also takes complaints of discrimination. the government contract to provide legal services
In May 2005, some amendments were made to this to Aboriginal and Torres Strait Islander peoples in
legislation that allowed lawyers to lodge complaints New South Wales and the ACT on 28 April 2006, and
to the ADB within 12 months of the offence, rather receives government funding to do so.
than the previous six-month complaint period.
In addition, the ADB will be able to hear part of Special commissions
a complaint rather than a complaint in total. This
is designed to allow parts of a complaint to be Aboriginal and Torres Strait Islander
dismissed if not covered by legislation, but remaining Commission
parts of the complaint will stand. Previously, whole In 1989, the Commonwealth Government legislated
cases have been dismissed because some of the the Aboriginal and Torres Strait Islander Commission
behaviour of the respondent had not been covered Act 1989 (Cth) to establish the Aboriginal and Torres
by legislation. Strait Islander Commission (ATSIC). The purpose
of ATSIC was to grant power that is more political
Legal aid to Aboriginal and Torres Strait Islander peoples by
‘Legal aid’ is the provision of legal services to socially allowing them greater participation in Aboriginal
and economically disadvantaged people at no or very and Torres Strait Islander affairs.
little cost to them. The government pays for legal aid Government funding was provided to establish
so that people who cannot afford to pay a solicitor head and regional offices for providing services
themselves are still able to access the legal services such as health, substance abuse programs, and
they require. A number of different organisations, housing and economic development programs.
including the Legal Aid NSW, community legal In March 2005, after a range of criticisms from the
centres generally and the Aboriginal Legal Service federal government and some personal issues
provides legal aid in New South Wales. All of these with the chairman, Geoff Clark, ATSIC was
are funded by either or both the Commonwealth and officially abolished. The Liberal/National coalition
NSW governments. government replaced ATSIC with the National
Legal aid helps people who are economically or Indigenous Council (NIC), but this body was widely
socially disadvantaged to understand and protect denounced for its ineffectiveness, and the Labor
their rights. The only way the legal system can perform government after 2007 did not continue member
this protective role is if there is equitable access to contracts. At the time of writing, no independent
it. Socially and economically disadvantaged people, national body (funded by the government) exists.
including many Aboriginal and Torres Strait Islander
people, may experience particular difficulties in Government inquiries
accessing the justice system due to lack of education
and isolation, among other factors. Legal aid plays Aboriginal Deaths in Custody
an important role in improving access to justice by The Royal Commission into Aboriginal Deaths
providing a range of legal services to Aboriginal and in Custody was established in 1987 in response
Torres Strait Islander people. to the unacceptable number of Aboriginal and
The Aboriginal Legal Service (NSW/ACT) Limited Torres Strait Islander deaths in police custody and
(ALS) provides legal aid services to Aboriginal jail in Australia.

In summary, the Royal Commission found that the NSW Aboriginal Land Council, 13 regional land
there was no evidence of foul play by police officers in councils and 120 local land councils.
each of the deaths. However, suspicions were raised Interestingly, this Act came into effect at about
and this caused serious damage to relationships the same time that Eddie Mabo was challenging the
between Aboriginal and Torres Strait Islander Queensland Government, and highlights the nature 12
peoples, the police and the wider community. The and operation of the Australian legal system with
Royal Commission made 339 recommendations to respect to Aboriginal and Torres Strait Islander
assist in the reduction of custodial deaths. There is peoples land rights and native title. At this point it
more on this topic later in this chapter. You can read is worth differentiating between these two terms.
the Royal Commission’s findings at the Australasian
Legal Information Institute website. Land rights
Land rights granted to Aboriginal and Torres Strait
Land councils and trusts Islander peoples gives legal rights to a parcel, but
The Aboriginal Land Rights Act 1983 (NSW) set up a usually not exclusive rights to develop such land as
mechanism to compensate Aboriginal and Torres the owners see fit. A legal document or ‘title deed’ is
Strait Islander peoples for their loss of land. The handed over to a community or of land organisation,
Preamble of the Act (as edited by the Aboriginal Land and this land is usually passed down to future
Rights Amendment Act 2014 (NSW)) stated that: generations, as it would have been prior to 1788.
1 Land in the State of New South Wales was
traditionally owned and occupied by Aboriginal Native title
persons. Native title is not a grant by a government to land.
2 Land is of spiritual, social, cultural and Rather, it is the legal recognition of Aboriginal and
economic importance to Aboriginal persons. Torres Strait Islander people’s rights in Australian
3 It is fitting to acknowledge the importance law and allows access and co-existence for
which land has for Aboriginal persons and the customary lifestyles and traditions to be practised.
need of Aboriginal persons for land. The NSW Aboriginal Land Council (NSWALC)
4 It is accepted that as a result of past works for the return of land that is both culturally
government decisions the amount of land significant and economically viable. It is pro-active in
set aside for Aboriginal persons has been seeking cultural, social and economic independence
progressively reduced without compensation. for Aboriginal people by expressing the position of
Aboriginal people on issues that affect them. Some
The aim of the Act was to compensate New South of the activities that the NSWALC may engage in
Wales Aboriginal people for losing their connection include administering funds from mining royalties,
to the land. It established a network of New South acquiring new lands from the Crown and allowing or
Wales Aboriginal land councils with three tiers: rejecting mining activities on Aboriginal land.
Review 12.3
1 Outline the difference between land rights and native title. Assess why this distinction has to
exist.
2 Outline why the abolition of the Aboriginal and Torres Strait Islander Commission was
problematic for Aboriginal and Torres Strait Islander communities.
3 Explain why extending the time period (from six months to 12 months) where lawyers can lodge
complaints to the Anti-Discrimination Board will benefit lawyers and their clients.
4 Assess why the chances of winning a case are so low where the defendant self-represents.

Figure 12.5 On 27 October 2019, a celebration was held at sunset to mark the closure of the tourist walking track to the
summit of Uluru in the Northern Territory. The Anganu, Uluru’s traditional owners, lobbied for the closure of the track
because it undermined the landmark’s spiritual significance.
12.4 Non-legal responses New South Wales Parliament to contest the federal
seat of Barton: on winning the seat, she became the
first Aboriginal woman to be elected to the Australian
Political power House of Representatives. Her inaugural speech was
Political power refers to the ability to influence and memorable and moving in raising awareness about
directly control government policy. One of the most the tribulations faced by Aboriginal and Torres Strait
obvious ways to control and influence policy is to Islander peoples in reaching successful outcomes.
have Aboriginal and Torres Strait Islander people Another way of wielding political power has been
as members of parliament (MPs). through bodies such as the NSWALC and ATSIC.
In 2003, Linda Burney became the Member While ATSIC was an arm of the federal government,
for Canterbury in New South Wales. She was the it was able to determine a range of strategies, policies
first Aboriginal or Torres Strait Islander person to and programs for Aboriginal and Torres Strait
be voted into the 158-year-old New South Wales Islander communities. However, since the abolition
Parliament. Burney became the eleventh Aboriginal of ATSIC in 2005, a number of questions have arisen.
MP and only the fourth Aboriginal woman elected According to Jody Broun, Director General of the
to Australian Parliament. In 2016, she resigned from NSW Department of Aboriginal Affairs:

The following extract, written by social commentator

The Commonwealth Government is and journalist, Tim Rowse, offers an opinion about
now using SRAs [shared relationship Aboriginal and Torres Strait Islander people’s rights
agreements] with Aboriginal communities to self-determination in Australia:
to deliver funding for projects that do not 12
involve core services. SRAs are voluntary
written agreements around particular Citizens who are indigenous are bearers
projects or activities that Aboriginal of a right to self-determination which
communities have identified as a priority. cannot be honoured by putting in their
SRAs set out the outcomes to be achieved, hands merely those instruments of self-
and the agreed roles and responsibilities determination that were afforded to all
of the governments and Aboriginal Australian citizens through the Australian
communities involved in the activity. Constitution. That is because indigenous
While the primary objective of SRAs Australians were not parties to the federal
should be to bring benefits to Aboriginal compact of 1901. Giving indigenous
communities, some Aboriginal leaders Australians the vote since federation
and state government representatives have cannot in itself redress their omission from
expressed concerns that SRAs may require the founding processes of nationhood. To
Aboriginal people to do things to get admit them as parties to nation building,
services that non-Aboriginal people do it would be necessary to negotiate changes
not have to do. There is no clear evidence, to the Constitution that acknowledge
yet, that this is the case. Aboriginal their collective interests in some way. This
communities should be able to obtain should have been the main business of the
benefits from SRAs, but this is dependent Centenary [of Federation] in 2001. Thus,
upon communities having good leadership some advocates of a treaty now argue for
and resources, and being able to negotiate constitutional recognition of an indigenous
on an equal footing with government order of government – the instrument of
officials. Finally, the power of protest can their self-determination as a distinguishable
sway political parties to change policy or people within the Australian nation.
legislation, depending on the issue and the
timing of elections.
treaty
defined by the Vienna Convention on the Law of Treaties (1969)
as ‘an international agreement concluded between states in
Self-determination, written form and governed by international law’; treaties may
also be referred to as conventions or covenants
including treaties
Article 1 of the United Nations Covenant on Economic,
Former Prime Minister John Howard was known to
Social and Cultural Rights (1966) states that:
oppose the recognition of Aboriginal and Torres
Strait Islander peoples as having a unique culture,
religion, customary laws and communities. In 1988,
All peoples have the right of self-
he expressed his view that they should be integrated
determination. By virtue of that right they
into mainstream Australian society, and in 2002
freely determine their political status and
he said that the state of indigenous communities
freely pursue their economic, social and
remained disgraceful, and that, ‘There are plenty of
cultural development.
Aborigines, indigenous Australians, who are fully
integrated. But there are still quite a lot who aren’t.’

Review 12.4
1 Read the extract written by Tim Rowse. Discuss with your class if you agree or disagree with
these sentiments in relation to self-determination.
2 Outline the advantages and disadvantages of a treaty between the Australian Government and
Many Aboriginal and Torres Strait Islander

peoples have debated and discussed having In fact what it can do is resolve all
a treaty between Aboriginal and Torres Strait outstanding issues left in terms of
Islander peoples and non-indigenous Australians. reconciliation. Proper recognition of
Such a treaty could take many forms, such as indigenous people’s rights, equality and
a Bill of Rights, or an agreement on a range of fairness are all wrapped up in the treaty. At
issues. The Treaty of Waitangi in New Zealand the end of the day a treaty is a settlement.
between Maˉori and the colonial powers settles the
differences that existed over land occupation, and
there is still a possibility in Australia of a treaty
being signed. In 2000, the former chairman of
reconciliation
ATSIC, Geoff Clark, made the following comments getting two parties to correspond, or make peace
about a treaty:
What is the Uluru Statement from the Heart?

By Natassia Chrysanthos
27 May 2019
The Uluru Statement from the Heart outlines the path forward for recognising indigenous
Australians in the nation’s Constitution. It was endorsed with a standing ovation by a gathering
of 250 Aboriginal and Torres Strait Islander leaders on 26 May 2017, following a four-day First
Nations National Constitutional Convention held at Uluru. The consultation process that led to the
statement was unprecedented in Australian history for its scale. A Referendum Council, appointed
by then-prime minister Malcolm Turnbull and former Labor leader Bill Shorten, was tasked with
charting the next steps for constitutional reform in 2015. Over a six-month period, it engaged more
than 1200 Aboriginal and Torres Strait Islander representatives in a dozen regional dialogues across
the country. Those discussions culminated with indigenous Australians ‘from all points of the
southern sky’ reaching a consensus position on constitutional recognition for the first time.
The statement itself is 12 paragraphs and has been noted for its succinct and powerful wording.
Unlike historic documents of indigenous aspirations that came before it and were addressed to the
parliament, the Uluru Statement from the Heart is directed to the Australian public.
It asks Australians to change the Constitution to allow indigenous Australians a voice in the laws
and policies that are made about them.

News (continued)
Throughout the consultations, delegates overwhelmingly rejected symbolic recognition in the

form of a simple acknowledgement in the Constitution, as had been advanced by the ‘Recognise’
campaign. The statement instead lays out their vision for substantive and structural reform that will 12
make a difference in their communities.
WHAT IS THE VOICE?

The Uluru statement proposes three key elements for sequential reform: ‘Voice, Treaty, Truth’. The
first and most significant of these is the Voice: the proposal for a First Nations Voice to parliament
enshrined in the Constitution.
This would be an advisory body of First Nations traditional owners to advise parliament on policy
affecting Aboriginal and Torres Strait Islander people. The Voice would offer a way to include
indigenous Australians’ cultural authority in matters of law that affect them, and constitutionally
guarantees them a say in their own affairs. The precise model for the Voice – including whether its
members are elected or selected – has yet to be designed. The Morrison government has set aside
funds for a ‘co-design’ process to take place with First Nations leaders. However, proponents of the
idea have suggested the Voice would sit separately to parliament and its advice would not be binding.
The Australian Constitution must be amended to allow parliament to legislate for such a body.
The statement’s second recommendation is a Makarrata Commission. ‘Makarrata’ is a concept

belonging to the Yolngu people in Arnhem Land, and means to come together after a struggle to
heal divisions of the past.
Since the 1980s, ‘Makarrata’ has frequently been used as an alternative term to ‘treaty’. A Makarrata
commission would oversee agreement-making between the Australian Government and indigenous
people, and facilitate the statement’s final proposal: truth-telling.
WHAT DOES THE ARTWORK MEAN?

The Uluru statement is an artwork as well as a political document, following in the tradition of
documents such as the Yirrkala Bark Petition and Barunga Statement.
The artwork was led by senior Maruku artist and Uluru traditional owner, Rene Kulitja, and painted
by Mutitjulu artists, Christine Brumby, Charmaine Kulitja and Happy Reid.
Two Tjukurpa creation stories of the Anangu people, who are the traditional owners of Uluru, are
represented in the painting.
One is the story of Kuniya the woma python with eggs from the north-east, and Liru the poisonous
snake from the south-west, who are involved in a fight to the death at the Mutitjulu Rockhole, which
then shapes Uluru’s landscape.
The second is that of the Mala people, represented by rufous hare-wallaby prints, who were holding a
ceremony atop Uluru when they became involved in a dispute with men who approached from the west.
Those men went away and created Kurpany, the Devil Dingo, represented by the dog prints. Ms Kulitja
said Uluru’s power comes from the Tjukurpa stories that converge there. ‘This painting shows all the
stories of Uluru and the statement is placed at the centre where the power resides’, she said.
Surrounding the statement are signatures of more than 250 delegates who came to historic
consensus at Uluru. Many signatories also wrote the name of the nation they belonged to, so over
100 different first nations are represented on the artwork.

News (continued)
WHO ARE THE KEY PEOPLE INVOLVED?

Megan Davis, a Cobble Cobble woman and constitutional law expert, gave the Uluru statement
its first public reading at a ceremony after the convention. She was a member of the 16-person
Referendum Council and led much of its work, presenting its final report to parliament in June 2017.
She also sat on Julia Gillard’s 2010 expert panel on constitutional recognition.
Human rights advocate and Alyawarre woman, Pat Anderson, was co-chair of the Referendum
Council and a key spokesperson, consulting with hundreds of indigenous people to deliver the
statement. She has worked as an administrator in indigenous health, authored the Bringing them
Home: The ‘Stolen Generations’ Report (1997), and was last year honoured with the NAIDOC Lifetime
Achievement Award.
Lawyer and activist, Noel Pearson, has long lobbied for recognition, consulting with
parliamentarians and constitutional conservatives to navigate what reform could look like. His Cape
York Institute, a public policy organisation, has been instrumental in mapping and advocating
possibilities for changing the Constitution. Ms Davis, Ms Anderson and Mr Pearson were principal
designers of the constitutional dialogues that delivered the Uluru statement, but many other
indigenous Australians will be prominent in pushing the campaign forward.
Wangkumarra and Barkindji man, Sean Gordon, is a businessman and chair of non-profit
organisation Uphold & Recognise. He quit the Liberal Party in 2017 over Malcolm Turnbull’s
rejection of the statement. Sydney lawyer, Teela Reid, a Wiradjuri and Wailwan woman, has
emerged as a key community voice advocating for the statement. She challenged Turnbull’s
rejection on ABC’s Q&A in 2017 and has cautioned against watering it down.
Torres Strait islander, Thomas Mayor, toured Australia’s cities and bush communities with the
statement for 18 months and spoke with over 10 000 people in his attempt to generate grassroots
support.
Western Australian MP, Ken Wyatt, a Noongar, Yamatji and Wongi man, has been vocal in his
support. He has been the Coalition government’s only indigenous minister as the country heads
toward a referendum.
WHAT WERE KEY LANDMARKS ON THE WAY TO THE STATEMENT?

A number of representative bodies, political protests, petitions and broken promises precede the
Uluru statement. The following highlights key moments leading to the historic consensus reached
in May 2017:
• 1937: Yorta Yorta elder, William Cooper, collects 1800 signatures to petition King George VI for
Aboriginal representation in federal parliament.
• 26 January 1938: The Aboriginal Progressive Association holds a ‘Day of Mourning’ in Sydney to
protest the ‘callous’ treatment of Aboriginal Australians and to demand full citizen status and
equality.
• 13 February 1958: Aboriginal lobby groups form the Federal Council for Aboriginal
Advancement, which becomes the first united national body for Aboriginal interests. They begin
a 10-year campaign to change the Constitution.
• 18 June 1962: Indigenous people gain the vote in Commonwealth elections. By the end of 1965,
all indigenous people have equal voting rights after Queensland extends state voting rights to
indigenous people.

News (continued)
• 14 August 1963: The Yolngu people from Arnhem Land present the federal government with
the Yirrkala bark petition, in response to mining leases taken out on their traditional lands.
The petition combines bark painting with typed text and is the first traditional document to be 12
recognised by the Australian Parliament.
• 12 February 1965: Indigenous student Charles Perkins leads freedom rides through towns in
north-western New South Wales to expose discrimination against Aboriginal people.
• 27 May 1967: Over 90% of Australians vote ‘yes’ in a referendum that allows the federal government
to make laws for Aboriginal people and enables their inclusion in the national census.
• 26 January 1972: The Aboriginal Tent Embassy in Canberra begins with four men crouched
under a large beach umbrella in the rain, protesting the Liberal Party’s policy on land rights.
• 20 October 1972: 1000 Aboriginal people sign the three-metre long Larrakia Petition calling for
land rights, and it is posted to Queen Elizabeth.
• April 1979: The National Aboriginal Conference, established in 1973, resolves a treaty should
be made between Aboriginal people and the federal government. It uses the Yolngu word
‘Makarrata’ for the process and sets up a special committee.
• 12 June 1988: Labor Prime Minister Bob Hawke is presented with the Barunga Statement, a
painted declaration of Aboriginal aspirations on a 1.2-metre-square sheet of wood. He responds
by calling for a treaty to be negotiated.
• 5 March 1990: The Aboriginal and Torres Strait Islander Commission (ATSIC) is established as a
government body to represent indigenous people, elected by indigenous people.
• 15 April 1991: The Royal Commission into Aboriginal Deaths in Custody presents its report,
recommending a formal process of reconciliation between indigenous and non-indigenous
Australia be undertaken.
• 3 June 1992: The High Court’s Mabo decision rejects terra nullius and recognises the existence
of native title.
• 6 February 1995: The ATSIC report, Recognition, Rights and Reform (1995), says constitutional
reform is a priority and finds overwhelming support for recognising indigenous Australians in
the Constitution.
• 27–28 May 2000: A gathering of indigenous people present Prime Minister John Howard and the
Governor-General with a ‘Roadmap for Reconciliation’. The next day, over 250 000 people walk
across the Sydney Harbour Bridge to show support for reconciliation in the largest political
demonstration held in Australia.
• 24 March 2005: ATSIC is abolished following corruption investigations.
• 16 October 2007: Howard pledges to hold a referendum on constitutional recognition for
indigenous Australians and Labor leader Kevin Rudd promises bipartisan support.
• 13 February 2008: Labor Prime Minister Kevin Rudd says sorry to the Stolen Generations for
damage caused by government policies.
• 8 November 2010: Prime Minister Julia Gillard announces plans for a referendum to acknowledge
indigenous Australians in the Constitution.
• 7 December 2015: The Referendum Council is jointly appointed by Prime Minister Malcolm
Turnbull and Labor leader Bill Shorten to advise on the next steps for a referendum.
• 23–26 May 2017: Over 250 Aboriginal and Torres Strait Islander delegates gather at Uluru to
craft the Uluru Statement from the Heart, which is an historic consensus position on indigenous
constitutional recognition.

12.5 Effectiveness of responses peoples to gain the sympathy and support of ‘everyday
Australians’ in some of their claims.
Aboriginal and Torres Strait Islander peoples have
Misunderstandings due lived on the Australian continent for at least 65 000 years
to ignorance and differences and, prior to colonisation; there were approximately
in points of view 500 different cultural and language groups. To
The Australian legal system is based on an adversarial categorise Aboriginal and Torres Strait Islander
process, whereby opposing sides argue their cases peoples into a single ethnic group would be similar
with a judge acting as a ‘referee’. The adversarial to categorising Caucasian, Asian and Arab people
system is one of many justice systems used around the into one group. The European colonists did not grasp
world, and it is certainly not the only system. As such, the concept that there were significant differences
it is a system that does not sit well with Aboriginal and between these groups in terms of language, religion
Torres Strait Islander peoples who traditionally had a and culture. These misunderstandings continue today.
customary system of law and justice based on tribal There is evidence to suggest that not all
elders settling disputes or handing out punishments Aboriginal and Torres Strait Islander peoples were
(see the ‘In Court’ box below). nomadic. Some groups lived a sedentary lifestyle,
The adversarial system is complex, expensive, time with permanent dwellings and clear physical
consuming and foreign to Aboriginal and Torres Strait boundaries. Indeed, as Eddie Mabo successfully
Islander cultures in Australia. Indeed, many would demonstrated, the Meriam people (on the Torres
argue that it is difficult for any person without legal Strait island of Mer) had a system of land ownership
training to comprehend all of the rules and processes. with identifiable boundaries, whereby land was
It is, therefore, easy to see that misunderstandings passed down through generations.
due to ignorance are common. This is compounded by
the views of mainstream Australia, with some people nomadic
arguing that Aboriginal and Torres Strait Islander a term used to describe people who tend to travel and
change settlements frequently
peoples are the proper owners of all land in Australia,
while others argue that Aboriginal and Torres Strait
Generally, Aboriginal and Torres Strait Islander
Islander peoples should have no special rights. Thus,
cultural beliefs emphasise the group rather than
it is not easy for Aboriginal and Torres Strait Islander
the individual. Aboriginal and Torres Strait Islander
Figure 12.6 Murray George – the former Chairperson of Anangu Pitjantjatjara Yankunytjatjara (APY) Law and Culture
in the APY Lands, South Australia – on 11 August 2014. The Australian Government has introduced the Empowered
Communities program to ensure that local leaders drive local policy.

peoples have a strong connection to the land and allow this resource to be extracted for huge profit?
the physical environment, believing that life comes Perhaps you and your family were so attached to your
from the land and returns to it upon death. They see house that you would not dream of selling. Imagine,
themselves as custodians of the land, looking after it for example, that your home had been part of your
for future generations. This is in stark contrast to the great-grandparents’ home, where your grandfather 12
non-indigenous view of land as an asset that can be and your mother grew up. This situation has some
bought and sold for profit and changed or developed similarity to the issue of native title and land rights.
to suit the needs of people at the time. Some citizens see the practising of Aboriginal and
For Aboriginal and Torres Strait Islander Torres Strait Islander culture to be far less important
peoples living in rural and remote parts of Australia than the economic gains of farming, forestry, fishing
today, English may not be their first language and and mining. How do we decide whether access (or
interpreters are often needed if an individual faces how much) should be granted to Aboriginal and
police and court proceedings. Placing an Aboriginal Torres Strait Islander peoples?
and Torres Strait Islander person within four walls What if a major deposit of a mineral is discovered
for an extended period of time (such as in a prison) on land owned by an Aboriginal and Torres Strait
may be viewed as crueller and more inhumane than Islander community and they do not wish mining
for a non-indigenous person because of the different to occur, despite large sums of compensation
cultural backgrounds discussed. or royalties? The Gove land rights case, which
Customary law involves discussion, mediation commenced in the Northern Territory Supreme
and direct action, and a physical punishment may be Court in 1971, is an example of this situation. The
administered. While this may also be viewed as cruel court followed earlier precedents and so found that
and harsh, it means punishment is dealt with quickly even if the Yolngu people did have any type of native
and does not involve incarceration. The 1976 case of title rights, the doctrine of terra nullius prevailed and
R v Williams highlights, the recognition of customary they could not prevent mining on their land.
law by a South Australian judge. In response, the Whitlam government established
the Department of Aboriginal Affairs in 1972. The
The extent to which governments Aboriginal Land Rights Act 1976 (NT) established a land
have recognised and responded to claim process for traditional owners. The Mabo cases
issues and rights demolished the notion of terra nullius and subsequently
State and federal governments have recognised and the Native Title Act 1993 (Cth) was established; however,
responded to Aboriginal and Torres Strait Islander the Wik case and the government’s 10-point plan
peoples issues in Australia in a range of ways. It (Native Title Amendment Act 1998 (Cth)) now means that
is difficult to pinpoint the most important issue(s), while Aboriginal and Torres Strait Islander peoples
as opinions vary widely, but land ownership, can be consulted on a land-use issue, they have no
recognition of customary law and an apology from legal power to veto a decision about land. In relation
the federal government for ‘stealing’ children from to the issues of customary law and self-determination,
their homes will be dealt with in this section. while some judges have recognised social, cultural
What if gold, oil or some other precious resource and legal differences, the High Court dismissed the
was to be discovered in your backyard or house? 1994 appeal by Denis Walker, as explained in the ‘In
Would you automatically want to sell your house and Court’ box, below.
Review 12.5
1 Outline Aboriginal and Torres Strait Islander peoples’ systems of justice and punishment.
2 Explain how non-indigenous systems of law and punishment may be harmful to Aboriginal and
Torres Strait Islander offenders.
3 Justify the court’s decision in the R v Williams (1976) case. In your answer, consider whether
being speared by elders is sufficient punishment for manslaughter.

In Court
R v Williams (1976) 14 SASR 1

During this criminal trial in South Australia, Justice Wells heard evidence that a woman taunted
Williams in relation to customary secrets. They had been drinking together and an argument broke
out between them, during which Williams killed the woman. He was convicted of manslaughter.
The court decided that the provocation by the woman was sufficient to reduce the original
charge of murder to the lesser charge of manslaughter. Justice Wells agreed to suspend a two-year
custodial sentence if Williams returned to his lands for customary punishment. He later gave the
following reasons:
The fact was that he had very little English; it would have been impossible for him to have
communicated with the staff of the prison or with any fellow prisoners, or to have related to
them in any way … To condemn a tribal Aborigine to such a fate was something which I wished,
if possible, to avoid.
Williams was later speared through the legs as required by elders.
In Court
Walker v New South Wales [1994] HCA 64

Denis Walker appealed a conviction for assault, arguing that as an Aboriginal Australian, he was
not accountable under Commonwealth or state criminal law, and therefore could not be guilty of the
crime. He claimed that the Australian Government needed the consent of Aboriginal Australians before
they could make laws for them. However, the High Court was not influenced by Walker’s counsel’s
submissions and dismissed the appeal on 16 December 1994. Chief Justice Mason stated that it is ‘a basic
principle that all people should stand equal before the law. A construction which results in different
criminal sanctions applying to different persons for the same conduct offends that basic principle.’
Deaths in custody of Criminology Monitoring Report No. 20 (2013);

recommendations Statistical Report No. 05 (2018). The ABS stated that in
The 1987 Royal Commission into Aboriginal Deaths 2018 Aboriginal and Torres Strait Islander prisoners
in Custody was established in response to the accounted for just over a quarter (28%) of the total
unacceptable number of Aboriginal and Torres Strait Australian prisoner population.
Islander deaths in police custody and jail. The Royal One of the main recommendations for reducing
Commission handed down 339 recommendations, deaths was to decrease the number of Aboriginal and
some of which will be discussed here. Torres Strait Islander peoples going to jail in the first
It is worth noting that the number of deaths in instance. A diversionary program was suggested
police custody has fallen because of a range of that involved punishment or rehabilitation rather
changes made to police cells, one of which reduces than jail. Yet the message has been slow to filter
the possibility of suicide. While the number of through to all authorities. In 1997, a 15-year-old boy
deaths in custody has remained steady, of concern died in juvenile custody in the Northern Territory; he
is the fact that, since the Royal Commission over had committed minor property offences, but was not
20 years ago, the proportion of Aboriginal and Torres placed on a diversionary program.
Strait Islander prisoners tends to be between 18% In 1992, federal parliament created the position
(2013–2014) and 26% (2011): a significant increase of the Aboriginal and Torres Strait Islander
from 1991, when it was 14% (Australian Institute Social Justice Commissioner. This was in reply

Figure 12.7 Cecil Patten and Billy Craigie shake hands after being acquitted of stealing valuable paintings. Their
defence against charges of stealing the paintings was that the works are sacred to their people. The two men had
argued that as the paintings are sacred, they are the property of the Aboriginal people. The jury took five-and-a-half
hours to reach a verdict of not guilty on 3 November 1980.
12
to the findings of the Royal Commission and the custody system. Of particular importance was the
National Inquiry into Racist Violence, but was also documenting of the impact of the forcible removal of
a response to the large amount of economic and Aboriginal and Torres Strait Islander children from
social disadvantage being suffered by Aboriginal their families, which occurred as government policy
and Torres Strait Islander peoples. In his Social up until 1972. Many non-indigenous Australians were
Justice Report (2000), Aboriginal and Torres Strait unaware of the policy and the horrendous impacts
Islander Social Justice Commissioner, Dr William on families and individuals who were removed.
Jonas, stated that the past 10 years had seen
Aboriginal and Torres Strait Islander issues Forcible removal of children from
become highly publicised and discussed, and the their families
wider community had become more aware of a The Chief Protector of Aborigines in Western Australia
history of injustice. commented in 1937 that Australia had the power
Dr Jonas highlighted the reports of the Royal to take any child from its mother so that the nation
Commission into Aboriginal Deaths in Custody could merge its ‘black’ population into the ‘white’.
and the recognition of native title as exposing the This history of forcible removal was largely forgotten
foundational myths of our history; that is, Australia by the public until key Aboriginal and Torres Strait
was not terra nullius and Aboriginal and Torres Islander agencies and communities began making
Strait Islander peoples did suffer at the hands of our

Figure 12.8 A ‘black lives matter’ rally that started at Sydney Town Hall on 21 August 2019 in Sydney. The rally was
organised by the families of Aboriginal victims who have died or were injured in police custody. Protesters were calling on
state governments to adopt all recommendations from the 1987–1991 Royal Commission into Aboriginal Deaths in Custody.
efforts for the recognition of needs of the victims and The final report, Bringing them Home (1997), made
their families and the provision of services. As a result, recommendations including:
in May 1995 the National Inquiry into the Separation • Compensation for individuals and families
of Aboriginal and Torres Strait Islander Children from affected, including reunion and counselling
their Families was begun. services. This included an apology from all
There were four key ‘terms of reference’ for the organisations involved in this policy.
inquiry. They were: • Enacting legislation ensuring that Australia
• trace the past and ongoing effects of the abides by the United Nations Convention on
separation of Aboriginal and Torres Strait the Prevention and Punishment of the Crime of
Islander children from their families Genocide (1948). Article II of that convention states
• examine the laws, policies and practices that genocide includes the forced transferring
offering services to these people, and identify of children of a group to another group. It could
where changes were needed, including therefore be argued that for many years, Australia
assistance towards reuniting families was in breach of a UN convention.
• consider the principles involved in justifying
compensation for affected individuals and Finally, and most importantly, the problems faced
communities by Aboriginal and Torres Strait Islander peoples in
• examine current laws, policies and practices accessing the legal system to achieve justice are
involving the placement and care of Aboriginal very complex, and an improvement in a range of
and Torres Strait Islander children, and take statistics is not necessarily satisfactory. Aboriginal
into account the principle of self-determination and Torres Strait Islander cultures have social and
when advising any changes. spiritual needs that are not catered for within the
policy of practical reconciliation.

Successful native title cases It took almost 18 years for the matter to

Since the Mabo decision of 1992, and enactment be resolved.
of the Native Title Act 1993 (Cth), there have been
a number of successful native title cases. Some There have also been many unsuccessful claims,
successful cases include: including: 12
• Yanner v Eaton (1999) 201 CLR 351: Yanner, • Fejo v Northern Territory (1998) 195 CLR 96,
a member of the Gunnamulla clan of the which confirmed that native title is
Gangalidda tribe, had caught two juvenile permanently extinguished if freehold
crocodiles with a harpoon, and been charged title has been granted
under the Fauna Conservation Act 1974 (Qld). • Members of the Yorta Yorta Aboriginal
The High Court found that his clan’s native title Community v Victoria (2002) 214 CLR 422, in
rights to the land were not extinguished by the which the High Court held that a break in
Fauna Act. observance of traditional customs and laws
• Commonwealth v Yarmirr (2001) 208 CLR 1: This meant that native title ceased to exist.
was the first native title case to deal with waters
Government recognition
rather than land – an area of sea and sea-bed
In November 2007, the Australian Labor Party,
around Croker Island. The High Court found
under the leadership of Kevin Rudd, was elected to
that native title did exist, but held that it was
power in Australia. One of the government’s earliest
non-exclusive due to common law rights of
moves was to apologise to Aboriginal and Torres
boating and fishing.
Strait Islander peoples for their treatment by non-
• Barkandji Traditional Owners #8 v Attorney-
indigenous Australians in the past. In an emotional
General of New South Wales [2015] FCA 604: In
address to a packed House of Representatives on
the sixth successful native title claim in New
13 February 2008, Kevin Rudd apologised on behalf
South Wales, the Federal Court recognised
of the parliament for laws and policies that had
the Barkandji people as traditional owners of
‘inflicted profound grief, suffering and loss on these,
128 000 square kilometres of land –
our fellow Australians’.
the largest to date in New South Wales.
Figure 12.9 A Sorry Day rally, ‘bring the children home’, organised by grandmothers, against the removal of children
in New South Wales. Protesters gathered on 25 May 2016 at The Block in Redfern before marching to the NSW
Government Department of Family and Community Services offices in Sydney.

Although the Rudd government was criticised document. However, for the Constitution to be
by Aboriginal and Torres Strait Islander leaders for changed, a national referendum must be held.
the slow rate of its policy change, this apology led In 2017, there were a series of events to
the way in officially recognising inequalities and commemorate the anniversary of the 1967 vote, but
injustices and began to heal the breach between there was no formal move to have a referendum that
Aboriginal and Torres Strait Islander and non- would allow recognition of Aboriginal and Torres
indigenous Australians. Strait Islander peoples in the Constitution. In March
The Gillard Labor government proposed an ‘Act 2018, the Australian Parliament established a Joint
of Recognition’ to acknowledge Aboriginal and Select Committee on Constitutional Recognition
Torres Strait Islander peoples in the Constitution, relating to Aboriginal and Torres Strait Islander
for, as it currently stands, it has no recognition of peoples; the committee’s final report was presented
Aboriginal and Torres Strait Islander peoples. When to parliament on 29 November 2018. Despite finding
it was drafted at the end of the nineteenth century, the need to make changes, none had occurred at the
Aboriginal and Torres Strait Islander peoples were time of writing of this book.
not consulted; nor were they mentioned in the final
Case Study
Kevin Rudd’s apology to Australia’s Aboriginal and Torres Strait Islander people
On 13 February 2008, in the Australian Parliament, Prime Minister Kevin Rudd formally apologised
to Australia’s Aboriginal and Torres Strait Islander people.
I move:
That today we honour the indigenous peoples of this land, the oldest continuing cultures in human
history. We reflect on their past mistreatment. We reflect in particular on the mistreatment of those
who were stolen generations – this blemished chapter in our nation’s history. The time has now
come for the nation to turn a new page in Australia’s history by righting the wrongs of the past
and so moving forward with confidence to the future. We apologise for the laws and policies of
successive parliaments and governments that have inflicted profound grief, suffering and loss on
these our fellow Australians. We apologise especially for the removal of Aboriginal and Torres Strait
Islander children from their families, their communities and their country. For the pain, suffering
and hurt of these stolen generations, their descendants and for their families left behind, we say
sorry. To the mothers and the fathers, the brothers and the sisters, for the breaking up of families and
communities, we say sorry. And for the indignity and degradation thus inflicted on a proud people
and a proud culture, we say sorry.
We, the parliament of Australia, respectfully request that this apology be received in the
spirit in which it is offered, as part of the healing of the nation. Growing from this new respect,
we see our indigenous brothers and sisters with fresh eyes, with new eyes, and we have our
minds wide open as to how we might tackle, together, the great practical challenges that
indigenous Australia faces in the future … Let us turn this page together: indigenous and non-
indigenous Australians, government and opposition, Commonwealth and state, and write this
new chapter in our nation’s story together. First Australians, First Fleeters, and those who first
took the oath of allegiance just a few weeks ago. Let’s grasp this opportunity to craft a new future
for this great land: Australia. I commend the motion to the House.
View the full transcript of Kevin Rudd’s speech online.

Review 12.6
1 Identify the basis of Denis Walker’s appeal to the High Court in 1994.
2
3
Describe one or two of the ‘foundational myths’ referred to by Dr William Jonas.
Outline why the federal government was asked to make an official apology to the Stolen Generations.
12
4 Research the incarceration rates of Aboriginal and Torres Strait Islander peoples over time and
how many have died in custody. Discuss if the numbers have increased or decreased and the
possible reasons that might have caused this change.
Figure 12.10 School children in the township of Hermannsburg, NT, on the day Kevin Rudd made his historic speech
in Parliament, 13 February 2008.

Chapter summary
• There has been a range of legal challenges • Political power can be exerted in a number
and changes since the 1960s, including of ways, including direct representation in
constitutional change and land rights parliaments, peaceful protests and through
challenges by the Yolngu people. government agencies or departments such as
• The Mabo cases of the 1980s and 1990s ATSIC or the NSW Department of Aboriginal
were the first successful legal challenges Affairs.
in Australia and led to the abolition of • Self-determination involves the recognition of
terra nullius. The Native Title Act 1993 (Cth) Aboriginal and Torres Strait Islander people’s
was passed as a result of the High Court customary law and the rights of Aboriginal and
decision in the Mabo case. Torres Strait Islander peoples to practise their
• The pastoral leases case (Wik Peoples v traditional way of life, language and culture.
Queensland [1996] HCA 40) was also important • The different languages and cultures of
for Aboriginal and Torres Strait Islander Aboriginal and Torres Strait Islander peoples
peoples. This case introcuced the idea that the may or may not be recognised by the law.
practices of pastoralists and Aboriginal and Some court cases, such as R v Williams,
Torres Strait Islander peoples could co-exist. demonstrate recognition of customary rights.
• The Native Title Amendment Act 1998 (Cth) – • In 1991, the Royal Commission into
passed in response to the Mabo and Wik Aboriginal Deaths in Custody handed down
cases – reduces the power and rights of 339 recommendations in response to the
Aboriginal and Torres Strait Islander peoples. unacceptable number of Aboriginal and
• Aboriginal and Torres Strait Islander peoples Torres Strait Islander deaths in police custody
experience a range of disadvantages in areas and in jail. There has not been a significant
such as health, education, employment and the improvement in this area since the report was
criminal justice system. published.
• Legislation has existed for over 20 years that • In 1995, the National Inquiry into the
outlaws racial discrimination and vilification, Separation of Aboriginal and Torres Strait
yet conflict continues between the Aboriginal Islander Children from their Families was
and Torres Strait Islander peoples and non- established to investigate the policy of
indigenous Australians. forcible removal of Aboriginal and Torres
• The Anti-Discrimination Board of NSW and Strait Islander children. The report Bringing
legal aid programs assist Aboriginal and them Home (1997) called for compensation,
Torres Strait Islander peoples. and reunion and counselling services for the
• The Aboriginal and Torres Strait Islander victims, as well as an apology from the federal
Commission (ATSIC) was established in 1989 government.
and abolished in 2005. • Practical reconciliation has emerged as a
• The Aboriginal Land Rights Act 1983 (NSW) federal government policy, and involves
recognised that land was owned by Aboriginal shared relationship agreements. It has been
and Torres Strait Islander peoples prior to widely criticised for lacking sufficient funding
1788. Currently, the NSW Aboriginal Land and having a shallow understanding of the
Council administers land held on behalf of problems faced by Aboriginal and Torres Strait
Aboriginal and Torres Strait Islander peoples. Islander peoples in the past, present and future.

Questions
1 What does terra nullius mean? c Racial vilification is proving that one race is
a land unoccupied superior to another. 12
b land occupied d Racial vilification is a workplace quota
c legal systems in place system.
d land owned by colonial powers 4 How does native title differ from land rights?
2 What was the outcome of the Gove land rights a Native title delivers exclusive access
case? to land.
a It was dismissed on the doctrine of b Native title does not recognise the
terra nullius. existence of non-indigenous people.
b Aboriginal and Torres Strait Islander people c Land rights usually involve a title deed
were granted land rights for the first time. to land.
c It allowed the Constitution to be changed. d Land rights enforce co-existence with
d It allowed the co-existence of pastoral pastoralists.
leases. 5 When was the Department of Aboriginal
3 What is racial vilification? Affairs established?
a Racial vilification is any behaviour designed a 1959
to humiliate on the basis of race. b 1969
b Racial vilification is condoning violence c 1972
between racial groups. d 1989
1 Outline the significance of the cases of 5 Explain two ways in which Aboriginal and
R v Ballard and R v Murrell. Torres Strait Islander peoples can gain
2 Discuss the possible causes of the over- political power.
representation of Aboriginal and Torres Strait 6 Describe the different outcomes of the
Islander peoples in the criminal justice system. Williams and Walker cases.
3 Explain the meaning of the term ‘co-existence’ 7 Explain the reasons for the establishment of
in relation to Aboriginal and Torres Strait the National Inquiry into the Separation of
Islander peoples and pastoral leases. Aboriginal and Torres Strait Islander Children
4 Describe the major difference between the from their Families. List some of the inquiry’s
Mabo case and the case involving the Wik main findings.
peoples.
Evaluate the effectiveness of the legal system in Marking criteria for extended-response questions
achieving justice for Aboriginal and Torres Strait can be found on the Cambridge GO website. Refer
Islander peoples since 1967. to these criteria when planning and writing your
responses.

Issue 1
People who have
a mental illness
Chapter objectives
• explore the legal concepts and terminology used in relation to mental illness and the law
• investigate the legal system’s ability to address issues relating to mental illness
• explore the differences between the laws relating to mental illness
• investigate the role of the law in addressing and responding to change in relation to mental illness
• describe the legal and non-legal responses to mental illness
• evaluate the effectiveness of legal and non-legal responses in achieving justice for people who
experience mental illness.

Relevant law
Mental Health (Forensic Provisions) Act 1990 (NSW)
Disability Discrimination Act 1992 (Cth)
Mental Health Act 2007 (NSW)
Australian Charter of Healthcare Rights (2008)
Public Health Act 2010 (NSW)
Public Health Regulation 2012 (NSW)
National Disability Insurance Scheme Act 2013 (Cth)
SIGNIFICANT CASES
Coroners Act 2009 Adam Quddus Salter File # 3333/09

13.1 People with mental illness So, where does this issue sit within the legal
and the law framework? In 2018, the AIHW reported that
40% of people entering prison reported that a medical
Incidence of mental illness professional had told them they had a mental health
in Australia disorder (this includes drug and alcohol abuse).
An ABS National Health Survey estimated that in The AIHW report also found that 23% of prisoners
2017–2018, 4.8 million Australians had a mental took medicine to help manage a mental illness.
illness or a behavioural condition. This is about This chapter examines the responsiveness of the
20% of Australia’s population. The Australian Institute law to people experiencing mental health issues,
of Health and Welfare (AIHW) reported that in 2018, 14% especially those who experienced some legal action
of young people aged 12–17 had experienced a mental and possibly incarceration.
health disorder in the last 12 months. Mental illness
incarceration
is one of the leading causes of disability in Australia. being detained or imprisoned as punishment for committing
a crime
mental illness
an illness of the mind that affects the psychological,
emotional and behavioural state of a person
Changing attitudes
disability
mental or physical impairment that can limit a person to mental health
physically, emotionally and psychologically Although mental health is not a new issue in Australia,
society’s understanding of mental illness has grown in
Figure 13.1 The McLean Hospital photo exhibit in the the last 20 years. There is now wide recognition of the
corridor between Terminals B and C at Boston Logan incidence of mental illness in the Australian population
International Airport on 17 October 2019. Leslie Chihuly, and the impact mental ill health can have on people’s
wife of artist Dale Chihuly, who has bipolar disorder, lives. This greater understanding and recognition has
has joined McLean Hospital’s Deconstructing Stigma led to a wider acceptance of mental health issues,
project, a photo exhibit and speakers bureau that takes
which has fuelled a change in community attitudes and
stories of mental illness into places where people don’t
expect to find them – like the airport. behaviour towards mental health and towards people
experiencing mental illness. Luckily, the tendency to
lock up or hide away anyone who shows signs of mental
illness is now a practice firmly lodged in the past.
The current stance on looking after people with
a mental illness is to treat them as much as possible
in their own domestic environment; that is, to
deinstitutionalise them. Although this is acceptable
to most people in society, many people still have a
‘not in my backyard’ attitude when it comes to the
treatment of people experiencing mental illness. This
is not helped by the limited funds available for looking
after people with disabilities in Australia – some
people with mental health issues do not get enough
support to help them cope in their domestic
environment.
domestic environment
the household a person lives in
deinstitutionalise
to remove people from long-stay psychiatric hospitals and
provide outpatient mental healthcare for them in their
communities (they visit the health professional and then
return home, rather than staying in a hospital)

Chapter 13 (Digital-only chapter) People who have a mental illness
Research 13.1
SANE Australia is a national charity that supports Australians affected by mental illness. SANE
runs campaigns, provides education and conducts research to better understand mental illness in
an effort to improve the lives of those affected by mental illness. SANE has compiled statistics to
help Australians be more aware and accepting of mental illness.
1 View the factsheets and guides on the SANE Australia website.
2 Identify five different mental health issues. Assess which mental illness or mental disorder is the
13
most common in Australia.
Definitions of mental illness Medical definition of mental illness

The legal definition and the medical definition The medical definition of mental illness is wider than
of ‘mental illness’ are not the same; the medical the legal definition. The medical definition is based on
definition is far broader. the definition in the American Psychiatric Association’s
Diagnostic and Statistical Manual of Mental Disorders,
Legal definition of mental illness fifth edition (DSM-5). According to the DSM-5, a person
In New South Wales, the legal definition of mental is mentally ill if their behaviour is not an ‘expectable’
illness is in the Mental Health Act 2007 (NSW). response to a particular situation or event; unexpectable
‘Mental illness’ means: responses are viewed as the expression of a behavioural,
psychological or biological dysfunction.
Some people suffer from mental illness for many
years; others experience a one-off, shorter bout of
a condition that seriously impairs, mental illness. It is likely that we all know someone
either temporarily or permanently, the who has experienced mental illness in their lifetime.
mental functioning of a person and
is characterised by the presence in Application of definitions in court
the person of any one or more of the When a crime has been committed, the courts
following symptoms: must decide whether the defendant (i.e. the person
a delusions accused of the crime) is suffering from a mental
b hallucinations illness. The onus to prove this (i.e. the burden
c serious disorder of thought form of proof) lies with the defendant, and the mental
d a severe disturbance of mood illness test is very rigorous. The application of the
e sustained or repeated irrational definitions of mental illness in court can be seen
behaviour indicating the presence of in the case of Jennifer Nicole Kennison (discussed
any one or more of the symptoms in the news article below, ‘Psychiatric assessment
referred to in paragraphs a–d. ordered for South Australian mother who fatally
shook baby’) where, according to the prosecutor, the
accused does not meet the legal definition.


Review 13.1
1 Outline the difference between the legal and medical definitions of mental illness.
2 Read the following news article by Isabel Dayman.
a Write a short summary of the article.
b Identify the ways that the accused meets the medical definition of being mentally ill. Identify
in what ways the accused might not meet the legal definition.
Psychiatric assessment ordered for South Australian mother who fatally shook baby
By Isabel Dayman
ABC News
7 December 2017
A mother who shook her premature baby and caused injuries that eventually killed him had a
‘momentary lapse’ of judgment and was otherwise ‘trying’ to be a good parent, the Supreme Court
of South Australia has heard.
Former childcare worker, Jennifer Nicole Kennison, 31, has pleaded guilty to one count of
manslaughter over the death of her baby son in early 2016.
The baby was 14 weeks old when he died.
The court previously heard Kennison told investigators that ‘as she was getting out of bed she
dropped the deceased onto a carpeted floor’.
‘He then cried for a period of two to three minutes … commenced turning blue and appeared to lose
consciousness’, prosecutor Emma Wildman said.
Ms Wildman told the court Kennison had ‘admitted’ shaking the baby ‘to rouse him out of his state
of unconsciousness’.
Kennison has two other children aged six and 10.
MEMORIES ‘SHUFFLED BY TRAUMA’
In sentencing submissions held today, Kennison’s defence lawyer, Justin Wickens, told the court
his client had ‘given varying explanations of what occurred on that day’ because her memories had
become shuffled by trauma.
He said his client no longer stood by that version of events.
‘We wouldn’t suggest for a moment that this action was an attempt to render first aid … or to
resuscitate’, Mr Wickens said.
‘But she has shaken her baby in frustration, causing the injuries.
‘It is accepted that this offence is one which must carry a sentence of imprisonment.’

News (continued)
Justice David Lovell asked Mr Wickens how the court was supposed to ‘have faith in any of what she
says’, following several changes to the story.
‘Her explanation is there was some unusual event that caused her to panic … as opposed to just
shaking a baby because she was annoyed with it’, Justice Lovell said.
‘They are both quite different.

13
‘She accepts she must have done it but we are still struggling to find what she actually did.’
MOTHER WITH ‘INCONGRUENT’ OBSERVATIONS
The court heard that even though the baby was 14 weeks old at the time of the incident, his
prematurity placed him, developmentally, at between two and three weeks old.
It heard Kennison had offered various judgments during the investigation about the infant’s
abilities in terms of sitting, rolling and eating, including that he had started eating ‘beef and
vegetables’ and other solids.
‘It’s a little bit incongruent given her background in childcare … and her experience with her other
children’, Justice Lovell said.
‘Her observations of the baby’s abilities are likely to be at odds with the actual situation.’
Justice Lovell ordered a psychiatric report for Kennison, who will appear in court again next week.
13.2 Legal responses Under the Australian Charter of Healthcare Rights

(2008), everyone living in Australia has the right to:
Access to the healthcare system • access safe, high-quality healthcare
• be shown respect, dignity and consideration
Australian Charter of Healthcare when getting healthcare
Rights • be informed about healthcare services, treatment,
In July 2008, each state and territory’s health options and costs in a clear and open way
minister, and the federal health minister, agreed to • be included in decisions and choices about
the Australian Charter of Healthcare Rights their healthcare
(‘Charter’). Although this Charter is not a law • privacy and confidentiality of their personal
and thus is not legally enforceable, the Charter is information
a first step towards having a legally binding set • comment on the healthcare they receive and to
of healthcare rights in Australia. Since all levels have their concerns addressed
of government in Australia – state, territory and
federal – have agreed to the Charter, this makes it a (this summary from the NSW Mental Health
strong starting point when trying to guarantee rights Rights Manual, fourth edition; available at https://
in the healthcare system. cambridge.edu.au/redirect/9041).
In New South Wales, the Charter is embodied in
healthcare system the Public Health Act 2010 (NSW), which came into
the network of facilities and other agencies that organise
and meet the healthcare needs of people
force in September 2012 and is supported by the
Public Health Regulation 2012 (NSW). The provisions

• treated in hospital without [them] agreeing

to this
• stopped from leaving a hospital that [they have]
been taken to, including being kept behind
locked doors and forcibly taken back to hospital
if [they] leave
• placed on a Community Treatment Order when
[they] are not in hospital care, and made to
have regular treatment, usually medication
(this summary from the NSW Mental Health Rights

Manual, fourth edition; available at https://cambridge.
edu.au/redirect/9041).
Access to the law

Figure 13.2 People experiencing mental illness have the
right to safe, high-quality healthcare.
Criminal proceedings
of the Mental Health Act 2007 (NSW) also cover In New South Wales, the Mental Health (Forensic
people with mental health issues. Provisions) Act 1990 (NSW) lays down:
• how courts must manage criminal proceedings
Problems with accessing where the defendant is suffering from a
quality healthcare mental illness
While it may be a fair assumption that a person who is • in what circumstances mental illness can be
educated and of ‘sound mind’ may understand their used as a legal defence in criminal cases
right to quality healthcare, we cannot assume that • rules relating to forensic patients and
someone who has limited literacy or who is suffering correctional patients
a mental illness has the same understanding. Will • the role of the NSW Mental Health Review
they be able to demand their rights as set out in the Tribunal and its powers to review forensic and
Charter, and seek resolution if there are problems? correctional patients.
The main aim of the Mental Health Act 2007 (NSW)
forensic patient
is to ensure the ‘care, treatment and control’ of
a person who is confined in an institution such as a mental
people in New South Wales who are ‘mentally ill’ or health facility or correctional centre, or who is released from
‘mentally disordered’ (as we have seen, these terms custody subject to conditions
are defined in the Act and these definitions may not correctional patient
be the same as elsewhere). The Act also refers to someone on remand, or serving a term of imprisonment,
who is transferred to a mental health facility, who is not a
hospital treatment, both voluntary and involuntary, forensic patient, and who the NSW Mental Health Review
and how individuals and their carers are involved in Tribunal has not classified as an involuntary patient
decisions about ‘care, treatment and control’.
What is meant by ‘control’? How different courts deal with mentally

In the Mental Health Act 2007 (NSW), the word ‘control’ ill defendants
refers primarily to when and how compulsory treatment The New South Wales District Court and Supreme
and care can be given to a person with a mental illness. Court can decide that an accused is ‘not guilty due
The Act also allows authorities to suspend some of the to mental illness’ or is ‘not fit to plead’. However,
rights of the patient. Thus, if it is decided that a person if the question has been raised as to whether the
has a mental illness or is ‘mentally disordered’, as accused’s mental illness makes them unfit to stand
defined in the Act, that person can be: trial, or if they have been found ‘not guilty by reason
• taken to a hospital or psychiatric unit against of mental illness’, the court may refer the case to the
[their] will for further assessment NSW Mental Health Review Tribunal. The District

Court and Supreme Court can also decide that an plea in mitigation
accused becomes a forensic patient. any type of information that can help the court decide on an
appropriate sentence
The New South Wales Local Court does not have
a process for dealing with people who are ‘not fit to
plead’ in criminal cases. This means that an accused
person cannot plead ‘not guilty by reason of mental Legal advice and representation
illness’. However, magistrates in the Local Court People with mental illness who face criminal charges
usually deal with mentally ill defendants by making
a section 32 order or a section 33 order.
have the same right to access legal advice and legal
representation as everyone else in the community.
13
A section 32 order allows a magistrate to release However, as noted above, they may not be in a
a defendant. The magistrate will have been given position to find or use legal representation because
a treatment plan that a healthcare professional, or they may have limited funds, or suffer from a mental
other suitably qualified person, has put together for illness that affects the ability to think rationally, and
the defendant. The defendant’s release is usually so may even reject legal advice.
conditional on the defendant agreeing to attend Free or low-cost legal help is available from
a specified facility for treatment or to go into the several sources:
care of a particular person (called a guardian). • Legal Aid NSW offers free legal advice and
Under these conditions, no conviction is recorded. legal representation in criminal matters. All
A section 32 order also allows a magistrate to New South Wales Local Courts have ‘duty
release the defendant with no attached conditions. solicitors’ from Legal Aid NSW, who help
If the defendant does not follow the conditions of a people who have a matter at court that day and
section 32 order, they can be brought back before who do not have their own lawyer.
the court to face the original criminal charges. • The Aboriginal Legal Service NSW/ACT
(ALSNSW) provides free legal advice and legal
guardian
representation for Aboriginal and Torres Strait
a person who is legally responsible for another person who
is unable to take care of themselves Islander peoples. The ALSNSW provides legal
advice and representation in criminal matters,
A section 33 order only applies if the defendant is apprehended violence order matters, and care
found to be mentally ill as defined by the Mental and protection matters (advice to people who
Health Act 2007 (NSW). Under a section 33 order, the have a genuine concern for the safety, welfare
defendant is referred to a psychiatric unit or hospital and wellbeing of a child or young person).
for further assessment. Depending on the result of • Some law firms provide pro bono legal
the assessment, they may become an involuntary services. Justice Connect provides information
patient, or if they have been found not to be mentally about, and access to, these pro bono services.
ill, they may be returned to the Local Court. • Most Community Legal Centres have
If a magistrate does not deal with a defendant under lawyers who provide free or low-cost legal
sections 32 or 33, the details of the mental illness can advice and representation (see below for more
be used as part of a plea in mitigation. Healthcare information).
professionals and community mental health services • LawAccess NSW is a free NSW Government
can provide reports to be included in the plea. Before telephone service that provides legal
making a sentencing decision, a magistrate may also information, advice and referrals.
ask for a pre-sentence report (usually prepared by
pro bono
the Probation and Parole Service), which can also (Latin) ‘for the public good’; used to describe work that
include information from healthcare professionals is done by a lawyer or barrister on a voluntary basis and
without payment, where there are issues of community
and community mental health services.
concern or significant effect on disadvantaged groups

Community Legal Centres

Community Legal Centres (CLCs) provide free and
low-cost legal advice and legal representation to
members of their local communities, and especially
to the disadvantaged, and people with special needs.
The specialist CLCs that work with legal problems
related to mental illness are the:
• Australian Centre for Disability Law
• Intellectual Disability Rights Service
• Public Interest Advocacy Centre
• Homeless Persons’ Legal Service
• Seniors Rights Services.
For more information about CLCs in New South

Wales, visit the website of Community Legal Centres
NSW, which is the peak representative body for the
40 CLCs in the state.
Protection of individual’s rights
Discrimination
People with mental health issues are part of society
and their rights are protected by the same laws
that protect all members of the community. For
example, discriminating against someone because
of their mental health is against the law under the
Disability Discrimination Act 1992 (Cth) and the
Anti-Discrimination Act 1977 (NSW). Those who feel
that they have been discriminated against can take
legal action.
discrimination Figure 13.3 Centrelink and other services support people

the unjust treatment of a person or a particular group of who have mental illness.
people based on their race, sex, sexuality, marital status,
disability and other factors If someone is unhappy with a decision made by
Centrelink, they can ask for it to be reviewed.
At an internal review, the original decision-maker
Centrelink explains the decision. This is a chance to address
People with mental illness often find that they misunderstandings, provide new information and
need to deal with Centrelink, the Commonwealth try to change the decision. If the person is still
Government agency that manages social security unhappy with the decision, they can apply for a
payments and benefits. Some people with a mental senior Centrelink officer to review it. This Authorised
illness are entitled to receive the Disability Support Review Officer is separate from the Regional Office.
Pension. They will talk to the people involved in the decision
and take any new evidence into account. They will
Disability Support Pension
financial support for people who suffer from mental illness then tell the person the outcome of their review,
and/or intellectual disability and let them know what their appeal rights are, if
necessary. Although these procedures exist, it could
be difficult for someone with an illness, limited funds
or limited education to navigate the appeals process.

NSW Civil and Administrative However, NCAT generally only hears cases if there
Tribunal – Guardianship Division are not suitable arrangements already in place, or
People with mental health issues can be placed in if no appropriate alternative to an application can
the care of a guardian (as noted earlier). In 1989, the be found.
Guardianship Tribunal of NSW was established to NCAT may make a range of other orders,
ensure fairness in this area. In 2014, these functions including appointing guardians and financial
were taken over by the Guardianship Division of the managers, and providing consent to medical and
NSW Civil and Administrative Tribunal (NCAT). dental treatment. A person’s appointed guardian
may be a member of their family or a friend, or the
13
NCAT can appoint guardians for people over
the age of 16 who are not capable of making their NSW Public Guardian, who is a statutory official
own lifestyle decisions. If an individual is unhappy within the NSW Government Department of
with their guardian, they can appeal to NCAT. Communities and Justice.
Review 13.2
1 Identify the health legislation that covers people experiencing mental illness in
New South Wales.
2 Describe what happens if a person is placed under ‘control’.
3 List the laws that cover a person who is accused of committing a crime and who also has a
mental illness.
4 Describe the ways that different courts deal with accused people who have a mental illness.
5 Explain the difference between a section 32 order and a section 33 order.
6 Outline why accessing legal advice can be problematic for people who have a mental illness.
Identify the support that is available to help people access legal advice.
7 Outline the role of Community Legal Centres.
8 Discuss what issues a person who has a mental illness may face in trying to obtain government
assistance (i.e. Centrelink). Describe how this can be resolved.
9 Describe the role of the Guardianship Division of the NSW Civil and Administrative Tribunal.
10 Construct a table showing the different agencies that are available to assist people experiencing
mental illness. Include information about what each of these agencies does.
Research 13.2
1 Access the website of the NSW Civil and Administrative Tribunal (NCAT), then find information
about the Guardianship Division and respond the following questions.
a Identify some of the Guardianship Division’s responsibilities.
b Choose one responsibility and describe its role in the mental health area.
2 On the NSW CaseLaw website, find the decisions made by the Guardianship Division. Choose
one decision and respond to the following questions.
a Identify the dispute.
b Outline the parties involved.
c Describe NCAT’s decision and the reasons for the decision.
d Assess if it was a fair decision. Justify your response.

13.3 Non-legal responses The Australian Government Department of

Social Services provides the following explanation
Funding for people experiencing of PHaMs:
mental illness
Despite all the good intentions around integrating
PHaMs provides practical assistance for
people with mental health issues into society, if
people aged 16 years and over whose
there is not adequate funding, this policy will fail.
lives are severely affected by mental
Initiatives since 2011 indicate that policy-makers
illness. PHaMs helps people overcome
are aware that greater funding is required in the
social isolation and increase connections
area of mental health. Most of these initiatives are
with their community.
long-term plans, so it remains to be seen whether
or not they are efficient and effective in addressing People are supported through a recovery
the issue. The NSW Government has a 10-year focused and strengths based approach
plan, which started in 2014, to improve the lives that recognises recovery as a personal
of those living with mental health issues. The journey driven by the participant.
2018–2019 budget allocated $2.1 billion for this Potential participants undertake
purpose. The aim is to improve services in a functionally based assessment with
conjunction with non-government organisations. a PHaMs service provider to determine
This plan is based on recommendations made in the their eligibility for services.
Mental Health Commission of NSW’s report, Living
Well (2014).
Personal Helpers and Mentors Service

In the past, governments have recognised the
Research funding
problems faced by people with disabilities. For In October 2012, the federal minister for mental
example, the 2011–2012 federal budget allocated health and ageing announced $68.2 million in new
$154 million over five years to a Personal Helpers funding for research into anxiety, eating disorders,
and Mentors Service (PHaMs). This service assists depression and other mental health conditions.
around 3400 people with severe mental illness. This There were 13 specific grants, totalling $13.7 million,
funding allowed for 425 new personal helpers and for research into mental illness among young people.
mentors to be employed. Also, $50 million of the The minister said:
funding was allocated to assist 1200 people with
a mental illness who receive government income
support payments (e.g. Disability Support Pension) We need to improve our knowledge and
but are looking to gain employment. With assistance understanding of mental health issues
from PHaMs, people are more able to overcome any through research to ensure Australians
personal, non-vocational issues that are preventing are able to live healthier and happier
them from participating in work or training. While lives … This research will support the
this funding was a step forward, recent budgets have implementation of the government’s
only maintained the funding and not increased it. $2.2 billion mental health reform plan by
In 2016, PHaMs was integrated into the National building the evidence base for a stronger
Disability Insurance Scheme (NDIS) with its funding and better mental health system. … We
to come from this area. The process of applying for know that one in four young people will
funding under the NDIS to gain access to PHaMs experience a mental health issue this
has meant that some people with a disability have year, making it the single biggest issue
not been able to access this service. facing young Australians.

Despite this acknowledgement of the issue and the introduction of the National Disability Insurance
the need for research in this area, recent funding Scheme (NDIS). The NDIS started to be rolled out
has not been as substantial, with the 2017 federal across Australia on 1 July 2014; it is funded by an
budget only adding $115 million in new funding for increase in the Medicare levy from 1.5% to 2%.
mental health research. The 2018 budget increased This nationwide scheme aims to provide lifetime
this to $338.1 million, although much of this is to be support to people affected by disability, with support
provided over four to 10 years. There is an expectation based on a person’s individual needs. As well as
that each state will match this spending to build
community support systems. In 2019, the government
taking a lifetime approach to care, the NDIS also
provides for early intervention, particularly when
13
announced a distribution of $125 million from the it can be identified that receiving support from a
Medical Research Future Fund over 10 years. With young age will make a substantial difference to a
reduced funding, it can be surmised that the money person’s life. The NDIS aims at providing greater
will be spent on dealing with short-term, immediate choice about healthcare for people with disability,
issues, leaving less to be spent on research. their families and carers. For more information about
this scheme, go to the NDIS’s website.
National Disability Insurance Scheme Four years on, a stakeholder report by the
In May 2013, the Australian Prime Minister, University of Sydney, Mind the Gap (2018), found that
Julia Gillard, announced that she had gained the the NDIS is failing people with severe mental health
support of all the state and territory governments for issues as they have difficulty accessing the scheme.
Review 13.3
1 Outline the role of the Personal Helpers and Mentors Service and the changes that may have
shaped the effectiveness of this service.
2 Justify the importance of funding for research into anxiety, eating disorders, depression and
other mental health conditions.
Figure 13.4 Jordan Raskopoulos speaks during the City of Sydney CityTalks event at Sydney Town Hall on 29 October
2019 in Sydney, Australia. She was joined by the former Prime Minister and chair of Beyond Blue, Julia Gillard, who
delivered a keynote address discussing discrimination, indigenous social and emotional wellbeing and the need for
mental health system reform.

Research 13.3
View the website of a non-government organisation that deals with mental healthcare and
awareness.
1 Identify the type(s) of mental illness the organisation deals with.
2 List the services and activities the organisation offers.
The report states that there is a need to liaise with Police officers
and include more community services to provide Police officers across Australia regularly have to
support to people with psychosocial illnesses. deal with people behaving in a violent or threatening
manner who are showing signs of being mental
The role of non-government ill. When the policy of deinstitutionalising people
organisations with mental illness was brought in during the late
In Australia, much of the work of raising 1970s, police officers in some states were not given
awareness of mental health has been done by proper training on how to deal with mentally ill
non-government charitable organisations. Some people. The media drew the community’s attention
receive government funding. These organisations to this problem by reporting incidents between
include SANE Australia, Beyond Blue and the police officers and offenders who were suffering
Black Dog Institute. mental illnesses. An example of this was the fatal
shooting of Roni Levi in 1997. Levi was seen on
Bondi Beach, behaving in a threatening manner
13.4 Effectiveness of responses while carrying a knife, and the police were called.
Police officers surrounded Levi and shot him
Overview four times, killing him.
As we have seen in this chapter, some people This type of incident response did not just occur
experiencing mental illness are distanced from their in New South Wales – in Victoria, seven people
families, do not make it to medical appointments, with a mental illness were shot dead between
and have problems navigating the system to get the 1990–1995 (source: ‘Policing the Mentally Ill’, by
assistance they need. Thus, it is realistic to assume Jude McCulloch, Alternative Law Journal, 25(5),
that, while the NDIS will provide long-term benefits, October 2000). Police officers in Victoria are now
too many people suffering from mental health issues trained to negotiate with people who display signs
have already ‘slipped through the cracks’, and may of mental illness.
be unable to take advantage of the scheme. The NSW Police Force has tried to be proactive.
In addition, in many ways, the legal system has In 2007, it established the Mental Health Intervention
not provided justice for people with mental illnesses. Team (MHIT) as a two-year pilot project, with the
This can be seen both in the response of police aims of:
officers to people who exhibit signs of mental illness, • reducing the risk of injury to police officers and
and in the number of people suffering mental illness to people experiencing mental illness when
who are incarcerated. dealing with mental health-related incidents
On 4 April 2019, the Royal Commission into • improving awareness among front-line police
Violence, Abuse, Neglect and Exploitation of People officers of the risks involved in the interaction
with Disability (this includes people living with mental between police officers and to people
illness) was initiated. The terms of reference are experiencing mental illness
broad and include the experiences of people with a • improving collaboration with other government
disability in both institutional and residential settings. and non-government agencies in the response
For more information about this Royal Commission, to, and management of, mental health
go to https://cambridge.edu.au/redirect/9042. crisis incidents

• reducing the time taken by police officers to

handover people experiencing mental illness to
the healthcare system.
Following the success of the pilot, the MHIT became

a permanent unit of the NSW Police Force. By 2019,
over 2600 officers had attended its four-day training
program. Officers who have attended the training
wear a MHIT badge above their name plate, and act
13
as first responders if a mental health-related incident
occurs in their area. In addition, every police district
has a trained mental health contact officer. Training
in how to deal with people experiencing mental
illness has been added to the core curriculum at the
NSW Police Force Academy.
Further guidance for police officers is provided Figure 13.5 Paul O’Shaughnessy is one of three men
by the NSW Police Force Memorandum of who chased and apprehended a man covered in blood
Understanding (2018), which sets out how staff from and wielding a butcher’s knife in York Street in Sydney
NSW Health and NSW Police will work together when on 13 August 2019. The attack left one woman dead and
another injured. Prime Minister Scott Morrison and Police
responding to and delivering care and treatment to
Commissioner Mick Fuller praised the bravery of the
people accessing mental health services. men. The assailant, who was later identified as Sydney
resident, Mert Ney, has a long history of mental illness.
Case Study
The deaths of mentally ill men Adam Salter (2009), Brazilian student Roberto Laudisio-Curti (2012)
and, more recently, Danukul Mokmool (2017) at the hands of NSW Police officers are why the NSW
Police Force continues to review how its officers should deal with people whose behaviour suggests
they may be experiencing mental health problems.
Adam Salter
In November 2009, police officers in Sydney received a call that 36-year-old Adam Salter was stabbing
himself with a knife. A member of the response team shot Salter in the back and killed him. The police
officer later said she had seen Salter threatening
another officer with the knife, and felt that her Figure 13.6 On 31 March 2012 in São Paulo, Brazil,
students protested at the Australian embassy against
only option was lethal force. However, before
the killing of Brazilian student, Roberto Laudisio Curti.
firing she had shouted, ‘Taser, taser, taser’.
Curti was killed on 18 March by NSW Police officers in
A coronial inquest found that there was strong Sydney using Taser guns after he allegedly stole from
evidence that the police officer had intended to a shop.
use her taser, but had fired her gun by mistake.
Roberto Laudisio-Curti
In March 2012, Roberto Laudisio-Curti died after
seven police officers chased him down Pitt Street
in Sydney, tasered him several times, sprayed him
with almost three cans of OC spray, handcuffed
him and restrained him on the ground.

Case Study (continued)
In a coronial inquest into this death, NSW Coroner Mary Jerram condemned the police officers
for the chaotic and violent apprehension of Laudisio-Curti. Jerram recommended that the NSW
Police Force review its procedures to ensure that if police officers are called to deal with someone
who is showing signs of mental disturbance, this fact should be communicated, and the officers
should be trained so that they can react in an appropriate manner.
Danukul Mokmool
On 26 July 2017, the usually gentle Danukul Mokmool, aged 30, was experiencing a psychotic episode
when he ran at police officers with scissors in each hand outside a florist at the Central Railway
Station in Sydney. Four police officers had rushed to the scene after numerous 000 calls had been
received about Mokmool, including reports that the florist was being held with a knife at his neck.
The officers unsuccessfully tried to subdue Mokmool using capsicum spray. When Mokmool rushed
at the officers with the scissors, two officers opened fire. Mokmool died from a wound to the head.
A subsequent coronial inquest found that the police officers were justified in opening fire but
recommended that in the future, uniformed officers performing front-line duties should be required
to carry a Taser. At the inquest, it was disclosed that one of the police officers at the scene had
called for a taser but none were available at the scene.
Mental illness and prisoners The closure of large psychiatric institutions in

Why are there so many people with a mental illness New South Wales has not seen a corresponding rise
in prison? In 2010, an Australian Institute of Health in resources, funding and support services to help
and Welfare (AIHW) study proposed a number people with a mental illness to stay healthy while
of reasons. living in the community. This has led to issues such
as homelessness and offending behaviour – all of
which mean that people with a mental illness are
Figure 13.7 In this photograph taken on 27 April 2017, a more likely than many others to come under police
mentally ill patient sleeps chained at the Mia Ali Baba
surveillance. Unemployment and poverty only
holy shrine in the village of Samar Khel on the outskirts
of Jalālābād, Afghanistan. The Mia Ali Baba shrine is increase these problems.
thought to cure addicts and the mentally ill ‘inmates’ In ruling on these crimes, magistrates and judges
who spend 40 days chained up and confined to a usually have very limited options. Prison may be the
small cell. Desperate Afghan families from across the only option, as there is no alternative system and no
country, who are unable to afford healthcare, bring their special facilities to address the needs of mentally
family members to the shrine, because they believe the
ill offenders.
treatment will be effective or because they have
no alternative. As stated above, the public mental health system
has limited resources, and can be unwilling to take
on the complicated issues of a mentally ill person
arrested for criminal behaviour. So even when a
judge recommends that a person with a mental
illness be treated by a health service, they may
be denied the treatment, and very soon appear in
court again.
The AIHW study also highlighted the fact that
people with mental health problems tend to have
lower levels of education. The inability to complete

school usually results in poorer literacy levels (and to focus on opportunities to make the NDIS process
other skills) and, therefore, reduced employment simpler and more straight-forward. This review –
opportunities. In many cases, this makes the problem led by an independent expert (David Tune) – will
worse: people without a job have very limited look at what changes need to be made to the NDIS
funds for housing, food and medicine. to support the guarantee. While this may involve
amendments to the National Disability Insurance
National Disability Scheme Act 2013 (Cth) and the NDIS Rules, it will
Insurance Scheme
The impacts, positive or negative, of the NDIS
not change the design or intent of the NDIS. The
review is expected to make its recommendations
13
are starting to be judged. The Australian to the Australian Government by the end of 2019,
Government has promised to develop an NDIS to support the rollout of the guarantee on 1 July
Participant Service Guarantee to increase positive 2020. The public have been asked to provide online
participant experiences with the NDIS. To bring feedback to support the review.
about this guarantee, the Australian Government The following news article discusses some of the
commissioned a review of the NDIS laws and rules current challenges facing the NDIS.
Here’s what needs to happen to get the NDIS back on track

By Helen Dickinson
The Conversation
30 May 2019
In one of his first official public remarks since being re-elected, Prime Minister Scott Morrison
pledged that addressing failures in the National Disability Insurance Scheme (NDIS) would be a
priority for the new government.
Stuart Robert has assumed the role of minister for the NDIS and will be charged with delivering on
this important agenda.
So what does the new minister need to do to get the NDIS back on track?
There is much that the NDIS has done well. Just over 277 000 people have already accessed the
scheme and this is set to rise to 460 000 at full roll-out in 2020.
Some scheme participants report greater choice over support workers, access to new services and
technologies, and generally strong satisfaction rates.
Alongside these positives are a number of concerns about the scheme and areas that need improvement.
The development of the NDIS is a massive undertaking; such schemes take time to get right and
inevitably face a number of teething issues. But in recent months, the number of challenges has
grown and the calls for change have become louder.
Every Australian Counts, the grassroots disability advocacy group that campaigned for the
introduction of the NDIS, recently released a statement arguing:
The problems with the NDIS must be fixed so people can finally get the support they
desperately need. Too many people are falling through the cracks and not getting essential
help. The scheme is not working the way it was intended to.

News (continued)
LONG WAITS FOR SERVICES

Many of the problems with the scheme relate to the time people have to wait – either to receive a
plan, to activate it, or to have it reviewed.
In 2018, the Commonwealth Ombudsman investigated the NDIS’s handling of reviews on the basis
that around one-third of all complaints it received about the scheme related to this issue.
This system was judged ‘unapproachable’ and ‘lacking in fairness and transparency’ and leading to
delays of up to nine months to receive an outcome.
The Coalition addressed some of these issues in its election promises around the NDIS.
It committed to introducing an NDIS Participant Service Guarantee. This would set timeframes for
participants to receive an access decision, and have their plan approved or reviewed.
This, the Coalition promised, should reduce the time taken for people with disability to access the
NDIS and have their plan approved and implemented.
There is also a commitment to introduce a single point of contact for the NDIS and to allow those
with a ‘stable’ disability to opt into a three-year plan, rather than being reviewed every 12 months.
These developments have been welcomed by those who have experienced significant delays in
having plans approved, executed or reviewed – delays that often lead to significant personal and
family costs.
Yet the minister will face a challenge in terms of how to deliver on these promises.
STAFF SHORTAGES
The National Disability Insurance Agency (NDIA) is the independent statutory agency charged with
implementing the NDIS. One of the challenges it has faced is having limited staff to drive these
changes.
In 2014, a staffing cap was placed on the NDIA, restricting the numbers employed to 3000. Although
the government has committed to increasing the cap gradually to 3400 in 2020–2021, it will be a
challenge to deliver on this bold agenda with a limited workforce.
The Productivity Commission has previously criticised the pace of the roll-out of the scheme,
arguing it is taking place too quickly for the volume of resources available to the NDIA.
The NDIA received significant criticism for spending over A$600 million in 2017–2018 on
consultants, contractors and outsourced staff.
Continuing to spend significant amounts of money on consultants may put pressure on future NDIS
budgets.
But it will be challenging for the minister to avoid using consultants and outsourced staff to help fill
this workforce gap.
UNDER-SPENDING AND TIGHTENING ELIGIBILITY

It was widely reported that the surplus seen in the last federal budget was boosted by a A$1.6 billion
dollar underspend on the NDIS.
Some disability advocates argued this underspend only occurred due to the delays in people getting
on to the schemes and issues in relation to the supply of services in a rapidly developing market.

News (continued)
Disability advocates have also noted some of these savings might have been the result of tightening
criteria for accessing services. This might mean individuals who were once eligible for the NDIS
find that they no longer are. This has been a particular issue in relation to autism spectrum
disorders. Or, when plans are reviewed, they are reduced or gradually trimmed back, often with
little clear rationale for why this has happened.
Labor had made the election promise of putting any NDIS underspend into a ‘locked box’ to be 13
managed by the Future Fund and ensure it would be used to guarantee the NDIS would be fully
funded into the future.
The Coalition has committed to ensuring that all those who are eligible will continue to receive a
fully funded plan and necessary supports to achieve their goals.
The minister has some significant work ahead to ensure the budget for the NDIS continues to be
sufficient to do this and to ensure that criteria are not unnecessarily adjusted.
ACCOMMODATING DIVERSITY
Alongside these broad issues, the NDIS continues to face challenges in accommodating diversity.
While the rates of disability are higher in Aboriginal and Torres Strait Islander populations (almost
25%), just 5% of NDIS participants are of this heritage.
Aboriginal and Torres Strait Islander peoples with disabilities are not well-engaged with the NDIS
and we see similar challenges across culturally and linguistically diverse populations more broadly.
The NDIA has recently introduced strategies to address these issues, although there is some
distance to go until a cultural competency framework is well-embedded. The development of
different entry paths into the NDIS is one way to assist this process, with community workers
helping to explain and navigate the system for these audiences.
Review 13.4
1 Describe the measures that the NSW Police Force has implemented so that its officers deal
appropriately with people suffering from mental illnesses.
2 Outline the findings of the coronial inquests into the deaths of Adam Salter, Roberto Laudisio-
Curti and Danukul Mokmool.
3 Explain why people with mental health issues may end up in prison.
4 It is difficult to find up-to-date information about the mental health issues experienced by
prisoners. Provide two or three reasons why you think this is the case.
5 Read the news article, ‘Here’s what needs to happen to get the NDIS back on track’, and list
some of the areas of concern about the NDIS.

Chapter summary
• Mental illnesses have gained wider awareness • The National Disability Insurance Scheme
and acceptance in Australia. (NDIS) aims to give greater choice of care
• Laws and policies are in place to protect to people with a disability, their families
and support mentally ill people in and carers.
New South Wales. • The NSW Police Force has policies and
• Many people with a mental illness find training in place to improve how police officers
themselves in court, being placed in care or deal with mentally ill people; however, recent
sent to prison. incidents and coronial inquest criticisms
• A lack of funding has exacerbated the problem suggest that more is needed in this area.
that people with a mental illness are more likely
than other people to be incarcerated.
Questions
1 Which of the following reasons mean that c Anti-Discrimination Act 1977 (NSW) and
people with a mental illness are more likely Australian Human Rights Commission Act
than other people to be incarcerated? 1986 (Cth)
a lack of funding, a healthy lifestyle and low d Anti-Discrimination Act 1977 (NSW)
literacy levels 4 What is a Community Legal Centre (CLC)?
b silly behaviour, lack of funding and a a A CLC is a local legal centre that provides
refusal to access health services free advice and court representation.
c lack of funding, homelessness and low b A CLC is the local court centre where the
literacy levels magistrates provide advice.
d lack of funding, criminal tendencies and c A CLC is the law book section of the
low literacy levels local library.
2 What is the Australian Charter of Healthcare d A CLC is a legal service provided by
Rights (2008)? Legal Aid.
a The Charter is the main legislation that 5 What is the role of NCAT’s Guardianship
covers healthcare in New South Wales. Division?
b The Charter is a United Nations Charter a to protect all minors under 18 years of age
accepted by Australia. b to enforce the rights of minors to
c The Charter is the main legislation that pocket money
covers healthcare for mentally ill people c to represent mentally ill people in court
in Australia. d to appoint guardians to people aged
d The Charter sets out the rights to 16 years and older who cannot make
healthcare for all people living in Australia. rational decisions about their own lives
3 Which of the following Acts are the main
anti-discrimination laws in New South Wales?
a Disability Discrimination Act 1992 (Cth)
b Disability Discrimination Act 1992 (Cth),
Anti-Discrimination Act 1977 (NSW) and
Australian Human Rights Commission Act
1986 (Cth)

1 Outline the differences between the legal and 5 In your own words, explain why there is a
medical definition of ‘mental illness’. Propose connection between people with mental illness
some reasons for the difference in these and prisons.
definitions. 6 Recall why a stakeholder report carried out by
2 Discuss the purpose of the Australian Charter the University of Sydney, Mind the Gap (2018),
of Healthcare Rights (2008) and how it benefits found that the NDIS is failing people with
people with mental illness and their families. severe mental illness. 13
3 Outline how the individual rights of people 7 In New South Wales, the District Court and
with mental illness are protected. Construct Supreme Court can decide that an accused
a list of any Acts or organisations that help is ‘not guilty due to mental illness’ or is ‘not
ensure people with mental illness have equal fit to plead’. Discuss why a court may refer an
opportunities for a good life. accused person to the NSW Mental Health
4 In a paragraph, outline the role of the Personal Review Tribunal.
Helpers and Mentors Service.
Critically analyse why justice for people suffering Marking criteria for extended-response questions
mental illness has been difficult to achieve. can be found on the Cambridge GO website.
Refer to these criteria when planning and writing
your responses.

Issue 2
legal issues
Alcohol and violence
Chapter objectives
• outline the key features of Australia’s law enforcement and courts
• identify the legal terminology that is relevant to investigating and discussing case and statute law
• evaluate the effectiveness of Australia’s legal system in reducing the incidence of alcohol-related
violence
• discuss the effectiveness of non-legal methods in changing public perceptions of alcohol-related
violence
• locate quality and valid information from authoritative sources using the internet.
Relevant law
Liquor Act 2007 (NSW)
Passenger Transport Regulation 2007 (NSW) (repealed)
Liquor Regulation 2008 (NSW) (repealed)
Law Enforcement (Powers and Responsibilities) Amendment (Kings Cross and Railways Drug Detection)
Act 2012 (NSW) (repealed)
Passenger Transport Amendment (Kings Cross Taxi Fare Pre-payment) Regulation 2012 (NSW)
Liquor Amendment (Kings Cross Plan of Management) Act 2012 (NSW) (repealed)
Liquor Amendment (Kings Cross Plan of Management) Act 2013 (NSW) (repealed)
Intoxicated Persons (Sobering Up Centres Trial) Act 2013 (NSW) (repealed)
Liquor Amendment (Small Bars) Act 2013 (NSW) (repealed)
Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)
Liquor Amendment Act 2014 (NSW)

SIGNIFICANT CASES
R v Loveridge [2013] NSWSC 1638
R v Loveridge [2014] NSWCCA 120
Director of Public Prosecutions (NSW) v Lyttle [2015] NSWLC 4
R v McNeil [2015] NSWSC 357

15.1 V
iolence in the brain injuries. Thomas was taken to hospital and
Kings Cross area placed on life support but he died two days later.
The man responsible for this crime, 19-year-old
In 2012 and 2013, two young men – Thomas Kelly
Kieran Loveridge, was severely affected by alcohol
and Daniel Christie – died after being punched by
and had already randomly attacked another man
strangers in Kings Cross, Sydney. The outrage felt
earlier that night. After Loveridge assaulted Kelly,
by the public about these deaths reflected a growing
Loveridge ran off and violently attacked three
concern about alcohol consumption and violence in
other strangers.
New South Wales. These one-hit punches were the
catalyst for legislative change in New South Wales.
Daniel Christie
one-hit punch Eighteen months later, on New Year’s Eve 2013,
(also known as a ‘king hit’ or a ‘coward’s punch’) a blow 18-year-old Daniel Christie was out with his brother
made with a closed fist, usually made without warning so
that the recipient has no time to prepare or defend him and friends in Kings Cross when he was punched
or herself by Shaun McNeil. Daniel fell to the ground,
fracturing his skull. McNeil, a 26-year-old martial
arts enthusiast, was affected by alcohol and had just
Thomas Kelly had an argument with three teenagers over a drugs
On 7 July 2012, 18-year-old Thomas Kelly was on transaction. Daniel Christie’s brother, Peter Christie,
a night out with his girlfriend. They were walking was injured trying to defend his brother but Daniel
down Victoria Street in Kings Cross at around 10 pm; took the full force of the ‘king hit’. Daniel died on
as Thomas talked on his mobile phone, a man who 11 January 2014 in hospital when his family made the
had been standing by the Mercure Hotel suddenly decision to turn off his life support.
walked two to three steps towards them and punched
Thomas in the head. The punch knocked Thomas Public reaction
to the ground and he hit his head on the pavement The deaths of Thomas Kelly and Daniel Christie,
causing him to sustain a severe skull fracture and so close to each other, caused public outrage and
Figure 15.1 Kings Cross Station, Sydney.

Chapter 15 (Digital-only chapter) Alcohol and violence

Review 15.1
1 Describe a ‘one-hit punch’.

2 Outline the events that led to pressure being placed on the NSW Government to change the law.
3 Kings Cross in Sydney has always had a reputation. Discuss what you know about Kings Cross
and outline some reasons why people may want to go to Kings Cross for a night out.
15
pressure was placed on the NSW Government to 15.2 Legal responses
introduce tougher penalties for alcohol-fuelled
violence. The focus for this outcry was Kings Cross
Whole of government response
in Sydney, a place seen by the public as being a hive
The NSW Government responded to the death
of criminal activity.
of Thomas Kelly with a four-phase whole of
These violent acts were not isolated events.
government response.
Kings Cross has long been a destination for people
looking for a big night out. For many, this involves whole of government response
excessive drinking and, for some, drinking and actions that go beyond just changing laws and include all
areas of government such as transport and policing
drug-taking lead to irrational behaviour. For these
reasons, the NSW Government and police have
The first phase was an audit conducted by Liquor
long been concerned about the Kings Cross area.
and Gaming NSW (previously called the NSW
Figure 15.2 Daniel Christie’s brother, Peter, and their Office of Liquor, Gaming and Racing). This audit
father, Michael, with a portrait of Daniel. began on 18 July 2012 and started by scrutinsing of
the Responsible Service of Alcohol Registers of all
58 late-night trading venues in Kings Cross. These
registers were compared with the crime registers of
the Kings Cross police and with the NSW Bureau of
Crime Statistics and Research data to ensure that
licensed venues were fully reporting crimes. This was
all carried out with wide media coverage, ensuring
that Kings Cross remained under the spotlight.
The second phase was the introduction of
restrictions for licensed venues in Kings Cross. On
15 August 2012 in parliament, the premier led a formal
tribute to Thomas Kelly and then announced a raft of
restrictions that would be placed on licensed venues
in the Kings Cross precinct. These restrictions
limited the amount and type of alcohol that could be
sold after midnight on Friday and Saturday nights,
and introduced a new condition that all entries and
exits of venues operating after midnight have CCTV
cameras. Three alcohol education campaigns were
also announced.

The third phase of the NSW Government’s Liquor Amendment (Small Bars) Act 2013 (NSW)
response was the ‘Cleaning up the Cross’ covered this initiative.
campaign. On 18 September 2012, Premier Another measure saw the introduction of
Barry O’Farrell launched the campaign, which sobering-up centres as a trial in the Kings Cross
increased public transport, increased the number area. Under the Intoxicated Persons (Sobering Up
of police officers patrolling Kings Cross on Friday Centres Trial) Act 2013 (NSW), three centres were
and Saturday nights, and introduced liquor set up for a 12-month trial period. At peak times
licensing reforms. there would be an increase in policing with the
This fed into the fourth phase, covering the costs to be partly covered by licensed premises in
period September 2012 to October 2013, when Kings Cross.
several key pieces of legislation were passed. These Employees of licensed premises were expected
are outlined below. to gain a Responsible Service of Alcohol Card
under the Liquor Amendment (Kings Cross Plan of
Compliance and enforcement Management) Act 2012 (NSW) and employees who
The measures included expanding the boundary committed a serious breach of liquor laws would
of the Kings Cross precinct (and thus the liquor have their card revoked.
restrictions) and freezing new liquor licences for
three years, up to 24 December 2015. In November Operation Rushmore
2012, the Liquor Amendment (Kings Cross Plan of The NSW Police led a campaign called ‘Operation
Management) Act 2012 (NSW) enacted these plans, Rushmore’, targeting alcohol-related crime
amending the Liquor Act 2007 (NSW) and the Liquor and anti-social behaviour in the Kings Cross
Regulation 2008 (NSW). area in the lead up to the summer social period
The restrictive liquor licence conditions were of 2012. The first ‘blitz’ occurred at the end of
also included in the Liquor Amendment (Kings Cross September 2012. This blitz involved police using
Plan of Management) Act 2012 (NSW) and expanded drug detection dogs (without requiring a warrant)
to take in all licensed venues in the expanded Kings in the Kings Cross area and on train lines in the
Cross precinct. city. This measure was enacted into law with the
Linked ID scanners were introduced to confirm Law Enforcement (Powers and Responsibilities)
and record identities of persons banned from Amendment (Kings Cross and Railways Drug
entering premises in the precinct. This measure Detection) Act 2012 (NSW).
was incorporated into the Liquor Amendment (Kings
Cross Plan of Management) Act 2013 (NSW) and Transport
included two new types of banning orders: a 48-hour In addition to Operation Rushmore, the NSW
ban and a 12-month ban. Government made changes to public transport
A move to change the culture of the area saw in the Kings Cross area. These changes involved
the creation of a small bar licence that allowed improving the Kings Cross taxi rank to provide better
businesses to cater for 60 or fewer patrons. The safety for drivers and passengers. As well, a pre-paid
Research 15.1
In New South Wales, Liquor and Gaming NSW is responsible for issuing liquor licences. Find the
website of Liquor and Gaming NSW and read the liquor licence requirements.
1 Outline two liquor licence requirements and analyse them as:
a the owner of a licensed venue
b a member of the public.

taxi service was trialled and late-night bus services On 21 January 2014, NSW Premier Barry O’Farrell
were extended. The legislation that covered these announced a new package of reforms, covering
changes was the Passenger Transport Amendment sentencing (discussed below) and prevention. The
(Kings Cross Taxi Fare Prepayment) Regulation 2012 reforms included community awareness campaigns
(NSW), which amended the Passenger Transport and further transport options (free buses in Kings
Regulation 2007 (NSW). Cross), and introduced the controversial
The federal government provided $200 000 to the lockout laws.
City of Sydney (the council area that covered Kings
Cross) to make the main Bayswater Road taxi rank lockout laws
a general term used to describe the liquor licensing reforms
safer by installing CCTV cameras and improving that were brought in to deal with the issue of alcohol and
the lighting. violence in the Kings Cross area in Sydney
People and places Reforms to the Liquor Act 2007 (NSW) were presented
The final part of the state government’s response to parliament on 31 January 2014, and the Liquor
was titled ‘people and places’. Every Friday and Amendment Act 2014 (NSW) was passed later that 15
Saturday night, a police officer was stationed in the year. Changes included a 1:30 am lockout at hotels,
CCTV control room. A coordinated education and registered clubs, nightclubs and karaoke bars in the
public information campaign about risky drinking areas of Sydney’s CBD and Kings Cross. This meant
was carried out and, at the same time, Kings Cross that if you were not on these premises at 1:30 am, you
was promoted through such events as the Kings would not be allowed to enter. In addition, there would
Cross Festival to encourage a greater variety of be no alcohol served after 3 am in these areas. (For an
people to visit. analysis of the effectiveness of the lockout laws, see
‘Section 15.4: Effectiveness of responses’, below.)
Lockout laws Some business owners were unhappy about
By October 2013, the final piece of legislation in the lockout laws as this new legislation limited
response to the death of Thomas Kelly had been their ability to run their businesses at a profit.
passed by parliament. However, less than three Patrons were unhappy about not being allowed to
months later, on New Year’s Eve 2013, Daniel Christie be responsible for their own actions. Other people
was killed in frighteningly similar circumstances. were concerned that the lockout laws could result
in the loss of late-night music venues.
Figure 15.3 In February 2016, demonstrators gathered in Hyde Park in Sydney to listen to speakers and musicians.
An estimated 15 000 protested in a rally in Sydney against the controversial CBD lockout laws introduced by the
NSW Government in an attempt to curtail alcohol violence.

In 2017, in response to lobbying, the NSW Government (NSW) (‘one-punch laws’) was passed later that year
relaxed the lockout laws and allowed some venues and included the following reforms:
to allow people to enter the premises until 2 am • Mandatory sentencing for ‘one-punch’
and to buy alcohol until 3:30 am. These moves have assaults. If someone unlawfully assaults a
been criticised by supporters of the lockout laws, person, and the victim dies as a direct or indirect
especially those in the medical profession. result of that assault, a maximum sentence of
In 2019, the NSW Government once again 20 years’ imprionment is to be applied. If alcohol
reviewed the lockout laws. This was in response to or drugs affected the offender, the sentence is
concerns that Sydney was losing tourism dollars imprisonment for a minimum of eight years and a
due to the lockout laws. On the other hand, medical maximum of 25 years.
professionals and emergency services workers • Increase in maximum and minimun
continue to support the laws. In September 2019, sentences. Increase of two years to maximum
a New South Wales parliamentary committee sentences for serious assaults where the
recommended that the lockout laws should be offender is affected by alcohol or drugs, with
removed by the end of the year, with the exception a mandatory minimum of at least four years.
of Kings Cross. At the time of writing, the legislation The prescribed amount of alcohol is a
had not been amended. blood-alcohol concentration (BAC) of
0.15 and above.
One-punch laws
blood-alcohol concentration (BAC)
As part of the reforms announced on 21 January
blood-alcohol concentration measured in grams of alcohol
2014 by NSW Premier Barry O’Farrell, the NSW per 100 millilitres of blood
Government considered new laws to deal with
violent and fatal assaults. O’Farrell told the media • Drugs and alcohol no longer mitigating
that replicating Western Australia’s one-punch laws factors. When determining sentences, courts
was under consideration. can no longer consider drugs or alcohol as
mitigating factors.
one-punch laws
general term used to refer to changes to mandatory
• Alcohol and drug testing. Police officers
sentencing in response to alcohol-related violence can carry out alcohol and drug testing on an
offender if they suspect alcohol or drugs fuelled
Along with the reforms to the Liquor Act 2007 (NSW), an assault.
amendments to the Crimes Act 1900 (NSW) were
presented to parliament on 31 January 2014. The There has been much media coverage as well as
new legislation (the Crimes and Other Legislation commentary among the legal community about the
Amendment (Assault and Intoxication) Act 2014 one-punch laws, especially about the introduction of
Review 15.2
1 Describe the ‘whole of government’ response to the violent death of Thomas Kelly in
Kings Cross.
2 Construct a timeline of the ‘whole of government’ response to addressing the issue of alcohol-
related violence in the Kings Cross area.
3 Describe the lockout laws. These laws were criticised as they (a) limited the abilities of licensed
premises to conduct business and (b) limited the rights of individuals. Assess if you agree or
disagree with these criticisms and justify your response.
4 Summarise the arguments for lockout laws and the arguments against them.
5 Carry out research to see what has happened recently with lockout laws.

mandatory sentencing. Lawyers and charity groups This sentence caused immediate outrage as the
are concerned that alcoholism and alcohol-related prosecution, Thomas Kelly’s family and the public
problems have become a criminal issue rather than one felt that this was not adequate punishment for taking
for which society should try to find solutions. Since a a life. The NSW Director of Public Prosecutions
person who is under the influence of alcohol may carry immediately appealed against the sentence on the
out actions that are not rational, the argument is that grounds that it was ‘manifestly inadequate’.
surely the community as a whole should undertake
better education to reduce excessive drinking. Kieran Loveridge appeal
In July 2014, the New South Wales Court of Criminal
Sentencing of offenders Appeal increased Kieran Loveridge’s jail sentence
for the manslaughter of Thomas Kelly to a minimum
Initial sentencing of Kieran Loveridge of 10 years and six months, with a non-parole period
Kieran Loveridge was charged with the murder of of seven years. Sentences for the other assaults
Thomas Kelly. In June 2013, prosecutors downgraded were also increased, leading to a total non-parole
the charge to manslaughter. Loveridge pleaded period of 10 years and two months – nearly twice the 15
guilty to this charge and was sentenced to six years’ original non-parole period.
imprisonment in November 2013, with a non-parole
period of four years. He was also sentenced to Sentencing of Shaun McNeil
one year and two months’ imprisonment for the In June 2015, Shaun McNeil, who had delivered
other assaults on the night. Therefore, Loveridge the fatal punch to Daniel Christie, was found
was sentenced to a total imprisonment term of guilty of manslaughter in the New South Wales
seven years and two months, with an effective Supreme Court. He was sentenced to 10 years’
non-parole period of five years and two months. imprisonment.
Kieran Loveridge sentence for killing of Thomas Kelly doubled on appeal

By Paul Bibby
Sydney Morning Herald
4 July 2014
It was understandable that in the moments after the jail sentence given to Sydney youth Kieran
Loveridge was doubled, the family of his victim, Thomas Kelly, were focused on their lost loved one
rather than the broader significance of the decision.
As Stuart Kelly, 16, so eloquently put it, ‘I no longer have a brother, instead I have a hole in my life,
and that’s something I’m meant to accept.’
But perhaps as the Kelly family mark the second anniversary of the 18-year-old’s death over the next
few days, they might quietly reflect on the latest twist in what has been a very public case as well as
a personal tragedy.
The original sentence of five years and two months given to Loveridge for the string of attacks he
conducted in Kings Cross two years ago – including the savage blow that killed Thomas – set off a
dramatic chain of events.
Within three months, the then O’Farrell government bowed to public pressure and implemented
strict mandatory sentencing laws for violent offences fuelled by alcohol.

News (continued)
On Friday, the New South Wales Court of Criminal Appeal resentenced Loveridge to a minimum of
10 years, two months’ jail for the night of violence. This included increasing the minimum sentence
for the manslaughter offence from four to seven years.
Would the mandatory sentencing laws have been imposed if Loveridge had been sentenced to a
decade in jail by Justice Stephen Campbell in the first place?
The Director of Public Prosecutions and the Attorney-General had originally sought a guideline
judgement rather than mandatory sentencing laws, and the latter was understood to have opposed
them strongly.
A guideline judgement would have offered courts across the state a clearer path when sentencing
offenders in ‘one-punch’ manslaughter cases and, if Friday’s judgement is anything to go by, it may
well have indicated that tougher penalties were appropriate.
The three-judge appeal panel led by Chief Justice Tom Bathurst found that the previous sentence
had been ‘manifestly inadequate’.
It upheld all seven of the appeal grounds put forward by the Crown, most crucially that sentencing
judge Stephen Campbell failed to properly consider the need for general deterrence.
‘The use of lethal force against a vulnerable, unsuspecting and innocent victim on a public street in
the course of alcohol-fuelled aggression … called for express and demonstrable application of the
element of general deterrence as a powerful factor on sentence in this case’, their honours said in
their reasons for judgement.
Some have read the judgement as an attempt by the court to send as clear a message as possible
about the issue of alcohol-fuelled violence within the confines of the new laws.
Given the limitations of the new mandatory sentencing laws – such as the need to prove intoxication
through a breath or urine test – it may in fact have a greater practical impact.
But such considerations were far from the Kellys’ minds on Friday.
‘I miss all the things that brothers do together – throwing a ball, laughing, joking, playing’, Stuart
Kelly said.
‘I can tell you firsthand that to experience this kind of pain at such a young age is just … it’s just
too hard.’
Figure 15.4 The Kelly family speaks out: Thomas Kelly’s mother, Kathy, outside court after his killer’s sentence was doubled.
548
Review 15.3
1 Outline the events that lead to the introduction of ‘one-punch’ mandatory sentencing. There
have been criticisms of this law for treating alcohol abuse as a legal issue and not a social issue.
Assess if you agree or disagree with these criticisms and justify your response.
2 Shaun McNeil petitioned the court for a judge-only trial. He failed in this bid. Deduce the
reasons why McNeil did not want a jury hearing his case (remembering that the media had
highly publicised the issue of ‘coward’s punches’).
3 Read the news article, ‘Kieran Loveridge sentence for killing of Thomas Kelly doubled on
appeal’, and then respond to the following questions:
a Identify in what ways this has been a public case.
b Outline what a ‘guideline judgment’ is and if this occurred in the original court case.
c Identify who changed Loveridge’s sentence and the reasons the sentence was changed.
15
Research 15.2
The case notes for the trials of both Shaun McNeil and Kieran Loveridge are available on the
NSW Caselaw website (search the site for the defendant’s names). Choose one of the cases and
write a summary of the judge’s reason for imposing the sentence.
Barry Lyttle case reading meant that he was not charged under the
In 2015, the one-punch legislation was severely one-punch legislation but instead with recklessly
tested by the Barry Lyttle case. This case also caused causing grievous bodily harm.
the public to question their perception of the people The media continued to report on the case,
who deliver a ‘coward’s punch’. and the coverage highlighted the closeness of the
In the early hours of 3 January 2015, Irish tourists, brothers whose mother had died of cancer in 2008.
Barry Lyttle and his younger brother Patrick Lyttle, The media reported that Barry Lyttle had travelled
were on a night out in Kings Cross. The brothers got to Australia with their father to reunite with Patrick
into an argument with each other and Patrick shoved who had been travelling around Australia. While
Barry, who retaliated by punching his brother in the Patrick lay unconscious in hospital, Barry, under his
face. Patrick fell to the ground, knocked his head bail conditions, was not allowed to visit his brother.
and sustained severe injuries. Patrick was taken to Thankfully, Patrick recovered and Barry was allowed
hospital and Barry was arrested. to visit him as he recuperated.
The case was covered by the media but, unlike Barry Lyttle was sentenced to a 13-month
previous cases, it evoked public sympathy, rather suspended sentence in the Downing Centre Local
than outrage. This was because Patrick had not Court on 24 April 2015. Barry’s remorse and CCTV
been injured in a random attack and the violence evidence showing that Patrick had incited his brother
was not fuelled by alcohol: Barry had only a low underpinned the magistrate’s decision. The brothers
blood-alcohol concentration. Barry’s low alcohol and their father returned to Northern Ireland.
Review 15.4
1 Discuss the ways the Barry Lyttle case:

a tested the new legislation
b tested the public’s perception of perpetrators of ‘coward’s punches’.
2 Identify why Barry Lyttle was not charged under the new legislation. Discuss if you think that
this is fair and justify your response.
3 Outline the penalty incurred by Barry Lyttle.
549
15.3 Non-legal responses The DrinkWise website also provides information

about alcohol-related topics, such as alcohol’s
Government initiatives effect on unborn babies, and how parents can
One non-legal way to deal with alcohol-based role-model sensible alcohol consumption.
crimes is to change people’s attitude to alcohol.
In Australian culture, having a good time is The work of community
strongly associated with drinking alcohol. The organisations
NSW Government has targeted attitudes to Various community organisations provide education
drinking, especially excessive drinking, by running about the dangers of drug and alcohol abuse and
various media campaigns: help those affected by drug and alcohol abuse. In
• ‘Know when to say when’ (2011) New South Wales, these organisations include:
• ‘Cleaning up the Cross’ (2012) • Ted Noffs Foundation
• ‘What are you doing to yourself?’ (2012–2013 • The Salvation Army
summer) • Alcoholics Anonymous
• ‘Stop before it gets ugly’ (2013). • Lifeline
• ReachOut Australia
However, despite such campaigns, attitudes to • Thomas Kelly Youth Foundation.
alcohol remain an issue. In 2017, the Australian
Government called for submissions to a new National The Thomas Kelly Youth Foundation was set up in
Alcohol Strategy 2018–2026. In December 2018, the 2012 by Thomas Kelly’s parents. The organisation’s
draft strategy was released for public consultation. aim is to curb alcohol-fuelled violence so that families
At the time of writing, the finalised strategy is yet to don’t have to suffer the same loss as the Kelly family.
be released. The organisation provids StaySafe areas that act as
time-out places for vulnerable people with an aim of
The alcohol industry’s response getting them safely home. The organisation’s website
The alcohol industry has taken steps towards highlights both responsible and irresponsible acts
curbing binge drinking. Although businesses in by the alcohol industry.
the alcohol industry (e.g. licensed premises and On a national level, the Foundation for Alcohol
alcohol retailers) benefit financially from alcohol Research and Education is an independent,
sales, the industry’s reputation suffers when the not-for-profit organisation working to stop the harm
spotlight falls on them in a negative way and this caused by alcohol. This organisation carries out
affects their profits. Thus, it is to the industry’s research into alcohol-related issues and carries out
advantage to monitor and discourage excessive campaigns to address these issues.
drinking. In fact, under liquor licencing laws,
if alcohol is not served responsibly, penalties Changing violence terminology
are imposed. The terminology used to describe violence has
In 2005, DrinkWise Australia was established by changed as the media focused on the deaths
the alcohol industry. DrinkWise is a social change of Daniel Christie and Thomas Kelly. What was
organisation created to try to bring about a healthier widely known as a ‘king hit’ is now being called a
and safer drinking culture in Australia. The ‘coward’s punch’. Daniel Christie’s parents assisted
DrinkWise website lists the organisation’s aims: in the introduction of the new term by saying that
• to promote a generational change in the way they found the expression ‘coward’s punch’ a more
Australians consume alcohol appropriate way to describe what was done to their
• to increase the age that young Australians are son. The O’Farrell government further changed
introduced to alcohol, as evidence has shown the terminology used to discuss violence by talking
that alcohol can affect the development of the about ‘one-punch laws’ – an expression first coined
adolescent brain. in Western Australia.

15
Figure 15.5 Changing the name of a ‘king hit’ to ‘coward’s punch’ is intended to shame offenders.
Push to refer to king hit attacks as ‘coward’s punches’ after teen left in coma
ABC News
3 January 2014
The NSW Government has backed calls for king hit attacks to instead be referred to as ‘coward’s
punches’.
It comes after the family of Daniel Christie released a statement expressing gratitude for the
support of doctors, police and the general public.
‘We don’t agree with the popular term king hit’, the family statement reads.
‘We have heard it referred to as a “coward’s punch”, which seems to be more appropriate.
‘We have all been affected so much by this tragedy and our clear focus remains with our son and
brother through this difficult time.’
State Police Minister Mike Gallacher says he agrees about the use of the term ‘coward’s punch’.
‘The only people that wouldn’t embrace this would be cowards that would punch people
indiscriminately in such a way’, he said.

News (continued)
‘The entire community has got to do this.
‘This has got to be called for what it is.
‘It’s a coward, gutless punch, and that’s exactly what it’s got to be called from this moment on.’
Mr Gallacher says it could help embarrass and shame attackers.
‘As long as they are shamed when they hit somebody, irrespective of whether they cause significant
damage as they’ve done with Daniel and they’ve done with others, or indeed just indiscriminately
hitting people on the side of the road, this will be something that I think will remain with them for
the rest of their lives’, he said.
Review 15.5
1 Describe how the NSW Government has tried to change the public’s attitude to alcohol
consumption.
2 Identify how the alcohol industry has responded to binge drinking. Discuss the industry’s
motivation for responding in this way.
3 Outline the way community organisations have tried to deal with the issue of alcohol
consumption.
4 The terminology used to describe violence has changed. One reason for this change is to shame
perpetrators. Assess how successful this has been and justify your response.
15.4 Effectiveness of responses respectively). Assaults in surrounding suburbs – and

in a number of identified popular nightspots within
BOCSAR report, April 2015 easy reach of the areas affected by lockout laws –
The NSW Bureau of Crime Statistics and Research had decreased initially but had since increased
(BOCSAR) (a NSW Government authority) conducted (11.8% in the suburbs, 16.7% in the other nightspots).
an evaluation of the responses to alcohol-fuelled However, Dr Weatherburn pointed out the decline
violence and released a report in April 2015. This in assaults in Kings Cross and Sydney’s CBD was
evaluation found that the lockout laws and associated ‘still much larger than the increase in assaults in the
campaign had positive results in the Kings Cross displacement areas’.
precinct, with assaults down by 32% in the short term. BOCSAR’s evaluation of the lockout laws did find
In Sydney’s CBD, assaults dropped by 26%. However, that there had been a small increase in violence in
as Bureau director Dr Don Weatherburn asked, are Pyrmont, Redfern and Surry Hills (areas that were not
these results due to a reduction in alcohol consumption covered by the lockout laws), which could suggest
or a decrease in the number of people visiting the areas that these areas had become alternatives for people
(because of media coverage and new laws)? looking for a big night out. In addition, the media has
highlighted that Newtown, an inner-Sydney suburb
BOCSAR report, March 2016 with many bars and hotels, has been experiencing
A follow-up BOCSAR report released in March 2017 greater violence on Friday and Saturday nights.
found that assaults in Kings Cross and Sydney’s Business proprietors and local residents have
CBD had continued to decrease (48.7% and 12.6%, blamed this on the lockout laws, complaining that

TABLE 15.1 Change in non-domestic assaults after the introduction of the lockout laws,
January 2009 to March 2019
Areas % change Volume change
Kings Cross precinct Down 52.8% 1021 fewer assaults
Sydney CBD entertainment precinct Down 4.0% 329 fewer assaults
Proximal displacement area* Up 18.4% 479 more assaults
Distal displacement area** Up 30% 476 more assaults
* Locations bordering the lockout area include parts of the following suburbs: Pyrmont (including the Star City Casino), Ultimo,
Chippendale, Haymarket, Surry Hills, Elizabeth Bay, Rushcutters Bay and Darlinghurst.
** Alternative entertainment areas that are close to the lockout areas include Bondi Beach, Coogee, Double Bay and Newtown.
The full report, The Effect of Lockout and Lastddrinks Laws on Non-domestic Assaults in Sydney: An Update to March 2019
more people are coming to the area, arriving after the owners blame the liquor licensing reforms for this.
15
midnight, and are a different clientele to the people However, café owners in the area have said that their
who visited the area in the past. business has increased as people who are unable to
gain access to bars instead go for a coffee. The cafés
BOCSAR data, 2019 are also having more customers during the day as the
The longer-term effects of the lockout law can be area’s reputation improves. The local council has been
seen in Table 15.1; the data in this table was released working with local businesses to create entertainment
by BOCSAR in 2019. areas and events that are community friendly.
Effect of lockout laws on local The future

businesses In an article in The Sydney Morning Herald (6 January
Since the introduction of the lockout laws, several bars 2014), Professor Rod McClure, the director of the
and hotels in the Kings Cross area have closed and Monash Injury Research Institute, commented that,
Figure 15.6 City of Sydney Councillor, Jess Scully, speaks about revoking the lockout laws at a Keep Sydney Open
march on 9 October 2016. Keep Sydney Open calls for the lifting of the 1:30 am lockout, allowing exemptions to the
3:00 am cease of service time, reverting the 10 pm takeaway cut-off to midnight and removing the freeze on liquor
license applications in inner-city entertainment districts.

‘all it takes is the community as a whole saying that sports teams are sponsored by manufacturers and
“enough is enough” and committing to a long-term retailers of alcohol, it seems that changing the
strategic introduction of public safety programs cultural attitudes of Australians will not be an easy
based on safer public environments, safer alcohol task for any government or group.
use and safer public behaviour, all regulated by As discussed earlier in this chapter, the lockout
legislation that is rigorously enforced.’ laws have been under scrutiny with calls to relax
Professor McClure’s opinion is one that many – them. A lot of debate has occurred over this issue
including the government, the medical community, with different groups having different opinions. It is
law-makers, police and community groups – agree recommended that students carry out research to
with. However, as every week someone in the public keep up with this topic.
eye seems to disgrace themselves due to ‘drinking
too much’ and many music events and professional
Review 15.6
1 Evaluate the success of the lockout laws. Discuss whether these laws should apply to other
entertainment destinations.
2 Identify what Professor McClure says is needed to successfully curb alcohol-related violence.
Assess if this is achievable in the near future and justify your response.
Research 15.3
1 Carry out research online to find a case of a person who has been convicted under the
‘one-punch law’. Summarise the case.
2 View the DrinkWise website and describe two of the organisation’s current initiatives, or
campaigns or programs.
3 Visit the website of the Foundation for Alcohol Research and Education and describe the work
carried out by this organisation.

Chapter summary
• Alcohol-related violence has been a problem • To date, the response has been largely
in society for many years. In 2012 and 2013, the successful with a decline in assaults in the
deaths of two young men who were each ‘king designated areas.
hit’ in alcohol-fuelled random attacks caused • Non-legal responses have included
public outrage and calls to address the issue. government advertising campaigns targeting
• The NSW Government in a ‘whole of binge drinking. Community groups provide
government response’ brought about a raft counselling for those people with alcohol-
of changes, which involved amending liquor related problems, and provide safe places for
licences, providing better transport links those affected by alcohol.
and greater policing, and generally trying • Community attitudes towards drinking remain
to make the Kings Cross and Sydney CBD an issue and need a long-term committed
entertainment precincts safer. approach to create change.
• These changes also included providing
tougher penalties for those who inflict violence
15
and those who inflict violence while under the
influence of alcohol.
Questions
1 What is a ‘king hit’? c no new customers were allowed into a
a a one-hit punch that catches the victim venue after 3 am and no alcohol was served
unawares after 1:30 am
b a really big punch d no new customers were allowed into a
c a punch that occurs in Kings Cross venue after 3 am and no alcohol was served
d a punch that makes the victim see stars after 3 am
2 Which of the following are non-legal 4 Why was Barry Lyttle not charged under the
responses to the issue of alcohol-fuelled ‘one-punch’ legislation?
violence? a He was charged before the new legislation
a liquor licensing reforms in conjunction with was enacted.
actions taken by the alcohol industry b He had no alcohol in his system.
b lockout laws in conjunction with actions c You can’t be charged for punching
taken by the alcohol industry a family member.
c alcohol counselling from the Salvation d He was under the prescribed blood-alcohol
Army in conjunction with actions taken by concentration limit.
the alcohol industry 5 What is the official name of the one-punch
d liquor licensing reforms and alcohol legislation?
counselling in conjunction with actions a Crimes and Other Legislation Amendment
taken by the alcohol industry (Cowards Punch) Act 2014 (NSW)
3 What restrictions were involved in the lockout b Crimes and Other Legislation Amendment
laws? (Assault and Intoxication) Act 2014 (NSW)
a no new customers were allowed into a c Crimes Amendment (One Punch) Act
venue after 1:30 am and no alcohol was (NSW)
served after 3 am d Crimes Amendment (Intoxication in Kings
b a person under the influence of alcohol Cross) Act (NSW)
could volunteer to not be allowed into
a venue

1 Identify the different laws that apply to the 5 Discuss how the lockout laws did and did not
Kings Cross precinct. Determine whether or meet the needs of the individual.
not these laws apply to all licensed premises. 6 Analyse the reasons why the alcohol industry
2 Account for why the NSW Government is involved in safe-drinking educational
wanted to introduce more small bars into the campaigns.
Kings Cross area. 7 Evaluate how effective non-legal responses
3 Describe the lockout laws and discuss why can be in dealing with the issue of alcohol-
they were controversial. fuelled violence.
4 Outline how the terminology used to describe
violence has changed.
Evaluate the effectiveness of the law in dealing Marking criteria for extended-response questions
with the issue of alcohol-fuelled violence in can be found on the Cambridge GO website.
regards to protecting individuals’ rights and Refer to these criteria when planning and writing
meeting society’s needs. your response.

Issue 3
in conflict with
the state
Outlaw motorcycle gangs
Chapter objectives
• explore the background and issues related to organised crime and outlaw motorcycle gangs (OMCGs)
in Australia
• identify and apply legal concepts and terminology relating to OMCGs and the law
• investigate the legal system’s ability to address issues relating to OMCGs
• explore the different possible approaches of the legal system to organised crime and OMCGs
• discuss the legal issues that these approaches will create
• describe the legal and non-legal responses to OMCGs
• explore the different legal approaches adopted by federal and state legal systems in relation to OMCGs
• evaluate the effectiveness of legal and non-legal responses in achieving justice in relation to OMCGs in
conflict with the state and the public.

Relevant law
Restricted Premises Act 1943 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Proceeds of Crime Act 2002 (Cth)Crimes Legislation Amendment (Gangs) Act 2006 (NSW)
Serious and Organised Crime (Control) Act 2008 (SA)
Criminal Organisation Act 2009 (Qld)
Crimes (Criminal Organisations Control) Act 2009 (NSW) (repealed)
Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth)
Crimes Amendment (Consorting and Organised Crime) Act 2012 (NSW) (repealed)
Crimes (Criminal Organisations Control) Act 2012 (NSW)
Criminal Law (Criminal Organisations Disruption) and Other Legislation Amendment Act 2013 (Qld)
Tattoo Parlours Act 2013 (Qld)
Vicious Lawless Association Disestablishment Act 2013 (Qld)
Bail Amendment Act 2014 (NSW)
Statutes Amendment (Serious and Organised Crime) Act 2015 (SA)
SIGNIFICANT CASES
The Milperra Massacre Trials
South Australia v Totani [2010] HCA 39
Wainohu v NSW [2011] HCA 24
R v Hawi [2012] NSWSC 332
R v Hawi [2014] NSWSC 837

18.1 O
utlaw motorcycle gangs outlaw motorcycle gangs
in Australia organisations whose members use the structure of a
motorcycle club as a front for criminal activity
Members of outlaw motorcycle gangs (OMCGs) in
Australia have been, and continue to be, involved in As a result of the legislation, Hawi was released on
incidents that draw the attention of the media, law bail, in the midst of a public outcry. The community
enforcement bodies and legislators across Australia. protested on the grounds that convicted murderers
In March 2009, 29-year-old Anthony Zervas was killed were a danger to the community if not behind bars.
at Sydney Airport, the result of a brutal bashing. The In 2015, despite being granted bail, Hawi was re-
incident involved an attack by members of the Sydney- sent to jail for three years for the manslaughter of
based Comanchero motorcycle club against members Zervas with the judge commenting that Hawi had
of the widely known Hells Angels club. The man killed shown remorse towards the death of Zervas and
was returning to Sydney from a party in Melbourne was capable of being rehabilitated. Members of a
with his brother and a friend, both of whom were Hells rival gang shot Hawi dead in February 2018 in an
Angels members. Zervas was brutally bashed with a apparent revenge attack. Three men are currently
metal bollard and stabbed several times in the chest on bail with a surety of over $1 million; they face
and abdomen. In 2011, Mahmoud ‘Mick’ Hawi was trial in July 2020.
sentenced to 28 years’ jail for the murder of Zervas. The The ongoing incidents dating over 10 years
sentencing judge stated that Hawi displayed ‘flagrant continues to fuel public debate about the danger
disregard’ towards law and for the memories of so of crime associated with outlaw motorcycle gangs
many innocent bystanders, forced to witness the brutal in Australia, and potential for all-out war between
incident. However, in 2014, Hawi was released from members of rival motorcycle gangs; in particular,
jail and granted a retrial under the Bail Amendment drive-by shootings, manufacture and distribution
Act 2014 (NSW). The appeal court judge stated that it of the drug ‘ice’ and the illegal use of firearms.
could not be established beyond reasonable doubt that Many states of Australia have made amendments
Hawi was solely responsible for the death of Zervas. to legislation seeking to ban OMCGs from existing
The court upheld Hawi’s appeal and allowed him to and reducing their presence and profile in public
plead to the lesser charge of manslaughter. places.
Figure 18.1 OMCGs are still an issue in Australia.

Chapter 18 (Digital-only chapter) Outlaw motorcycle gangs
In 2009, the Australian Crime Commission, a Organised crime has a long history worldwide.
federal statutory body, now known as the Australian Throughout history pirates, highwaymen and
Criminal Intelligence Commission (ACIC), which bandits have attacked trade routes and roads to steal
investigates and combats serious crime, OMCGs and profit from the goods being transported. Many
represent a ‘real and present danger to the people are familiar, for example, with the stories
Australian community’. of the Kelly Gang in nineteenth-century Australia.
Today, the ACIC estimates that there are over Smuggling and organised drug-trafficking rings are
40 active OMCGs in Australia, with approximately also common in many countries. Some of the current
6000 ‘patched’ members, and with strong and criminal organisations in Italy and Japan can be
complex criminal networks that operate in many traced back over many centuries.
illicit markets throughout Australia. Reports suggest Today, organised criminal groups operate in
that the groups’ main areas of criminal operations various areas of illegal business. The most common
are manufacturing and distributing illicit drugs, of these are:
money laundering and extortion. • drug manufacture and distribution
• extortion and money laundering
money laundering • prostitution
disguising money obtained from illegal activities to make it
appear legal • people smuggling
• environmental crimes such as the dumping of
extortion
obtaining money or property from a person or group by toxic waste
force, intimidation or illegal power • counterfeiting of money
• digital piracy
OMCGs are not specific to Australia but are present • illegal bookmaking and gambling.
in many countries around the world. Some of the
best-known OMCGs internationally include the digital piracy
Hells Angels and the Bandidos. Some 19 groups are
unauthorised reproduction and distribution of digital music,
software, videos or other material, often for profit
18
estimated to operate in New South Wales alone; some
bookmaking
of the most well-known include the Comancheros, the activity of calculating odds on sporting and other events
the Finks, the Rebels and the Gypsy Jokers. and taking bets
This chapter investigates some of the issues
relating to OMCGs and organised crime in general, OMCGs have been identified in Australia as operating
and discusses some of the complex legal mechanisms in some of the areas of organised crime listed above.
that have attempted to deal with the issues. However, it is important to note that simply belonging
to, participating in or associating with one of these
Organised crime groups does not necessarily mean that a person
has committed any crime. It may only be a small
Organised crime can be defined as illegal activities
number of individuals in such a group, rather than
organised by groups of criminals, most commonly for
the organisation as a whole, who are involved in
the purpose of generating financial profit. The most
any illegal activities. There is a serious danger that
well-known organised crime groups in existence today
all members might be ‘tarred with the same brush’
are the Mafia (Sicily, Italy and the United States), the
without justification or fair process. With motorcycle
Japanese Yakuza and the Mexican drug cartels. The
gangs, in particular, this can be a significant problem:
Mafia has been popularised in television shows like The
simply being a member of one of the many legitimate
Sopranos and movies like The Godfather. In Australia,
motorcycle gangs may arouse unfounded suspicion
television series such as Underbelly and Bikie Wars
from the public, or even the police, that an individual
recounted the gangland wars in Melbourne in the 1990s
is involved in some kind of wrongdoing.
and the Milperra (bikie) massacre in 1984 in Sydney.
organised crime Motorcycle clubs

illegal activities organised by criminal groups or enterprises, Motorcycle clubs are not new. The first motorcycle
most commonly for the purpose of generating financial profit
was invented in 1885 in Stuttgart, Germany and

motorcycles were commercially available by 1894. Outlaw motorcycle gangs

One of the oldest motorcycle clubs, the Yonkers OMCGs represent only a very small percentage of
Motorcycle Club, was founded in Yonkers, New York motorcycle groups. Some OMCGs have a long history,
in 1903. with one of the largest international clubs, the Hells
There is nothing inherently wrong or criminal Angels, first formed in 1948 in Fontana, California.
about belonging to a motorcycle club. Many OMCGs began to emerge in Australia in the 1960s
people join motorcycle clubs to share a common and spread quickly across all states, with New South
interest in motorcycles, or for recreational riding or Wales now home to the greatest number of clubs
competition, and members of clubs come from all and club branches, known as chapters. The largest
walks of life. gang in Australia is believed to be the Rebels, with
Today, the largest motorcycling organisation an estimated 2000 members.
worldwide is the American Motorcyclist Association
(AMA), which was founded in 1924. It represents chapter
people with an interest in motorcycling – or as a local branch of a motorcycle club
described by the AMA, ‘freedom on two wheels’.
The AMA currently claims to have close to The history of OMCGs is different from that of
300 000 members and promotes various motorcycling mainstream motorcycling clubs, and their roots can
events in the United States and around the world. be traced back to the late 1940s, following the end
The AMA also acts as an advocate for motorcyclists of World War II. A number of motorcycling clubs
before governments, local and international law- began to emerge in the United States when service
makers, and the public. members returned from the war. They formed clubs
There are hundreds of motorcycling to mix with other returned service members, to share
organisations in Australia. Clubs in New South their interest in popular motorcycling, and possibly
Wales include the Ulysses Club, the Ambassadors to escape the routine of returning to full-time work.
and the Vietnam Veterans. The organisational One of the first criminal incidents attributed to
structures of clubs vary, but they often have OMCGs was on 4 July 1947, US Independence Day,
elected officers and directors, annual fees and a when the AMA sponsored a series of motorcycle
regular publication. The clubs often sponsor social races in the small town of Hollister, California. One
events and organise recreational or competition of the motorcycle groups involved was reported
rallies. One of the biggest motorcycling events in to have initiated drag racing on the main streets
Australia is the Australian Motorcycle Grand Prix, of town, as well as drunken brawling. When one
an international event held annually on Phillip rider was arrested and locked in a police cell, an
Island in Victoria. estimated 750 riders challenged the local seven-
Legal Links
• View the website of the Motorcycle Riders Association of Australia, a non-profit organisation
founded in 1978. It aims to promote fair and sensible laws, road safety and a better image for
Australian motorcyclists.
• View the website of the American Motorcyclist Association (AMA). The AMA promotes the
interests of motorcyclists generally and organises various motorcycling events.
• View the website of the Australian Motorcycle Grand Prix.


Review 18.1
1 Identify what outlaw motorcycle gangs are and how widespread are they in Australia.
2 Describe what organised crime is and how it relates to OMCGs.
3 Explain the difference between OMCGs and everyday motorcycle clubs using an example such
as the Mick Hawi case.
man police force to release their friend. The event patch

became known as the Hollister riots. In a now a symbol or club logo attached to the back of a motorcycle
club member’s vest
famous statement, an AMA spokesperson clarified
that it was only ‘1%’ of the riders who had caused colours
a motorcycle club’s standard vest showing the club’s
the trouble that weekend, and that the other 99% patches on the back as a mark of identification
were law-abiding citizens. This distinction between
‘1%’ and ‘99%’ is still used by OMCG commentators
today, and ‘1%’ is sometimes even used by OMCG Structure
members themselves as a mark of their identity. It
The structure of an OMCG is often another important
18
represents 1% of bikies who operate outside the law.
factor for the law in identifying the group and its
levels of membership under the defined legal terms
Identity
for such organisations. The history and organisation
Identity is important to OMCGs. Many motorcycle
of one such club, the Hells Angels, is discussed in
clubs, both mainstream clubs and OMCGs, have
the following Case Study.
unique club patches on the back of their members’
vests. These patches feature the club’s logo, name Figure 18.2 On 6 June 2017, the Fort Worth president of
the Bandido motorcycle gang, Howard Wayne Baker,
and often the initials ‘MC’ (motorcycle club), together
was sentenced to 45 years’ imprisonment for murdering a
with the club’s local branch or chapter. These
rival gang member.
patches form what is known as the club’s colours.
For OMCGs, the club’s colours are very important
to both the club and its members. Sometimes, for
a member to earn the club’s patch, the club might
require a vote and a swearing of allegiance to the
club, or the performance of tasks. A member losing
their colours, for example, to the police or a rival
gang, might result in some form of penalty or even
expulsion from the club. Some OMCGs even have
an additional patch with ‘1%’, to clearly distinguish
themselves from the norms and values of mainstream
clubs; other patches include symbols such as a skull
and crossbones. The colours also act as a crucial
identifier for law enforcement agencies seeking to
prove OMCG involvement.

Research 18.1
View the website of the Australian Hells Angels and evaluate the content of the website.
1 Identify if there are any references to criminal activity on the website.
2 Determine what attitudes are conveyed by the photographs in the website’s photo galleries.
Case Study
The Hells Angels

The Hells Angels Motorcycle Club started in Fontana, California, in 1948. Initially, it attracted
soldiers returning from World War II, and later from the Vietnam War. The name ‘Hells Angels’ had
been used by several US air-fighting squadrons during both World War I and II.
The fact that many of the club’s founding members came from military backgrounds influenced
the structure of the club and formed the basis of the military-style hierarchy and notions of territory
or ‘turf’ that still exist today.
Over time, the Hells Angels grew from a small club in California to an international organisation
with approximately 189 chapters in 22 countries.
An article published by Neal Hall in The Vancouver Sun in 2005 provided insight into the
hierarchy of the Hells Angels Club and the social structure of its individual chapters. In his article,
Hall cited the expert opinion of Sergeant Jacques Lemieux, an Ottawa-based expert on the Hells
Angels.
According to Lemieux, each chapter holds weekly meetings known as ‘church’. The president is
the absolute leader, and makes key decisions about the chapter’s activities. If he is absent, a vice-
president replaces the president.
The sergeant-at-arms is responsible for the behaviour of members at meetings and special
events such as funerals.
The secretary-treasurer controls the finances, with duties such as collecting fees and paying club
expenses, and may sometimes act as an intelligence gatherer if operations by police are pending.
The road captain organises and navigates mandatory bike rides, including rest stops for food
and petrol.
It is believed that there is a code of conduct governed by the sergeant-at-arms, which may differ
slightly from chapter to chapter. The code of conduct lays down three major rules that apply to all
members:
•• no sexual assault
•• no use of heroin Figure 18.3 Tourists wearing ‘Hells Angels, Indiana’
•• no ‘burning’ of drug deals (that is, attempting jackets look through the gates of Buckingham Palace
in London, UK.
to ‘rip off’ a buyer or seller).
In Australia, the official Hells Angels website

displays a range of activities based around the
riding of motorcycles with prizes and giveaways.
It features notices of events, email contacts
and photo galleries. It does not list any rules for
club members.

OMCGs and organised crime and construction, may be involved with outlaw
As mentioned previously, according to the Australian motorcycle gangs.
Criminal Intelligence Commission, OMCGs present One of the most important Australian cases in
a visible threat of complex and highly functional which OMCGs received widespread media exposure
criminal networks. Although estimates vary, the cost for violent criminal activity was also one of the
of OMCG activities has been estimated at around largest criminal court cases in Australian history.
$2.2 billion per annum. The incidents occurred in a Sydney suburb in 1984,
They are reputed to be involved in: in what became known as the ‘Milperra massacre’
• the manufacture and distribution of (see the ‘In Court’ box, below).
illegal drugs Since the Milperra massacre, there have been
• money laundering and extortion many public and violent incidents involving OMCGs
• trade in illegal firearms across Australia.
• trade in stolen goods Since 2012, reports by the NSW Bureau of
• violent crimes and motor vehicle offences. Crime Statistics and Research (BOCSAR) found
a 40% increase in the rate of ‘discharge weapon
On the other hand, OMCG members claim that their into premises’, or more commonly known as ‘drive-
clubs are legitimate motorcycle organisations and by shootings’, from 2010 (71 shootings) to 2011
not used as fronts for organised crime, as claimed (100 shootings). The BOCSAR director, Dr Don
by law enforcement agencies. Outwardly, legitimate Weatherburn, said this was one of the state’s most
businesses, such as entertainment, private serious crime trends, and a matter of concern.
security, finance, transport, natural resources Another category of crime recorded in BOCSAR
In Court
18
The Milperra massacre trials
The Milperra massacre court case was one of the largest criminal trials held in Australia: 43 people
were charged with seven counts of murder.
The Milperra massacre took place on 2 September 1984 in the Sydney suburb of Milperra. It
involved two rival gangs, the Bandidos and the Comancheros. The main source of the conflict was
the animosity between Anthony ‘Snoddy’ Spencer (who had left the Comancheros to become a
Bandido leader) and William ‘Jock’ Ross (the president of the Comancheros). The Comancheros,
Bandidos and other outlaw gangs were competing to control the manufacture and supply of
amphetamines (speed), as well as the cocaine trade.
The heavily armed gangs clashed in the car park of the Viking Tavern in Milperra during a
motorcycle swap meet. During the resulting violence, there was a murderous shoot-out that killed
four Comancheros, two Bandidos, and a 14-year-old girl who was caught in the crossfire. More than
20 other people were wounded.
The judge in the case, Justice Adrian Roden of the New South Wales Supreme Court, named
Ross as the ‘supreme commander’ of the Comancheros, and said that he had instigated the
violence by making the decision that his club members would go in force and armed to Milperra.
Ross was given a life sentence for his part in the massacre, but served only five years and
seven months. Life sentences were also given to seven other Comancheros. Sixteen Bandidos were
convicted of manslaughter and served 14 years each. No ‘bikie’ testified in the case and many of the
details of the Milperra massacre are unknown to this day.
Due to the massacre, amendments were made to the Firearms and Dangerous Weapons Act 1973
(NSW), including the introduction of a new licensing firearms regime. (The legislation currently in
force in New South Wales is the Firearms Act 1996 (NSW).)

Figure 18.4 The Milperra massacre occurred on 2 September 1984.
statistics is ‘unlawfully discharge firearm’, which groups into larger and more powerful organisations
is often associated with bikie gang behaviour. The controlling criminal operations in Australia.
rate of this crime has also significantly increased As an issue of public and political concern in all
from 2010 to 2012. These incidences may be traced Australian jurisdictions, OMCGs have received much
to the events at Sydney airport in 2009. This is further attention from law-makers. Some of the attempts by
evidenced by a significant decline by 2019 in which law-makers and members of the public to address
both categories had reduced by over 50%. the problems, and some of the implications of
The above statistics illustrate only the public, those attempts, are discussed in more detail in the
violent face of some OMCG activities. The black next section.
market criminal activities of OMCG-related business, The legislative responses to these violent OMCG-
such as the trade in illegal drugs or firearms or related incidents have been unprecedented, largely
illegal financial activities like money laundering and because of the amount of media attention and public
extortion, are often not as well known to the public. concern the incidents raised.
However, reports from Australia’s intelligence One of the main difficulties is that OMCG activities
agencies suggest that crime associated with OMCGs are a nationwide problem, but the problems often
is on the rise, and that OMCGs are moving into occur and are dealt with on a state-wide basis. Each
the maritime and security industries. OMCGs are of the different jurisdictions in Australia has elected
becoming more sophisticated. As with legitimate to address the issue in different ways. In addition to
business, the competition for profit and territory can the legal responses, the approach to OMCGs around
result in friction and rivalry, and the reports suggest the country has been affected by the reactions of
that there may be a consolidation of the smaller interest groups and the public.

Review 18.2
1 Recall how OMCGs developed and their history.

2 Outline some of the characteristics of OMCGs and their structure.
3 Outline some of the recent cases involving OMCGs and the issues they present.
18.2 Legal responses One of the biggest issues is that widespread

nature of OMCG criminal activities means
There are three types of legal responses:
prosecuting for individual crimes can seem an
• passing laws that mean individuals can be
inadequate way of dealing with the problem. Each
prosecuted for particular crimes such as money
individual crime requires time-consuming and
laundering, drug offences or assault
resource-intensive police work. Gathering the
• establishing police task forces or increasing
evidence to convict OMCG members can be very
police powers to collect intelligence and target
difficult, as club members tend to have a ‘code of
the activities of OMCGs
silence’, while victims and others associated with
• passing laws with the intention of criminalising
the clubs may be afraid of speaking out.
the clubs themselves or participation in them.
Convicting the relatively small proportion of
individual members who can be proven to have
The implications of these different approaches are
committed crimes does not have much effect on the
subject to intense debate by politicians, law interest
broader organisation of OMCG activities. So instead,
groups and other interested parties.
Australian jurisdictions have preferred to focus on
Laws targeting individual crimes the types of activities OMCGs might be involved in –
All Australian states and territories have statutory setting up legislative frameworks that criminalise
these activities and that target their businesses and
18
offences under which the members of OMCGs
can be prosecuted for criminal acts. For example, profits. These may feature:
prosecutions of participants in the violent incidents • money laundering offences
mentioned above would have been made under • trafficking and smuggling offences
standard criminal laws like assault, murder, firearms • orders for reporting of financial
offences or offences of dealing in illegal drugs. transactions
Figure 18.5 Members of the Hells Angels motorcycle club during a demonstration on 9 September 2017 in Berlin,
Germany. Members of the club staged the demonstration titled, ‘Freedom is our religion’ to protest against a new
association law that prohibits them from wearing their death’s head insignia in public.

• legislation whose object is to deprive criminals Crime National Intelligence Task Force, which has
of the proceeds or benefits derived from their a strong focus on OMCGs but also on other areas
offences to prevent reinvestment of the proceeds of organised crime. It also works with agencies in
in further criminal activities, and to enable law different Australian jurisdictions and encourages
enforcement agencies to trace those proceeds; collaboration. Since December 2013, the
for example, the Proceeds of Crime Act 2002 (Cth). Australian Gangs Intelligence Coordination
Centre (AGICC) – a central intelligence hub
responding to the escalating threats of OMCGs in
Task forces and intelligence Australia – has been operating under ‘Project Legion’.
Increasing the powers law enforcement agencies The AGICC builds and coordinates an intelligence-led
have to investigate, disrupt and prevent organised response to OMCGs and other known gangs by linking
crime activities is another response to the problems strategic understanding of the national picture with
cause by OMCGs. Special law enforcement agencies, intelligence that supports operational and tactical
or task forces, are set up and given special powers responses.
for the investigation and prosecution of more serious In addition to the federal government, a number
crimes. These powers can include: of states have set up operations and task forces to
• intercepting telecommunications deal with organised crime activities. For example:
• using surveillance devices • In March 2009, the NSW Police Force
• search warrants established Strike Force Raptor to target the
• special coercive powers illegal activities of OMCGs. By the end of April,
• inter-agency intelligence sharing across state, more than 50 arrests had been made and
national and international areas. 120 charges laid, and substantial quantities of
amphetamines and firearms seized.
task force • In New South Wales, Operation Ranmore
a special group or committee of experts formed for the
express purpose of studying a particular problem was set up in 2007 as part of a crackdown on
OMCGs, enabling police to raid the clubhouses
coercive powers
special powers sometimes given to a commission or police of the Finks, Rebels, Lone Wolf and Fourth
task force that allow it to summon any witness to give Reich and obtain evidence to lay charges.
evidence or produce any documents – these powers are
usually only vested in courts • In 2012, there were a number of drive-by
shootings in Sydney’s southwest by the Hells
This can be controversial, as some of these powers Angels and Nomads OMCGs. In response, law
extend beyond the traditional boundaries of enforcement conducted raids simultaneously
government and law-enforcement agencies. Some on 18 different properties in the Sydney
things, such as using coercion to force witnesses to metropolitan area, covering suburbs such as
give evidence, are options normally only available to the Cranebrook, Georges Hall, Auburn, Granville,
courts. So there needs to be a lot of oversight to make Parramatta, St Marys, Blackett, Merrylands,
sure the task forces do not abuse these powers. The Rosehill, Constitution Hill, Guildford,
doctrine that the powers and functions of the judiciary Pemulwuy, Pennant Hills and Bella Vista. This
are separate from those of the other two branches of coordinated action included police acting
government (separation of powers, as discussed in under Operation Kinnarra, as well as Strike
Chapter 2) is challenged by this approach. Force Raptor, other State Crime Command
In 2006, the Australian Crime Commission (now squads, the Metropolitan Region Commands,
known as the Australian Criminal Intelligence the Riot Squad, the Police Dog Unit and the
Commission) responded to an increase in reports of Rescue and Bomb Disposal Unit.
OMCG activity by listing OMCGs as a ‘high-risk crime • In Queensland, the OMCG Task Force Hydra
group’. The OMCG National Intelligence Task Force was established to target OMCGs and resulted
was established to investigate the membership and in a number of charges for criminal activities.
activities OMCGs, and to establish national policies • A national anti-bikie gang task force called
to deal with any matters found. In 2008, this task Operation Morpheus has been operating
force was replaced by the Serious and Organised since September 2014, and includes officers
from all state and territory police agencies as public to work in real time with police to reduce
well as the Australian Criminal Intelligence OMCG-related crime and violence.
Commission, the Australian Federal Police and
other bodies. In 2018, the Illawarra Mercury reported that the NSW
• In 2018, the NSW Crime Command’s Gangs Police Force operation Strike Force, targeting OMCGs,
Squad launched an online facility that allows had set up a new arm based in Wollongong called Raptor
people to report OMCG activity directly to Strike South. In the first two months of operation, Raptor South
Force Raptor investigators. It has always been conducted almost 20 operations, arrested eight people,
possible to report OMCG activities direct to laid over 40 charges, seized 20 prohibited weapons
police or via Crime Stoppers, and members and confiscated illicit cash and drugs worth tens of
of the public are still encouraged to use thousands of dollars.
these methods. In early 2019, a disturbing report emerged in the
• However, Strike Force Raptor investigators believe Australian Capital Territory about disenfranchised
the new ‘direct-to-detectives’ reporting capability high school students being recruited to bikie gangs
will maximise opportunities for members of the (see ‘News’, below).
Police targeting would-be bikie gang members as early as high school in bid to expose
‘false promises’
By Tom Lowrey and Michael Inman
ABC News
3 March 2019
18
Australian Capital Territory (ACT) Police have set their sights on the one commodity bikie gangs
could not operate without – a steady stream of new members.
Senior officers said after years chasing the drugs, money and leadership figures within outlaw
motorcycle gangs, it was time for a change in tack.
While those areas would still be a priority, Detective Superintendent Scott Moller said ACT policing
was stepping up their efforts to work with young, vulnerable men targeted as potential gang recruits.
Superintendent Moller said one of the great frustrations for police was gang members convincing
young people that the gang could improve their life – offering fast money, friendships and a culture
that would rally around them and protect them.
The front-line in the new battle between police and bikie gangs was not in clubhouses, but in
high schools.
ACT Police and other youth services said the clearest signs of trouble could be seen at school –
particularly young people struggling in class, running into trouble or simply not turning up at all.
Police rely heavily on services like the PCYC and Menslink to work with teenagers at risk of falling
into a spiral of homelessness, substance abuse and crime, and becoming easy targets as potential
gang recruits.
‘The biggest problem we see is when young people start disengaging from education, and
start mixing with people that are probably less desirable to be around’, Cheryl O’Donnell from
Canberra’s PCYC said.

Laws targeting organisations considered criminal (e.g. leading the group,

and membership being a member of it, recruiting others,
Introducing legislation that targets and criminalises participating in it, supporting it, or simply
motorcycle clubs themselves, instead of individual associating with a member of it).
crimes, is perhaps the most controversial approach
to dealing with the issue of OMCGs. Many commentators have acknowledged the risks
The most contentious approach is where that this approach may pose to fundamental and
legislation is enacted with the intention of accepted interpretations of the criminal law, and
criminalising individual membership clubs, or especially to an individual’s civil rights. Some of the
association with them. Civil liberties groups argue serious questions raised are:
that criminalising people’s association with illegal • Should an organisation be criminalised if its
groups would create unnecessary police powers and members only appear to be potential offenders,
may start the cycle of police arresting other protest rather than actually committing or intending to
groups, such as environmentalist groups, which may commit an offence?
engage in illegal activity such as trespass. • Should government officials or the police have
This approach had legal difficulties at a the power to declare an organisation criminal or
fundamental level, and Australian jurisdictions should this only be determined by a court?
deal with the issues in different ways. The question • Should the organisation’s members be given an
involves the method and process by which a group opportunity to respond?
can be defined as criminal, and what level of • Should a person be criminally liable for
individual involvement is criminalised. For example, participating in such an organisation when he
would a group of four teenagers going into a store to or she has not committed any other offence?
shoplift a DVD be a ‘criminal organisation’? Would • Should a person be criminally liable for
all four be equally guilty? Who should determine this simply associating with a member of such an
and what crimes should be covered? organisation?
The four main issues that must be determined
are: Two central concepts of the law are brought
• defining an organisation – this includes into question by this approach. The first is the
how many people can form a group (e.g. two rule of law, introduced in Chapter 1; that is, the
or more; three or more) and what activities principle that laws should be applied in the same
or objectives make it illegal (e.g. committing way to all individuals. The danger of criminalising
a serious offence or obtaining some profit or organisations, especially where police officers or
advantage from it)
Figure 18.6 Geert-Jan Knoops, lawyer for the Hells
• what is the criminal link – the level Angels, speaks to the press after the determination
of criminal activity that is required of a civil law case brought by the Public Prosecution
(e.g. committed a past offence, intends to Service in Utrecht, the Netherlands. On 29 May 2019,
commit an offence or comes together to Dutch judges banned the ‘violent’ Hells Angels club and
ordered all its chapters to close down in the Netherlands,
commit an offence, or simply poses a risk or
as authorities continue their clampdown on so-called
threat of committing an offence)
outlaw motorcycle gangs.
• process for determining – who can make
the decision on whether a particular group is
a criminal organisation (e.g. the courts only, a
government official, or simply the police)
• individual involvement – what involvement
with the group a person must have to be

government officials can make the determination as a member of an organised criminal group. Its
without court oversight, is that the law may be used provisions included:
to target individuals or individual associations, • defining an organised criminal group as
rather than being applied equally to all. three or more people with an ‘objective’ of
committing a serious crime for material benefit
rule of law or of committing a serious violent offence
the principle that nobody is above the law; this can be seen
• penalties of up to five years’ imprisonment for
in the requirement that governmental authority must be
used in line with written, publicly disclosed laws, for which participation as a member of that organisation,
established procedural steps (due process) have been taken if the person knew it was a criminal organisation
in the adoption and enforcement
and his or her participation contributed to the
occurrence of criminal activity
The second problem with the approach is that it • defining ‘member’ to include anyone
affects a person’s fundamental freedom to associate identifying himself or herself as a member;
by introducing laws of guilt by association – under for example, by wearing the club’s insignia,
which a person may be found criminally liable simply patches or colours.
by associating with another person who commits a
crime, even though that person has committed no Critics of the Bill questioned the lack of connection
crime himself or herself. between participation and actual criminal activity.
The then Queensland Attorney-General and Minister
guilt by association
for Justice, Kerry Shrine, described the Bill as ‘ill
criminal liability imposed for associating with another
person who commits a crime, rather than for committing that conceived, unnecessary and [aiming] to extend
crime oneself the basic principles of criminal liability to guilt by
association … No specific act or omission by the
Three Australian states have recently attempted to
enact laws with elements of the approaches outlined
accused is necessary’.
The Bill did not receive enough support to pass.
18
above. In Queensland, the first Bill failed to pass in However, following the violent killing of Anthony
the Queensland Parliament but a second Bill was Zervas at Sydney Airport in 2009, the Queensland
passed in 2009. In South Australia and New South Government announced that it would prepare new
Wales, the Bills were passed and enacted into law. laws enabling police to apply to the Supreme Court
Some of their provisions and associated issues are for an order prohibiting identified members of an
outlined below. outlaw motorcycle gang from associating with one
another. This was subsequently enacted in the
Queensland approach Criminal Organisation Act 2009 (Qld). In June 2012,
In 2007, the Queensland State Opposition introduced Queensland Police applied to the Supreme Court
into the state parliament the Criminal Code under the Criminal Organisation Act 2009 (Qld) to
(Organised Criminal Groups) Amendment Bill 2007 ban members of the Finks club from associating with
(Qld). The Bill’s purpose was to amend existing each other. By 2013, the Queensland Government
laws to extend their coverage beyond parties to had introduced three new Acts designed to curb
offences, and to make it an offence to ‘participate’ the power and criminal activity of bikies with the
Research 18.2
Research a task force that has recently been established to examine the activities of OMCGs.
1 Identify the following elements of the task force:
a Who established the task force?
b For what purpose was the task force established?
c Is the task force is funded by the federal or state government?

Vicious Lawless Association Disestablishment Act orders and preventative detention orders to be made
2013 (Qld), the Tattoo Parlours Act 2013 (Qld) and the against individuals.
Criminal Law (Criminal Organisations Disruption)
and Other Legislation Amendment Act 2013 (Qld). control order
an order made by a court, government official or police
New tougher penalties were also included such as officer to restrict an individual’s liberty; for example, from
fines of up to $1000 per day, mandatory prison. doing a specified act or being in a specified place
South Australian approach The South Australian Act is not restricted to

Following numerous violent incidents involving OMCGs but can apply to any declared organisation.
OMCGs, including the death of a gang member A ‘declared organisation’ is one whose members
at an Adelaide nightclub, the South Australian associate for the purpose of organising or engaging
Government enacted the Serious and Organised in serious criminal activity, and that represents a risk
Crime (Control) Act 2008 (SA). The South Australian to public safety and order, according to the South
laws aimed to disrupt activities of OMCGs and other Australian Attorney-General.
criminal organisations and protect the public from Some of the most critical provisions of the South
their violence. By 2015, the Statutes Amendment Australian Act are:
(Serious and Organised Crime) Act 2015 (SA) was • The Attorney-General can declare any
in force. organisation a criminal organisation without
The Act banned the wearing of gang logos in bars stating grounds and without right of appeal or
and pubs and effectively banned the club as a legal court review. For example, the Finks have now
entity. It gave unprecedented new powers to the been declared a criminal organisation.
government, allowing it to declare an organisation a • The Act creates an offence with a penalty
criminal organisation and allowing police officers to of five years’ imprisonment for anyone who
make control orders preventing individual members associates more than five times a year with a
of that organisation from doing specified acts or member of a declared criminal organisation.
being in specified places. The laws are similar to This means a person can be deemed guilty
some of the special terrorism laws introduced by by association as a result of any contact or
the federal government following the September 11 meeting, even though that contact could be
terrorist attacks. For example, the Anti-Terrorism entirely innocent.
Act 2005 (Cth) introduced two new divisions into • The Police Commissioner can apply to the
the Criminal Code Act 1995 (Cth) allowing control South Australian Magistrates’ Court for control
Figure 18.7 Members of the Gypsy Joker motorcycle gang protested the removal of the right to associate.

orders prohibiting a person from associating prevent the flushing of drugs down the sink
with, communicating with or being in the or toilet)
vicinity of specified people. These orders can • new offences for involving another person in
be made without the standard criminal onus of performing or helping in criminal activity
proof beyond reasonable doubt. • new offences for knowingly taking part in
• A ‘senior police officer’ can prohibit a person a criminal organisation. The definition of a
or class of people, without court oversight, from criminal organisation was almost identical
being at a specified place or area or attending a to the one contained in the Queensland Bill
specified event. described above. Significantly, the New South
Wales Act did not include an offence for simply
The Act has attracted much criticism for its severe being a member of the organisation.
restrictions and lack of adherence to long-standing
principles of the criminal law. For example, the As an immediate response to 2009 killing of Anthony
Law Society of South Australia argued that the Zervas at Sydney Airport, NSW Premier Nathan
legislation went too far, in that it ‘undermines the Rees introduced new laws that were even stricter
presumption of innocence; restricts or removes than those in South Australia. The Crimes (Criminal
the right to silence’, and does not allow courts Organisations Control) Act 2009 (NSW), which
to ‘challenge possibly biased, unfounded, or more specifically dealt with OMCGs, was quickly
unreasonable decisions of the Attorney-General or passed through parliament. Some of the important
Commissioner of Police’. Individuals may have no changes are:
right to know the reasons for an order or to challenge • Police officers can make an application to
the truth or reliability of those reasons. In 2009, the Supreme Court to have an organisation
provisions of the Act were appealed to the Supreme declared criminal. This provision for court
Court of South Australia by members of the Finks
who had been charged under the Act. The Supreme
oversight stands in stark contrast to the South
Australian law, where it is the Attorney-General
18
Court of South Australia declared provisions of the who can make the declaration.
Act invalid and the South Australian Government • Membership of a declared organisation is an
appealed this ruling to the High Court of Australia. offence, as is ‘association’ between members of
In 2010, the South Australian laws were thrown out a declared organisation who are under control
by the High Court in a 6–1 verdict ruling that found orders. ‘Association’ includes either being in
the criminal association laws to be unconstitutional: company with someone or communicating
South Australia v Totani [2010] HCA 39. with someone by any means. Declared gang
members who continue to associate can face
New South Wales approach two years’ imprisonment for a first offence or
In New South Wales, relevant legislation has been five years for a second.
amended many times since the 1984 Milperra • The Act contains new offences for recruiting
massacre. In 2005, after several gang-related members of a declared organisation, said
incidents, including the Cronulla riots in December to prevent establishment of younger ‘feeder
2005, the NSW Government introduced the Crimes groups’ for the organisations.
Legislation Amendment (Gangs) Act 2006 (NSW). This • It authorises new search warrants to make it
Act introduced a series of reforms specifically aimed easier for police to seize items connected to
at organised crime and OMCGs. These included: criminal organisations.
• increased penalties for activities connected to
organised crime As with the South Australian Act, some of the
• increased police powers in applying for search main concerns expressed were the potential for
and seizure warrants, including the power to immediate charges and control orders to undermine
remove fortifications or surveillance cameras the presumption of innocence, and concerns about
designed to stop police entry, and powers to rights to freedom of association. On the other hand,
pacify guard dogs and even to block drains (to Australian Federal Police Commissioner Mick Keelty

stated in an interview that he believed the new laws The court also held that the law was outside of
were appropriate: the legislative powers of the New South Wales
Parliament. As the law conferred quite wide-ranging
powers to enforcement authorities within the state
‘New South Wales does have a particular and pre-empted decisions that could be made in the
problem … of the number of outlaw Supreme Court, it has been criticised as infringing
motorcycle gangs that we’re aware fundamental civil liberties.
of, 19 of them are situated in New The New South Wales Parliament responded by
South Wales,’ he said. ‘So of the nearly enacting the Crimes (Criminal Organisations Control)
40 gangs, nearly half of them are in Act 2012 (NSW). This Act is very similar to the 2009
New South Wales.’ Act, but makes amendments to overcome the
constitutional shortcomings of that Act. For instance,
this new Act requires that if an eligible judge makes
a declaration or decision under the Act, this eligible
The High Court of Australia handed down a decision judge must provide reasons for the making of the
in 2011 that invalidated the Crimes (Criminal declaration. In addition, the Crimes Amendment
Organisations Control) Act 2009 (NSW). The court (Consorting and Organised Crime) Act 2012 (NSW)
found that the law was contrary to the separation of was introduced that increased the penalties for
powers by undermining institutional integrity of the those involved in firing a weapon at a dwelling or
state’s Supreme Court (see Wainohu v NSW (2011)). house as part of an organised criminal activity.
New laws to tackle bikie gangs

NSW Government media release from the premier
10 September 2018
New laws will make it easier for NSW Police to tackle organised crime during raids on outlaw
motorcycle gang clubhouses, according to Premier Gladys Berejiklian, Attorney-General Mark
Speakman and Police Minister Troy Grant.
‘New South Wales has the toughest organised crime laws in Australia and our police will now be
better equipped than ever to tackle dangerous outlaw bikie gangs’, Ms Berejiklian said.
Under the new laws, police executing a warrant on outlaw bikie clubhouses will have clear
powers to:
•• search anyone on site
•• compel any person to reveal their name and address
•• compel people present at the venue to move on.
Mr Grant said the reforms – which will help police identify suspects, gather evidence and seize
dangerous firearms and weapons – are part of the NSW Government’s unrelenting crackdown on
organised criminal gang activity.
‘There is no room for outlaw bikies in New South Wales, who will continue to be hounded by police
until they leave the state or find a new, legal hobby’, Mr Grant said.

News (continued)
The legislative amendments respond to the Ombudsman’s report on the Restricted Premises Act
1943 (NSW).
‘The NSW Government has accepted all the Ombudsman’s recommendations, which will give
police greater clarity about their powers and responsibilities when raiding outlaw bikie gang
clubhouses’, Mr Speakman said.
Police have been using the powers provided under the Restricted Premises Act 1943 (NSW), which
was formerly known as the Disorderly Houses Act 1943 (NSW), to target outlaw bikie clubhouses for
the past decade.
These powers were strengthened in 2013 to enhance the ability of police to combat firearms-related
and organised crime, with a focus on the activities of outlaw bikie gangs.
These powers are on top of a range of other tough measures available to police to target outlaw
bikie crime, including those set out below:
•• Serious Crime Prevention Orders – to impose restrictions on people to disrupt their involvement
in serious criminal activity
•• Public Safety Orders – to prevent people from attending places or events where they are
expected to engage in violence or present a serious threat to public safety or security
•• Consorting laws – which carry a maximum three-year prison term for people who continue to
associate with convicted offenders after receiving an official warning from police
•• Unexplained wealth laws – which place a burden on suspects to prove their income was lawfully 18
acquired
•• Firearm Prohibition Orders – allowing police officers to search, without warrant, premises or
vehicles occupied by anyone subjected to the order to ensure compliance.
‘Strike Force Raptor has dismantled numerous bikie-led drug and organised crime operations and
is continuing to crack down on outlaw bikie violence’, said Police Commissioner Mick Fuller.
In April 2018, NSW Police successfully applied to the Supreme Court for Serious Crime Prevention
Orders against 10 high-ranking members of the Finks and Nomads outlaw motorcycle gangs who
were linked to gang-related violence across the Lower Hunter region.
Review 18.3
1 Identify the three main legal responses to OMCGs and organised crime.
2 Outline some of the advantages and disadvantages of each legal response.
3 Discuss how the legislation differs between Australian jurisdictions. Assess each approach and
recommend which one is the best in your view. Justify your response.
4 Research the 2018 amendments to the Restricted Premises Act 1943 (NSW). Evaluate the
effectiveness of these changes.

18.3 Non-legal responses Demonstrations

In addition to the responses of law-makers and law Various sectors of the public have voiced their
enforcement agencies discussed above, there are opinions on OMCGs and the law’s response through
a number of other responses to consider. These demonstrations. In March 2009, about 700 members
include those of the public, the media, politicians, of clubs, including the Hells Angels, Gypsy Jokers,
interest groups and the OMCGs themselves. Some Rebels and Finks, organised a ride through the towns
of these responses are explored below. of South Australia’s Barossa Valley, accompanied by
a police escort, to protest against the Serious and
Media and politics Organised Crime (Control) Act 2008 (SA). It took place
A key aspect of the political responses to OMCGs in conjunction with the Gypsy Joker’s annual ride,
has been the way in which public opinion is shaped which had never before been open to other clubs. In a
by media reports. The media gives wide coverage second peaceful protest in May, about 300 members
of violent incidents, including those related to of different gangs converged on Parliament House
OMCGs, and politicians are usually eager to in Adelaide and presented a petition against the new
convince the public that they are being ‘tough on legislation. In response, South Australian Premier
crime’. This can be seen in cases such as the NSW Mike Rann described the laws as the ‘world’s
Government’s action to strengthen organised crime toughest anti-bikie legislation’ and stated, ‘We are
laws immediately after the Sydney Airport murder. talking about drug dealers on wheels and we are not
The media enables public discussion of going to bend or break because of [a] protest.’
laws being proposed – both advantages and In another interesting form of protest, in
disadvantages – and can significantly influence how response to Queensland’s Operation Hydra, aimed
legislatures and the police deal with issues. at curbing criminal OMCG activities, a number of
OMCGs met to discuss tactics to fight fines issued
to motorcyclists. One of the tactics was a campaign
Figure 18.8 The Rebels clubhouse in Sydney in 2009. to fight all fines in court to create backlogs in the
system, with the aim of forcing police to reduce fines
for traffic infringements.
Forming political parties

In one unique response to the OMCG issue, members
of the South Australian public who were strongly
opposed to the Serious and Organised Crime (Control)
Act 2008 (SA) and its implications for civil rights
decided to make their voice and concerns heard by
politicians by establishing a new political party, the
F.R.E.E. Australia Party.
The party obtained formal political status on
19 March 2009 and is open to anyone who is registered
to vote in South Australia. Among its members are
a number of motorcyclists concerned about the
Review 18.4
1 Describe some of the non-legal responses to organised crime. Outline how these non-legal
responses can influence legal responses.
2 Assess which non-legal responses you believe are the most effective in dealing with OMCG
issues. Justify your response.

introduction of the Act. Party spokesperson Paul Following the Sydney Airport incident, both
Kuhn said that the party opposes the Act, but is Victoria and the Australian Capital Territory stated
concerned about a number of other issues as well: that current laws were sufficient and they did not
Freedom, Rights, Environment and Education (FREE). intend to introduce new laws. Other states and
The party ran in the 2010 and 2014 South commentators have claimed that this may create
Australian state elections, but did not gain ‘safe havens’ and ‘legislative gaps’ for OMCGs
significant results. to exploit, but there has been no evidence of this
to date.
18.4 Effectiveness of responses Legal responses need to be carefully weighed
and their implications considered to avoid creating
Public order and safety are usually cited as the chief
draconian laws or sacrificing fundamental principles,
reasons for changing the law to address OMCGs. Due
such as the rule of law, the separation of powers
to the violence often associated with many of their
and the presumption of innocence, or individual
activities, OMCGs receive widespread media attention,
rights such as freedom of association and freedom
which results in emotive public discussion. The
of movement. Laws departing from these principles
political responses of some Australian jurisdictions
require mechanisms for review. While it is too soon
have focused on ‘ramping up the laws’, being ‘tough
to assess the effectiveness of these laws – in not only
on crime’ and ‘smashing criminal gangs’.
reducing criminal activities and violence associated
The three main types of legislative responses
with OMCGs, but in ensuring justice for all parties
to OMCGs and other organised crime are laws
concerned – they will be judged on the facts over time.
targeting their activities, laws establishing police
task forces and special police powers, and laws that draconian laws
criminalise the organisations or their members. Not laws that are excessively harsh or severe – from Draco, a
all jurisdictions in Australia have introduced laws in Greek legislator (seventh century BCE) whose laws imposed
18
cruel and severe penalties for crimes
the third category.
Review 18.5
1 Compare the responses of different jurisdictions to OMCG-related activities. Assess which legal
responses are the most effective and why.
2 Discuss how far the law should go to address the activities of OMCGs and other organised
criminal groups. Assess if the legal responses so far have been appropriate.
3 Outline to what extent members of the public are safer under the 2018 legislative changes to the
Restricted Premises Act 1943 (NSW). Find two media articles to support your response.
Research 18.3
Search online for recent news articles about OMCGs and answer the following questions.
1 Outline if there has been any recent incidents involving OMCGs in New South Wales or in other
parts of Australia.
2 Describe any recent arrests or charges laid against OMCG members. Identify if the articles
suggest that the new New South Wales laws have been used or have been effective.
3 Identify if there been any problems or court challenges associated with the new New South
Wales laws.

Chapter summary
• Organised crime is a problem for Australian increasing police powers, and introducing
society and for the law. Organised crime laws that criminalise OMCGs or associating
operates in many different industries and is with them.
associated with many different illegal activities. • Some of these legal approaches nearly
• Motorcycle groups have been in existence for encroach on the fundamental principles of
over 100 years and most were formed simply to criminal law and on individual rights.
share a common interest in motorcycles. • Different Australian jurisdictions have
• The membership of outlaw motorcycle gangs adopted different approaches to deal
(OMCGs) is a growing problem in Australia. with OMCGs.
• There have been many recent public incidents • The media, politicians, the public and OMCGs
involving OMCGs. themselves have voiced their views on the
• There are different legal approaches to issues and on the legal responses.
OMCGs, each with its own advantages and • The law needs to balance the interests of all
disadvantages. parties involved.
• Legal approaches to OMCGs include • It is too soon to assess the effectiveness of
introducing laws to prosecute individuals recent legal responses to OMCGs.
for specific crimes, establishing task forces,
Questions
1 Organised crime can be defined as: 4 Under the South Australian Serious and
a illegal activities carried out by organised Organised Crime (Control) Act 2008 (SA), who
groups, usually for financial gain. can declare an organisation to be criminal?
b illegal activities carried out by more than a Police Commissioner
one person in a single incident, where b Supreme Court judge
timing is important. c Premier
c activities such as rallies and protests d Attorney-General
organised by motorcycle gangs without a 5 What is one reason for enacting controversial
permit. laws outlawing motorcycle gangs?
d the exercise of certain police powers a to encourage competition between state
without authorising legislation. premiers for the toughest anti-bikie laws
2 The largest area of organised crime activity is: b to give greater powers to police to
a digital piracy compensate for their low pay
b extortion c to limit motorcycle transport, which has a
c drug trafficking high degree of road fatalities
d drunken brawling d to target organised crime, which can be
3 ‘Draconian’ laws are: difficult to fight under ordinary laws against
a harsh, strict and punitive criminal acts
b enforced by both state and federal
governments
c enforced by state but not federal
governments
d enacted by the United Nations

1 Discuss why organised crime is a problem 5 Describe some of the recent changes made to
in Australia. Australian laws to deal with OMCGs.
2 Describe the types of activities related to 6 Discuss how some of the recent changes
organised crime and how widespread they are made to Australian laws that relate to OMCGs
in Australia. differ from previous laws made about OMCGs.
3 Outline the origins of motorcycle gangs and 7 Assess if some organisations should be
OMCGs. Assess if they are different. criminalised.
4 Outline the different legal approaches
to OMCGs.
‘Bikie gangs are like any other organisation or Marking criteria for extended response questions
club. There are criminals in all walks of life.’ can be found on the Cambridge GO website.
Discuss this statement with reference to the law Refer to these criteria when planning and writing
and at least one OMCG. your responses.
18

Issue 3
in conflict with the state
Mohamed Haneef
Chapter objectives
• explore the legal concepts and the terminology that are relevant to discussing the case of Dr Mohamed
Haneef and the law
• investigate the legal system’s ability to address issues relevant to the Haneef case
• explore the differences in the laws that are relevant to the Haneef case
• investigate the role of the law in addressing and responding to terrorist threats
• describe the legal and non-legal responses to the Haneef case
• evaluate the effectiveness of the legal and non-legal responses in achieving justice for Dr Haneef.

Relevant law
Terrorism (Police Powers) Act 2002 (NSW)
Crimes Legislation Amendment (Terrorism) Act 2004 (NSW)
Anti-terrorism Act 2004 (Cth)
Anti-terrorism Act (No 2) 2005 (Cth)
National Security Legislation Amendment Bill (No 1) 2014 (Cth)
SIGNIFICANT CASES
Haneef v Minister for Immigration and Citizenship [2007] FCA 1273
Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203

20.1 T
he Mohamed Haneef terrorism
case and terrorism violence or the threat of violence, directed at a group of
people for the purpose of coercing another party, such
as a government, into a course of action that it would not
An overview of the Mohamed otherwise pursue
Haneef case and terrorism

The case of Dr Mohamed Haneef is one of the
Recent major terrorist attacks
most highly publicised and politicised incidents in
The major terrorist attacks that have occurred in
recent Australian legal history. The facts of the case
recents years are listed below. This list gives some
and the context in which it took place are not only
idea of the frequency and severity of attacks in
interesting from a social and political perspective,
the wake of 11 September 2001. Not only did these
but also raise a number of important legal issues for
attacks kill and injure thousands of innocent people,
Australia relating to the separation of powers, the
they also fuelled a ‘climate of fear’ around the world.
presumption of innocence and guilt by association.
Dr Haneef was the first person arrested and charged
12 October 2002 – Bali bombings
under the Anti-terrorism Act (No 2) 2005 (Cth) and the
In this attack on the Indonesian island of Bali, three
first person to have his detention extended without
bombs were detonated – two near nightclubs in the
being charged with a crime.
tourist district of Kuta, and one outside the United
Dr Haneef is a medical doctor from India who
States consulate. In this attack, 202 people were
first arrived in Australia in 2006 on a temporary
killed. Several members of a radical Islamist group
skilled working visa. He was employed at the Gold
called Jemaah Islamiyah were convicted for their
Coast Hospital in Southport, Queensland for almost
involvement in the attack.
a year before he was arrested on 2 July 2007 on
suspicion of terror-related activity (specifically in 11 March 2004 – Madrid bombings
relation to the Glasgow International Airport attack).
This attack took place aboard four commuter trains
Dr Haneef’s arrest and detention caused a great deal
in Madrid, Spain. In total, 10 separate explosions
of controversy in Australia and India.
were recorded. The attacked killed 191 people
To understand the event of the Haneef case,
and wounded a further 1800 people. A loose
it is necessary to place them in the broader social
group of Moroccan, Syrian and Algerian Muslims
and political context: a post-September 11 climate
was suspected of having carried out the attacks.
characterised by pervasive fear of further terrorist
In Spain, 18 people, most from northern Africa, have
attacks against Western democracies. This public
been convicted of taking part in the attacks.
anxiety motivated governments to use
the full force of their legal systems and 7 July 2005 and 21 July 2005 – London
law-enforcement agencies to tackle bombings
the terrorist threat on their doorstep. Both bombing incidents were coordinated attacks
Video
on London’s public transport system. On 7 July,
Terrorism suicide bombers killed 52 people and injured a
Terrorist attacks are nothing new. Throughout history, further 700. A group of British Muslims unhappy
individuals, political and religious organisations have with Britain’s involvement in the Iraq War was later
committed terrorist attacks in an attempt to achieve identified as having been responsible for the attacks.
certain political and social objectives. The word The 21 July attacks were a series of four explosions on
terrorism is often politically and emotionally charged. the London Underground and on a bus. Fortunately,
Terrorist attacks are considered to be particularly the main explosive charges failed to detonate during
heinous because in addition to the crime of harming this attack and no-one was harmed.
or killing innocent civilians, they are intended to
influence political events. Most people believe that 1 October 2005 – second Bali bombings
political change (on a national or an international These attacks occurred at two sites, Jimbaran and
level) should take place as a result of discussion, Kuta, on the island of Bali in Indonesia. Three suicide
argument and negotiation, not because of violence.

Chapter 20 (Digital-only chapter) Mohamed Haneef
bombers killed 20 people and injured 129. As with the 22 May 2017 – Manchester bombing
Bali bombings in 2002, Jemaah Islamiyah is believed Twenty-three people were killed in a suicide bombing
to be responsible for the attacks. at a concert at Manchester Arena, United Kingdom.
10 July 2010 – Pakistan suicide bombing 3 June 2017 – London attack

A Taliban-backed group that was protesting Eight people were killed and 48 people were injured as
against the Pakistan Government’s attempt to three men ran down pedestrians on London Bridge.
rid the Mohmand district of militants killed over
100 people. 9 November 2018 – Melbourne attack
A car was set on fire, and three people were stabbed,
15–16 December 2014 – Sydney siege one fatally, before police officers shot and killed the
Two people and the gunman were killed in a 24-hour perpetrator. Police described the attack as ‘terror-
siege at the Lindt café in Sydney. It was believed to related’ and inspired by ISIS.
be a terrorist attack.
21 April 2019 – Sri Lanka bombings
2 October 2015 – Sydney shooting In Sri Lanka (including in the capital city of Colombo),
(Parramatta) a number of explosions at three churches and three
A 15-year-old boy shot dead a police employee hotels killed 259 people and injured more than
outside a police station in Parramatta, Sydney. The 500 people.
shooting was deemed to be a terrorist attack by
police sources. Glasgow International
Airport attack
13 November 2015 – Paris attacks During the spate of international terrorist attacks
In a series of coordinated attacks, 130 people were described above, there was an attempted bombing
killed and 494 were wounded. The majority of people at the Glasgow International Airport in Scotland on
were killed inside a theatre after hostages were taken. 30 June 2007.
Figure 20.1 Police forensics officers view the remains of a burnt-out jeep at Glasgow International Airport in Scotland.
On 1 July 2007, a Jeep Cherokee rammed the airport and burst into flames in a terror attack. The attack occurred a day
after a car bombing was foiled in London.
20

The incident involved a Jeep Cherokee loaded Mohamed Haneef case

with canisters containing explosive propane gas, On 2 July 2007, two days after the Glasgow attack, the
which was driven into glass doors at the airport Australian Federal Police (AFP) arrested a 27-year-
terminal entrance. The propane canisters failed old medical doctor, Mohamed Haneef, on suspicion
to explode; however, the car was set ablaze. of being connected to the attack on the Glasgow
The car was prevented from entering the terminal International Airport.
by security bollards that had been installed outside
the entrance. Although nobody was killed at the Australian Federal Police
the federal police agency of the Commonwealth of Australia,
scene, the car’s driver suffered severe burns to
set up to enforce the federal laws and to protect the interests
90% of his body and later died. Also, members of Australia both domestically and internationally
of the public, including those who helped police
officers detain the car’s occupants, sustained a Dr Haneef was the first person detained in Australia
number of injuries. under newly introduced anti-terrorism laws
The attack was said to be the first such terrorist (Anti-Terrorism Act (No 2) 2005 (Cth)). Dr Haneef was
attack to target Scotland and was linked to a failed detained without charge for the longest period in
attack in London the previous day. The London Australia’s recent history. Dr Haneef was eventually
attempt had involved two separate car bombs in released and all charges against him withdrawn, but
the centre of the city, which were detected and the case brought to light important questions about
disabled before they could explode. The Glasgow the law and its application by both the police and
attack occurred only three days after Gordon the government.
Brown, a Scottish-born member of parliament
from Glasgow, was appointed prime minister of the Mohamed Haneef: Background
United Kingdom. Mohamed Haneef was born in 1979 and raised
Within three days, eight people suspected in Mudigere, a small town surrounded by
of being involved in the Glasgow and London
incidents had been taken into custody.
The two men in the car at the Glasgow International
Airport – who were arrested at the scene – were
identified as Bilal Abdullah (a passenger), a
British-born medical doctor of Iraqi descent,
and Kafeel Ahmed (the driver), an engineer
who was born in Bangalore, India, raised in
Saudi Arabia, and was completing a PhD at
Cambridge University in the United Kingdom. A
suicide note left behind indicated that the two had
intended to die in the attack.
On 2 August 2007, Kafeel Ahmed died of the
third-degree burns he sustained during the attack.
Bilal Abdullah was later found guilty in the United
Kingdom of conspiracy to commit murder and was
sentenced to 32 years in prison. Kafeel’s brother,
Dr Sabeel Ahmed, was also later sentenced in the
United Kingdom to 18 months’ jail after pleading
guilty to failing to disclose information that could
have prevented an act of terrorism. Sabeel had
received an email from Kafeel with details of his will
before the attack, but was later cleared of having any
actual knowledge of the bombings.
Figure 20.2 Dr Mohamed Haneef.

coffee plantations in the state of Karnataka, 26 June 2007, their daughter was born in Bangalore.
India. Following his father’s death in a car Shortly afterwards, a series of events began that
accident when Mohamed was 18 years old, would change both their lives and leave a permanent
his family moved to Bangalore, the state’s mark on Australia’s legal history.
capital, where he completed his education
and eventually attained a medical degree with Mohamed Haneef: Detention
first-class honours in 2002 from the Tripura and allegations
Medical College. The AFP arrested Dr Haneef at Brisbane Airport on
After graduating, Haneef completed his 2 July 2007. The arrest was in response to information
internship in India, and then moved to the United received from UK intelligence agencies that the AFP
Kingdom, where he worked in a hospital at Runcorn, believed linked Haneef to the Glasgow Airport attack.
Cheshire in north-west England. After seeing an At the time of Haneef’s arrest, the then
advertisement in the British Medical Journal, he AFP Commissioner, Mick Keelty, acknowledged
applied to work in Australia under Australia’s that Haneef ‘may have done nothing wrong and
temporary skilled worker scheme and obtained may at the end of the day be free to go’. Despite
a job as a medical doctor at Queensland’s Gold this, Dr Haneef spent 25 days in detention. He was
Coast Hospital. released without charge on 27 July 2007. During
Dr Haneef and his wife, Firdous Arshiya, this time, the then federal Minister for Immigration
arrived in Australia on 11 September 2006, and and Citizenship, Kevin Andrews, also made the
he commenced work at the Gold Coast Hospital controversial decision to cancel Dr Haneef’s
on 18 September 2006. His wife later became Australian working visa, a decision that was later
pregnant and in March 2007, she returned to India overturned by the Federal Court of Australia.
for the support of her family leading up to the birth. A timeline of the major events in the case of
Dr Haneef stayed at the hospital in Australia and on Dr Haneef is set out in Table 20.1.
TABLE 20.1 Timeline of events in the Haneef case

Date Event
Dr Mohamed Haneef arrives in Australia with his wife, Firdous Arshiya,
11 September 2006
under a temporary skilled working visa.
18 September 2006
Dr Haneef commences working as a registrar at the Gold Coast Hospital in
Queensland.
20
26 June 2007 Firdous Arshiya gives birth to their first child in Bangalore, India.
An attempted terrorist attack in London fails after car bombs intended to
29 June 2007
explode are discovered and disabled.
A terrorist attack takes place at Glasgow International Airport; a distant relative
30 June 2007
of Dr Haneef’s, Kafeel Ahmed, is identified as being involved in the attack.
The AFP at Brisbane Airport arrests Dr Haneef as he is preparing to board a
plane to Bangalore, India.
2 July 2007
Dr Haneef is detained under Australia’s new anti-terrorism laws, pending
further investigation.
The AFP formally charges Dr Haneef with the offence of ‘recklessly providing
14 July 2007
support to a terrorist organisation’, punishable by up to 15 years’ imprisonment.
The Brisbane Magistrates Court grants Dr Haneef bail under ‘exceptional
circumstances’, with bail set at $10 000. The federal Minister for Immigration
and Citizenship, Kevin Andrews, decides to cancel Dr Haneef’s visa.
16 July 2007
The Queensland’s Department of Health suspends Dr Haneef’s employment
without pay pending the outcome of the charges. Dr Haneef remains in
custody without exercising his bail.

TABLE 20.1 (continued)

Date Event
Dr Haneef’s barrister, Stephen Keim SC, confirms that he was responsible
for leaking a transcript of the first AFP interview with Dr Haneef. He did
18 July 2007
this to counter the damaging allegations being made by law-enforcement
agencies.
The Commonwealth Director of Public Prosecutions withdraws the charge
against Dr Haneef after a $3.2 million investigation, citing ‘no reasonable
prospect of a conviction’. This followed an admission by the AFP the week
27 July 2007
before that the SIM card had not been found at the location of the Glasgow
attack as previously alleged.
Dr Haneef is released from custody.
Dr Haneef voluntarily returns to India, no longer with a valid Australian
29 July 2007
working visa.
The Federal Court overturns the Minister for Immigration and Citizenship’s
21 August 2007
decision to cancel Dr Haneef’s visa.
The full court of the Federal Court confirms the judgment of overturning the
21 December 2007
decision to cancel Dr Haneef’s visa.
The federal Attorney-General announces an inquiry into the case of
13 March 2008
Dr Haneef, called the Clarke Inquiry.
The findings and recommendations of the Clarke Inquiry are presented to
21 November 2008
the federal government.
23 December 2008 The Clarke Inquiry report is presented to the public.
15 December 2010 The federal government compensates Dr Haneef for an undisclosed sum.
An apparent heightening of terrorist activities relating to the rise of Islamic
2011–2018
State (ISIS) affects Australia, the United Kingdom and France.

Review 20.1
1 Describe the international events leading up to the 2007 terrorist attack at the Glasgow
International Airport. Recall some of the incidents that had occurred in Australia and overseas.
2 Outline some of the evidence that the AFP alleged linked Dr Haneef to the Glasgow attack and
attempted London bombings. Describe how these claims were argued and assess if they were
plausible.
3 Outline two major terrorist attacks since 2012, one that took place in Australia and one that took
place overseas. Outline the major motives for such attacks.

20.2 Legal responses that were seen to be departures from accepted

standards of the criminal law and the separation of
The laws applied in the Haneef case fall into three
powers. The anti-terrorism legislation was widely
main categories:
criticised as being ‘rushed’. In one incident, a
• anti-terrorism laws that made it possible for
confidential draft of the legislation was published
Dr Haneef to be held without charge for 12 days
online by the ACT Chief Minister, Jon Stanhope,
• anti-terrorism laws under which Dr Haneef was
who stated that ‘law of this significance made in
eventually charged, and later released after the
this haste can’t be good law’. Nevertheless, the laws
charge was dropped
were passed without the full support of the federal
• Australian migration law relating to the
parliament or the public, and without incorporating
cancellation of Dr Haneef’s visa, and the later
many of the amendments and protections proposed.
overturning of that decision.
Anti-terrorism laws Introduction of preventative detention

Schedule 4 of the Anti-terrorism Act (No 2) 2005 (Cth)
Overview of anti-terrorism legislation amended the Criminal Code Act 1995 (Cth). The
One of the features of the Haneef case that made it amendments introduced preventative detention;
so controversial was the use of Australia’s recently that is, short-term detention for named individuals
introduced anti-terrorism laws. The main piece of without evidence or charges. The object of these
federal anti-terrorism legislation is the Anti-terrorism amendments was ‘to prevent an imminent terrorist
Act (No 2) 2005 (Cth), which was passed by the federal act’ or ‘to preserve evidence of or relating to a recent
parliament in December 2005 amid much public terrorist act’. Under a preventative detention order, a
and political debate. This Act and other laws were person has the right to contact a lawyer, one family
introduced by the Australian Government in an effort member or household member, his or her employer,
to restrict the activities of any potential terrorists in and one employee or business partner, but only to
Australia. This Act included numerous provisions let them know that he or she is safe and cannot be
Figure 20.3 Community members pray with first responders during a 9/11 remembrance event in 2019. A beam from
the World Trade Center is part of a memorial at Ivy Tech. Eighteen years ago, on 11 September 2001, 2977 people,
including 343 firefighters, and 71 law-enforcement officers, were killed during terrorist attacks in the United States.
20

contacted. The person being detained is not allowed It was not until 14 July 2007 that the AFP –
to tell the people they contact that he or she is under following consultation with the Commonwealth
a preventative detention order. Director of Public Prosecutions (CDPP) – formally
charged Dr Haneef under section 102.7(2) of the
New crime: The reckless provision Criminal Code Act 1995 (Cth) with the offence of
of funds providing support to a terrorist organisation.
The Anti-terrorism Act (No 2) 2005 (Cth) also introduced
Commonwealth Director of Public Prosecutions
new crimes with severe punishments, including
independent prosecuting agency established by a federal
supporting or recklessly providing funds to a potential Act to prosecute alleged offences under federal laws
terrorist. The Anti-terrorism Act (No 2) 2005 (Cth)
introduced a new section to the Criminal Code Act This new approach represents a significant departure
1995 (Cth); under this new section (s 103.2(1)(b)), the from accepted law about involuntary detention and
individual does not need to know that the person the separation of powers between the government
receiving the funds was a terrorist; only that the and the courts. In the case of Lim v Minister for
individual providing the funds was reckless about Immigration [1992] HCA 64, the separation of powers
the possibility. was interpreted by the High Court of Australia as
preventing involuntary detention by the government,
reckless
able to foresee negative consequences of doing something
unless it was a direct result of a court’s finding of
but carrying on with the act regardless; recklessness criminal guilt. Some exceptions are possible; for
implies a state of mind that is not as strong as an intention example, a short period of detention following a
to do something; for some criminal offences, recklessness
is considered equivalent to intention for the purpose of person’s arrest before he or she can practically be
establishing fault brought before a court, or when awaiting trial on
remand following a charge if bail is refused by a
court. It has been argued that state legislation that
Anti-terrorism laws and Dr Haneef gives a state court a power that is incompatible with
Dr Haneef was the first person to be detained under constitutional restrictions on federal courts (such as
the Anti-Terrorism Act (No 2) 2005 (Cth). Dr Haneef the power to grant a preventative detention order)
also became the first person to have his detention is also a new and disturbing departure from the
extended under the Act and the first to be charged principles enunciated in Lim and in Kable v DPP
with supporting a terrorist organisation. (NSW) [1996] HCA 24.
Probably the most controversial aspect of the
case is those first 12 days of Dr Haneef’s detention separation of powers
the doctrine that the powers and functions of the
(2–13 July 2007), as he was detained without charge. judiciary are separate from those of the legislature
The Anti-Terrorism Act (No 2) 2005 (Cth) only permits and the executive
detention without charge for 48 hours. However,
under complementary state legislation implementing As discussed above, serious deficiencies were
the preventative detention scheme, a person can later discovered in the evidence used by the AFP
be detained for up to 14 days without charge. This to detain Dr Haneef and to repeatedly to extend
was agreed between the Commonwealth and state his detention. The decision to charge Dr Haneef
governments in September 2005. was also controversial and involved questions
In New South Wales, the complementary state about the quality of the evidence against him and
legislation that implemented the preventative the soundness of the decision by the AFP and
detention scheme is the Terrorism (Police Powers) Act Commonwealth prosecutors. This is particularly
2002 (NSW), as amended by the Crimes Legislation relevant where the reliance on certain tenuous
Amendment (Terrorism) Act 2004 (NSW). Under this evidential links by the AFP and prosecutors, as
Act, NSW Police can obtain a preventative detention outlined earlier in this chapter, suggests that the
order from the New South Wales Supreme Court to case against Dr Haneef may have been one of guilt
prevent an impending terrorist act or to safeguard by association rather than any real evidence linking
evidence of a recent terrorist act. him to the crime accused.

guilt by association Dr Haneef’s bail hearing, 16 July 2007, immediately

criminal liability imposed for associating with another following the decision to grant Dr Haneef bail, the
person who commits a crime, rather than for committing that
then Minister for Immigration and Citizenship,
crime oneself
Kevin Andrews, used his power of ministerial
discretion under section 501(3) of the Act to cancel
Perhaps an earlier indication of this was evident
Dr Haneef’s visa.
in the granting of bail by the Brisbane Magistrates
Court to Dr Haneef following formal charges by the ministerial discretion
AFP. Under the terrorism legislation, ostensibly for power granted to a minister under an Act to make a
the protection of the public interest, bail could only specified decision or order
be granted for terrorism offences under ‘exceptional

circumstances’. In an emotional hearing during The direct consequence of the minister’s decision
which Dr Haneef reportedly wept, Dr Haneef’s was severe. Because of his visa being cancelled,
barrister, Stephen Keim SC, argued for his release Dr Haneef effectively became an ‘unlawful
on bail, as the prosecution’s case was ‘extremely non-citizen’ under the Act, which meant that he
weak’. Commonwealth prosecutors argued that Dr became liable to detention by the Department of
Haneef should remain behind bars. The magistrate Immigration pending his removal from Australia.
made the decision to grant Dr Haneef bail on the In effect, this meant that if Dr Haneef accepted his
condition that he would provide a $10 000 surety. right to bail and had been released from custody,
he could be liable for further detention under
surety different laws. The grounds for this decision were
a sum of money provided to support an accused person’s
questioned not only by Dr Haneef’s legal team but
undertaking that he or she will return to court for a hearing
at a later date, as a condition of granting bail; it is agreed also by many commentators. The minister had
that the money will be forfeited if the accused fails to appear made his decision on the basis that Dr Haneef
had not passed the ‘character test’ necessary for
These deficiencies highlight some of the dangers the granting of the visa, based on a reasonable
inherent in the anti-terrorism laws and their suspicion that he had an association with terrorists.
potential to severely restrict a person’s liberty. Dr Haneef’s legal team brought the decision before
Following the bail hearing, the Queensland the Federal Court of Australia for review.
Department of Health suspended Dr Haneef’s The Commonwealth Director of Public
employment without pay pending the outcome Prosecutions withdrew the charges against
of the charges. Although bail was granted, Dr Haneef on 27 July 2007, citing ‘no reasonable 20
Dr Haneef elected to remain in custody without prospect of a conviction’, and Dr Haneef was
exercising his right to bail, probably due to the immediately released from custody and his
high dollar amount required for bail and the federal passport returned to him. The minister stated
government’s decision to cancel Dr Haneef’s visa, that he was seeking advice about Dr Haneef’s
as discussed below. visa and did not intend to detain him but that he
had a responsibility to act in the national interest.
Migration law Without a valid Australian visa to remain, and
Another significant aspect of the Haneef case most likely without any desire to remain after these
was the cancellation of Dr Haneef’s working visa events, Dr Haneef voluntarily returned to India on
under Australian migration law. In Australia, the 29 July 2007.
governing statute is the Migration Act 1958 (Cth). However, the Federal Court case challenging the
It is enforced by the federal Minister for Immigration minister’s decision went ahead and on 21 August
and Citizenship and overseen where necessary by 2007, Justice Spender of the Federal Court set aside
the federal courts. the decision to cancel Haneef’s visa on the basis that
Dr Haneef was in Australia on a ‘business (long the minister had erred in applying the wrong test of
stay)’ visa under the sponsorship of his employer, ‘association’. Justice Spender also noted that the
the Queensland Department of Health. The visa ran circumstances had since changed.
from 30 August 2006 to 30 August 2009. On the day of

Figure 20.4 Dr Mohamad Haneef’s lawyer, Peter Russo, speaks to the media outside the Brisbane Magistrates Court on
27 July 2007, which was the day the Department of Public Prosecution dropped the charges against Dr Haneef.
Review 20.2
1 Outline the three main categories of law applied in the Haneef case.
2 Identify the anti-terrorism laws that were applied in the Haneef case and why these laws were
controversial.
3 Describe the legal events surrounding the cancellation of Dr Haneef’s Australian visa. Assess if
the cancellation was justified; base your assessment on facts.
The Australian Government appealed to the 20.3 Non-legal responses

full court of the Federal Court but the judgment
was upheld on 21 December 2007. In an interesting
Media and politics
comment in the case, Justice Spender questioned
As is true of many high-profile cases, the Australian
the character grounds of associating with terrorists
media were highly influential in shaping the public’s
underpinning the minister’s decision. ‘Unfortunately,
opinion about the Haneef case. Media coverage at
I wouldn’t pass the character test on your statement
the time was generally highly critical of the federal
because I’ve been associated with people suspected
government’s position and the lack of evidence in
of criminal conduct’, Justice Spender said to the
the case, and there was much analysis of the impact
Immigration Department’s counsel.
of the federal government’s new anti-terrorism laws.

Perhaps the most important event in the was. Keim was later cleared of any professional
reporting of the case occurred when Dr Haneef’s misconduct and was given a civil rights award for
barrister, Stephen Keim SC, leaked a 142-page his effort. He was also named ‘Australian of the Year’
transcript of Dr Haneef’s first interview with the by the Weekend Australian magazine.
AFP to the media. According to Keim, the transcript Following Dr Haneef’s release on 27 July 2007,
clearly showed ‘the very thin case that the police are in an interesting comment on political influence in
claiming to have’. Both Prime Minister John Howard the case, prominent barrister Lex Lasry QC stated
and AFP Commissioner Mick Keelty expressed that the mishandling of the case against Dr Haneef
outrage at the leak. may have been a result of political pressure, since it
Before the source of the leak was identified, was an election year. ‘I think there were pressures
Prime Minister Howard had publicly condemned probably on the offices of the Department of Public
it, saying, ‘Whoever’s been responsible for leaking Prosecutions and to some extent on the AFP,
this document is not trying to make sure that justice probably resulting in converting whatever suspicion
is done. Whoever’s responsible for this is trying to there was into a charge which was not supported
frustrate the process and it should be condemned.’ by any evidence. I think this case demonstrates a
Initially, Keelty took the unusual step of publicly couple of things and one of them is that politicians
criticising Keim and suggested that he would pursue ought to keep out of these cases and leave the police
legal action to charge the source of the leak with to do their work.’
contempt of court since the court proceedings had
already commenced and so the leak undermined Community support
judicial process. Throughout the case, a number of political
Keim, however, successfully argued that his organisations, community groups and professionals
client, ‘pursuant to the legislation under which he provided assistance and commentary.
was detained and questioned, has a legal right to The support of people in the legal community is
a copy of that document, and that document was evident from the fact that Dr Haneef’s legal team,
provided to him, without any restrictions whatsoever. including Stephen Keim SC, agreed to represent
He was perfectly entitled, through me, to release him pro bono.
that document.’ Keim argued that the federal
government was applying a double standard, in that pro bono
(Latin) ‘for the public good’; used to describe work that
federal government authorities had also leaked parts is done by a lawyer or barrister on a voluntary basis and
of the transcript to the media to suggest that the without payment, where there are issues of community
concern or significant effect on disadvantaged groups
20
case against Dr Haneef was stronger than it actually
Legal Links
The ABC closely covered the Haneef case. On 1 October 2007, an episode of the ABC current affairs
show, Four Corners, was aired discussing the issues in the case. Further information about the
Haneef case and the Four Corners episode can be accessed online.
Research 20.1
1 View the websites of the organisations listed below and investigate their purpose:
a Australian Lawyers Alliance
b Amnesty International Australia
c Australian Muslim Civil Rights Advocacy Network
d Law Council of Australia
2 Discuss the contributions each organisation may have made to the Haneef case.

Figure 20.5 On 16 July 2007, protesters who support arrested Indian doctor, Dr Mohamed Haneef, speak to the media
outside the Brisbane Magistrates Court before Dr Haneef’s bail hearing. Community support for Dr Haneef during the
case was strong; even Indian Prime Minister Manmohan Singh became directly involved in the case.
In addition, many other organisations provided ‘grubby’ Howard government’s ‘demonising’

valuable commentary and expert opinion to media of Haneef as ‘irresponsible electioneering’ to
reporters and in some cases staged demonstrations push the government to victory in the federal
in support of Haneef. Some of these organisations elections in 2007. In India, The Hindu newspaper
are listed in Research 20.1. accused the Australian Government of ‘high-
Members of the Australian public fiercely handed action verging on vengefulness’. The
debated the case, with some arguing that the federal paper, which is usually more restrained, called
government would not have treated someone in this the investigation a ‘shambles’ and claimed the
fashion if they knew he was innocent, and others Howard government’s fight against terrorism was
suggesting that the Howard government was trying based on an ‘authoritarian mind-set and indeed
to capitalise on terrorism to gain support in an bloody-mindedness’.
election year. Dr Haneef’s wife, Firdous Arshiya, involved the
Indian Government in the case by directly appealing
International response to the Indian Prime Minister Manmohan Singh. It
The Haneef case was not only controversial in was reported that Prime Minister Singh was so
Australia, but also received widespread attention worried about Dr Haneef that he was unable to
internationally. In particular, the case was closely sleep. The Indian Government’s concern resulted
followed in Dr Haneef’s home country of India and, in direct discussions between the two countries
not surprisingly, in the country where the original about the facts and progress of the case. The Indian
terrorist attacks took place, the United Kingdom. Government’s concerned interest in the case is clear
In the United Kingdom, an editorial in by the visits Dr Haneef received while in custody
The Guardian (‘Down under suspicion’ by by officials from the Indian High Commission
Patrick Barkham, 31 July 2007) condemned the in Australia.

Figure 20.6 Dr Mohamed Haneef (top right) speaks to the media after his arrival in Bangalore, India, on 29 July 2007.
Review 20.3
1 Describe how the media shaped public opinion about the Haneef case. 20
2 Assess if there were any allegations about political influence on the case. If so, describe these
allegations.
3 Describe how the Australian and international community responded to the Haneef case.
Assess if these responses were negative or positive.
20.4 Effectiveness of responses by the former New South Wales Supreme Court
Justice, the Hon. John Clarke QC.
Clarke Inquiry The Clarke Inquiry lacked a number of powers.
One of the most significant outcomes of the Haneef For example, it had no power to compel witnesses
case was the decision by the then newly elected to answer questions, it was impeded by the
federal Rudd government to institute an inquiry classified status of documents, and was hindered
(the Clarke Inquiry) into the whole affair, to establish by the difficulty of negotiating the national security
the facts and to determine what went wrong in the concerns of various government agencies.
application of Australia’s laws. Despite these limitations, the Clarke Inquiry
On 13 March 2008, the then Commonwealth report included a number of crucial findings. One
Attorney-General, Robert McClelland, announced an of the main findings was that the material used
investigation into the Haneef case, to be conducted as evidence in the case against Dr Haneef was

‘completely deficient’. The report stated that the Events since the Clarke
main AFP officer responsible for the investigation, Inquiry report
Commander Ramzi Jabbour, had ‘lost objectivity’ Following the public release of the Clarke Inquiry
and was ‘unable to see that the evidence he report on 23 December 2008, a number of events
regarded as highly incriminating in fact amounted relevant to the case have taken place.
to very little’. In an interview with ABC Radio shortly after
The Clarke Inquiry report included numerous the release of the report, Dr Haneef said, ‘I’m very,
recommendations to improve the effectiveness of very pleased and very relieved.’ Dr Haneef, then
the laws. The main recommendations included: based in Dubai, said the Clarke Inquiry had finally
• the provisions of the Crimes Act 1914 (Cth) proved his innocence. While he said it was too early
relating to terrorism offences, introduced by the to talk of a return to Australia, he suggested that
Anti-terrorism Act 2004 (Cth), be comprehensively an apology from the Australian Government would
reviewed by an independent reviewer be appreciated. Dr Haneef said that the case had
• the federal government take steps to review done great damage to his reputation, not only in
and determine ways to clarify the roles and Australia but also in India and around the world.
responsibilities of different federal government Dr Haneef also said that he might seek substantial
agencies relating to counter-terrorism and the compensation for loss of income and damage to his
information that they collect reputation.
• section 102.7 of the Criminal Code Act 1995
(Cth), under which Dr Haneef was charged, Figure 20.7 Mick Keelty, the former AFP Commissioner.
be amended to remove uncertainties about the
element of fault or intention
• the Minister for Immigration and Citizenship
to be informed of the relevant evidence in
a counter-terrorism case to ensure proper
cooperation regarding visas
• ways to educate officers involved in counter-
terrorism cases about the various roles and
responsibilities of agencies and departments,
and about the investigation and prosecution of
terrorist offences in Australia be developed.
For the most part, the federal government has

agreed to the recommendations made by the Clarke
Inquiry. However, many of the recommendations are
complex and will take time to implement.
Research 20.2
Search online to find the following official reports of the Clarke Inquiry:
• Clarke Inquiry into the Case of Dr Mohamed Haneef (Law Council of Australia website)
• Australian Government’s Official Response to the Clarke Inquiry (Commonwealth Attorney-
General’s website).
1 Identify if the federal government has made any changes to the anti-terrorism laws following the
findings of the Clarke Inquiry.
2 Discuss if the federal government has implemented any of the recommendations of the Clarke
Inquiry report.

Review 20.4
1 Identify if Dr Haneef received any compensation from the Australian Government for his time in
detention in Australia.
2 Identify if the Australian Government made a formal apology to Dr Haneef or to the Australian
public for the AFP’s handling of the Haneef case. Explain your answer.
3 Go to the ‘Policy agenda: Mohamed Haneef case’ webpage on the Law Council of Australia
website (https://cambridge.edu.au/redirect/9046). Explain why the Haneef case remains in
the media.
Dr Haneef’s legal team – including Between 2001–2015, the federal government
Bernard Murphy, chair of the national law introduced 61 anti-terror laws – the most of any
firm Maurice Blackburn, and barrister Stephen nation. Professor George Williams of University
Keim SC – have also gone on record several times of New South Wales has labelled such laws as
calling for a public apology from the Australian ‘hyper-legislation’ as many of these laws are already
Government. In December 2008, Queensland embedded in existing, longstanding criminal codes.
Premier, Anna Bligh, broke ranks with the Labor However, in recent years, the rise of Islamic State,
Party to call publicly for a federal government conflict in Syria and the deaths of Australian citizens
apology to Dr Haneef. in terrorist attacks on home soil have gone some way
On 2 September 2009, Mick Keelty announced to justifying these anti-terrorism laws.
his intention to resign from the position of AFP Media commentary and the involvement of
Commissioner. While some, including the then interested groups has increased public awareness of
federal Attorney-General, Robert McClelland, the laws and shed light on some of their deficiencies
rejected suggestions that the fallout from the Clarke and the potential dangers that the changes to the
Inquiry was responsible for his resignation, many law represent. The question that must be considered
others, including Dr Haneef’s lawyers, welcomed is whether these laws are truly necessary responses
the decision, stating that the AFP had been an to terrorist threats. However, these threats cannot
‘organisational disaster’ under Mick Keelty. be seen in isolation from the impact of such laws
In 2010, Dr Haneef returned to Australia for on the liberty of individuals and on the rule of law.
mediation talks with the federal government. His The case of Dr Haneef provides a clear illustration of 20
legal team negotiated a compensation payment that the dangers inherent in such laws and the potential
was undisclosed. It is estimated the payment was for these laws being abused. It remains to be
around $1 million, despite the federal government seen whether there will be changes to the laws as
spending over $8 million during Haneef’s recommended by the Clarke Inquiry.
25-day ordeal. The federal government also The final comment on the Haneef case comes
issued a letter of apology to Dr Haneef’s family. from former Queensland Premier Peter Beattie,
Kevin Andrews, who was the Minister for speaking after Dr Haneef’s release on 27 July
Immigration and Citizenship at the time, has refused 2007. Congratulating the Commonwealth DPP for
to apologise for his part in the case. reviewing and dropping the charges against Haneef,
Beattie reiterated the importance of people ‘having
The future for Australia the guts to stand up and make the point’ about
The Clarke Inquiry condemned the handling of unjust laws. The outcome of the case ‘proves the
the Haneef case and the laws used to detain and system works … this is an indication that Australia
prosecute him. The inquiry was particularly critical is fair-minded’, he said, and as such, it ‘vindicates
of the controversial anti-terrorism laws introduced the Australian way of life’.
in 2004 and 2005 (discussed above).

Chapter summary
• Recent terrorist attacks have changed legal • The Commonwealth Director of Public
and political systems around the world and Prosecutions eventually withdrew the charges
governments have gone to various lengths to against Dr Haneef, citing ‘no reasonable
try to eradicate terrorism. prospect of a conviction’.
• Individuals such as Dr Mohamed Haneef • The decision of the Minister for Immigration
who are accused of terrorist activities may and Citizenship to revoke Dr Haneef’s visa was
be subject to questionable legal processes overturned by the Federal Court.
as a result of governments’ zeal to catch and • There was considerable media, legal and
prosecute terrorists. community support for Dr Haneef in Australia
• The Australian Government recently and overseas.
introduced new anti-terrorism laws. Dr Haneef • While Australian anti-terrorism laws have
was the first person to be detained under the come under scrutiny and been criticised,
Anti-terrorism Act (No 2) 2005 (Cth) and the debate continues over whether these laws are
first person to be charged with supporting a adequate to deal with terrorist threats.
terrorist organisation.
• Some Australian counter-terrorism laws can
be in conflict with the fundamental rights of
individuals.
Questions
1 Granting bail in the Haneef case demonstrates: 4 The Minister for Immigration and Citizenship
a the seriousness of the charge. cancelled Dr Haneef’s visa because:
b support for the anti-terrorism laws. a Dr Haneef had overstayed his visa.
c a lack of sufficient evidence. b Dr Haneef had given his relative his old
d none of the above. SIM card.
2 The charges against Dr Haneef were based on: c Dr Haneef was involved in the Glasgow
a a SIM card given to his relative. International Airport attack.
b his involvement in the Madrid bombings d Dr Haneef failed the character test.
of 2004. 5 Australia’s anti-terrorism laws challenge the
c the cancellation of his working visa. rule of law because:
d all of the above. a suspects like Dr Haneef can now be
3 The Clarke Inquiry found that: arrested arbitrarily and investigated for
a Dr Haneef was guilty of aiding terrorism. terrorist activity.
b the evidence against Dr Haneef was b state laws have been superseded.
not sufficient. c bail now has a higher threshold.
c the AFP and ASIO had acted properly in d sedition now has a new definition.
the case.
d Minister Andrews had no right to cancel
Dr Haneef’s visa.

1 Outline the alleged links between Dr Haneef 5 Explain why Dr Haneef was detained for 25 days.
and his cousin, Kafeel Ahmed, in the United Identify under what laws he was detained.
Kingdom. 6 Assess if we need different laws for terror
2 Discuss why the decision to charge Dr Haneef suspects. Explain your response using the
was controversial. Haneef case as an example.
3 Discuss what you understand the term ‘guilt 7 Discuss why Dr Haneef’s barrister, Stephen
by association’ to mean and how this term Keim SC, leaked to the media a 142-page
applies to the Haneef case. transcript of Dr Haneef’s first interview with
4 Comment on the minister’s decision to cancel the AFP.
Dr Haneef’s visa. Outline the reasoning behind
the decision. Assess if you think the minister’s
decision was justified.
Consider whether Dr Haneef should have received Marking criteria for extended-response questions
compensation from the federal government. Explain can be found on the Cambridge GO website. Refer
why or why not. Discuss what amount you think to these criteria when planning and writing.
would be fair and reasonable. Assess the details of
compensation payments that are kept secret.
20

Issue 3
in conflict with
the state
The Northern Territory
National Emergency
Response
Chapter objectives
• explore the background of and issues related to the Northern Territory intervention
• identify and apply the legal concepts and terminology that relate to the Northern Territory intervention
• investigate the legal system’s ability to address issues relating to the Northern Territory intervention
• explore the possible approaches of the legal system to the Northern Territory intervention
• discuss the legal issues that these approaches create
• describe the legal and non-legal responses to the Northern Territory intervention
• evaluate the effectiveness of legal and non-legal responses to the Northern Territory intervention.
Relevant law
Commonwealth of Australia Constitution Act 1900 (UK) Northern Territory Aboriginals Act 1910 (SA)
Aboriginals Ordinance 1911 (Cth)
Aboriginals Ordinance 1918 (Cth)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Northern Territory National Emergency Response Act 2007 (Cth) (repealed)
Stronger Futures in the Northern Territory Act 2012 (Cth)
Social Security Legislation Amendment Act 2012 (Cth)

INTERNATIONAL INSTRUMENTS
International Convention on the Elimination of All Forms of Racial Discrimination (1965)
United Nations Declaration on the Rights of Indigenous Peoples (2007)
SIGNIFICANT CASES
R v Benny Lee (1974) NTSC 221
Mabo v Queensland (No 2) [1992] HCA 23
R v Fernando (1992) 76 A Crim R 58
Robertson v Flood [1992] 111 FLR 177
Wurridjal v Commonwealth of Australia [2009] HCA 2

21.1 B
ackground to the and Torres Strait Islander peoples of the Northern
Northern Territory National Territory, the Act has been widely criticised locally
Emergency Response and globally. This criticism is due to the lack of
consultation between the groups concerned on a
In 2007, the federal government launched a
strategy to improve the lives of Aboriginal and Torres
comprehensive program of measures aimed to assist
Strait Islander peoples of the Northern Territory,
the Aboriginal and Torres Strait Islander peoples
and the original motives of the federal government.
of the Northern Territory. The Northern Territory
The NTNER seemed to ignore the notion of self-
National Emergency Response (NTNER) is also
determination for Aboriginal and Torres Strait
known as ‘the intervention’ because the Australian
Islander peoples of the Northern Territory, and was
Government intervened in the day-to-day lives of
perceived to be carrying the message that ‘you are
Aboriginal and Torres Strait Islander peoples of the
no good, you can’t sort out your problems and you
Northern Territory. The fundamental motive for this
need us to do it’.
legislation was the protection of Aboriginal and Torres
The key to the conflict lies in the strategies
Strait Islander children from child sexual abuse.
employed by local Aboriginal and Torres Strait
However, the intervention dramatically changed
Islander organisations versus a federal government’s
the relationship between the federal government
attempt to reduce child sexual abuse.
and the Aboriginal and Torres Strait Islander
peoples of the Northern Territory. It brought these
Northern Territory
two groups into a series of conflicts involving
The Northern Territory (NT) covers an area
the protection of children, alcohol use, school
of 1 347 525 km 2. Only Western Australia and
attendance, employment and a range of other issues
Queensland cover larger areas, but the population is
relating to legislative changes.
smaller than any other state or territory in Australia.
The Northern Territory National Emergency
Over 25% of the population is Aboriginal and Torres
Response Act 2007 (Cth) seemed to overturn decades
Strait Islander people – significantly higher than in
of law reform, and despite the best intentions of
other states. Aboriginal and Torres Strait Islander
the government to improve the lives of Aboriginal
Figure 21.1 A meeting of elders in the community of Mutitjulu in the Northern Territory on 26 June 2007.

Chapter 21 (Digital-only chapter) The Northern Territory National Emergency Response
peoples of Queensland and New South Wales make homelands

up just 3% and 2% respectively of their state’s small communities that were established so that Aboriginal
and Torres Strait Islander peoples can maintain their
population. Nationally, the proportion of Aboriginal
connection to their land and culture
and Torres Strait Islander peoples in Australia is 2.5%.
There are approximately 246 700 residents of
Table 21.1 outlines a range of key quality of life
the Northern Territory (Australian Demographic
indicators for Aboriginal and Torres Strait Islander
Statistics, March 2018, ABS) of whom over
peoples and non-indigenous people from the
25% identify as Aboriginal and Torres Strait Islander
Australian Institute of Health and Welfare (2019).
people. Identifying as Aboriginal and Torres Strait
The figures demonstrate many significant ranges
Islander peoples does not imply uniformity, as
or ‘gaps’ in education, employment, health and
contact with the criminal justice system: Aboriginal
differ in language, customs, beliefs and traditions.
and Torres Strait Islander people die younger,
However, it is widely understood that most Aboriginal
and fewer Aboriginal and Torres Strait Islander
and Torres Strait Islander peoples of Australia, past
people can read to a minimum standard (and thus
and present, have a strong spiritual connection to
they have a lower secondary schooling completion
their land and Country. Approximately 30% of the
rate). Aboriginal and Torres Strait Islander people
Aboriginal and Torres Strait Islander peoples of
experience an unemployment rate at least three
the Northern Territory live in 500 homelands. These
times higher than non-indigenous people and
are small to medium-sized communities that were
have been exposed to the criminal justice system
established in the late 1960s so that Aboriginal and
about 36 times more frequently in the age range of
Torres Strait Islander groups could maintain their
10–17 years. There is a strong correlation between
connections with their traditional and sacred land.
detention as juvenile and repeat offences, especially
The Aboriginal Land Rights (Northern Territory) Act
if educational and employment prospects are poor.
1976 (Cth) provided for the return of large areas of
land to Aboriginal and Torres Strait Islander peoples
of the Northern Territory. Amnesty International
Brief history of federal laws
claims that homelands are not a rejection of
relating to Aboriginal and Torres
modernity but an attempt to embrace traditional
Strait Islander peoples
citizenship on a people’s own terms. This aligns Since 1788, there have been numerous bloody
with the United Nations Declaration on the Rights of conflicts between Aboriginal and Torres Strait
Indigenous Peoples (2007), which will be addressed Islander peoples and non-indigenous Australians.
later in this chapter. Across most of Australia in the late 1700s and
TABLE 21.1 Quality of life indicators 21

Indicator Indigenous Non-indigenous
Males: 69 Males: 79
Life expectancy (years)
Females: 74 Females: 83
Males: 61 Males: 78
Life expectancy Northern Territory (years)
Females: 69 Females: 82
Infant mortality (deaths in children under
8–9 per 1000 persons 4 per 1000 persons
one year old)
Unemployment 21% 5%
Complete Year 12 55% 82%
Year 7 (reaching national minimum reading
65% 88%
standard)
Juveniles (aged 10–17) detained 403 per 100 000 14 per 100 000
Source: Australian Institute of Health and Welfare (2019).

throughout the 1800s, martial law operated. The gave power to state governments to legislate for
idea of terra nullius governed the early settlers’ Aboriginal and Torres Strait Islander peoples.
understanding of their new land. See Chapter 5, Therefore, the laws and policies differed from state
Topic 1. The ‘doctrine of reception’ also came into to state. The 1967 referendum did not give Aboriginal
play: it meant that British law would be the law of this and Torres Strait Islander peoples the right to
new land. In these early days, no charges were laid vote. That had been granted through changes to
when Europeans hurt or killed Aboriginal and Torres the Commonwealth Electoral Act 1918 (Cth) in 1962.
Strait Islander peoples. Aboriginal and Torres Strait Islander peoples also
Because of these beliefs and behaviours, had the right to vote in state elections by 1965. In
there were many violent confrontations between reality, the 1967 referendum became a symbol
Aboriginal and Torres Strait Islander peoples and of public recognition of the rights of Aboriginal
non-indigenous people. In New South Wales, there and Torres Strait Islander peoples. Section 127
was the infamous Myall Creek Massacre of 1836, in was deleted from the Constitution, and section 51
which 27 women and children were slaughtered; was amended to allow the federal government to
in the Northern Territory in 1874, the Skull Creek legislate for Aboriginal and Torres Strait Islander
Massacre saw the deaths of up to 90 men women peoples and to override any discriminatory state
and children and in 1928, the Coniston Massacre laws. From this point, indigenous affairs became a
resulted in the death of 70 Aboriginal and Torres federal government matter.
Strait Islander peoples. In 1963, Yolngu people in the Northern Territory
From the 1910s through to the 1950s, the Northern created and sent a petition on bark to the federal
Territory Aboriginals Act 1910 (SA), the Aboriginals government protesting the loss of 300 hectares of
Ordinance 1911 (Cth) and the Aboriginals Ordinance land to a mining company without the permission
1918 (Cth) were the laws relating to Aboriginal of elders. This became the 1971 Gove Land Rights
and Torres Strait Islander peoples in the Northern case, Milirrpum v Nabalco Ltd. It was heard in the
Territory. These laws allowed Aboriginal and Torres Northern Territory Supreme Court with the final
Strait Islander peoples of the Northern Territory to be decision resting on the concept of terra nullius:
forcibly removed from their homelands and placed in Justice Blackburn ruled that the Yolngu people did
reserves and government settlements. This legislation not have any type of native title claim and
was underpinned by protectionism, an approach that common law prevailed.
implied that governments had legal power to remove Under the Aboriginal Land Rights
children from families, and families from reserves, (Northern Territory) Act 1976 (Cth), some Aboriginal
and to exercise some control over marriages and and Torres Strait Islander peoples land became
employment. The laws can best be described as privately owned under a permit system, so it is
paternalistic – that is, ‘father-like’ – and clearly set up neither Crown nor public land. All Australian
a climate of inequality, prejudice and discrimination. landowners have the legal right to allow or refuse
permission for people to enter or travel through their
protectionism land. The permit system involves the traditional
a government’s power to control and limit the behaviour of a
group of people in the name of protecting them owners giving written permission for others to enter
the land. The intention is to protect the privacy of
However, since the 1967 referendum, Aboriginal Aboriginal and Torres Strait Islander communities,
and Torres Strait Islander communities throughout preserve Aboriginal and Torres Strait Islander
Australia have been granted equal recognition as culture and safeguard the natural environment.
citizens of Australia. Until this time, there were two
permit system
references to Aboriginal and Torres Strait Islander a system that requires people to have permits to enter
peoples in the Australian Constitution: sections 51 or remain on Aboriginal and Torres Strait Islander
peoples’ land
and 127.
Section 127 excluded Aboriginal and Torres Strait
Islander peoples from the census and section 51

The Racial Discrimination Act 1975 (Cth) established Affairs Minister Mal Brough announced the most
important legal rights and protection for Aboriginal dramatic change in Aboriginal and Torres Strait
and Torres Strait Islander peoples in the key areas of Islander affairs in Australia’s history. Dubbed ‘the
education, health and employment. The 1992 Mabo NT intervention’, Howard claimed it was necessary and
decision from the High Court of Australia – Mabo v a direct response to the Little Children are Sacred report.
Queensland (No 2) [1992] HCA 23 – ended the role of Nannette Rogers, the Crown Prosecutor of the
the terra nullius idea by determining that land did Northern Territory for 12 years, had raised serious
already belong to people when Europeans arrived concerns over the welfare of many young Aboriginal
in Australia. In addition, under the Native Title Act and Torres Strait Islander children in the course of her
1993 (Cth), Aboriginal and Torres Strait Islander work. Rogers urged the NT Government to commission
citizens have the legal entitlement to access land to a report into child sexual abuse. In June 2007, the Little
practise their traditional lifestyle and customs. Many Children are Sacred report was published. It declared
observers of Aboriginal and Torres Strait Islander child sexual abuse a ‘crisis and an issue of national
rights may have believed that Aboriginal and Torres significance’ and made 97 recommendations on how
Strait Islander peoples had finally achieved racial to reduce child sexual abuse in the Northern Territory.
equality by the mid-1990s. The fundamental theme was the urgency and critical
importance of the protection of Aboriginal and Torres
Little Children are Sacred report Strait Islander children from predatory behaviour.
Despite the decades of law reform outlined, in August Such behaviour often involved over-consumption of
2007, Prime Minister John Howard and Indigenous alcohol and a lack of parental supervision of children.
Figure 21.2 Children play on a swing as the then Indigenous Affairs Minister, Mal Brough, meets with the Mutitjulu
community elders on 6 July 2007 in Mutitjulu, Northern Territory.
21


Review 21.1
1 Outline three quality of life indicators from Table 21.1 and rank them in order of importance.
Describe how each indicator demonstrates socioeconomic disadvantage.
2 Describe your understanding of the term ‘protectionist’. Use two or three pieces of legislation to
illustrate your answer.
3 Use legislation to outline any improvements in legal rights for Aboriginal and Torres Strait
Islander peoples of the Northern Territory from 1967 to 1993.
4 Explain the importance of the Little Children are Sacred report.
21.2 Legal responses applications and sentencing within criminal

proceedings
• the Racial Discrimination Act 1975 (Cth) to be
Northern Territory National
suspended (Indigenous Affairs Minister Jenny
Emergency Response Act 2007 (Cth)
Macklin ended this suspension in 2010)
Then Prime Minister John Howard labelled the
• the permit system to be removed.
situation a ‘national emergency’ and announced a
$587 million package that had nine key strategies. Deployment of military personnel to
In August 2007, the nine measures were legislated a range of areas and communities
under the NTNER. They were: The NTNER required the involvement of the Australian
• additional police to be deployed to a range of Defence Force (ADF). ‘Outreach’ involved 600 military
areas/communities personnel, who delivered trade services, such as
• the Community Development Employment engineering, construction and transport, to set up
Program to be abolished 18 new police stations and safe houses in five remote
• all welfare recipients in the designated communities. The military personnel also provided
communities to have a portion of their benefits support through the wet season as child health check
quarantined (income management), and those teams examined all Aboriginal and Torres Strait
who neglect their children to have all benefits Islander children of the Northern Territory under the
quarantined using the School Education age of 16. The child health checks were another direct
Attendance Measure (SEAM) response to the Little Children are Sacred report: the
• alcohol consumption and possession to have federal government was attempting to establish the
new restrictions level of child sexual abuse by examining all children
• publicly funded computers to have 15 years and under.
pornography filters According to ADF sources, the Army has been
• townships held under the title provisions of the working in outback Aboriginal and Torres Strait
Native Title Act 1993 (Cth) to be compulsorily Islander communities for decades. Army surveyors
acquired through five-year leases (these were between the 1920s and the 1980s mapped the majority
extended to 10-year leases from 2012) of Northern Australia. The Army’s various regional
• customary law and cultural practice forces have included many Aboriginal and Torres
considerations to be removed from bail Strait Islander peoples since the late 1970s. Aboriginal

Aboriginal and Torres Strait Islander communities

as an employment creation and income support
scheme in the late 1970s. Nationally, in June 2008
CDEP had 18 800 active participants spread across
152 employers, at an annual cost of $223 million.
One example of a CDEP project was the Kalano
Community Patrol, which aimed to reduce the
harmful effects of chronic alcohol abuse. The project
monitored those struggling with chronic alcohol
addiction and who were stranded, homeless, or at
risk of self-harm or falling into police custody, and
picked them up and took them to respite areas and
other safer places.
However, when the NTNER scrapped the
CDEP component of the Kalano Patrol, many
employees were retrenched without notice or
severance pay. These employees were forced
from a full-time salary to welfare benefits, which
were approximately 50% of their previous income.
The federal government saved an estimated
$232 million by abolishing CDEP.
The NTNER then issued ‘BasicsCards’, in
a process known as quarantining . The cards
contained an amount of credit that could be spent
on food and clothing, but not alcohol, home brew
kits or gambling products, or a range of other goods
and services that non-indigenous people are able to
purchase with income.
quarantining
a system under which the government can allocate a
Figure 21.3 A member of the Australian Army walks by portion of welfare income for specific uses such as food and
two of the people waiting to meet the then Indigenous clothing
Affairs Minister, Mal Brough, as he arrives for a meeting
with the Mutitjulu community on 6 July 2007.
The process of income management or quarantining 21
and Torres Strait Islander communities have has caused significant angst amongst the Aboriginal
received assistance from medical units conducting and Torres Strait Islander peoples of the Northern
yearly camps since the early 1950s, and from Army Territory. The process segregates Aboriginal and
engineers building houses and running training Torres Strait Islander peoples of the Northern
in trades for over a decade. Since the early 1990s, Territory in shopping situations and makes public
the Department of Defence has sponsored cross- a notion that somehow Aboriginal and Torres
cultural awareness courses in the Northern Territory, Strait Islander peoples of the Northern Territory
attended by members of the ADF. Therefore, from are not capable of spending their weekly budget in
a government perspective, the involvement of the appropriate ways.
military was not seen as unusual or overzealous. At the end of June 2012, there were more than
17 000 people on income management: this cost the
The abolition of CDEP and the partial Commonwealth Government between $6600 and
quarantining of welfare benefits $7900 dollars per person, per year.
The Community Development Employment The news story below illustrates the issues with
Program (CDEP) was first introduced to remote using a BasicsCard.

Perpetuating neglect
By Bev Manton, Chairperson of the NSW Aboriginal Land Council
Koori Mail
11 August 2010
Shopping with a ration card in the Northern Territory roughly consists of the following scenario: you
enter one of the few stores in town where your ration card is accepted, completely unaware of the
balance remaining, and with no easy way of checking that balance.
You can choose any item in the store, but without an idea of the balance, one tends to select the
cheaper, less healthy products to avoid the shame of returning those items to the shelf when you
go to pay.
Fresh foods, including red meat, vegetables and fruit can only be bought in very small quantities (if
they’re even provided); they’re just too expensive.
You then head to the checkout and wait in line, but when you go to pay for the shopping, there’s
not enough credit on your card. As the murmurs and whispers grow in volume behind you, you’re
directed to another aisle down the end of the supermarket, which has been set aside for ‘you guys’.
It’s at this point the knock-out punch comes as you’re told you can’t afford about one-quarter of
what you need to feed the family.
In places like Camel Camp, only 250 km north-east of Alice Springs, there’s simply nowhere to
access decent fresh food. There’s limited access to health care, no roads – only tracks, and the
living conditions are unfathomable to most Australians.
Out here, the so-called ‘Basics Card’ is utterly useless.
Removal of customary law and cultural abuse and violence go hand in hand’, and recognised
practice considerations from bail that ‘more subtle remedies’ than imprisonment
applications and sentencing could be needed.
Since the 1990s customary law and cultural Some Northern Territory court decisions
considerations had been playing important roles concentrated on the sense of hopelessness spawned
in sentencing Aboriginal and Torres Strait Islander by the cultural breakdown that leads to alcohol
peoples of Australia. For example, in the case abuse. In the cases of R v Benny Lee (1974) NTSC
R v Fernando (1992) 76 A Crim R 58, Justice Wood 221 and Robertson v Flood [1992] 111 FLR 177, it was
(NSW) stated that there were times when it was understood that imprisonment was unlikely to be an
relevant to consider the circumstances to ensure effective deterrent. However, these principles and
the equal treatment of Aboriginal and Torres Strait approaches were removed by the NTNER.
Islander offenders, ‘where the abuse of alcohol by
the person standing for sentence reflects the socio- Compulsory acquisition of townships
economic circumstances and environment in which and the removal of the permit system
the offender has grown up, that can and should be The NTNER legislation made 69 regions of the
taken into account as a mitigating factor’. Northern Territory subject to the compulsory
He accepted that in some Aboriginal and Torres acquisition by the Commonwealth as five-year
Strait Islander communities, ‘problems of alcohol leases. These areas consisted of townships

and town camps, which Aboriginal and Torres

Strait Islander communities owned under the programs for alcoholics and on real
Native Title Act. The acquisitions were made and substantive reforms to education,
under section 51(xxxi) of the Constitution, so the employment and housing. As a result some
Commonwealth was required to compensate the residents have transferred their addiction
Aboriginal and Torres Strait Islander communities to other drugs and others have found ways
on ‘just terms’. The basis of this legislative measure to avoid the law by bringing alcohol in
was to speed up the provision of necessary illegally. The gradual erosion of the benefits
government services and infrastructure in affected of alcohol restrictions highlights how
communities. In 2012, these leases were extended useless the introduction of restrictions can
to 10 years under the ‘Stronger Futures’ legislation be without addressing the aimlessness and
(discussed later in this chapter). boredom of lives lived on welfare.
The permit system set up under the Aboriginal
Land Rights (Northern Territory) Act 1976 (Cth) was
also scrapped so that access to remote communities
and homelands to apply the strategies (outlined The Prohibition movement of the 1930s in the United
above) could not be refused. States is often referred to as an example of the
outcomes of banning alcohol. Drinkers either find
Alcohol restrictions illegal methods of obtaining alcohol or find cheaper
The NTNER legislation also included bans on alcohol alternative substances that may have even more
in many areas of the Territory. The Liquor Act 2019 harmful effects.
(NT) was modified so that it applied in a particular
way to ‘alcohol protected areas’. For example, under Court challenge
section 8 various offences were inserted into the Reggie Wurridjal, a senior member of the Dhukurrdji
Acts such as the offence of consuming liquor in an clan, challenged the NTNER in October 2007 (see
‘alcohol protected area’. Wurridjal v Commonwealth of Australia [2009] HCA 2).
As Sara Hudson (2012) explains: He claimed that the seizing of his people’s land,
10 km2 in area, was a property acquisition that was
not consistent with the ‘just terms’ in section 51(xxxi)
… in all the states and territories where of the Constitution. Wurridjal’s challenge was
alcohol restrictions have been introduced, unsuccessful on the basis that section 122 of the
government has failed or been slow Constitution ‘gives parliament the power to make
to deliver on promised rehabilitation laws for the governing of any territory’.
21
International implications
The UN Special Rapporteur on Indigenous Rights,
James Anaya, visited Australia in 2009 and found
Review 21.2
1 Discuss the value of Basics Cards or quarantining welfare payments. Use the news article
(‘Perpetuating neglect’, by Bev Manton, 11 August 2010) to illustrate your response.
2 Outline the significance of removing customary law and cultural practice considerations from
bail applications and sentencing in criminal proceedings. Describe the impact this removal may
have on Aboriginal and Torres Strait Islander peoples in the Northern Territory.
3 Outline the significance of the permit system for Aboriginal and Torres Strait Islander peoples
in the Northern Territory. Describe the impact the removal of the permit system may have on
Aboriginal and Torres Strait Islander peoples in the Northern Territory.

that Australia was failing in its compliance with intervention measures for a further 10 years, as
the International Convention on the Elimination of well as providing a $3.4 billion funding package
All Forms of Racial Discrimination (1965). Australia for the period.
fulfilled its commitments to this convention in 1975 by It is clear that the Australian Government
enacting and implementing the Racial Discrimination went to great lengths to talk about the legislation
Act 1975 (Cth). However, the NTNER suspended this with Aboriginal and Torres Strait Islander
Act in 2007 in order to pursue its nine strategies. communities throughout the Northern Territory.
Anaya noted that the NTNER also impacted the Government sources report that in mid-2011 there
Native Title Act 1993 (Cth), and that Articles 1 and were over 450 meetings with 100 communities as
2 of the International Covenant of Economic, Social the government prepared to amend the 2007
and Cultural Rights (1966) had been contravened, legislation. The following news story describes one
because the NTNER failed to recognise culture of the meetings.
as a central pillar of Aboriginal and Torres Strait However, by June 2013, despite fierce resistance
Islander identity. and a 43 000-signature petition, the Stronger
Futures legislation extended the Northern Territory
Stronger Futures in the Northern intervention for another 10 years. Under this
Territory Act 2012 (Cth) legislation, the penalties for alcohol offences were
The NTNER expired in 2012, and was succeeded increased, with up to six months’ imprisonment for
by the Stronger Futures in the Northern Territory possession of a single can of beer, and three times
Act 2012 (Cth), which extended many of the that for a six-pack.
Figure 21.4 A volunteer hangs art painted by school children in Sydney’s Hyde Park on 3 July 2017. The annual event,
with the theme of ‘our languages matter’, celebrates Aboriginal and Torres Strait Islander culture. The intervention
failed to recognise Aboriginal and Torres Strait Islander peoples’ cultures.

The way ahead: The new land grab

By Jeff McMullen
The Tracker Magazine
19 March 2012
Aboriginal leaders in the Northern Territory have issued a strong warning that the Australian
Government’s new land grab in the form of the proposed 10-year extension of the intervention will
send many communities into a dangerous downward spiral with still more death and misery.
As a Senate Committee from Canberra listened to elders and community representatives in

Maningrida, 600 km east of Darwin, I watched men in ceremonial paint dance into the centre of the
proceedings to assert their right to Aboriginal law and challenge the increasing take-over of their
rights to land, language and culture.
The target of the rising anger across the homelands and larger communities like Maningrida
is the federal government’s provocatively named ‘Stronger Futures’ legislation, now before the
parliament.
If approved, it is a massive assault on Aboriginal land rights, an extraordinary shift of power to the
federal Minister for Indigenous Affairs and a tightening of government hands slowly throttling
traditional owners, Aboriginal organisations and the voices of Aboriginal people.
Dr Djiniyini Gondarra, the Mandela-like Yolngu leader from Galiwinku, Elcho Island, stared into the
senators’ eyes and declared, ‘This legislation is going to kill us. We are losing 9 or 10 people every
week. People can’t live. They have lost their will and all hope.’
The government’s big stick is coming down so hard on Aboriginal people that Maningrida’s
Malabam Health Board warned the Senate Committee that the rising suicide rate and community
anger could explode with even more arrests and incarceration, a pattern that has grown far worse
under the intervention.
Helen Williams, a courageous defender of the 35 homelands surrounding Maningrida, mocked

the claims by the Minister for Indigenous Affairs, Jenny Macklin, that the government’s so called
consultations had given approval to any of the ‘seven deadly sins’, the new measures aimed at 21
controlling so many aspects of Aboriginal family life.
Courts were still not allowed to take customary Act 2012 (Cth), parents and caregivers of both
law or cultural practice into consideration when Aboriginal and Torres Strait Islander peoples
making decisions. and non-indigenous children (in SEAM locations)
In addition, the School Education Attendance must maintain a minimum standard of school
Measure (SEAM) was introduced. This meant attendance for their children. If they failed to meet
that some income quarantining continued, with these standards their welfare payments could be
welfare payments being withheld under SEAM. cut until the parent could demonstrate adequate
Under the Social Security Legislation Amendment attendance rates.

Review 21.3
1 Identify the international agreements contravened by the Northern Territory National

Emergency Response.
2 Explain the ways in which the Stronger Futures in the Northern Territory Act 2012 (Cth) is even
more stringent than the Northern Territory National Emergency Response Act 2007 (Cth).
Public discussion and criticism

In general terms, the Aboriginal and Torres Strait
Islander peoples of the Northern Territory were
outraged by the intervention and protested on the
grounds that it constituted racial discrimination.
Many argued that the strategies employed were not
in response to child protection but rather a simple
return to the protectionist and paternalistic days.
Howard was facing an election in 2007 and some
commentators argued that he was simply trying to
win votes. Prominent Aboriginal and Torres Strait
Islander leaders made the following statements in
the first few months of the NTNER:
Figure 21.5 Activist, Barbara Shaw, from the Mt Nancy

People are living in third world conditions
town camp in Alice Springs, speaks at a rally in Sydney
here and yet the government made the on 28 August 2009. Shaw joined other speakers and
delivery of basic services and rights activists from the Stop the Intervention Collective to
conditional on the rolling back of land demand an end to Australian Government plans to
rights. No other group in Australian society compulsorily acquire Alice Springs town camps and to
would be treated in this way. (Barbara Shaw) demand the immediate release of funds for housing.
Aboriginal people whose communities had deteriorated, and that income management
were subject to the intervention were was both insulting and humiliating. The Law
not consulted; their expertise, trust and Council of Australia also argued that the affected
partnership were unimportant to the communities would have been highly unlikely to
federal government. And it was not lost reject the medical and infrastructure services if their
on many that the rhetoric being used free and informed consent had been sought.
from Canberra was the same that earlier
governments had used to justify the
Demonstrations
removal of Aboriginal children from their Stop the Intervention Collective is a group based
families. (Larissa Behrendt) in Sydney that organises rallies and meetings on a
monthly basis with a goal of reversing the legislation
associated with the NTNER. The group meets twice per
month in Sydney and invites guest speakers. A recent
rally in June 2019 was called ‘NT Intervention 12 years
The North Australian Aboriginal Justice Agency too long’ and featured guest speakers and letters to
stated in 2009 that people felt that their self-worth the current Minister for Indigenous Australians.

Legal Links
Look online for an article, ‘Australian Government imposes military-police regime on Aborigines’
(by John Ahni Schertow, Intercontinental Cry, 24 June 2007). The article is anti-government and
criticises the Australian Government’s strategies.
Review 21.4
1 Recall the views the North Australian Aboriginal Justice Agency expressed about the Northern
Territory National Emergency Response.
2 Describe the goal of the Stop the Intervention Collective Sydney .
21.4 Effectiveness of responses 36% of non-indigenous children. By 2011, this had

risen to 30% of the Aboriginal and Torres Strait
Overall, the NTNER has been perceived by many
Islander population, and 37% of the non-indigenous
as racist, protectionist and regressive. It seemed
population. Preschool education figures are not a
to ignore decades of negotiation and collaboration
true indicator of literacy gains, but an increase in
as well as many international
preschool enrolments should be seen as a positive
conventions set down by the United
educational outcome.
Nations. However, did it achieve
Up until 2011, there had also been gains in
its objectives?
Video Aboriginal and Torres Strait Islander peoples’
education outcomes since 2006 for those aged 15–24.
Positive outcomes
The number of Aboriginal and Torres Strait Islander
In 2011, the federal government claimed that:
peoples in the Northern Territory participating in
education at some level rose from 16.6% in 2006 to
22.4% in 2011. The figures for the non-indigenous NT
Aboriginal people living in remote
population were about 38%. School attendance rates
communities in the Northern Territory
had risen to about 62% by 2011; they had been 59%
feel safer and receive better levels of
in 2007. However, they were recorded at 64% in 2009,
government services than they did four
which seems to indicate that they have fluctuated
years ago.
slightly throughout the time of the intervention.
In another positive measure, household incomes
21
were on the rise for Aboriginal and Torres Strait
Islander peoples in the Northern Territory, growing
By June 2011, government targets of 310 new
by about 12.7% between 2006 and 2011. However,
houses and 1182 refurbishments had both been
the incomes of non-indigenous households grew
exceeded, with 324 houses and 1592 refurbishments.
even faster, so the gap actually widened during the
In socioeconomic terms, there had been some
period. Therefore, it is difficult to say whether the
improvements. In 2006, in the Northern Territory,
increases are a result of the legislative changes by
23% of Aboriginal and Torres Strait Islander children
both sides of politics.
aged 3–5 were going to preschool, compared with

Negative outcomes By 2019, the following conclusions were drawn:

Despite a change of federal government in 2007 and an
end to the five-year program of nine strategies in 2012,
the Stronger Futures in the Northern Territory Act 2012 The Intervention/Stronger Futures
(Cth) provided little relief for Aboriginal and Torres legislation has been an abject failure, with
Strait Islander peoples of the Northern Territory. living conditions and health negatively
Despair such as that referred to in the impacted since its introduction. As the
McMullen article often leads to anger and rebellion AIDA (Australian Indigenous Doctors’
against authorities. This can lead to more arrests, Association) Health Impact Assessment
incarcerations and a breakdown in the relationship of the Intervention24 stated, ‘It is simply
between the groups in conflict. not possible to fight oppression with
According to an Aboriginal and Torres Strait Legal oppression’. They predicted that ‘the
Services Issues Paper (2010), there is little evidence of an intended health outcomes of the NTER
improvement in the incidence of child sexual assault. (improved health and wellbeing, and
By 2015, the rates of suicide, incarceration, school ultimately, life expectancy) are unlikely
attendance and unemployment among Aboriginal to be fully achieved through the NTER
and Torres Strait Islander people of the Northern measures. It is predicted that it will leave
Territory had worsened under the intervention. a negative legacy on the psychological
Suicide rates had increased by 500%, incarceration and social wellbeing, on the spirituality
rates had increased by 40%, and school attendance and cultural integrity of the prescribed
had decreased by 5%. It has been suggested that: communities.’
Aboriginal people are one of the most

incarcerated on the planet. If the NT
was a country, it would have the second
highest rate of incarceration after the
United States.
Review 21.5
1 List two positive outcomes attributed to the Northern Territory National Emergency Response (NTER).
2 Assess to what extent the suicide, incarceration and school attendance rates have worsened for
Aboriginal and Torres Strait Islander peoples in the Northern Territory under the intervention.
3 Read the 2019 report on the NTER. Outline five keys areas the NTER has failed in, as published
by Stop the Intervention Collective Sydney.
Research 21.1
1 Research online if there has been any recent conflict involving Aboriginal and Torres Strait
Islander peoples in the Northern Territory and state or federal governments in Australia.
Describe briefly the nature of the conflict.
2 Visit the website of the Stop the Intervention Collective Sydney. Evaluate the impact of the
Northern Territory National Emergency Response from 2007 to 2019.

Chapter summary
• In 2007, the federal government launched a protected by Aboriginal and Torres Strait
series of measures to assist Aboriginal and Islander peoples of the Northern Territory and
Torres Strait Islander peoples in the Northern many others.
Territory; these measures are collectively • Aboriginal and Torres Strait Islander peoples
known as the Northern Territory National argue that the NTNER measures are not a
Emergency Response (NTNER) or ‘the way of protecting Aboriginal and Torres
intervention’. Strait Islander children from sexual abuse,
• The main motive for introducing the NTNER but rather are a return to the protectionist and
was to protect Aboriginal and Torres Strait paternalistic days of Australia’s past.
Islander children from sexual abuse. • There have been small gains in income and
• The NTNER dramatically changed the educational outcomes for Aboriginal and
relationship between the federal government Torres Strait people of the Northern Territory,
and the Aboriginal and Torres Strait Islander but it is difficult to know whether or not
peoples of the Northern Territory in relation to these would have been achieved without the
land, customary law and human rights. intervention.
• The $587 million NTNER package included • By 2015, many statistics (e.g. rates of suicide,
seizing Aboriginal and Torres Strait Islander incarceration and school attendance) show
peoples’ land, placing Aboriginal and Torres there has been a decline in the quality of life for
Strait Islander peoples under a compulsory Aboriginal and Torres Strait Islander peoples
income management system, introducing of the Northern Territory.
blanket alcohol and pornography bans and • The Stop the Intervention Collective Sydney
eliminating customary considerations in continues to hold regular meetings and events
sentencing and bail applications. to call for law reform and justice for Aboriginal
• The Racial Discrimination Act 1975 (Cth) and Torres Strait Islander peoples in the
was suspended; this move was strongly Northern Territory.
Questions
1 The legislation that enabled the intervention 3 The Northern Territory National Emergency
is the: Response suspended parts or all of the:
a Northern Territory National Emergency a Racial Discrimination Act 1975 (Cth). 21
Response Act 2012 (Cth). b Native Title Act 1993 (Cth).
b Northern Territory National Emergency c CDEP.
Response Act 2007 (Cth). d All of the above.
c Northern Territory Emergency Response 4 Under the Stronger Futures in the Northern
Bill 2007 (Cth). Territory Act 2012 (Cth):
d Stronger Futures Act 2007 (Cth). a penalties for alcohol offences have been
2 In the Northern Territory, Aboriginal and relaxed.
Torres Strait Islander peoples make up: b customary law and practice can be
a 2% of the total population. considered in sentencing in criminal cases.
b 72% of the total population. c welfare payments to parents can be cut
c 3% of the total population. until their children have adequate school
d over 25% of the total population. attendance.
d the sale of alcohol is banned.

5 What was the main reason for enacting b to promote welfare payments over
the Northern Territory National Emergency Community Development Employment
Response? Programs
a to reduce unacceptable levels of child c to reduce deaths from alcohol abuse
sexual assault d to reduce police deaths in custody
1 Outline some of the key quality of life 5 Describe one of the legislative responses to
indicators for Aboriginal and Torres Strait the Northern Territory National Emergency
Islander peoples. Response legislation.
2 Describe some of the key legislative changes 6 Discuss the views of the federal government
that have affected Aboriginal and Torres Strait and the Aboriginal and Torres Strait Islander
Islander peoples since 1967. peoples of the Northern Territory about
3 Justify the federal government’s decision to continuing the Stronger Futures in the Northern
intervene in the Northern Territory in 2007. Territory Act 2012 (Cth) until 2022.
4 Discuss why the process of income 7 Suggest possible amendments to the Stronger
management or quarantining caused Futures in the Northern Territory Act 2012 (Cth).
significant angst among the Aboriginal and
Torres Strait Islander peoples of the Northern
Territory.
Evaluate the effectiveness of the law in resolving Marking criteria for extended-response questions
conflict between groups and the state. Use the can be found on the Cambridge GO website.
case of the Northern Territory intervention to Refer to these criteria when planning and writing
illustrate your response. your responses.

Index for digital-only chapters
A v Australia (1997) CCPR/ alcohol 542–54 Australian Charter of Healthcare

C/59/D/560/1993 484 responses – legal and non-legal Rights (Charter) 525–6
Abbott Liberal government 464 543–54 Australian Citizenship Act 2007
Aboriginal and Torres Strait Island- restrictions 607 (Cth) 460
er Commission 502 see also drug and alcohol abuse Australian Citizenship Amendment
Aboriginal and Torres Strait Islander alcohol abuse 606 (Citizenship Testing) Act 2007
Commission Act 1989 (Cth) 502 alcohol and drug testing 546 (Cth) 460
Aboriginal and Torres Strait Island- alcohol education campaigns 543 Australian Constitution 456, 470,
er Commission (ATSIC) 502, 504 alcohol-based crimes 543 495–6, 516, 602, 607
Aboriginal and Torres Strait Island- alcohol industry’s response 550 ‘Malaysian solution’ unconstitu-
er Legal Services (ATSILS) 502 BOCSAR reports 552–4 tional 463
Aboriginal and Torres Strait Island- future perspectives 553–4 Australian Criminal Intelligence
er peoples 492–516, 527 Operation Rushmore 544 Commission (ACIC) 561, 565, 569
areas of disadvantage 497–500, alcoholism 547 Australian Defence Force (ADF)
537, 601 alcohol-related problems 547 604–5
connections to land 511 Ambassadors 562 Australian Federal Police 569
gaps 601 American Motorcyclist Association Australian Gangs Intelligence Coor-
government apology 494, 515–16 (AMA) 562 dination Centre (AGICC) 568
law and 492–7, 601–3 Anti-Discrimination Act 1977 (NSW) Australian Government 456, 462,
legal status – pre- and post-1967 477, 501, 528 468, 472, 535
referendum 494–6 Anti-Discrimination Board of NSW apology for Dr Haneef 594–5
life expectancy and general (ADB) 477, 501–2 see also government
health 497 anti-discrimination legislation Australian Human Rights Commis-
needing care and ‘guidance’ 495 501–2 sion 484
overrepresentation 500 anti-social behaviour 544 Australian Human Rights Commis-
recognition 516 Anti-Terrorism Act 2004 (Cth) 594 sion Act 1986 (Cth) 477
treaty 506–9 Anti-Terrorism Act (No 2) 2005 (Cth) Australian Human Rights Commis-
Aboriginal and Torres Strait Legal 582, 584, 587–8 sion (AHRC) 477, 479–80
Services Issues Paper (2010) 612 anti-terrorism laws 587–8 Australian Institute of Health and
Aboriginal Deaths in Custody 502–3 Dr Haneef and 588–9 Welfare (AIHW) 522, 534–5, 601
Aboriginal Land Rights Act 1976 overview 587 Australian Institute of Multicultural
(NT) 511 ‘rushed’ 587 Affairs (AIMA) 480
Aboriginal Land Rights Act 1983 appeal 528, 547, 590 Australian Labor Party (ALP) 496,
(NSW) 503 Kieran Loveridge appeal 547 515–16
Aboriginal Land Rights (Northern arrests 582 Australian Motorcycle Grand Prix
Territory) Act 1976 (Cth) 496, artefacts 494 562
601–2 assault 546, 552–3 Australian Multicultural Council
Aboriginal Legal Service NSW/ACT assessment 459, 463, 526, 530 481
(ALSNSW) 527 assimilation 457, 494 Australian Multiculturalism for a
Aboriginal Legal Service (NSW/ACT) asylum 462 New Century: Towards Inclusive-
Limited (ALS) 502 asylum seeker policy 466–7 ness (1999) 481
Aboriginal Protection Act 1869 (Vic) asylum seekers 461–2, 465–7,
493, 495 469–70, 473, 480 bail 589
Aborigines Protection Act 1909 attacks 582–4 Bail Amendment Act 2014 (NSW)
(NSW) 493, 495 coordinated 582–3 560
access 514 Attorney-General 472 bail applications, removal of
to courts 475–6 Australia customary law/cultural practice
to healthcare system 525–6 being ‘Australian’ 460 considerations from 606
to housing/services 475 detention criticisms 484 bail conditions 549
to the law 526–8 fair-minded 595 ‘balance of family’ test 458
to Murray Island (Mer) 496 First Fleet landing 492 Bali bombings 582
problematic quality healthcare mainstream 510 second 582–3
access 526 mental illness incidence 522 ‘Bali Process’ 470
Adam Salter 533 migrant entry 456 Bandidos 561, 563
Administrative Appeals Tribunal outlaw motorcycle gangs in Bandler, Faith 495
(AAT) 458, 463, 470, 482–4 560–6 banning orders 544
Adult Migrant English Program 464 removal from 471 bans 544, 560, 571, 607
advocacy 562 traditional landowners 492, 496 Barkandji Traditional Owners #8 v
affirmative action 499 ‘way of life’ 457 Attorney-General of New South
age, of retirement 458 Australia Institute of Health and Wales [2015] FCA 604 515
age pension 464 Welfare 498–9 Barry Lyttle case 549
agency powers 568 Australian Capital Territory (ACT) bashing 560
Police 569 BasicsCards 605–6

behaviour 481, 485, 501, 564–5, 603 future Australian perspectives bringing cases before 476
offending 534 595 challenge to NTNER 607
behavioural condition 522 power lacks 593 dealings with mentally ill defen-
Beyond Blue 532 recommendations 593–4 dants 526–7
Bills 571 ‘Cleaning up the Cross’ campaign mental illness definitions appli-
binge drinking 550 544 cations 523
see also alcohol Closing the Gap [report] 499–500 crimes 459
Black Dog Institute 532 clothing 482 individual crime 567–8
‘black lives matter’ rally 514 Coalition of Aboriginal Legal Ser- new 588
blitzes 544 vices (COALS) 502 organised see organised crime
blood-alcohol concentration (BAC) codes of conduct 564 Crimes (Criminal Organisations
546 coercive powers 568 Control) Act 2009 (NSW) 573
boat people 468–9 collaboration 532–3, 568 High Court invalidation 574
boat smugglers 472 colours 563 Crimes Act 1900 (NSW) 546
bombings 582–3 commissions 502 Crimes Act 1914 (Cth) 594
suicide bombing 582–3 common law 469 Crimes and Other Legislation
bookmaking 561 Commonwealth 493 Amendment (Assault and Intox-
border applicants 465–7 Commonwealth Director of Public ication) Act 2014 (NSW) (one-
related laws/policies 468–70 Prosecutions (CDPP) 588 punch laws) 546
bridging visas 464, 484 Commonwealth Electoral Act 1918 Crimes Legislation Amendment
Bringing them Home (1997) 514 (Cth) 602 (Gangs) Act 2006 (NSW) 573
burden of proof 523 Commonwealth Government 496 Crimes Legislation Amendment
business 552–3, 565, 567–8 Commonwealth legislation 476–7 (Terrorism) Act 2004 (NSW) 588
Commonwealth v Yarmirr (2001) 208 criminal actions 476
capsicum spray 534 CLR 515 criminal activities 571
care 498 communication 534, 573 proceeds 568
care, control and protection 458 community 530, 547, 554 criminal acts 459, 567
of children 498 Community Development Employ- criminal association laws 573
‘control’ defined 526 ment Program (CDEP), abolition criminal charges 527
care, treatment and control 526 605 Criminal Code Act 1995 (Cth) 587–8,
carers 458 Community Legal Centres (CLCs) 594
see also Personal Helpers and Men- 527–8 Criminal Code (Organised Criminal
tors Service community organisations 550 Groups) Amendment Bill 2007
case studies/cases 460, 468, 483, community support 531, 591–2 (Qld) 571–2
516, 533–4, 564 compensation 477, 484, 503, 514, 594 criminal justice system 498–9, 501
CCTV video 543, 545, 549 on ‘just terms’ 607 criminal law 500–1
Census 495–6, 498, 602 compliance 544 principles 573
Centrelink 528 conciliation 485 Criminal Law (Criminal Organisa-
chapters 562 conflict 600–1, 612 tions Disruption)
character test 459–60, 464, 589 state conflict 560–77, 587–90, and Other Legislation Amend-
Chief Protector of Aborigines 593–5, 600–12 ment Act 2013
513–14 consent 610 (Qld) 572
child health check teams 604 conspiracy 584 criminal liability 571
child sexual abuse 600, 603–4 contempt 459 criminal link 570
children contract 458 criminal networks 561
care, control and protection 498 control Criminal Organisation Act 2009
dependence on 458 ‘control’ defined 526 (Qld) 571
dependent children 458 see also care, control and pro- criminal organisations 573
forced removal of 493, 495, 498, tection criminal proceedings 526
513–14 control orders 572 criminalising 570
Christie, Daniel 542 controversy 568, 582 criminals, defined 570
Christmas Island 462 Convention on the Elimination of All Cronulla riots 573
chronic alcohol abuse 605 Forms of Discrimination against cultural attitudes 554
circle sentencing 500–1 Women (1979) cultural diversity 480
citizens/citizenship 456–7, 459–60, (CEDAW) 477 cultural practice 457
470, 494 Convention on the Prevention and removal from bail applications/
Australian 458 Punishment of the Crime of sentencing 606
non-citizens, unlawful 465–70 Genocide (1948) 514 culture 494, 608
rights 495 Convention on the Rights of the integrated 457
traditional 601 Child (1989) 479, 484 custodial deaths 503
Citizenship Test 459–60 Convention relating to the Status of custodial sentencing 512
civil law 501 Refugees (1951) 461, 477 custody 589
civil liberties 574 cooperative efforts 470 deaths in 502–3, 512–13
civil rights 570, 576 correctional patients 526 customary law 503, 511
clans 492, 515 counselling 514 removal from bail applications/
Clarke Inquiry 593–4 counter-terrorism cases 594 sentencing 606
events since 594–5 courts customs 503, 515
access issues 475–6

INDEX FOR DIGITAL-ONLY CHAPTERS
data 553–4 elders 512, 600 Glasgow International Airport

de facto relationships 458 elections 496 attack 583–4
death 512–13 eligibility stream, special 457, 459 gold rush 456
death sentence 495 emergency shelter 482 good character 459–60
deaths in custody 502–3, 512–13 employment 459, 498, 500, 530 Gove land rights case see Milirrpum
decision making 463, 495 enforcement/enforceability 478, v Nabalco
decisions 482, 570 544, 560 government 456, 525, 588
defendants 523, 526–7 English proficiency 458–9, 475, 481 assistance for settlement 464
deinstitutionalising 522, 532 equal opportunity 501 border applicants, ongoing con-
demonstration 463, 481, 576, 592, equality 456–7, 506, 603 cerns 468–9
610 equity 492 inquiries 502–3
see also protests ‘Europeanising’ (of people) 494 media campaigns 550
Department of Home Affairs 456–7, evidence 549, 588, 590, 593–4 migrants, action regarding
460–1, 463, 470, 479, 482 exclusion 457, 495, 602 479–81
deportation 470–2 explosions 582, 584 whole of government response
detention 462, 466–7, 470, 473, 484, extortion 561 543–5
582 extradition 472 also under specific government
alternatives 467, 473 Extradition Act 1988 (Cth) 472 government initiatives 550
criticisms 484–5 fairness 492, 506, 595 government policy 492
of Dr Haneef 585 families control and influence over see
preventative 587–8 ‘balance of family’ test 458 political power
without charge 588 forced removal of children from history 492–4
detention centres 473 493, 495, 498, 513–14 government recognition
detention orders 572 members of 459 apology 494, 515–16
determination 570 migrant 456 of rights/issues and responses
diabetes 497 family migration program 458 511–12, 516
Diagnostic and Statistical Manual of family stream 456, 458 grants 530
Mental Disorders (DSM-5) 523 family tax benefit 464 groups 492–516, 600–12
Dictation Test 457 Federal Circuit Court of Australia actions of 481
digital piracy 561 483 in conflict with the state 560–77,
direct discrimination 474 Federal Court of Australia 477, 482 582–95, 600–12
disability 522, 531–2, 535–7 federal government 594, 600 defined 570
Disability Discrimination Act 1992 NTNER outcomes 611–12 of language 492
(Cth) 528 rights recognition 511–12 suffering disadvantage 456–86,
disability pension 464 federal legislation 601–3 492–516, 522–37
Disability Support Pension 528 Federation 457, 505 guardians 527, 529
disadvantage 456–7, 492–500, Fejo v Northern Territory (1998) 195 Guardianship Division (NCAT) 529
522–37, 601 CLR 96 515 guilt by association 571, 582, 588–9
individuals/groups suffering 502, financial assistance 464 Gypsy Jokers 561
522–37 fines 485, 576
disclosure 584 Finks 561, 573 Haneef, Dr Mohamed
discrimination 457, 461–2, 479, 486, Firearms Act 1996 (NSW) 565 anti-terrorism laws and 588–9
492, 502, 528, 531, 602 First Fleet 456, 492 background 584–5
legislative behavioural sanctions five-year leases 606–7 detention and allegations 585
485–6 food 482, 535 see also Mohamed Haneef case
dispersal 493–4 forcible removal 470–2 hanging (death by) 495
dispossession 493–4 forensic patients 526–7 harassment 479, 501
dispute resolution 510 Forgotten Children, The 485 harm 484
District Court 527 foster families 498 hatred 459, 476–7, 485
diversity 480, 537 foul play 503 health 497
doctrine of reception 602 Foundation for Alcohol Research checks 473
domestic environment 522 and Education 550 mental 522
draconian laws 577 F.R.E.E. Australia Party 576 requirements for migrants 459
drag racing 562 Freedom, Rights, Environment and health care 464, 531
DrinkWise Australia 550 Education (FREE) 577 health standards 459
drug abuse 606 freedoms 495, 577 healthcare rights 525
drug and alcohol abuse 522, 550 funding 502, 530–1 healthcare system 525
drug cartels 561 for people experiencing mental access to 525–6
drug testing 546 illness 530–2 accessing quality healthcare
for research 530–1 problems 526
early intervention 531 see also reckless provision of handovers to 533
‘economic migrants’ 469 funds Hells Angels Motorcycle Club 560,
economic wellbeing 457–8 564
education 459, 481, 495, 497, 500, 502, Galbally Report (1978) 457 HIV/AIDS test 459
534–5, 543, gangs 560–3 Hollister riots 563
547, 611 Gangs Squad 569 Holocaust 460
education and public informa- Gillard Labor government 462–3 homelands 601
tion campaign 545 ‘Act of Recognition’ 516 homelessness 534

housing 474, 535 public discussion and criticism relating to border applicants
access to 475 610 468–70
Howard government 464, 592 intimidation 501 targeting bikie gangs 574–5
human rights 461–2 Intoxicated Persons (Sobering Up targeting individual crimes 567–8
abuses 484 Centres Trial) Act 2013 (NSW) 544 targeting organisations and
humane treatment 463 investigation 485, 593 membership 570–1
humanitarian need 461 ISIS 583, 586 targeting people smugglers
humanitarian program 456 isolation 502, 530 469–70
humiliation 501 traditional 515
Jemaah Islamiyah 582–3 unjust 595
‘ice’ 560 judges 534 law enforcement agencies 560, 563,
ID scanners 544 as ‘referee’ 510 565
identity 544, 563, 608 justice 502, 514 Law Enforcement (Powers and
identity checks 473 juvenile custody 512 Responsibilities) Amendment
ignorance 486, 510–11 (Kings Cross and Railways Drug
immigration, independent schemes Kable v DPP (NSW) [1996] HCA 24 Detection) Act 2012 (NSW) 544
458 588 law firms 527
immigration decisions Kelly, Thomas 542, 547–8 law reform 545–6
administrative review of 482–3 Kelly Gang 561 LawAccess NSW 527
challenging 476 Kennison, Jennifer Nicole 523–5 leaking (documents/information)
immigration detention centres ‘king hits’ see one-hit punches 591
(IDCs) 473–4 Kings Cross leases 606–7
immigration law 456 compliance and enforcement 544 legal action 496
breach consequences 470–4 public reaction to deaths in legal advice 527–8
immigration residential/transit 542–3 legal aid 480, 502
housing 474 public transport 544–5 Legal Aid NSW 527
Immigration Review Tribunal 482 whole of government response legal assistance 480, 502
imprisonment 485, 534, 546–7 543–5 legal issues (events highlighting)
incarceration 499, 522, 532, 612 542–54
inclusion 481 land claims 496 legal representation 483, 527–8
income management 605–6, 610 see also native title legal responses/effectiveness
income support payments 530, 605 land councils 503 593–5, 604–9
independent migrants 457–8 land grabs 609 alcohol and violence 543–9, 552–4
age limit 458 land loss 503 disadvantaged people 456–78,
Indigenous Disadvantage (2017) 500 land ownership 492, 496, 510 482–6, 500–4, 510–16, 522–37
indirect discrimination 474 land possession 501 overview 532
individuals land rights 496, 503, 609 response types 567–71
in conflict with the state 560–77, language 457–9, 475, 481, 494, 511, state conflict 567–75, 577, 587–90,
582–95, 608 593–5,
600–12 Aboriginal 493 604–10
involvement in crime 570 barriers 486 legal rights 476, 480, 484
rights protection 528–9 groups 492 legal status 494–6
suffering disadvantage 456–86, Last Resort, A 484 legal system 475, 492
492–516, 522–37 Laudisio-Curti, Roberto 533–4 legislation 456, 544, 546, 604–9
inequality 486, 602 law 492, 567–8 anti-discrimination 501–2
initiatives 530, 550 access to 526–8 anti-terrorism 587–8
injury 532, 542 anti-terrorism 587–8 Commonwealth 476–7
innocence 573, 577 civil 501 enactment 514, 570–1
insurance 531–2, 535–7 criminal 500–1 hyper-legislation 595
integration 457, 505, 530 customary 606 NSW 477
intelligence 565, 568–9 draconian 577 also under specific law/Act
interest groups 566 events highlighting legal issues legislative frameworks 567–8
International Convention on the 542–54 lethal force 548
Elimination of All Forms of Racial federal 601–3 Levi, Roni 532
Discrimination 474, 608 immigration 456, 470–4 liability 571
International Covenant of Econom- international 484 liberty 589, 595
ic, Social and Cultural Rights limitations 485–6 licensing 550
(ICCPR) 608 lockout laws 545–6, 552–3 reforms 552–3
International Covenant on Civil and martial law 494 restrictions 543–4
Political Rights 477 migration 456, 589–90 life expectancy 497, 500, 601
International Covenant on Econom- one-punch 546–7 Lim v Minister for Immigration
ic, Social and Cultural Rights paternalistic 602 [1992] HCA 64 588
(ICESCR) 477, 494 people with mental illness and Lindt café 583
international law 484 522–5 Liquor Act 2007 (NSW) 544–6
international treaties 477–8 permitting forced removal (of Liquor Act 2019 (NT) 607
interpreter use 479, 481 children) 602 Liquor Amendment Act 2014 (NSW)
interpreting services 481 practical aspects 522–37, 542–54, 545
intervention 531–3, 610, 612 560–77, 582–95

Liquor Amendment (Kings Cross prisoners and 534–5 Myall Creek massacre 494–5, 602
Plan of Management) Act 2012, test 523
2013 (NSW) 544 mentoring 530 National Aboriginal and Torres
Liquor Amendment (Small Bars) Act Meriam people 496, 510 Strait Islander Social Survey
2013 (NSW) 544 merits review 463, 482 (NATSISS) 498–9
Liquor and Gaming NSW 543 migrants 456–86 National Agenda for a Multicultural
Liquor Regulation 2008 (NSW) 544 future directions 486 Australia 481
literacy 535, 611 group and government action National Disability Insurance
Little Children are Sacred report 481 Scheme Act 2013 (Cth) 535
603–4 issues 474–6 National Disability Insurance
living costs 464 legal responses 476–8 Scheme (NDIS) 530–2, 535–7
Living Well (2014) 530 migration on humanitarian challenges 535–7
lobbying 481 grounds 461 eligibility 536–7
lockout laws 545–6, 552–3 resettlement offshore 462 National Inquiry into Children in
effect on business 553 review process 482–3 Immigration
London attack/bombing 582–3 Migration Act 1958 (Cth) 456–9, Detention 479
Loveridge, Kieran 547–8 464–5, 469–71, 473, 482, 485, 589 National Inquiry into Racist Vio-
Migration and Refugee Division (of lence 513
Mabo, Eddie 496 AAT) 458 National Inquiry into the Separation
Mabo v Queensland (No 2) [1992] Migration Internal Review Office of Aboriginal and Torres Strait
HCA 23 (Mabo case) 496, 603 482 Islander Children from their
Madrid bombings 582 migration law 589–90 Families 514
Mafia 561 migration policy 463 national interest 589
magistrates 534 migration program 457–60 nationality 461
‘Malaysian solution’ 463 applicants 465–70 native title 493–4, 496, 501, 503–4
Manchester bombing 583 requirements and tests 458–60 cases 515
mandatory detention 473 statistics 456 claims 496, 602
mandatory sentencing 546–7 streams 457–9 successful/unsuccessful 515
manslaughter 547, 560 Migration Regulations 1994 (Cth) Native Title Act 1993 (Cth) 496, 511,
Manus Island 462 459 515, 603
unconstitutional 463 migration zone 462 NDIS Rules 535
maritime arrivals 462–3 Milirrpum v Nabalco Pty Ltd (1971) neglect 606
marriage 458 17 FLR 141 496, 511, 602 negotiation 532
martial law 493–4 military 604–5 networks/networking 503, 561
Acts 493 military deployment 604–5 nine-month conditional visa 458
massacre 494–5, 561, 573, 602 Milperra (bikie) massacre 561, 565, nomadic lifestyle 510
McMahon v Bowman [2000] FMCA 573 non-citizens, unlawful 465–70
3 499 trials 565 non-government organisations
McNeil, Shaun 542, 547 Mind the Gap (2018) 531–2 (NGOs) 482, 532
media 468, 532, 543, 549–50, 566, 576, mining 496, 511 raising mental health awareness
590–1, 595 ministerial discretion 589 role 532
media campaigns 550 misconduct 591 non-indigenous Australians 497,
mediation 595 missions 493 515–16, 602
medical assistance 604–5 misunderstandings 510–11 treaty 506–9
medical examination 459 mitigating factors 606 non-legal responses/effectiveness
Medical Research Future Fund 531 mitigation 546 479–82, 504–9, 530–7, 550–4,
medical treatment 535 Mohamed Haneef case 582–6 576–7, 590–5, 610–12
Medicare levy 458 Clarke Inquiry 593–5 non-parole period 547
Melbourne attack 583 contexts 582 Northern Territory National Emer-
members of parliament (MPs) 504 events timeline 595–6 gency Response Act 2007 (Cth)
Members of the Yorta Yorta Aborigi- international and community 494, 600, 604–7
nal Community v Victoria (2002) responses 591–2 Northern Territory National
214 CLR 422 515 legal responses 587–90 Emergency Response (NTNER)
membership (social/political group) overview 582 600–12
461, 562–3, 570–1, 573 terrorism and 582–6 background 600–3
mental harm 484 Mokmool, Danukul 534 court challenge 607
mental health money laundering 561, 566 criticisms 611
changing attitudes to 522 motorcycle clubs 561–2 international implications 607–8
issues 522 motorcycle gangs, outlaw 560–77 measures 604
Mental Health Act 2007 (NSW) 523, Moving Forward … Improving Path- positive and negative outcomes
526–7 ways to 611–12
Mental Health (Forensic Provisions) Citizenship 460 Northern Territory (NT) 600–1
Act 1990 (NSW) 526 multiculturalism 456–7, 480 ‘not fit to plead’ 526–7
Mental Health Intervention Team migration and 456–7 ‘not guilty due to mental illness’ 526
(MHIT) 532–3 supporting 480–1 not-for-profit organisations 550
mental illness 522–37 murder 565, 584 NSW Aboriginal Land Council
Australian incidences 522 Murray Island (Mer) 496 (NSWALC) 503
definitions 523 MV Tampa incident 468–9

NSW Bureau of Crime Statistics Passenger Transport Amendment programs

and Research (BOCSAR) 565 (Kings Cross Taxi Fare Prepay- for (migrant) offshore resettle-
NSW Bureau of Crime Statistics ment) Regulation 2012 (NSW) 545 ment 462
and Research (BOCSAR) re- Passenger Transport Regulation migration 457–60
ports 552–3 2007 (NSW) 545 refugee and humanitarian 461–4
data 553–4 pastoral leases 501 prohibition 573
NSW Civil and Administrative patches 563 Prohibition movement 607
Tribunal (NCAT) 529 penalties 485, 574 Project Legion 568
NSW Government 546, 576 penalty units 470 protection 462, 500
10-year plan 530 people Acts 493
NSW Government Department of forcible removal 470–2 colonial meaning 493
Communities and Justice 529 seeking asylum 465–7 visa-based 464
NSW Mental Health Review Tribu- ‘people and places’ 545 see also care, control and protec-
nal 526 people smuggling/smugglers 465, tion; rights protection
NSW Police Force 532 468, 470 protection visas (PV) 464
NSW Police Force Memorandum of legislative and efforts targeting protectionism 602
Understanding (2018) 533 469–70 Protector of Aborigines 493–4
NSW Refugee Advice and Case- people with mental illness protests 472, 545, 560, 592
work Service 480 court dealings when defendant provisional visas 458
NT intervention 603 526–7 psychiatric assessment 524–5
law and 522–5 public concerns 566
oaths 516 responses – legal and non-legal public debate 560, 587
obesity 497 525–32 Public Health Act 2010 (NSW) 525
occupation, skilled 457 ‘slipping through the cracks’ 532 Public Health Regulation 2012
O’Farrell government 550 permanent protection visas (PPVs) (NSW) 525
offences 572 462, 464 public opinion 576, 590
‘trifecta’ 500 permanent residents 457–8, 471 public sympathy 549
offenders 547–9 permit system 602, 607 public transport 544
offending behaviour 534 permit system removal 606–7 punishment 472, 500–1, 511, 547
offensive behaviour 501 persecution 461
offshore detention 466–7 Personal Helpers and Mentors quality of life 601
offshore humanitarian program 464 Service (PHaMs) 530 quarantining 605
offshore resettlement program 462 plea in mitigation 527 Queensland Department of Health
OMCG National Intelligence Task points test 457–9 589
Force 568 police 470, 475, 532–4, 543, 576, 588
OMCG Task Force Hydra 568 police powers 570, 573 R v Ballard (1829) 500
on- and offshore processing (refu- policy R v Benny Lee (1974) NTSC 221 606
gees) 463 assimilation and integration 457 R v Fernando (1992) 76 A Crim R 58
one-hit punches 542 asylum seeker 466–7 606
one-punch laws 546–7 government see government R v Murrell (1836) 500
onshore protection 464 policy R v Williams (1976) 14 SASR 1 512
Operation Hydra 576 migration policy 463 race 461
Operation Kinnarra 568 relating to border applicants Race Discrimination Commissioner
Operation Morpheus 568–9 468–70 477
Operation Ranmore 568 state and federal 493–4 racial discrimination 475, 486, 610
Operation Rushmore 544 policy reforms 457 Racial Discrimination Act 1975 (Cth)
opinion 554, 576, 590 political power 504–5 476, 499, 501, 603, 608
Order of Australia 495 political pressure 591 racial equality 603
orders 527, 544, 572, 587–8 political status 576–7 Racial Hatred Act 1995 (Cth) 476–7,
organisations 570–1 politics 576, 590–1 485
organised crime 561, 573 political party formation 576–7 racial vilification 499
outlaw motorcycle gangs and population, ‘white’ 494 racist behaviour 481, 485
565–6 poverty 534 raids 568
outlaw motorcycle gangs (OMCGs) power, z under specific power reasonable doubt 560
560–77 power, separation of 568, 574, 588 Rebels 561–2
‘code of silence’ 567 predatory behaviour 603 reckless 588
criminal activities costs 565 prejudice 602 reckless provision of funds 588
identity and structure 563 pre-sentence reports 527 reconciliation 506
‘1%’ and ‘99%’ distinction 563 presumption of innocence 573, 577, referendum 494–5, 516, 602
state approaches to 565–6, 571–5 582 Aboriginal status before and
over-stayers 465 preventative detention 587–8 after 494–6
ownership 492, 496 principles and procedures, integra- reform 457, 486, 530–1, 546, 573
tion principle 457 refugee and humanitarian program
Pacific Solution 462 prisoners, mental illness and 522, 461–5
Pakistan suicide bombing 583 534–5 components – offshore 461–4
Paris attacks 583 pro bono legal services 480, 527, 591 processing 462–3
Participant Service Guarantee 535 Proceeds of Crime Act 2002 (Cth) Refugee Convention 461–3
568 Refugee Review Tribunal (RRT) 482

refugee status 461, 463 secondary movement relocation St Vincent de Paul 482
‘flood’ of arrivals 464 visa 462 state, the, conflict with 560–77,
refugee visas 462 sections 32 or 33 orders 527 582–95, 600–12
refugees 460–1 security checks 473 states/territories
see also asylum seekers sedentary lifestyle 510 laws 493–4
regulations 459 self-determination 494, 505–9 OMCGs approaches 565–6, 571–5
relationships 459 self-incrimination 475 operations and task forces 568–9
relationship-based residency 458 self-representation 501 rights recognition 511–12
religion 461 self-worth 610 statutory offences 567
reports/reporting 499–500, 527, 543, sentencing/sentences 495, 512, 527, status 461, 463–4, 494–6, 576–7
552–4, 603 545, 547, 584 legal 494–6
‘direct-to-detectives’ reporting maximum/minimum sentence statutory offences 567
capability 569 increases 546 StaySafe areas 550
reputation 594 removal of customary law/cul- stepchildren 458
research funding 530–1 tural practice considerations Stolen Generations 511, 516
residency 456, 460, 464 from 606 Strike Force Raptor 568–9, 575
permanent 458 separation of powers 568, 574, 588 Stronger Futures in the Northern
relationship-based 458 September 11 2001 582 Territory Act 2012 (Cth) 608–9, 612
see also humanitarian program; sergeant-at-arms 564 suicide 583, 612
migration program Serious and Organised Crime (Con- suicide bombing 582–3
resources 457, 473, 534 trol) Act 2008 (SA) 572, 576 support 479, 522, 531, 534
Responsible Service of Alcohol critical provisions 572–3 assurance of 458
Card 544 Serious and Organised Crime Na- legal see legal assistance
Responsible Service of Alcohol tional Intelligence Task Force 568 of multiculturalism 480–1
Registers 543 serious crime 561 Supreme Court 527, 573
retirement age 458 Serious Crime Prevention Orders surety 589
review 463, 482, 528, 535 575 surveillance 534, 573
immigration, process review services, access to 475 Sydney Airport murder 576
482–3 settlement 456 Sydney shooting (Parramatta) 583
of immigration decisions 482–3 settlement/resettlement 462 Sydney siege 583
mechanisms 577 government assistance for 464 symbols 563
rights 461–2, 476, 480, 484, 493–4, migrant resettlement 461–2 SZKCQ v Minister for Immigration
496, 503, 506, 525–6, 570, 576, 609 sexual abuse 600, 603–4 and Citizenship [2008] FCAFC
of access 496 shaming 550–2 119 483
fundamental 495 shootings 493, 532, 560, 583
healthcare rights 525 drive by 565, 568 tasers 533–4
suspension 526 siege 583 task forces 568–9
see also land rights skilled migration program 458 Tattoo Parlours Act 2013 (Qld) 572
rights protection 528–9 skilled stream 456, 487–8, 585 temporary offshore humanitarian
rights recognition 511–12 skills 458–9, 475, 535 visas 462
Rise and Resist 481 Skull Creek Massacre 602 temporary protection visas (TPVs)
risky drinking 545 smuggling 472, 561 462–4
rivalry 566 see also people smuggling/smug- temporary skilled working visas 585
Robertson v Flood [1992] 111 FLR glers terminology 465, 550–1
177 606 social change 550 terra nullius 492, 496, 511, 513, 602
Royal Commission into Aboriginal social cohesion 480 territory/‘turf’ 564, 566
Deaths in Custody 497, 500, social isolation 530 terrorism 592
502–3, 513 Social Justice Report (2000) 513 Mohamed Haneef case and
recommendations 512 social security 475 582–6
Royal Commission into Violence, Social Security Legislation Amend- overview 582
Abuse, Neglect and Exploitation ment Act 2012 (Cth) 609 recent major attacks 582–3
of People with Disability 532 society 459, 479, 547 Terrorism (Police Powers) Act 2002
Royal Commissions 496 changing nature 456 (NSW) 588
Rudd Labor government 462, 464, diverse 457 tests/examinations 457–60, 464, 523,
516, 593 Sorry Day rally 515 546, 589
rule of law 570–1 South Australia v Totani [2010] HCA Thomas Kelly Youth Foundation 550
39 573 time-out places 550
safety 456, 461, 544, 572 Special Humanitarian Program title deeds 503
Salvation Army 482 category 461 tolerance 457, 480
sanctions 485–6 special humanitarian program torture 472
SANE Australia 532 visas 462 tourism 456
school attendance 612 special purpose visas 462 townships, compulsory acquisition
School Education Attendance Mea- sponsorship 456–7, 464, 562 606–7
sure (SEAM) 604, 609 sponsor qualities 459 traditional customs 515
school retention 497–8 spouses 458, 464, 484 traditional lands 515
secondary movement offshore SRAs (shared relationship agree- traditions 494
entry visa 462 ments) 505 training 532–3
Sri Lanka bombings 583 treaty 505–9

international 477–8 Vagrancy Act 1835 (NSW) 493 wellbeing 457–8, 531
for self-determination 505–9 Vicious Lawless Association Dises- White Australia Policy 457
trends 565 tablishment Act 2013 (Qld) 572 whole of government response
trespass 570 Vietnam Veterans 562 543–5
trials 472, 565 viewpoint 510–11 Wik Peoples v Queensland [1996]
trusts 503 violence 494, 542–54 HCA 40 (Pastoral leases case)
changing terminology 550–1 501
Ulysses Club 562 in Kings Cross area 542–3 world wars 456
UN High Commission for Refugees responses – legal and non-legal wrongdoing 561
(UNHCR) 462 543–54
UN Human Rights Committee 484 visa cancellations 471, 585 x-ray 459
under ‘exceptional circumstances’ visas 456, 464
589 categories 462 Yakuza 561
‘undesirables’ 457 denial 459 Yanner v Eaton (1999) 201 CLR 351
unemployment 534, 601, 612 provisional 458 515
United Nations Covenant on Eco- voting 496, 505 Yolngu people 496, 602
nomic, Social and Cultural Rights Yonkers Motorcycle Club 562
505 Wainohu v NSW (2011) 574 Youth Justice in Australia 2017–2018
United Nations Declaration on the Walker v New South Wales [1994] 500
Rights of Indigenous Peoples HCA 64 512
(2007) 494, 601 weapons (of destruction) 574 Zervas, Anthony 560, 573
unlawful non-citizens 465–70, 473, welfare benefits, partial quarantin-
484, 589 ing of 605
types 465–7 welfare payments 475


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Cambridge

Fifth Edition © Cambridge University Press 2020

First published 2006

Cover image by Jean-Michel Girard

ISBN 978–1-108–86281-3 Paperback

Additional resources for this publication are available at www.cambridge.edu.au/GO

Reproduction and Communication for educational purposes

For details of the CAL licence for educational institutions, contact:

Copyright Agency Limited

Reproduction and Communication for other purposes

ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020

About the authors  ix

PART I – THE LEGAL SYSTEM  01

Chapter 1 – Basic legal concepts  02

Chapter 2 – Sources of contemporary Australian law  18

Chapter 3 – Classification of law  66

ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020 iii

Chapter 4 – Law reform  86

Chapter 5 – Law reform in action  108

Topic 1 – Law reform and native title  110

Topic 2 – Law reform and sport  126

Topic 3 – Law reform and sexual assault  140

Topic 4 – Young drivers and the law  152

PART II – THE INDIVIDUAL AND THE LAW  163

Chapter 6 – Your rights and responsibilities  164

Chapter 7 – Resolving disputes  182

Chapter 8 – Contemporary issue: The individual and technology  204

PART III – LAW IN PRACTICE  229

Chapter 10 – Women  258

Chapter 11 – Migrants (DIGITAL-ONLY CHAPTER) 

ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020 v

Chapter 12 – Aboriginal and Torres Strait Islander peoples (DIGITAL-ONLY

Chapter 13 – People who have a mental illness (DIGITAL-ONLY CHAPTER) 

Issue 2 – Events that highlight legal issues  302

Chapter 15 – Alcohol and violence (DIGITAL-ONLY CHAPTER) 

Chapter 16 – The Port Arthur massacre  326

Issue 3 – Individuals or groups in conflict with the state  348

Chapter 18 – Outlaw motorcycle gangs (DIGITAL-ONLY CHAPTER) 

Chapter 19 – Behrouz Boochani  368

Chapter 20 – Mohamed Haneef (DIGITAL-ONLY CHAPTER) 

Chapter 21 – The Northern Territory National Emergency Response

ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020 vii

Issue 4 – Criminal or civil cases that raise issues of interest

Chapter 23 – Facebook and social media privacy issues  416

Answers to multiple-choice questions  432

Chapter 11 – Migrants (DIGITAL-ONLY CHAPTER)  454

Chapter 12 – Aboriginal and Torres Strait Islander peoples  490

Chapter 13 – People who have a mental illness (DIGITAL-ONLY CHAPTER)  520

Chapter 15 – Alcohol and violence (DIGITAL-ONLY CHAPTER)  540

Chapter 18 – Outlaw motorcycle gangs (DIGITAL-ONLY CHAPTER)  558

Chapter 20 – Mohamed Haneef (DIGITAL-ONLY CHAPTER)  580

Chapter 21 – The Northern Territory National Emergency Response  598

Index for digital-only chapters  615

For a list of websites related to this book, go to www.cambridge.edu.au/legal115ed

ISBN 978-1-108-86281-3 Milgate et al. © Cambridge University Press 2020 ix

About the cover illustrations

Part and chapter openers

challenges from the Stage 6 Syllabus

• relevant law (including important

About the authors ix

PART I – THE LEGAL SYSTEM 01

Chapter 1 – Basic legal concepts 02

Chapter 2 – Sources of contemporary Australian law 18

Chapter 3 – Classification of law 66

Chapter 4 – Law reform 86

Chapter 5 – Law reform in action 108

Topic 1 – Law reform and native title 110

Topic 2 – Law reform and sport 126

Topic 3 – Law reform and sexual assault 140

Topic 4 – Young drivers and the law 152

PART II – THE INDIVIDUAL AND THE LAW 163

Chapter 6 – Your rights and responsibilities 164

Chapter 7 – Resolving disputes 182

Chapter 8 – Contemporary issue: The individual and technology 204

PART III – LAW IN PRACTICE 229

Chapter 10 – Women 258

Chapter 11 – Migrants (DIGITAL-ONLY CHAPTER)

Chapter 13 – People who have a mental illness (DIGITAL-ONLY CHAPTER)

Issue 2 – Events that highlight legal issues 302

Chapter 15 – Alcohol and violence (DIGITAL-ONLY CHAPTER)

Chapter 16 – The Port Arthur massacre 326

Issue 3 – Individuals or groups in conflict with the state 348

Chapter 18 – Outlaw motorcycle gangs (DIGITAL-ONLY CHAPTER)

Chapter 19 – Behrouz Boochani 368

Chapter 20 – Mohamed Haneef (DIGITAL-ONLY CHAPTER)

Chapter 23 – Facebook and social media privacy issues 416

Answers to multiple-choice questions 432

Chapter 11 – Migrants (DIGITAL-ONLY CHAPTER) 454

Chapter 12 – Aboriginal and Torres Strait Islander peoples 490

Chapter 13 – People who have a mental illness (DIGITAL-ONLY CHAPTER) 520

Chapter 15 – Alcohol and violence (DIGITAL-ONLY CHAPTER) 540

Chapter 18 – Outlaw motorcycle gangs (DIGITAL-ONLY CHAPTER) 558

Chapter 20 – Mohamed Haneef (DIGITAL-ONLY CHAPTER) 580

Chapter 21 – The Northern Territory National Emergency Response 598

Index for digital-only chapters 615

Chapter 2 Sources of contemporary Australian law 18

Chapter 3 Classification of law 66

Chapter 4 Law reform 86

Chapter 5 Law reform in action 108