HSC Notes

Legal Studies
Annabelle Ainsworth
 TABLE OF CONTENTS

Core Part I: Crime ...................................................................................................... 3

Nature of Crime ...................................................................................................... 5

The Criminal Investigation Process: ................................................................... 9

The Criminal Trial Process: ................................................................................ 16

Sentencing and punishment: ............................................................................. 23

Young offenders: ................................................................................................. 27

International crime: ............................................................................................. 31

CRIME HSC QUESTIONS ................................................. Error! Bookmark not defined.

Core Part II: World Order ........................................................................................ 47

The nature of world order ................................................................................... 48

Responses to world order .................................................................................. 54

WORLD ORDER HSC QUESTIONS.................................... Error! Bookmark not defined.

Core Part III: Family Law ........................................................................................ 76

The nature of family law ...................................................................................... 77

Non-legal responses ........................................................................................... 85

PRO same-sex recognition ................................................................................. 85

Responses to problems in family relationships ............................................... 87

FAMILY LAW HSC QUESTIONS ................................................................................ 107

Core Part II: Human Rights .................................................................................. 120

The nature and development of human rights ............................................... 121

Promoting and enforcing human rights .......................................................... 128

Contemporary issue: Promotion and/or enforcement of human rights. ...... 135

HUMAN RIGHTS HSC QUESTIONS ................................... Error! Bookmark not defined.

GLOSSARY TERMS

Account Account for: state reasons for, report on. Give an account of: narrate a
series of events or transactions
Analyse Identify components and the relationship between them; draw out and
relate implications
Apply Use, utilise, employ in a particular situation
Appreciate Make a judgement about the value of
Assess Make a judgement of value, quality, outcomes, results or size
Calculate Ascertain/determine from given facts, figures or information
Clarify Make clear or plain
Classify Arrange or include in classes/categories
Compare Show how things are similar or different
Construct Make; build; put together items or arguments
Contrast Show how things are different or opposite
Critically Add a degree or level of accuracy depth, knowledge and understanding,
(analyse/evaluate) logic, questioning, reflection and quality to (analyse/evaluate)
Deduce Draw conclusions
Define State meaning and identify essential qualities
Demonstrate Show by example
Describe Provide characteristics and features
Discuss Identify issues and provide points for and/or against
Distinguish Recognise or note/indicate as being distinct or different from; to note
differences between
Evaluate Make a judgement based on criteria; determine the value of
Examine Inquire into
Explain Relate cause and effect; make the relationships between things evident;
provide why and/or how
Extract Choose relevant and/or appropriate details
Extrapolate Infer from what is known
Identify Recognise and name
Interpret Draw meaning from
Investigate Plan, inquire into and draw conclusions about
Justify Support an argument or conclusion
Outline Sketch in general terms; indicate the main features of
Predict Suggest what may happen based on available information
Propose Put forward (for example a point of view, idea, argument, suggestion) for
consideration or action
Recall Present remembered ideas, facts or experiences
Recommend Provide reasons in favour
Recount Retell a series of events
Summarise Express, concisely, the relevant details
Synthesise Putting together various elements to make a whole
 CORE PART I: CRIME
Key features

• The role of discretion in the criminal justice system (Discretion)

• Issues of compliance and non-compliance regarding criminal law (Compliance/Non)
• The extent to which law reflects moral and ethical standards (Moral and Ethics)
• The role of law reform in the criminal justice system (Law Reform)
• The extent to which the law balances the rights of victims, offenders and society
(Balancing Rights)
• The effectiveness of legal and non-legal measures in achieving justice (legal and non-
legal measures)

The nature of crime Sentencing and punishment

• The meaning of crime • Statutory and judicial guidelines

• The elements of crime • Purposes of punishment
• Strict liability • Factors affecting sentencing
• Causation decisions (aggravating and
• Categories of crime mitigating)
• Parties to a crime • The role of the victim in
• Factors affecting criminal behaviour sentencing
• Crime prevention: situation and social • Appeals
• Types of penalties
The criminal investigation processes • Alternative methods of sentencing
• Post-sentencing considerations
• Police powers
• Reporting crime Young offenders
• Investigating crime
• Arrest and charge, summons, warrants • Age of criminal responsibility
• Bail or remand • The rights of children
• Detention and interrogation, rights of • Children’s court
suspects • Penalties for children
• Alternatives to court
Criminal trial process

• Court jurisdiction
• The adversary system
• Legal personnel
• Please, charge negotiation
• Legal representation
• Burden/standard of proof
• Use of evidence
• Defences to criminal charges (complete,
partial)
• The role of juries
 NATURE OF CRIME

THE MEANING OF CRIME:

A crime is an act or omission regarded by the state as sufficiently harmful to society to warrant the
punishment or control of the offender through the process of the courts.
Key features:

• A crime is between the criminal and the state. Law provides for the state to take legal action
against the accused
• Types of punishment include community service, imprisonment
• Standard of proof: beyond reasonable doubt
• State prosecuting, onus of carrying out conviction
• Purpose of protecting society
• Aspects: Investigation, enforcement, prosecution, defence, criminal trial, sentencing and
punishment

ELEMENTS OF CRIME:
Actus Reus à that the person committed a guilty act: that the accused person physically
carried out the crime or failed to at when they have the duty to do so. Must be voluntary.
Mens Rea à that the person had a guilty mind: that the accused person intended to commit
the crime; understood what was happening when the act was committed; had a conscious and
willing mind when performing the crime.
Degree of intention can differ between crimes:
1. Intention: clear, malicious, and wilful intention to commit crime. Highest level and hard to
prove
2. Recklessness: the accused was aware that their action could lead to a crime but took risk
anyway
3. Criminal negligence: accused fails to foresee the risk when they should have, particularly
when the person had a duty to protect

Strict Liability à Mens rea does not need to be proven, only actus reus – that the person did it.
E.g. speeding
Causation à the relationship between the actions of the accused and the result/effect (the
behaviour of the accused actually caused the alleged criminal act)

CATEGORIES OF CRIME:

By type of offence: By seriousness of offence:

The Crimes Act 1900
(NSW) is divided into 16
parts – main types of
offences.
• Offences against the
person - murder,
assault, rape
• Offences against the
sovereign - treason,
terrorism
Summary Indictable
A less serious offence that is A more serious offence
tried by a magistrate in the (homicide, armed robbery,
local court. sexual assault) that is tried by
a judge and jury in the district
- Charge laid by a police and supreme courts.
officer
- Punishment (less severe): - Many offences will be
triable summarily –
caution or good behaviour
accused able to choose to
bond
have the case heard by a
- MAX penalty: 2 years or 5
if accused has been jury
 o Criminal Code convicted of more than - Time and cost efficient
1995 (Cth) one offence - Less formality
o Anti-Terrorism Act - Possibility of a reduced
(No. 2) 2005 (Cth) E.G. sentence
• Economic offences - • Disorderly/ offensive - Judgement determined by
fraud, tax evasion, behaviour and minor jury and penalty
embezzlement assault. determined by judge
• Drug offences - • Road traffic offences - Charge brought by
possession, including careless or prosecutor
distribution, intent to dangerous driving and - Punishment: jail or fine
distribute driving under the
E.G.
o Drug Misuse and influence of alcohol or (Minor) Indictable:
Trafficking Act drugs. • Theft, receiving and
1985 (NSW) • Minor criminal/ property deception.
• Driving offences - damage. • Aggravated burglary,
speeding, running a red
assault causing grievous
light
harm.
• Public Order offences
• Gross Indecency,
- offensive conduct or
Indecent Assault,
language
Stalking.
• Preliminary crimes -
attempted break and
(Major) Indictable:
enter, conspiracy to rob
• Blackmail, extortion.
a bank (conspiracy is
• Drug & alcohol offences.
an agreement between
• Sex offences, child
2 or more people to
exploitation.
commit a crime)
• White collar Fraud &
deception.
• Firearms offences.
• Domestic violence.
• Murder, manslaughter.

PARTIES TO A CRIME:

Principal in the Principal in the Accessory before Accessory after the fact:
first degree: second degree: the fact:

This is the This is the person Someone who is A person is an accessory

principal offender, who was present not present during after the fact to the
the person who during the crime the crime but commission of a crime if,
actually committed and assisted or helped the knowing that the crime has
the guilt act. They encouraged the principal plan or been committed, the person
are likely to principal offender prepare the crime assists the principal
receive the highest to commit the before it is carried offender.
sentence. offence. out.
However, their
presence does
 not have to be
physical and will
receive a lighter
sentence
compared to the
principal
offender.

FACTORS AFFECTING CRIMINAL BEHAVIOUR:

Economic People from disadvantaged backgrounds are more likely to commit crimes
factors: our front in courts than any other group. Disadvantage results in poor
education and lack of skills. Some criminal acts (larceny) may be viewed
as necessary
Psychological Mental illness affecting a person’s behaviour
factors: R v Waterlow (2011)

Social Family situation, personal relationships, or social groups (peer pressure)

factors:
Political Rioting against a political meeting or state because they disagree with the
factors: policy

Self-interest: Profit, revenge, or greed

CRIME PREVENTION:
Situational Crime Prevention – physical devices:
Measures that make it more difficult for criminals to carry out a crime and therefore stop the crime
before it is committed.

• Often involves planning and architectural design which focuses on the influence of physical
environments upon crime, or can focus on reducing the rewards of crime
• ‘Opportunity reduction’

E.G

• CCTV cameras
• Well-lit car parks
• Colour tags attached to clothing in shops
• Blue, fluorescent lights in public toilets
• Bars and alarm systems
• Computer passwords
• Internet firewalls

Social crime prevents – programs:

Measures to address the underlying social factors that may lead to criminal behaviour including
poor home environment and parenting, social and economic disadvantage, poor school
attendance and early contact with police.

• Based on the assumption that anti-social behaviours are learned through families and
communities
 • Address underlying issues which prevent crime

E.G

• school-based programs (truancy initiatives)

• parenting workshops
• youth drug and alcohol programs
• anger management programs
• early-intervention programs: venue for alternative activities such as sporting or youth
groups (Youth on Track, MERIT, Midnight Basketball, Kool Kids Klub, Blue Light)
 THE CRIMINAL INVESTIGATION PROCESS:

POLICE POWERS:

• Responsibility of enforcing criminal laws and maintain public order lies with the police
• Preventing and detecting unlawful acts, collecting evidence, and arresting and interrogating
offenders
• Powers of NSW Police Force outlined in: Law Enforcement (Powers and Responsibilities)
Act NSW 2000 (LEPRA) à Aiming to balance the extent of powers required by the police
against the rights of ordinary citizens to privacy and safety
o S19A: power for police to remove face coverings
o S99: power to arrest without warrant
o S148: general drug detection with dogs
• Police powers often discretionary – power held by someone to inflict a certain course of
action (police have a say in what they see as punishment)

à detain and question suspects

à search property and seize evidence (search and seizure)
à use reasonable force if necessary
à arrest and interrogate suspects
à use technologies to assist in investigation (phone taps, DNA samples)
à recommend whether bail should be granted

IMPORTANCE OF ‘Standards of Professional Conduct’:

• Limiting an abuse of power by police

• Ensures good behaviour – sustains healthy relationship between community and police

REPORTING CRIME:

• E.G. Crime Stoppers, Wanted Persons

• some crimes are widely unreported (e.g., domestic violence due to fear of finding out,
putting family at risk, relational ties etc.)

INVESTIGATING CRIME:

• decision of police after crime has been committed/reported: investigate the crime and
endeavour to find the perpetrator or take no further action à discretion
o factors: severity of offence, likelihood of successful prosecution and available
resources

Evidence:

• involves investigating the crime scene, calling in specialists and detectives to document
evidence in situ (onsite) using video and photography, interviewing witnesses, and
questioning possible suspects
• used to support a charge
• include:
o fingerprints, bodily fluids, skin or hair à DNA
 o oral testimonies, physical objects/weapons, documents, tape recordings, video
surveillance and electronic information on hard drives
• must be:
o relevant to the case
o obtained in a proper and lawful manner (Evidence Act 1995 (NSW))
o meticulously recorded and handled to maintain integrity
• requires: (resource efficiency and balancing rights)
o police establish a crime scene
o use of gloves
o shoe coverings
o hair nets
o specimen bags
o records of location, time and date of interview
• Gordon Woods à unreliable evidence used to acquit Woods of murdering his girlfriend
• Mr Bubbles à inadmissible evidence used due to police being ‘unskilled, repetitive and
probably direct’ in their questioning of victims
o Law reform, balancing rights: specially trained officers are used when children are
involved
• Carnita Mathews à balancing rights, law reform: led to section 19A LEPRA – remove
face coverings
o Protects police against false accusations
o Protects individuals – discrete, recognises cultural sensitives

Use of technology: (balancing rights, law reform)

• Crimes (Forensic Procedures) ACT 2000 governs the use of DNA testing procedures
o DNA evidence can be used to form a database to assist police in solving crimes as
reported in an ABC article: “NSW police take DNA from hundreds of ex-offenders to
build crime-solving databases” (ABC 2015)
o R v Flemming (2007): first successful cold case investigation with the use of DNA
evidence
o R v Jama (2009): DNA process have resulted in wrong convictions, found guilty of
sexual assault after a mix up of DNA sample
• Smart phones: crimes can be filmed
o Carnita Mathews: filming provided protection to the police against false accusations,
also seeks to hold police accountable
• Video statements at domestic violence crime scenes: Domestic Violence Evidence in Chief
or DVEC which improves the enforceability of the law
• CCTV cameras: Jamie Guo’s murder by Rogerson and McNamara
• Inappropriate use of technologies raises privacy concerns

Search and Seizure: (Balancing rights, discretion, legal measures)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW): “a police officer may, without a
warrant, stop, search and detain a person, and anything in their possession of or under the control
of the person, if the police officer suspects on reasonable grounds that the person is carrying
anything stolen, anything intended to be used in an offence, a prohibited drug or a dangerous
article”

• Sniffer Dogs:
 o S148 of LEPRA: police can use a dog to assist with drug detection without a warrant
pub, public places of entertainment, and on public transport routes
o Need a warrant in other public places or to search residential or business premises
o Greens MP David Shoebridge: ‘up to 500 innocent people each year were being
subject to “humiliating” naked searches’ after sniffer dog identification
o 64% of searches found no drugs
o Darby v DPP shows difficulties that can arise around the interpretation of the term
lawful search when using sniffer dogs
• Anti Terrorism Act (No. 2) 2005 gives the attorney general the power to declare a
‘prescribed security zone’ if this prevents a terrorist act or helps to respond
o Officer does not need reasonable suspicion
o Focuses on balancing the rights of society to safety in an era of heightened
terrorist risks
• Recent reforms violated individual’s right to privacy: anti-terrorism reforms in 2014,
telecommunications companies are required to retain customers’ phone and computer
metadata for two years
• Powers of search and seizure usually most controversial because they represent an
intrusion into people’s privacy or personal space and can be confronting or embarrassing
when conducted in public
• Interpretation of reasonable grounds with some arguing it’s too subjective
• Limits and process requirements are in place to help safeguard the rights of ordinary
citizens
o Police can only perform a strip search is they have reasonable grounds of suspicion
o The search must be carried out by a police officer of the same gender
o Strip searches should be in a private area
o Strip search must not involve a search of a person’s body cavities or an examination
of the body by touch

Use of warrants: (balancing rights, legal measure)

A warrant is a legal document issued by a magistrate or judge which authorises a police officer to
perform a particular act. Police must obtain a warrant to: (governed by Part 5 of LEPRA, must
provide a judicial safeguard for ordinary citizens)

• Extend the interrogation period for up to a further 6 hours

• Arrest someone for a crime they are investigating
• Enter and search any residential or business premises without the consent of the occupier
• Enter premises and engage in covert surveillance
• Obtain a phone tap

à NSW Supreme Court judges are now required to give written responses for issuing warrants
authorising covert surveillance such as listening devices which offers increased protection to
society and its right to privacy (balancing rights)

ARREST, DETENTION AND INTERROGATION, RELEASE OR CHARGE AND SUMMONS:

(Balancing rights, discretion, law reform, legal measures, compliance/non)
 • Arrest: seizing a person by legal authority and taking them into custody
• Interrogation: question, 6 hours of interrogation
• Caution: cautioning someone when being under arrest (“whatever you say may be used
against you in court)
• Charge: formal accusation of the crime
• Court attendance notice: formally known as summons
• Bail: temporary release of the accused awaiting trial
• Surety: an assurance (incentive to come to court)
• Subpoena: legal document that compels you to give evidence
• Remand: held in custody whilst awaiting trial

Arrest:

• Under s99 of LEPRA police can lawfully arrest someone without a warrant if they suspect
‘on reasonable grounds’ that a person is committing an offence
• Police must state to the person that they are under arrest and why they are under arrest
• S230 of LEPRA – police can use reasonable force to arrest a person
• Difficulties around the interpretation of terms ‘reasonable grounds/force’ – allows
considerable discretion
• Tasers:
o Roberto Curti: questions whether the use of tasers constitutes ‘reasonable force’
during an attempted arrest for stealing biscuits (died due to taser usage)
o 2008 Amnesty International Report, ‘less than lethal’: deaths of 334 people in the US
after CEDs were used on them
o 2012, the NSW ombudsmen, ‘How are taser weapons used by the NSW police
force?’: reviewed 556 incidents between June and November 2010 and found
devices were used inappropriately on 80 occasions
o Police Association of NSW said assaults and injuries to police officers have
plummeted since the introduction of tasers (thus the difficulty in balancing the
rights between police and members of society)
• Once arrested – police issue suspect with a caution (verbal and in writing) which outlines
the person’s rights
o Right to remain silent: law reform, Evidence Amendment (Evidence of Silence) Act
2013 (NSW) – police must qualify their standard caution: ‘you are not obliged to say
or do anything unless you wish to do so’ with ‘but it may harm your defence if you do
not mention when questioned something you later rely on in court’.
o Some argue that this is an erosion of the longstanding principle, ‘right to remain
silent’, whilst others say it will assist in the investigation process

Detention, interrogation, and the Right of Suspects:

• Once arrested, person can only be detained for 6 hours, by which time that person must be
either charged or released (can be extended with a warrant)
• Suspect has a right to contact a lawyer or other person
• During the 6 hours, suspect undergoes interrogation which must be recorded on video tape
and on two audiotapes (enhances reliability of evidence and gives defendant access to
information if needed in trial – balancing rights)
 o Helps balance rights by providing more solid evidence at trial and also helps to
protect the accused from improper police conduct, such as false allegations or
coerced confessions
• Preventative detention:
o following the London Terrorist Attacks in 2005, the Anti-Terrorism Act (no.2) 2005
established Preventative Detention Orders (PDOs) which allows police to detain a
person without a charge
§ Where there is an immediate threat of an imminent terrorist attack
§ Immediately after a terrorist act if it is likely vital evidence will be lost
o Person can be detained for a max. of 48 hours under Commonwealth law or 14 days
under a combination of commonwealth and state/territory regimes upon application
to a federal or supreme court judge
o The changes increase police powers to deal with the threat of terrorism
o The requirement for police to apply to courts for PDOs provides a judicial
safeguard
o Impacts upon the right to freedom from arbitrary detention which is prohibited in
Article 9 of ICCPR
o Allows for people to be detained in isolation and without knowing the evidence
against them or the reasons for their detention which is a “severe measure on a
person’s liberty” – George Williams NSW University
o SMH article: ‘lockup without charge laws worse than useless’: ‘much more trouble
than they are worth and are worse than useless because you can’t question a
person while they are being preventatively detained under a PDO’
o Concern that PDOs can be used as a punitive rather than a preventative measure
after a man was placed on a PDO following a raid in Melbourne (2015) where he
exercised his right to silence

Release, Charge and Summons:

• At end of max. detention period – police must release suspect without charge
unconditionally or charge the suspect with a specific offence
• If charged for less serious offences, the accused can be released and issued with a court
attendance notice
• If it is a serious matter, accused will be kept in custody but must be brought before a court
as soon as possible for a bail hearing

BAIL OR REMAND:

BAIL:
Bail is the temporary released of an accused person awaiting trial often on conditions

• Lodgement of a specific sum of money (surety) as assurance that the accused will present
in court later
• Use of wrist and ankle monitoring devices
• Restrictions on movement
• A requirement to show up at a police station on a regular basis
• Passport surrender
 • Seeks to strike a balance between upholding the liberty of the accused person who is
entitled to the longstanding common law right of the presumption of innocence, whilst
ensuring the safety of the community

2012 Law reform:

• 2012, the NSW Law Reform Commission Report 113 – bail described the NSW bail laws as
‘voluminous, unwieldy, hugely complex’ leading to results that are ‘frequently anomalous
and unjust’
• report proposed a new, simplified Bail Act – government introduced Bail Act 2013 which
came into effect on 20 May 2014
o removed all presumptions related to bail and replace it with an ‘unacceptable risk
test’ whereby the onus was on the prosecution to show that an accused posed an
‘unacceptable risk’
o provides the accused with a right to release for dine only offences and most offences
under the Summary Offences Act 1988 (NSW)
o reduces the complexity of bail laws and balanced the needs of the community with
the rights of the accused
o Ray Hadley radio presenter: ran a media campaign that argued the reforms were too
lenient, resulting in a risk to the community (non-legal response)
§ Man Monis (Sydney Siege) granted bail just 6 days after the 2013 laws came
into effect

2014 Law reform:

• Bail Amendment Act 2014 (came into effect 2015)

o The onus will be on the people accused of serious offences to show cause that
their detention in custody before trial is NOT justified
o Even if the accused can show cause, an unacceptable risk test will still be applied
o Argued that this was an undermining of fundamental human rights

2015 law reform:

• In light of the Sydney Siege – more discussion around introducing tougher bail laws
• Under new reforms, bail will be refused (unless of exceptional circumstances) where the
accused is charged with an offence that carries a custodial sentence or is terrorist related

Arguments with Bail Reform

For Against
Government
justifies • Bail reform alliance argues that the changes have been ad hoc
reforms on responses to crime incidents
the basis that • Parramatta bail court magistrate, Andrew George: dubs the reforms the
public safety “Ray Hadley bail act” – motivated by media campaigns meaning have
is the number
not been thought through well enough
one priority
• Increasing number of young people on remand, between 2004/05 and
2010 – the average daily number of young people on remand has
increased by 82%
 • Approximate delay of 2 years between charge and trial means that
innocent people could spend a significant time in jail and they do not
get compensation for jail time or legal costs

REMAND:

• If accused is denied bail, they will be held on remand in police custody or at a remand
centre until the trial.
• If the accused is found guilty, the time the offender has spent in remand is usually taken off
the total time of their sentence and referred to as ‘time already served’.
 THE CRIMINAL TRIAL PROCESS:

COURT JURISDICTION:
Lower courts:
Local
Court: - Powers outlined in Local Court Act 2007 (NSW)
- Original jurisdiction
- Conducts bail hearings and case conferencing (magistrate
determines if there is enough evidence for a case to go to trial)
- Summary offences (95% of all offences) and some indictable
offences
- Matters heard solely by magistrate
- Hearing processed faster/cheaper
- Limits on sentences that can passed – max: jail sentence of 2
years or 5 years if offender has committed more than one offence

Coroner’s
Court: - Specialist court, powers outlined: Coroner’s Act 2009 (NSW)
- Cause of a person’s death in an unusual or suspicious
circumstance
- Coronial inquest is a court hearing (not trial) where coroner
considers information to determine cause of death – inquisitorial
by nature
- Coroner cannot convict someone but can refer matter to DPP,
findings can be used as evidence in a trial

Children’s
Court: - Specialist court: powers outlined in Children’s Court Act 1987
(NSW)
- Dual role:
o Matters relating to the care and protection of children and
young people
o Criminal matters involving those under 18 (other than
serious indictable offences) or under age of 21 if they were
under 18 at the time of offence
- Proceedings: Children’s (Criminal Proceedings) Act 1987 (NSW)
– designed to be less intimidating for children, heard in a closed
court, summarily (no jury), and before a single magistrate
(specially trained to be sensitive and able to relate to young
people
- Main aim is to rehabilitate in accordance with Conventions on the
Rights of a Children 1989 (CRC) – R v GDP (1991)

Intermediate courts:
District
Court: - Powers outlined in the District Court Act 1973 (NSW)
- trial court with original and appellate jurisdiction
- hearing appeals from local courts
 - hearing all indictable offences
o offences against the person (manslaughter, sexual
assault, assault occasioning bodily harm)
o property offences (larceny, robbery, embezzlement, break
and enter)
o drug offences (supply manufacture, production of
prohibited drugs)
o driving offences (dangerous driving causing death or
serious bodily harm)
- judge (decides sentence) and jury (decides verdict)

Superior courts:
Land and
Environment - some criminal jurisdiction to hear environmental offences
court: such as illegal polluting or dumping

Supreme
court: - powers outlined in Supreme Court Act 1970 (NSW)
- highest court in NSW
- trial court with original and appellate jurisdiction – hearing
appeals from lower courts
- hearing most serious indictable offences
o murder
o attempted murder
o aggravated sexual assault
o kidnapping
o treason
o major conspiracy
o drug related charges
o serious breaches of corporation’s law
- trials have judge and jury

Court of
Criminal - only appellate jurisdiction
Appeal: - person who has been convicted in the supreme or district
court may appeal
- criminal appeals can also be brought from Land and Enviro
court
- appeals usually heard by 3 supreme court judges with the
majority view prevailing

Federal Court:
- most commonwealth criminal offences (drug importation,
money laundering, corporate law breaches, tax or social
security fraud)
- Judiciary Act 1903 (Commonwealth)

High Court of
Australia: - Powers outlined in section 71 of Constitution: Judiciary Act
1903 (Commonwealth)
- Highest court in Australian court hierarchy
 - Original jurisdiction in matters concerning interpretation of
the constitution and disputes between states and the
commonwealth, no original jurisdiction for criminal matters
- Can hear appeals for criminal matters from state and territory
Supreme Courts but only where the appellant has been
granted special leave to do so
- Has a panel of up to 7 justices which the majority view
prevails

THE ADVERSARY SYSTEM:

Advantages:
Equal opportunity
- Equal opportunity for both parties to
present case with less bias
- Accused is not obliged to testify
(“right to silence”) and protects
presumption of innocence (article 14
ICCPR)
Rules of evidence
- Mostly oral
- Cross examination of witnesses of
both sides allows a rigorous testing
of the evidence
- Strict and complex rules of evidence
and procedure apply to ensure
individual’s rights to a fair trial
Role of parties and judge
- Range of participants involved in
process to ensure it is fair
- Judge acts as an impartial observer
over the proceedings
Use of juries
- Cross section of community
therefore allowing law to represent
changing moral and ethical
standards
Disadvantages:
Resource inefficiencies
- Process can take time with huge
amount of resources
- Case of Robert Xie: faced three
years of court hearings
- Denied bail – held on remand: cost
on the prison system (with only 40%
of those on remand receiving a
custodial sentence)
- SMH article: District Court Delays
“district court facing significant
delays with 2000 trials pending”
Witness challenges
- May not perform well during
examination process which means
that legal representation is more
necessary
- Traumatic for victims to give
evidence
- Domestic Violence Evidence in Chief
Reforms – allows police to introduce
the recorded video/audio statement
of a domestic violence victims
Competitive in nature
- Often relies on skill/knowledge to win
a case
- Unequal outcomes for those who
cannot afford representation
 - Truth may not always be the
objective

LEGAL PERSONNEL:
Judges:
Decides on issues of the law, decides on sentencing, instruct the jury
Magistrate:
Local courts, decides on guilt/innocence (no jury panel involved)
Police prosecutor:
Work for police force but have a law degree, presents case and prosecution case in local court
Director of public prosecution:
Prosecutes indictable offences on behalf of state, represents the state independently in
prosecuting indictable offences (government doesn’t interfere)
Barristers and solicitors:
Lawyers (solicitors) prepare, barristers present
Public defenders:
Legal aid lawyers who represent those who cannot afford lawyers

PLEAS, CHARGE NEGOTIATION:

PLEAS
A plea is a formal statement of guilt or innocence of the accused. When charged a person is asked
to plea and is given three choices:

• Not guilty
• Guilty (generally a 25% discount on the sentence)
• No plea (taken as not guilty)

CHARGE NEGOTIATION
The process by which the prosecutor agrees to withdraw a charge on the promise that the
accused will plead guilty to another or a lesser charge. It is a resource-efficient process; however,
justice issues arise when attempting to balance the rights of victims and the DPP’s role of
discretion.
Criminal Case Conferencing Trial Act 2008 (NSW) codifies discounts for guilty pleas: 25%
before committal or 12.5% after committal.
Advantages of charge negotiation Disadvantages of charge negotiation
- The prosecution is capable of pressuring or
- Can avoid delay, stress, and coercing the accused
costs of hearing - If you are innocent and agree to plead guilty,
- Can provide greater certainty of you will be likely to receive a criminal
outcome for the accused sentence for accepting a criminal act that you
- Can reduce the maximum did not commit
penalty - Charge negotiation does not provide a
- Can spare alleged victims and benefit to accused persons that are innocent
witness the trauma of having to
testify
- Aids the court in dealing with a
caseload
LEGAL REPRESENTATION:
The right to a fair trial is obstructed if an individual does not have adequate legal representation.
Dietrich v The Queen (1992) 177 CLR 292
- This was a High Court case that established a limited right to legal representation in Australia.

The Legal Aid Commission

- Provides legal advice and representation to people who are socially and economically
disadvantaged so that they receive a fair trial.
- Provides free legal advice sessions to anyone
- To receive legal representation, the defendant must be means-tested
- The means test assesses the defendant’s income and assets to determine whether they have
the means to pay for legal representation.
- This also requires the jurisdiction test, which determines which type of case legal aid will cover,
as well as the merits test, which describes the reasonable chance of winning the case.

The commission does not usually measure the chance of the case succeeding (merits) for criminal
cases, unless on appeal.
Legal aid will either provide a legal representative or simply contribute towards the cost of a
private lawyer.

BURDEN, STANDARD OF PROOF:

- It is the responsibility of the prosecution to prove in court that the accused committed the
offence: meaning the burden of proof is on the prosecution.
- The prosecution must meet the standard of proof. For all criminal matters, the standard of proof
is beyond reasonable doubt.
- Meaning that the prosecution’s evidence must prove to the standard of “beyond a reasonable
doubt” that the defendant did commit the crime of which they are accused of.

USE OF EVIDENCE:

- Evidence comes from physical evidence, documentary evidence, and witness testimony.
- There are rules about the way questions can be asked, by both the prosecution and the
defence, and a witness giving evidence will be asked to take an oath, to tell the truth ® if they
do not, they will be found guilty of perjury

DEFENCES TO CRIMINAL CHARGES:

This involves the Mens rea and assists the court in achieving justice as the court can appreciate
the circumstances that gave way to the crime. In some circumstances this reduces liability.
- This promotes the achievement of justice, as the conviction will have heard the defence’
excuse or reason.

Some defences to criminal charges include:

- Mental illness/insanity
- Automatism/involuntary behaviour ® epileptic fits
- Mistake ® negligence
- Self-defence ® reasonable force needs to be proved
- Necessity ® claims that it was necessary to prevent danger
- Duress ® against their own free will ® pressured to do something
- Consent ® victim allowed the offender to inflict harm upon them
- Extreme provocation ® cannot be used as an excuse for murder
- Diminished responsibility ® must prove that they suffer from mental abnormality when they
committed the crime ® e.g., low IQ.

Complete defences Partial defences

- Automatism: when the offender
couldn’t control their actions
involuntary. Must show the act was
involuntary/couldn’t be controlled.
o R vs Brown à she was
attacked by a robber, took his
gun, and shot him. Suffered
from post-traumatic automatism
(e.g., sleepwalking)
- Necessity: must prove that it was vital
to prevent something worse.
o e.g., r vs Dudley and Stephens
1884 à 3 lost at sea, two killed
and ate the third. Proven guilty
as doesn’t count for murder.
- Duress: forced into it. Against free
will.
o e.g., Lucy Dudko case à
someone escape jail by having
his girlfriend hold a gun to the
helicopter pilot’s head.)
- Mistake: e.g., hunting and shooting at
movement thinking it’s an animal
- Self-defence:
o Jessica Silva, husband was
strangling brother, she stabbed
husband)
- Mental illness: being unable to form
men’s rea.
o e.g., schizophrenia
o Waterlow 2011 à delusions
from paranoid schizophrenia
and murdered 3 people- not
guilty
- Diminished responsibility (mental
impairment)
o R v Kain 2013 deteriorated brain
from alcohol, killed his mum-
manslaughter
- Self-defence: excessive (like self-
defence, still a crime as it was over
dramatic)
o e.g., gay panic
- Provocation: when you commit a crime
in reaction to the victim’s actions à
frustration/hurt induced by the victim
which causes a violent reaction
o Singh: provocation used by
husband who murdered wife due
to suspicions of infidelity
o Extreme provocation: law reform
to protect domestic violence
victims (battered spouse
syndrome) whilst not
normalising/excusing violent men

THE ROLE OF JURIES AND VERDICTS:

- Right to a fair trial is a human right (ICCPR 1966) and UDHR (1948), also recognised in
Australia through common law (Dietrich v Queen 1992)
- Juries reflect the right to a fair trial
- Section 80 of Australian Constitution guarantees all persons a jury trial for indictable offences

Jury Panel of citizens randomly selected from the electoral roll who
Selection determine guilt or innocence (the verdict) of the accused based on
the evidence presented to them at trial
+ gives society a role in the legal system and reflects the historic right
of an accused to be judged impartially by a group of their peers
Nicholas Cowdery: “juries perform a valuable role in connecting the
community with criminal justice and in bringing into the process the
community’s values and standards”

+ greater transparency to the judicial system and fairness as it

safeguards against an abuse of power – more likelihood of a fairer
decision
- Jury Act 1977 (NSW): jury duty is compulsory, however
exemptions (people over 70, pregnant, full time carers, doctors,
emergency services) and exclusions due to potential bias (legal
profession, people who hold high public office etc) can be claimed
thereby not representing a cross section of society
- Prosecution and defence have a right to challenge selection of
jurors: peremptory challenges (disqualification of individual
potential jurors without having to give a reason – usually based on
appearance) and challenges for cause (when juror is rejected
because legal team believed they will be prejudiced) thereby not
representing a cross section of society
- Equal numbers of men and women were called up for jury selection,
juries were only 44% female (The Age 4/11/2013)

Competency Exposure to media

of juries
Jury misconduct

Resource
efficiency
 SENTENCING AND PUNISHMENT:

STATUTORY AND JUDICIAL GUIDELINES

Assist in sentencing, reviews past similar cases (judicial guidelines)
- 75% minimum non parole period of 18.6 years
- Crimes (sentencing and procedures) act 1999:
o Aims: Justice, Fairness, Consistency, Discretion (structured)

Judicial guidelines: the previous cases that influence and structure sentencing
Statutory guidelines: the legislation that influences and structure sentencing

THE PURPOSES OF PUNISHMENT:

Deterrence (specific and general)
- Specific: teaching someone a lesson, thinking I won’t do that again, jail sucks
- General: sending a message to everyone in a society. Making others scared of the crime

Retribution
- Fixing your own issue
- Eg graffiti crimes on trains à do community service cleaning sides of trains

Rehabilitation
- Put in place to rehabilitate a person and help them to become a better person
- Eg youth justice conferences

Incapacitation
- To protect the community
- Locking them up to keep everyone else safe.
- Eg serial killer in jail for life

FACTORS AFFECTING A SENTENCING DECISION:

Aggravating factors Mitigating factors

- They’re likely to re-offend - Remorse shown
- They have a criminal record - Not planned/organised
- Multiple victims - Under duress
- Abuse of authority/position of trust - Provocation
- Use of a weapon - Not likely to re-offend
- Infront of someone under the age of 18 - No criminal record
- Planned/organised crime - ‘out of character’

THE ROLE OF THE VICTIM IN SENTENCING

- victim statement after verdict à isn’t allowed to influence jury’s decision of guilt
- the victim is not the prosecutor, the state of NSW takes the offender to court, not the victim.
- Unless it’s a civil case, then it’s the two parties against each other
- not up to the victim to choose if they’re in trouble or not. Can’t choose to ‘not press charges’
- victim’s rights/role:
o speak to media à can impact a fair trial
o victim impact statement (after verdict)
§ gives victims a voice
§ gives victims justice
§ when taken into consideration, makes the victim seem more important than those
without victim statement. Two victims murdered under the same circumstances, if
one doesn’t have any friends their murderer may receive a lower sentence
because of a lack of victim impact statement.
o law reform:
§ allowed to give video/written evidence/victim statements
§ compensation money (e.g., assault victim can’t work for 6 months can apply for
victims’ compensation)
§ charted of victim’s rights (eg kept informed)
- the person writing the statement can be questioned about its contents

APPEALS

High
Court of Court
Supreme Criminal
Appeal
District
Local

• Can be due to:

o Severity (if the sentence was too harsh)
o Rule of law broken (inadmissible evidence, unfair trial)
o Leniency (if NSW thinks the sentence is too lenient)

TYPES OF PENALTIES INCLUDING:

(Blue: since September 2018 no longer used as an individual sentence used as a part of a CRO
(conditional release order), CCO (community corrections order), ICO (intensive corrections order)):

• No conviction recorded
o Section 10
o Guilty à but not given a criminal record
• Caution
• Fine
o Monetary penalty
o 28 days to pay/challenge in court
o 1 penalty point = $110 in NSW
 • Bond
o Most common form à ‘good behaviour bond’
o Eg going to counselling, refraining from gambling
• Suspended sentence
o Proven guilty, sentenced, but pushed sentence back, if well behaved
• Probation
o Some form of supervision (eg daily reporting to police station)
• Criminal infringement notice
o On the spot fines
o No conviction is recorded if the offender accepts the notice.
• Penalty units
o Form of counting fines
o Eg fine of 10 penalty points: (1 penalty point in NSW is $110) 110 x 10 = $1100
• Community service orders
• Home detention
o Allowed to complete prison sentences at home (for up to 18 months)
• Periodic detention (now ICO)
o Like part time prison – eg weekends in prison
o Now made specific to person eg every weekend community service
• Forfeiture of assets
o When money/property is criminally obtained, they may have to sell them
• Imprisonment
• Diversionary programs
o Last resort
o 75% re-offend

ALTERNATIVE METHODS OF SENTENCING INCLUDING CIRCLE SENTENCING, RESTORATIVE

JUSTICE

• Circle sentencing
o Uses indigenous traditional sentencing
o Includes discussion with victim, offender, police and elders talking about how the
crime affected them
• Restorative justice
o Voluntary conference between the offender and the victim as well as any family
and/or support persons who get together and deal with the aftermath of the offence
o Provides an opportunity for the offender to take responsibility for actions and the
impact they had on others, to show remorse etc.
o (Youth justice conference is a type of restorative justice)
• Youth justice conference
o Discussion with victims reflecting on how the crime effected the victim
o Only for under 18s

POST-SENTENCING CONSIDERATIONS:
Crimes (Sentencing Procedure) Act 1999
Child protection (Offender’s registration) Act 2000 (NSW)
SECURITY CLASSIFICATION
Protection of prisoners – Safety
Crimes (Administration of Sentences) Regulation 2008
This involves asking the severity of their crime, their likelihood of rehabilitation and their behaviour
since being involved with the criminal justice system. Some of the prison options include:
Maximum security: often holds offenders that are a high escape risk
Minimum security: allows the offenders to walk around freely, but will have high walls.
Minimum security: has the lowest level of security for low escape risk offenders.

PROTECTIVE CUSTODY
Protection of certain prisoners
- Usually for:
o Police officers
o Sex offenders (specifically child sex offenders)
§ e.g., Robert Hughs
o Informants (people who snitch to the police)
- This protects convicted offenders that are considered vulnerable to an attack from other
inmates.
- People in prison may be vulnerable because of their occupation or because of the nature of
their crime.
- Protective custody may take the place of isolating the vulnerable person to a separate wing, or
perhaps separating them from another offender who has shown to be a threat

PAROLE

- This is the conditional release of a prisoner from custody after they have endured the minimum
term of the sentence, and can incentivise rehab
- It also encourages good behaviour in prisons, as offenders will not be released with a bad
behavioural record.
- This will assist the offender with their gradual reintegration into the community.
- Resource efficiency
- Perceived as being soft on crime

PREVENTATIVE DETENTION

- Putting someone in jail to prevent a future crime

- Usually used for terrorism
- Removing presumption of innocence
- Public safety
- Warrant required
- balance rights
- This type of detention generally relates to Terrorism charges
- Although it denies civil liberties, it protects community rights as police are able to gather
evidence to prevent a terrorist attack.
CONTINUED DETENTION

- Keeping someone in prison PAST their maximum sentence

- Violates the separation of powers
- Needs a court order
- This is when prisoners are kept in prison after they have finished their sentence.
- This is used to ensure the safety and protection of the community, and to facilitate the
rehabilitation of serious sex offenders.
- It is generally used for high-risk offenders who pose a risk to society.

SEXUAL OFFENDERS’ REGISTRATION

- Public safety
- Can’t get a working with children check
- Depends on the case, controversial as they have the title their whole lives regardless of the
severity of the crime
- Crimes (Serious Sex Offenders) Act 2006
- These registers are web-based and aim to assist police with the case management of those
who have committed sexual offences against children.
- The sex offenders register is justified on the basis that it protects the community.
- This may be seen as contentious, as it targets offenders long after the sentence that they have
been required to serve.

DEPORTATION

- Removed from Australia - Sent ‘home’ (back to country of citizenship) - Decision made by
minister of immigration
- Migration Act 1958
- The forcible removal of a person from a country, returning them to their country of origin.
- Anyone who has served a jail sentence of twelve months or more in Australia can be deported
and is automatic.
- This majority of cancellations were for ‘violent offences’ followed by indecent assault, drug
offences, aggravated burglary, assault, grievous bodily harm and child sex offences.

YOUNG OFFENDERS:

AGE OF CRIMINAL RESPONSIBILITY

The law aims to be responsive to the fact that people, particularly of younger age groups, have
different levels of culpability.
- The age of criminal responsibility is 10 years old in NSW.
- The term used for young offender is Doli incapax, which is ‘incapable of wrong’, whereby
children are incapable of having criminal intent. The reasons for young people committing
crimes include:
o Drug and alcohol abuse
 o Boredom
o Neglect and abuse at home
o Poor parental supervision or discipline
o Homelessness
o Financial difficulties
o Negative relationships with peers
o Poor communication/relationship skills
o Difficulties in school & employment

Approaches to Young Offenders:

- The Welfare Model: promotes the protection of children and young people from causes of
crime and aims to assist with rehabilitation.
- The Justice Model: is ‘tough on crime’ with a ‘zero tolerance’ approach and emphasises
punishment over rehabilitation.

Doli Incapax As A Presumption In Sentencing

- For children under 10 years, Doli incapax is a conclusive presumption that cannot be rebutted.
- For children aged between 10 – 13, Doli incapax is a legal presumption, though it can be
rebutted if the opposing party provide conclusive evidence to disprove it.
- For children aged between 14 – 17, the presumption of Doli incapax does not apply as they
can be found criminally responsible for their actions.

THE RIGHTS OF CHILDREN WHEN QUESTIONED OR ARRESTED

Questioning young people
- A young offence may legally be asked to identify themselves by providing their name and
address.
- Under the Summary Offences Act 1988 (NSW), a person can be stopped and required to
provide their details if the officer suspects them to be under 18 and carrying alcohol in a public
place without supervision.

Questions and the right to silence

- Juveniles, like adults, can exercise their right to silence.

Right to support from a responsible adult

- The law assumes that juveniles may not be aware of their rights or may be vulnerable during
the questioning process.
- The Children (Criminal Proceedings) Act 1987 (NSW), outlines that any evidence given by a
young person is inadmissible in court unless there is a responsible adult present during
questioning other than a police officer.

Searches
- The police cannot strip search a person under the age of ten.
- Between the age of ten and eighteen, the juvenile must have a reasonable adult present other
than a police officer.
- If the person is 14 or older, they get to agree who the adult should be.

Arrest
- The reasons for which a juvenile can be arrested are the same as for adults (outlined in
LEPRA).
- The police officer must tell the juvenile that they are under arrest and why, as well as the police
officer’s name and their station.
- Reasonable force may be used, but they are not allowed to be intimidated.
- If they resist arrest or use offensive language, they could be liable to further charges.

Support person and legal advice

- A support person must be present at a police interview.
- If the arrested person is 14 years or older, they must agree to who they want their support
person must be.
- They must also be notified of their right to access legal aid.

Caution of rights
- The young person, like an adult, must receive a caution in writing and orally, ASAP after being
detained.
- They must also be told of the maximum period of detention without charge and sign it to say
this has been given as a sign of caution.
- This is slightly ineffective as juveniles might not understand the language and are requested to
be talked in a more colloquial form of language.

Detention and interrogation

- As with adults, juveniles can be detained for up to six hours, with an extension of eight hours if
the warrant is granted.

Forensic procedures, photos, and searches

- For juveniles 14 and older, police may take fingerprints or photographs for the purpose of
identification, if allowed by the Children’s Court.

Criticism of the system

- Arrest is used as a last resort and that if a juvenile is brought into the criminal justice system
without good reason it can be detrimental in conditioning the juvenile’s opinion towards law
enforcement.

CHILDREN’S COURT – PROCEDURES AND OPERATION

The Children’s Court deals with the criminal matters of children and young people under 18 and
with matters that relate to the care and protection of children.
- S.6 of the Children’s (Criminal Proceedings) Act 1987 (NSW) requires the Children’s Courts
in NSW to always maintain that:
o Children have equal rights to adults
o Children have a right to be heard and to understand proceedings relating to them.
o Children are responsible for their actions à yet they do require guidance.
o The education of the child should proceed without interruption if possible
o If it is possible, the child should reside in their own home.

PENALTIES FOR CHILDREN

Penalties for children acknowledge that they have the best chance of rehabilitation of all offenders
 Penalty Explanation
Dismissal The court dismisses the conviction but may proceed with caution.
Conviction Under 16 years old – no conviction can be recorded. Above 16 –
the court must decide whether or not to record a conviction.
Adjournment To assess the juvenile’s prospects of rehabilitation, the
sentencing can be adjourned/deferred for up to 12 months.
Bond A good behaviour bond may be used with similar conditions to an
adult good behaviour bond.
Youth Justice A diversionary program seeking to keep juveniles out of the court
Conference system. If they comply, they are given a conditional release.
Fine This involves a maximum of ten penalty units. The court
Probation Up to 2 years – overseen by an officer of NSW Juvenile
Justice.
Community This involves serving the community in a variety of roles between
Service Order 100 – 250 hours and is the most severe penalty that can be
given.
Suspended This is a control order that is suspended for up to two years,
Control Order pending good behaviour.
Control Order This is similar to imprisonment, except the time is served in a
detention centre for young offenders and provides educational
and recreational facilities.

ALTERNATIVES TO COURT
Warnings: a notice that is given to the young offender and recorded by the police.
- The offender must be informed about the warning, including nature, purpose, and effect.

Cautions: This is a formal penalty that is recorded and requires the offender to admit to the
offence and consent to receiving a formal police caution.
- Refusal or denial may lead to more serious penalties.

Youth justice conferences: this is a conference that holistically addresses the offender’s
behaviour whilst aiming to divert the juvenile from the court system.
 INTERNATIONAL CRIME:

CATEGORIES OF INTERNATIONAL CRIME, INCLUDING:

CRIMES AGAINST THE INTERNATIONAL COMMUNITY

These crimes are offences that the international community consider to be universally concerning.
- Genocide, war crimes, piracy, hijacking of aircraft, and slave trading are all examples of crimes
against the international community.

Universal jurisdiction is where a state claims a right to prosecute a person based on the
international belief that the alleged crime is so serious that normal laws of criminal jurisdiction do
not apply.
Crimes against humanity
- These are crimes committed as part of a widespread or systematic attack against any civilian
population.

à Extermination in large-scale killings or deprivation of the means of life

à Enslavement
à Deportations and forced relocation of populations
à Torture
à Large-scale sexual violence
à Persecution against groups on racial, political, ethnic, cultural, religious, gender or other
grounds that are universally regarded as discrimination
Case Law – Prosecutor v. Tihomir Blaskic (trial judgement)
- 3 March 2000
- In this case, heard in the International Criminal Tribunal for the Former Yugoslavia, the court
defined crimes against humanity as being systematic and widespread, requiring:
o A political objective of destroying a community
o The commission of inhumane acts on a large scale
o The involvement of high-level political or military authorities
o The development of a plan involving the expenditure of significant resources

Evidence of a crime against humanity may be indirect, for instance in speeches of leaders, media
propaganda and discriminatory acts, in the form of large-scale violence, ‘in particular murders and
other physical acts of violence, rape, arbitrary imprisonment, deportations and expulsions or the
destruction of non-military, in particular, sacred sites’.
War crimes
- These occur during the conduct of war and violating accepted international rules of war, as
outlined in the Geneva Convention.
- According to Article 8 of the Rome Statute, war crimes include:
o Torture or inhumane treatment, including biological experiments
o Willful killing or willfully causing great injury or suffering
o Extensive and militarily unjustified destruction
o Appropriation of property
o Intentionally directing attacks at humanitarian personnel or equipment.

The Geneva Conventions outline several important international crimes associated with conflict.
These include:
 Genocide
Genocide
involves
brutal acts
intended to
destroy all or part of a national, ethnic, racial, or religious group.
- The Rome Statute defines this as:
o Killing members of the group
o Causing serious bodily harm or mental harm to members of the group
o Deliberately inflicting conditions of life calculated to bring out the group’s physical
destruction
o Imposing measures to prevent births within the group

Genocide, as a crime, is extremely difficult to prove and cases involve copious amounts of
evidence as a court needs to prove beyond reasonable doubt an intention to destroy all or part of
a particular group.
Case law:
Case of Bosnia and Herzegovina v. Serbia and Montenegro, 26 February 2007, the court held
that there was individual as well as state responsibility for the crime of genocide and that states
had a duty to prevent and punish genocide and to refrain from carrying it out. This means that
governments have a duty to ensure that their armies or other groups under their control do not
commit genocide.
Weaknesses in the convention on genocide:
- It does not include cultural genocide or destruction of a group on political grounds
- There are also difficulties of defining what a ‘group’ is. A ‘national group’ is relatively easy if
defined by nationality
- Race is an unscientific concept but may indicate shared common traits, including physical traits
- Even the term ‘religious group’ may cause difficulties in particular cases, depending on the
nature of persecution

Aggression and crimes against peace:

- Aggression and crimes against peace by individuals were first made an offence by the London
Agreement (1945).
- In 1945, certain Nazi leaders and Japanese leaders and generals were found guilty of this
crime and sentences to death or long periods of imprisonment.
- Since 1949, there have been no international trials for alleged crimes of aggression.
- There are clear difficulties, because while Article 51 of the UN charter grants the right of self-
defence if an armed attack occurs, it is open to interpretation whether this confers an
anticipatory right to self-defence against forces of another country where there is imminent
danger of attack; or, indeed, whether a right to a pre-emptive strike exists.
o This occurred in 1967 when Israel mounted strikes against its Arab neighbours, who
were planning to attack it.
o For instance, Israeli aircraft destroyed most of the Egyptian air force on the ground.
- A further problem has been in the context of the Cold War, where powers wished to have as
much room to manoeuvre as possible in the changing conditions of their global strategic
needs.

Terrorism

- Key international law in this area includes:

o The International Convention for the Suppression of Acts of Nuclear Terrorism
(2005)
o The International Convention for the Suppression of the Financing of Terrorism
(1999)
o The International Convention for the Suppression of Terrorist Bombings (1997)
o The International Convention against the Taking of Hostages (1979)

These conventions emphasise the purposes of the terrorist activity – that is, an intention to
compel states to do or not do certain acts by terrorising or intimidating the state’s
population.
- International terrorism must have an international dimension.
- Thus the destruction by Tim McVeigh of a public building in Oklahoma in 1995 was an incident
conducted by an individual on one place in response to the attack by the FBI on a religious
sect at Waco, Texas.
- Al-Qaeda, by contrast, operates across national boundaries.
o For instance it is currently engaged in organising terrorist actions in Afghanistan,
Pakistan and Iraq.
o In addition, Al-Qaeda tends to ‘franchise’ terrorist activity so that groups in different parts
of the world may cooperate and are motivated by ideas the might be described as
religious/political.

TRANSNATIONAL CRIMES
Transnational crimes are crimes that take place across the borders of states or involve crossing
borders in some way as part of the criminal activity. Alternatively, the crime may take place in one
country but have consequences in another country.
Transnational crimes:
- Money laundering
- People smuggling
- Arms trafficking
- Drug trafficking

Causes of transnational crimes include:

o Differences in socio-economic conditions between countries
o A desire for prohibited goods or services
o Differences in political or ideological viewpoints
o The transnational element will prevent the detection
o The desire for power or financial gain

- The PTCN has shown success in the discovery and dismantlement of the largest
methamphetamine laboratory in Suva, Fiji.
- INTERPOL is an effective initiative in global cooperation to oppose transnational crime.
- The integrity of the ABF is high – making smuggling very difficult.
- The international stance of the AFP reflects their intention to be committed to counteracting
transnational crime.

DEALING WITH INTERNATIONAL CRIME:

DOMESTIC AND INTERNATIONAL MEASURES

DOMESTIC:
Australia has primary jurisdiction to investigate and prosecute such crimes if they occur in
Australian territory or involve Australian citizens. The Commonwealth’s Attorney General must
report annually on the operations of the ICC and the impact it has had on the Australian legal
system.
Legislation:
o War Crimes Act 1945 (Cth)
o Geneva Conventions Act 1957 (Cth)
o International Criminal Court (Consequential Amendments) Act 2002 (Cth)
o Commonwealth Criminal Code: Ch. 8 à Offences Against Humanity and Related
Offences.

AFP:
- Australian Federal Police Act 1979 (Cth)
- The AFP aims to monitor and attempt to keep peace internationally and deal with issues of
child-protection, counterterrorism, human trafficking, and drug operations.

Commonwealth Attorney General’s Department:

- This department provides valuable advice on Australia’s compliance with its international
obligations and oversees the operation of legislation relating to transnational crimes.

Australian Crime Commission:

- Australian Crime Commission Act 2002 (Cth)
- The most significant organised crime groups operating in Australia have an international
dimension to their interests.

Australian Customs and Border Protection Service:

- Responsible for the security and integrity of Australian borders.

Australian High-Tech Crime Centre (AHTCC):

- Functions to assist all Australian jurisdictions in dealing with high-tech crime, and coordinating
a national approach to multijurisdictional crimes.

State and territory bodies:

- Independent Commission Against Crime (ICAC)
- Police Integrity Commission
- Divisions within the police force

The Mutual Assistance in Criminal Matters Act 1987 (Cwlth)

- regulates assistance to foreign countries in criminal matters
- The Attorney General will refuse a request by a foreign country for assistance if:
 o The offence is a political offence
o The purpose is discriminatory
o The request would prejudice Australian sovereignty or national security
o The offence is not one recognised by Australia
o Assistance will not be granted if a conviction may result in the death penalty, unless
there are ‘special circumstances’ recognised by the Attorney General

Piracy and other crimes at sea

- Is dealt with under the Crimes Act 1914 (Cwlth) and is punishable by imprisonment for life
- It is an offence to operate a private-controlled ship or aircraft and any member of police/armed
forces may seize it if they believe it has been taken over by pirates
- The Crimes (Ships and Fixed Platforms) Act 1992 (Cwlth) sets out offences of seizing
ships, causing death and injury and threatening to endanger a ship
- The Crimes at Sea Act 2000 (Cwlth) applies state criminal laws considerably beyond
Australia’s territorial waters, which extend only 12 nautical miles (22.2 km) from the coast

War crimes
- War Crimes Act 1945 (Cwlth) as a result of war crimes committed in WW2
- Act defines a war crime as a serious offence carried out during war like hostilities or an
occupation
- Offences include murder, manslaughter, wounding, rape and abduction
- Wilful killing as part of war crimes carries a penalty of life in prison without release
- Other serious offences involve a maximum of 25 years jail

Crimes against humanity, genocide, and torture

- In the Criminal Code 1995 (Cwlth), genocide and crimes against humanity are made
offences.
- Genocide is defined as killing one or more persons belonging to a particular national, ethnic,
racial or religious group, where the perpetrator attempts to destroy that group in whole or in
part.
- It is also genocide to commit serious bodily or mental harm to one or more members of that
group, prevent births in the group or forcibly transfer children.
- Genocide is committed by deliberately inflicting conditions likely to destroy human life.
- The maximum penalty is life imprisonment.
- The Criminal Code 1995 (Cwlth) includes torture as an offence, but it is also covered under a
separate Act that gives effect specifically to the UN Convention on Torture (1984) – the
Crimes (Torture) Act 1988 (Cwlth).
o This follows the general international rule that torture is to be punished even if carried
out on a small scale, no matter what the nationality of the victim or perpetrator or where
it was carried out.

Aggression and crimes against peace

- There are no specific Australian laws concerning crimes against peace as such.
- It is easy to understand that such an offence could create difficulties for Australia’s external
relations.
- Such an offence would inevitably have a political element.
- What would be the outcome, for instance, if an ally of Australia was accused of aggression?
Terrorism:
- The Criminal Code 1995 (Cwlth) creates offences of terrorist activities using explosives and
lethal devices to give effect to the International Convention for the Suppression of Terrorist
Bombing (1997).
- An offence is committed if a person delivers, places, discharges or detonates a device in a
public place, government facility, public transport or infrastructure.
- A terrorist organisation is defined as “one that is involved in planning or carrying out terrorist
acts, even if they do not occur”.
- A control order may be made on application to a court by the AFP to protect the public from
terrorist acts with respect to a person over 16 years of age.
- The court must make a decision as to the need for the order to be made.
- Restrictions that could be imposed include the use of tracking devices and orders against
associating with particular individuals.
- In many offences for terrorism under the Criminal Code, the burden of proof is on the
defendant. It is sufficient in many instances to establish recklessness as the minimum mens
rea.
- Jurisdiction of this law covers an act carried out inside Australia, or if the person is an
Australian citizen or resident and the conduct takes place in the jurisdiction of another State
Party to the Convention.
- It also exists where an Australian facility, such as an embassy outside of Australia, is attacked
or if the offence is carried out against an Australian citizen or corporation.

Money laundering:
- The Anti Money Laundering and Counter Terrorism Financing Act 2006 (Cwlth) deals with
offences relating to money laundering in Australia.
- Anti-money laundering and counter terrorism financing programs must be maintained by
banks, building societies, credit unions and other financial institutions.
- The purpose of the Act is to assist in tracing transfers of funds involved in criminal enterprises,
including the financing of terrorism.
- In addition, people moving physical currency (more than $10,000) are required to declare this
as they pass through custom controls.
- However, one clear problem here is that terrorist operatives are not likely to declare currency
unless the amounts are unlikely to raise suspicion.
- It is also a common practise in some cultures for physical currency to be moved in preference
to movement through financial institutions.

INTERNATIONAL:
International Criminal Court (ICC):
- The ICC is a separate entity from the UN but requires a referral from the UN Security Council
to prosecute certain individuals outside the court’s normal jurisdiction.
- The Rome Statute gives ICC jurisdiction over genocide, crimes against humanity, and war
crimes.
- The ICC can impose fines, forfeiture of assets, and a sentence of imprisonment up to life.
- The ICC can only exercise jurisdiction if the accused is a national member state of the treaty,
the alleged crime occurred in the territory of a member state, or the situation is referred to by
the ICC by the UN Security Council.
- There is some criticism that the ICC focuses disproportionately on countries that are perceived
as weaker and fail to adequately investigate crimes against the international community
perpetrated by more powerful countries.

Effectiveness: (more in World Order section)

- Very symbolic and powerful, but in its 19-year history has only convicted 2 people.
- In theory, it is effective as it can hold individuals rather than states accountable, but it is limited
as it lacks support from world powers such as the USA and/or China.
- The creation of the International Criminal Court Act 2002 (Cth) and the International
Criminal Court (Consequential Amendments) Act 2002 (Cth) allows Australia to effectively
investigate international crimes within their jurisdiction or to refer them to the ICC.

Extradition treaties:
- This is the process whereby one country surrenders a suspect or convicted criminal to another
country to face criminal charges or sentencing.
- In Australia, this is governed by the Extradition Act 1988 (Cth) and involves a series of bilateral
agreements.

International Criminal Police Organisation: INTERPOL

- Largest international police organisation
- Its main priority crime areas are:
o Drugs and criminal organisations
o Public safety and terrorism
o Financial and high-tech crime
o Trafficking in human beings
o Fugitives
o Corruption

Convention against Transnational Organised Crime (2000):

- There are three protocols a country has to endorse when signing the convention, including
Australia:
o To prevent, suppress, and punish human trafficking, especially that of women and
children.
o Be against the smuggling of migrants by land, air, and sea.
o Be against the illicit manufacturing of and Trafficking in Firearms, their parts and
components, and ammunition.
 CRIME HSC QUESTIONS
Assess the effectiveness of the criminal trial process as a means of achieving
justice:
Juries Reflects right to a fair trial

• Panel of 12 community members who determine if standard of proof

(beyond reasonable doubt) is met
• Transparency within government à safeguards against an abuse of
power
• Section 80 of constitution: right to be judged impartially by peers
o Allows community involvement with the criminal justice system
o Nicholas Cowdery: “juries perform a valuable role in connecting
our community with the justice system” (allows law to
continually reflect our moral and ethical standards)

However:

• Impartiality of jurors compromised by media pressure à Adrian

Bayley: 40,000 people visited his hate website before trial
• Gives jurors external public perspectives that influence their
judgement which should eb based on the facts purely presented in
court

• Jury Amendment Act (2006): introducing majority verdict

o Allowing a 11-1 majority verdict after 8 hours of deliberation
o Reducing rate of hung jurors (R v Lane 2010) and thus
resource efficiency
o Spares victim’s ordeal of a retrial when a unanimous verdict is
not met

However:

• Placing resource efficiency over rights of accused

• Existence of one dissenter indicated element of doubt, compromising
standard of proof (outlined in Crimes Act 1900) and “increasing
likelihood of innocent conviction” à Majority Verdicts: poor
Judgement (SMH)

Role of juries highly effective in achieving justice, by maintaining the

right for offender to be judged impartially. However, recent reforms
threaten to compromise just outcomes to increase resource efficiency.
Defences Aims to reflect society’s moral and ethical standards in balancing the
rights of the accused à significant extent, in which it limits the risk of
an unjust conviction by permitting refuced liability or culpability in
certain situations.

• Defences are a right under Article 14 of ICCPR and revolve around

the Mens rea, or level of intent, of the offence
• Mental illness – complete defence that acknowledges an irrational
state of mind
 • Onus is on the accused to prove mental incapacitation – determined
by the McNaughton’s test (established in the McNaughton’s case
1843)
• If defence is successful, accused placed under supervision in a
mental health facility – allowing for rehabilitation of the offender
thereby achieving justice for the accused whilst ensuring safety of
community

However:

• SMH article: “Criminals using mental illness as a defence frustrating

police and prosecutors” à defence is overused and is an ‘easy-way
out’ of more severe punishment

However:

• NSW Law Reform Commission: “local courts only 1.4% of people are
successful in their use of the mental health defence” à indicating
their rigorousness of proving the defence to achieve less culpability in
the eyes of the law

Use of defences in the trial process are significant effective in the

balancing of rights of the accused as a well as the victim and society,
allowing for rehabilitation programs that seek to reduce the risk of re-
offending.
Charge Balances two public interests, criminal conduct adequately punished,
Negotiation whilst increasing resource efficiency in obtaining a guilty plea and
avoiding trial.

• Between DPP and Prosecution to negotiate a lesser charge, thus

lesser sentence, in exchange for a guilty plea
o Nicholas Cowdery: “without charge negotiation, CJS would not
function, courts would become too clogged, and justice would
not be achievable”
• DPP utilised discretion in considering effects on victim, relieves stress
on victim form having to testify and re-live traumatic experience
• Resource efficient – allows courts to run quicker à ABC article:
“district courts cost $10,000/day to run”

However:

• Resource efficiency as a premium over just outcomes

• Ivan Milutinovic: charges lessened and instead heard in local court à
SMH (2016): “Top Judge outraged by CN”
• Reform: Crimes (Sentencing and Procedure) Act 2010: Victim and
police officer consulted when CN is taking place (balancing rights,
responsiveness)

CN ultimately achieves justice to a significant extent, with concerns of

resource efficiency taking precedent over just outcomes responded to
by law reform to better establish a balancing of rights.
Assess the effectiveness of the criminal investigation process as a means of
achieving justice:
The criminal investigation process seeks to reflect the changing nature of societal values
and balance the rights of the accused, victim, and society. It achieves this to a significant
extent, with bail reforms, limitations on police powers and the use of evidence reflecting our
moral and ethical standards. However, some aspects of the process indicate a prioritisation
of community safety over civil liberties, suggesting an imbalance of rights and thus a
limitation to achieving just outcomes within the criminal investigation process.
Bail Upholds the presumption of innocence of offenders whilst
restricting freedoms to ensure the safety of victims and society.
• Conditional release, such as ankle monitors and restriction on
movement (balancing rights)
However:
• Bail laws criticised by NSW Law Reform Commission Report
133 à bail as ‘voluminous, unwieldy, hugely complex’
• Simplified bail acts in Bail Act 2013 à “unacceptable risk
test”, onus on prosecution (balancing needs of community
with rights of accused)
• Criticised by media campaigns à Ray Hadley: “400 emails
from magistrates complaining about bail decisions”
• Mic Hawi (discretion allowed laws to be too lenient)
• Tightened bail laws à Bail Act 2014, onus on offender to
“show cause” (indicating a focus on protection of society)
• Criticised to be hastily introduced
o Paramatta Court Magistrate dubs “Ray Hadley Act, not
thought through”
o Bail Reform Alliance: “ad hoc response to particular
crime incidents”
• However, NSW government justifies changes on basis that
“public safety is the number one priority for the government”
The concept of bail is highly effective in ensuring the rights of
the accused are maintained, however recent law reforms have
suggested the ability for frequent changes to undermine
community confidence.
Police Tasers Seeks to strike a balance between affording enough power to
Powers protect society whilst maintaining civil liberties.
• Limited by legislation à Law Enforcement (Powers and
Responsibilities) Act 2002 (LEPRA)
• safeguards against abuse of power through statutory
limitation on matters such as arrest à highly valued in a
democracy
However:
• arbitrary guidelines and role of discretion threaten to
undermined community confidence à seen in the use of
tasers
• Prompted by Ron Levi, provide a non-fatal alternative
(execute arrest which protects society, offender, and police)
 • LEPRA guideline: “reasonably necessary” – police afforded
too much discretion, posing society at risk of authoritative
power
• Amnesty international Report ‘less than lethal’: “300 fatalities
in US
• Roberto Curti: excessive use of force to enforce compliance,
resulting in death à NSW Coroner, ABC report: “police acting
in a pack mentality when arresting Curti”
Whilst moral and ethical standards are protected in statutory
powers given to police, misuses of tasers highlights limitations
on effectiveness of legislation.
Drug The use of Drug Detection Dogs is controversial within the
Detection criminal investigation process, creating tension between the
Dogs rights of victims, suspects and society.

• Part 4 of the Law Enforcement (Powers and Responsibilities)

Act 2002 (NSW) (LEPRA) states that "a police officer may,
without a warrant, stop, search and detain a person, if the
police officer is suspicious on reasonable grounds".
• Under S148 of LEPRA à Drug Detection Dogs: trained to use
their senses to detect substances such as explosives and
illegal drugs.
• aims to protect the civil liberties of members of the community
whom the police serve, as well as suspects of an offence.
• The Conversation: 'six young people who died during or just
after attending music festivals in NSW between December
2017 and January 2019'.
o DDD can protect society and ensure drug-related
incidents within public spaces are avoided.

However:

• intrusive and violate individual privacy

• Greens MP David Shoebridge: 'up to 500 innocent people
each year were being subject to the "humiliating" naked
searches' after sniffer dog identification'. à 64% of searches
in 2013 classed as false positives.
• SMH article, 'NSW police admits breaching strip-search laws',
comments that "there is no clear definition of a strip-search in
state legislation, leaving it up to individual officers to interpret
the law".
o Darby v DPP à difficulties that can arise around the
interpretation of the term 'lawful search'

Ultimately, the power of police to utilise DDD sparks debate,

questioning the criminal investigation process in balancing the
civil liberties of the community, whilst also effectively fulfilling
their role in law enforcement.
Strip Seeks to strike a balance between affording enough power to
Searches protect society whilst maintaining civil liberties.
 • Limited by legislation à Law Enforcement (Powers and
Responsibilities) Act 2002 (LEPRA)
• safeguards against abuse of power through statutory
limitation on matters such as arrest à highly valued in a
democracy
However:

• use of strip searches, excessive effort to force compliance

• prompted by high rates of drug-related deaths at music
festivals, increase vigilance to prevent crime

ABC article: “16-year-old girl strip searched at splendour music

festival” à intrusion on civil liberties, violation of CROC
Role of evidence Reflects society’s moral and ethical standards to a large extent,
aiming to balance the rights of stakeholders whilst ensuring
justice is served.

• Adversary system relies on admissible evidence, as outlined

in the Evidence Act 1995 (NSW) and must be obtained in a
proper and lawful manner, limiting the risk of contamination
and thus an obstruction of justice
• Mr Bubbles: charged with 54 counts of child abduction and
sexual assault
o evidence was obtained unskilfully, repetitively, and
directly questioning child à judge determined that the
evidence was inadmissible
o thus, evidence must be obtained appropriately to avoid
guilty people not facing justice for their crimes
• Section 143 of Children and Young People Act 2008: specially
trained officers are employed when children are involved, to
allow for the balancing of rights of all stakeholders, and
safeguard children from a misuse of power by police
• Use of technology: CCTV and smart phones to protect police
and enforce the law
• Carnita Mathews: filming provided protection to the policy
against false accusations that they forcibly removed her head
scarf à technology holds the executive accountable,
balancing rights
• Video statements at domestic violence crime scenes à
Domestic Evidence in Chief
o ABC article: ‘recording crime scenes the new tool for
police’ – indicates it will lead to “increased conviction
rates and better outcomes for victims”

However, the use of technology has been deemed a violation of

individual privacy at the expense of carrying out a conviction

• For these reasons, restrictions such as requiring a warrant to

use listening devices, safeguards our privacy in the exercising
of power by police
 The use of evidence is significantly effective in protecting
society but also respecting individual rights of privacy,
therefore reflecting our moral and ethical standards.

Evaluate the effectiveness of sentencing and punishment as a means of achieving

justice
The criminal justice system seeks to strike a balance between achieving justice for victims
by adequately punishing offenders, whilst also allowing opportunities of rehabilitation for
the accused in an effort to reduce rates of re-offending. The sentencing and punishing
process achieved this balance to a significant extent, highlighted through the use of
diversionary programs such as the Drug Court and alternate sentencing in Youth Justice
Conferences and circle sentencing. However, accessibility to these resources can
compromise their aim in achieving widespread rehabilitation, hindering just outcomes for all
stakeholders.
Drug Court Seeks to acknowledge the role of drug-use as a factor effecting
criminal behaviour. Therefore, significantly effective in breaking the
cycle of drug-related crime, offering offenders an opportunity to
rehabilitate and avoid becoming entrenched in the prison system.

• Established in Drug Court Act (1998) à offer three-phase treatment

program, including use of drug counselling, with consistence
compliance resulting in graduation
• Breaches of courts terms are punished by sanctions à deterrent
factor for the offender and to hold them accountable
• Roger Diver (Drug Court judge): “diversionary program is a combining
of the health system and the justice system, allowing long term
change for offenders”
• Reduces reoffending: SMH (2021): “reoffending rate among
participants is 17% lower than for people outside the program”
• Attorney General Mark Speaksman: “more cost-effective way of
driving down crime than sending offenders to prison.”
•

However:

• Due to an inadequate number of Drug Courts in NSW (3), the

accessibility of the program limits its effectiveness
• 30% of people successfully complete the Drug Court program à
suggesting an ineffectiveness
• Section 5 of Drug Court Act: Drug Court exclusive of indictable
offences such as sex offenders, limits the ability for the system to
achieve widespread rehabilitation

Drug Courts still uphold the moral and ethical standards of society by
treating incarceration as a last resort and seeking to focus on
rehabilitation as a more productive model than harsh punishment
Youth Aims to reflect society’s moral and ethical standards by balancing the
Justice rights of offenders and victims à avoids harsher punishments for the
Conference offender and thus increases the chance of rehabilitation.
 • Young Offenders Act 1997 (NSW): conference included the young
offender, the victim and support people à attempts to agree on an
“outcome plan” such as an apology, monetary compensation or
counselling
• YJC’s acknowledge immature mind of a young offender and
appreciate the long-term repercussions of harsher punishments such
as incarceration on young people
• Resource efficient: avoids Children’s Court trial à YJC Report:
“average cost of a YJC is 18% less than that of the Children’s Court”
• High public support: ABC article noting “87% of people agree that
victim should have a chance to talk to the offender about the impacts
of their actions”

However:

• Under-utilised: accounting for 5% of all young offender’s interaction

with the criminal justice system
• Do not necessarily reduce rates of recidivism, as 64% of people
referred to a YJC were re-convicted of further offences within 24
months (BOCSAR report)

YJC’s are significantly effective in the maintain of stakeholder’s rights,

whilst promoting rehabilitation in the form of lesser punishments for
the offender.
Circle Aims to improve the understanding between Aboriginal communities
sentencing and the legal system, making the sentencing process more meaningful
and accessible for adult Aboriginal offenders.

• Acknowledges Aboriginal lore à path for rehabilitation of the offender

and justice for the victim
• Rates of incarceration for Aboriginal offenders highlight the important
role of circle courts à Aboriginal overrepresentation being 24 times
that of a non-Indigenous offender
• Same sentencing powers as Common Law Courts as established in
High Court decision of Buging v R (2013) à sentencing should be the
same for all Australians à consistency
• Involved victim, offender, elders from their community and a
magistrate à rights of victim and offender are honoured, allowing
both perspectives to be heard
• Apply a holistic approach: court’s receive information about the
victim/offender’s communal circumstances and help to address and
prevent underlying cause of criminal behaviour
• Decreases rates of recidivism: NITV Article ‘Circle Sentencing’
outlining that the sentencing method helps “keep our mob out of jail”

However:

• BOCSAR (2008) report suggests that Indigenous offenders who have

been through circle courts are no less likely to reoffend in the 15
 months after their sentence, than those sentences in traditional court
settings.
• More resources are needed to reduce recidivism rates – suggesting a
need to fund drug and alcohol rehabilitation programs (SMH, 2017)

Circle sentencing is ultimately a successful method of alternative

sentencing, improving the chances of rehabilitation by addressing the
cause of offending.
Parole

Assess the effectiveness of the criminal justice system when dealing with young
offenders
Children’s The Children’s Court (CC) plays an integral role in achieving justice to a
Court moderate extent through protecting the child’s reputation and privacy and
ensuring all individuals under the age of 18 to automatic professional legal
aid. TCC deals with cases across NSW involving the care and protection for
children and young people and aims to uphold the principles of CROC while
focusing on rehabilitation for children, set out under the Children’s Criminal
Proceedings Act. Through matters heard summarily in a closed court, TCC
prohibits any public involvement in the court room and any individuals under
the age of 18 identities to be published, therefore, ensuring the protection of
the child’s reputation and privacy from society. This ensures that their position
in society is not damaged and maintains the child’s safety when re-entering
the community as displayed in the case of LMW. Additionally, the Children’s
Court provides young offenders involved in criminal cases the access to
professional, face to face, or telephone based legal aid at any stage of their
legal proceeding. Admittedly, enforcing the access to children and young
people to essential legal aid ensures justice is achieved as they can give them
legal advice and professionally represent them in court. Despite this, TCC
does not address the high reoffending rates. The SMH article “Children
reoffend as the system goes soft,” highlights the need to enforce the manner
of punishing children through intense rehabilitation in order to decrease the
reoffending rates. As a result, 54% of juveniles who come into contact with the
criminal system, convicts again within 10 years. While it is ineffective by not
highlighting recidivism rates, the TCC overall achieves justice to a moderate
extent
YJC Aims to reflect society’s moral and ethical standards by balancing the
rights of offenders and victims à avoids harsher punishments for the
offender and thus increases the chance of rehabilitation.

• Young Offenders Act 1997 (NSW): conference included the young

offender, the victim and support people à attempts to agree on an
“outcome plan” such as an apology, monetary compensation or
counselling
• YJC’s acknowledge immature mind of a young offender and appreciate
the long-term repercussions of harsher punishments such as
incarceration on young people
• Resource efficient: avoids Children’s Court trial à YJC Report:
“average cost of a YJC is 18% less than that of the Children’s Court”
 • High public support: ABC article noting “87% of people agree that
victim should have a chance to talk to the offender about the impacts of
their actions”

However:

• Under-utilised: accounting for 5% of all young offender’s interaction

with the criminal justice system
• Do not necessarily reduce rates of recidivism, as 64% of people
referred to a YJC were re-convicted of further offences within 24
months (BOCSAR report)

YJC’s are significantly effective in the maintain of stakeholder’s rights,

whilst promoting rehabilitation in the form of lesser punishments for the
offender.
Doli- The age of criminal responsibility in Australia achieves justice to a
incapax minimal extent as it increases the chances of young offenders becoming
entrenched in criminal activity and fails to recognise an inability to
comprehend consequences due to a lack of maturity.
• Convention of the Rights of a Child (CROC) states that children must
be treated with compassion and courts must only resort to detention as
a final option à Australia is in breach of this - rates of incarceration for
young Indigenous offenders, with 48% of all young people in detention
being Aboriginal (2020).
• Law Council, 'Commonwealth, states and territories must life minimum
age of criminal responsibility' à children not sufficiently able to reflect
before acting or comprehend the consequences of a criminal action, an
argument known as Doli-incapax, incapable of evil.
• presumption used in the R V LMW (1999) case, in which 10-year-old
LMW was acquitted from the murder charge of Corey Davis as the
courts felt he was too young to be held criminally liable.
However:
• should not be a binary placed on what age a child can be deemed
'capable of evil' due to the different rates of maturing.
• James Bulgar (1993), where Doli-incapax was rebutted, the courts
recognised the two eleven-year-old boys had malicious intent when
murdering three-year-old James Bulgar. Since - one of offenders has
faced charges for unrelated crimes
• increase of a likelihood to reoffend when imprisoned at a young age
• SMH article outlining the 'life-long harm the justice system does to
children'
• juvenile offenders often are raised in abusive households - prison
system would fail to rehabilitate these young offenders and instead
perpetuate violence.
• Need to focus on resources, such as welfare and family services, which
would help break this cycle of young people offending.
Currently, the age of criminal responsibility fails to achieve justice,
imprisoning young offenders at an age where they cannot comprehend
 the ramifications of their actions, and increasing the likelihood of
lifelong contact with the criminal justice system.

CORE PART II: WORLD ORDER

Key features

• the role of law in encouraging cooperation and resolving conflict in regard to world order
• issues of compliance and non-compliance
• the impact of changing values and ethical standards on world order
• the role of law reform in promoting and maintaining world order
• the effectiveness of legal and non-legal responses in promoting and maintaining world
order.

The nature of world order

• the meaning of ‘world order’

• the need for world order
• the development of world order over time
• the nature of conflict: inter-state and intra-state
• access to resources as a source of conflict

2. Responses to world order

• the roles of:

o the nation state and state sovereignty
o the United Nations
o international instruments
o courts and tribunals
o intergovernmental organisations
o non-government organisations
o Australia’s federal government
o the media
• political negotiation, persuasion, and the use of force

Contemporary issues concerning world order

• the principle of ‘responsibility to protect’

• regional and global situations that threaten peace and security
• the success of global cooperation in achieving world order
• rules regarding the conduct of hostilities.
 THE NATURE OF WORLD ORDER

THE MEANING OF ‘WORLD ORDER’

World order describes the relationships between the worlds’ states and other significant non-
state global actors (International organisations, NGOs and dissident groups), that occur within a
legal, political and economic framework. It also refers to the balance of power among nations of
the world.

THE NEED FOR WORLD ORDER

1. High levels of interdependence as a result of globalisation.

Common territorial borders, trade and financial links, alliances, and shared resources (such as
fresh water, oceans) means that although nation states are autonomous, sovereign powers, no
country can completely stand on its own. Thus, world order is needed into order to ensure
continued benefits from interdependence. This has been demonstrated most recently as the world
has responded to the Covid-19 pandemic.

2. Continued conflict at increasingly intra-state levels.

Such conflicts have enormous implications (consequences) for all states as they are rarely
contained to one country. Thus, world order is needed to mitigate the ‘ripple’ effect of these
conflicts.

3. New types of global threats.

The rise of terrorism and easy access to weapons, the growth of the nuclear age (post- Cold War
era), climate change and competition for diminishing natural resources has changed the nature of
war. Thus, world order is needed to combat these global threats.

4. Changing values and ethical standards.

A growing awareness of human rights globally and of the inequality between rich and poor people
within and between states has meant that serious human rights breaches occurring within a nation
state are seen as a world order issue. As a result, the international community has created an
ethical and possibly legal obligation (e.g. the Responsibility to Protect – R2P) to assist people who
are subject to severe breaches of human rights even if they occur wholly within the borders of a
nation. Such breaches are crimes against the international community including genocide and
crimes against humanity. Thus, world order is needed to promote universally accepted values and
ethical standards.

THE DEVELOPMENT OF WORLD ORDER OVER TIME

THE NATURE OF CONFLICT: INTER-STATE AND INTRA-STATE
The UN was developed with international, or interstate conflicts (between nations) in mind but the
conflicts in the post-world war era generally do not fit the UN model. Most are internal, or
intrastate conflicts revolving around religious, ethnic or nationalist tensions or involve ideological
struggles between groups that aren’t even recognised nation states.

INTERSTATE:

Type of warfare Characteristics

• Use of large, well-organised military forces.

Conventional
war • Characterised by soldiers wearing clearly identified
uniforms and a clear command structure

• Technological advances during the 20th century have made it

 more deadly

• Interstate conventional warfare was in the mind of the drafters

of the UN Charter- use of force under Chapter VII of the UN
Charter deals with an aggressive attack by one state against
another

• Involves use of the hydrogen or atomic bombs.

Nuclear war
• Whilst the number has reduced since the end of the Cold War,
there is currently no nuclear weapons convention banning
nuclear weapons.

• US, Russia, Britain, France, China, India, Pakistan, Israel and

now North Korea all have nuclear weapons (approx. 19,000
weapons). Iran had an advanced nuclear program in violation of
the Nuclear Non-Proliferation Treaty 1968 and was the subject
of international sanctions from 2002 until implementation of a
comprehensive nuclear deal began in 2016

• A regional war using nuclear weapons (e.g. between India and

Pakistan) would be devastating not only for the region but the
world

• Since 9/11, there is also a concern that a terrorist group may

acquire them

• New form of conflict which has emerged over the past 20 years
Cyber warfare
• Can be launched by states, criminals or terrorists and it is
difficult to determine the origin of an attack

• Due to the interconnectedness of the world through the

internet, potential to electronically disrupt essential
infrastructure, defence and financial systems

• Currently no ‘cyber war’ convention exists to protect critical

civilian infrastructure in the event of cyber war although 2012
Worldwide Security Summit to facilitate cooperation between
states in dealing with cyber warfare

• Microsoft president Brad Smith has advocated for global rules

– a "Digital Geneva Convention" – against cyber attacks that
ban the nation-states hacking economic and political
infrastructures.

• Refers to the tension between the US and USSR (the

Cold war superpowers and their allies) between 1947 and 1991
 • Rivalry in almost every political, economic, military and
strategic matter but did not lead to direct war

• Direct war was avoided due to the threat of mutual

annihilation if nuclear weapons were used

• Paralysed the UN Security Council (UNSC), with USA and

USSR voting on opposite sides and using veto power.
This voting trend continues today, reducing the
effectiveness of the UNSC.

INTRASATE:

• An intrastate conflict happens within the borders of a single country.

• The UN Charter (1945) focused on provisions to deal with interstate conventional warfare,
yet today internal conflict now outstrips interstate conflict.
• UN enshrined state sovereignty which has become the biggest limitation on
International Law.
o This is because any intervention by the international community may be seen as a
violation of the sovereignty of that state.
• The UN has had to develop approaches to each of these types of warfare and graft them
into the UN system e.g. peacekeeping.

Type of Characteristics
warfare

Civil war • Conflict between two or more sides within one state.

• Use of hit-and-run tactics and the element of surprise to

Guerrilla combat a larger and often technologically superior and less
warfare mobile army

• Harass enemy > hide > retreat > repeat > attack with force once
enemy is worn down

• Dictatorial regimes waging war against their own people.

War waged
by • Not war deaths (military deaths or deaths involved in attacks on
governments military targets) but systematic campaigns of genocide, mass
against their murder, state- sponsored terror
own people

• Violence/warfare within communities, not necessarily perpetrated

Ethnic by the government
conflict /
Communal • Can result from ethnic rivalries, historical differences, religious
 Killings differences or territorial grievances

• A significant feature of post-Cold War era

• May result in genocide

• Use of child soldiers by militant groups. E.g. Congo

• Actions intended to cause death/ physical injury to civilians and to

Terrorism cause terror, with the intent of coercing a government or other body
to meet certain demands

• Greater global phenomenon since 11 Sept 2001 terrorist

attacks on USA. Terrorist networks e.g., Al Qaeda and
increasingly ISIS have loosely connected cells in many
nations, raising significant detection and enforceability issues

ACCESS TO RESOURCES AS A SOURCE OF CONFLICT

• The world’s resources are finite and diminishing. Accelerating industrial activity and
population pressure over the last 70 years have created serious shortages.
• Access to the world’s valuable water and petroleum supplies has led to conflict in East Asia
and the Middle East. This has been a key source of conflict with the United Nations
Environment Program (UNEP) reporting in 2013 that, in the last 60 years, at least 40% of
conflicts have been linked to natural resources and that, since 1990 alone, at least 18
conflicts have been fuelled by the exploitation of natural resource (e.g., gold,
diamonds, oil, water).
• Conflict likely to occur over the rights to resources when states are not able to access what
they want by peaceful means.
• Economic inequity/disparity between and within states may become a source of conflict as
15% of the world’s population uses 80% of its resources. Examples of conflict caused
by access to resources:

1. Iraq:
• Major factor in the First Gulf War (1990 – 91) was the American fear that not only would
Iraq succeed in its annexation of oil-rich Kuwait, but also that it stood posed to invade Saudi
Arabia, giving it control over the vast majority of the world’s oil supplies.
• Major factor in the US invasion of Iraq in 2003 was Iraq’s oil. Ridding Iraq of its hated
leader, Saddam Hussein, and installing a democratic pro-US government in Iraq would be
in the United States’ geopolitical interests.

2. Natural gas and oil in Ukraine-Russian annexation of the Crimea in 2014:

 • Russia (led by President Putin) annexed the Crimea region of Ukraine in March 2014
through a state-sponsored referendum.
• Crimea is now part of Russia.
• Western countries challenged the legality of Putin’s annexation of Crimea, saying that the
referendum was not fair as Russia used intimidation tactics and the threat of military force.
• Whilst Russia has portrayed the take-over as reclamation of its rightful territory (the product
of a democratic referendum) à clear that Russia’s annexation of Crimea was motivated by
its interest in natural resources.
• Furthermore, annexation maintains Russian domination of the European natural gas
market.
• Russia supplied 25-30% of European oil, 80% of which was transported via pipelines
through Ukraine.

3. Syria (2011 – ongoing)

• Uprisings in 2011 were triggered by climate change, oil and debt crises.
• Rapidly declining oil production (and revenue from it) and the need to find another source of
energy, water shortages due to climate change and overuse resulting in an increasing
dependence on costly grain imports, caused massive food hikes, growing unemployment,
and discontent.
• Syrian conflict involves conflict over gas. Syria’s actions in relation to the construction of
pipelines to transport natural gas to Europe explains the sides taken by regional countries
in the conflict.

4. China’s expansion into the South China Sea (2016 – ongoing)

• In 1982, the UN Convention on the Law of the Sea was adopted and signed, formalising
extended maritime resource claims in international law.
• Under the Convention, all states have a right to 200 nautical mile “exclusive economic
zone” to exploit the resources of the sea and seabed, as measured from their land
territories. Where these zones overlap, countries are obliged to negotiate with other
claimants.
• This has yet to happen in the South China Sea, which is the source of many of the current
tensions.
 RESPONSES TO WORLD ORDER

THE ROLES OF:

THE NATION STATE AND STATE SOVEREIGNTY

State sovereignty is the power and authority of an independent government to govern its people,
affairs, and national interests (make and apply laws, collect taxes, make war and peace, form
treaties with foreign states etc), without interference from external states or bodies.

• Enshrined in the UNC in Article 2.1 which states that ‘the organisation is based on the
sovereign equality of all members’ and Article 2.7 which states that ‘nothing contained in
the present Charter shall authorize the United Nations to intervene in matters which are
essentially within the domestic jurisdiction of any state’.
• Each nation has equal standing with complete control over its internal affairs, and any
external control of such affairs is only undertaken with the explicit consent of that state.
• When it comes to human rights and world order, state sovereignty is an in-
built defect that has resulted in millions of people being denied their human rights by
their sovereign governments.
 • However, Article 2.7 does limit state sovereignty as it states that ‘this principle shall not
prejudice the application of enforcement measures under Chapter VII’.
o Chapter VII of the UNC empowers the UNSC to take military or non-military action
when there is a ‘threat to peace’, ‘a breach of the peace’, or an ‘act of aggression’.
o The difficulty is that the interpretation of these thresholds varies, and often human
rights violations are contained to one country and therefore aren’t a threat to peace
on international scale.

Using SS to promote World Order Using SS to impede World Order

• Signing, ratifying, and enacting • Refusal to sign, ratify or enact

international treaties such as ICCPR,
ICESCR, CEDAW, CROC, the
Convention Against Torture (CAT) or
the Convention on Cluster Munitions
international treaties. E.g. North Korea
failing to sign and ratify the
Comprehensive Nuclear Test Ban
Treaty. Sometimes a state will sign a
treaty but don’t agree to parts of it.
E.g., the USA and Article 6(6) of the
ICCPR

• Failure to support UN operations and

• Supporting/funding UN operations and programs or being uncooperative.
programs including peacekeeping
E.g., Rwanda
missions. E.g., Australia’s role in
peace keeping in East Timor
• Forming coalitions to address issues
of international security. E.g., conflict
in Iraq
• Failure to abide by the rulings of the
• Abiding by the rulings of the ICJ and ICC. E.g., the USA is not a
International Court of Justice (ICJ) party of the ICC
and the International Criminal Court
(ICC)

• Allowing scrutiny of domestic affairs • Preventing scrutiny of their domestic

by UN working groups affairs by UN working groups. E.g.,
Iraq failed to allow weapons
inspectors in 2003

• Inflicting human rights violations. E.g.,

• Conceding some SS to improve Australian government treatment of
promotion of World Order. E.g., when asylum seekers in Nauru and Manus
joining the EU states must submit to Island detention centres.
the jurisdiction of the European Court
of Human Rights which has made
>10,000 HR judgements.

SS promoting WO:
State sovereignty celebrates diversity, acknowledging that each nation has a unique history, culture,
and social code of conduct. Thus, each state will have a unique political and legal system to reflect
these differences. Within the nation state, individuals relinquish certain liberties to the state in return
for its protection and provisions and the nation state can use its SS to assist world order by doing
the things listed in the table above.

SS impeding WO:
It creates enforceability/punishment issues:

• governments of nation states, particularly democratic ones, are accountable to their own
people, not to any other state or international institution (unless they consent to the
jurisdiction of the international institution).
• Therefore, international law cannot be imposed upon any nation state because the nation
state is its own highest authority.
• For example, the UN cannot force a state to recognize the Universal Declaration of Human
Rights.
• If a state does not agree with a tenet of international law, it does not consent to it or it
justifies non-compliance by claiming their right to state sovereignty which creates
enforceability issues.

It promotes national interest which can lead to inaction:

• because each sovereign state seeks to secure and advance itself, it can naturally come into
competition with other states for resources and influence.
• If an action is not in a state’s national interest, then inaction will often result.
• For example, what happened in Darfur and Rwanda was pure genocide, and Robert
Mugabe has violated numerous international laws in Zimbabwe.
• However, the conflicts were considered internal threats to peace and security and easily
containable, and there was no one with the desire and the power to place their armed
forced into conflict to protect the human rights of a distant state.
• Furthermore, if action is proposed, it can be difficult to get UNSC agreement, especially
when the national interests of one of the Permanent Five is threatened.
o E.g., China’s blocking of UN action in Darfur due to its oil interests.

THE UNITED NATIONS

The UN has 2 main purposes:
1. To keep peace throughout the world and develop friendly relations among nations (Article
1(1) of UNC)
2. To help nations work together to improve the lives of poor people, to conquer hunger,
disease and illiteracy, and to encourage respect for each other’s rights and freedoms.

Effective Ineffective
No world wars since 1945 Veto power is an outdated and ineffective
mechanism. See ‘MH17 UN Criminal tribunal
vetoed by Russia in blow to Australia’, July
2015, SMH
East Timor Rwanda 1994; Srebrenica 1995; Syria 2012 –
present
Very effective in promoting human rights Poor human rights record in countries like
issues (women, free speech) and responding China, North Korea
 to less political issues (health, disease control,
clean water). E.g., the Millennium
Development Goals have seen widespread
improvement in literacy
Created an International Bill of Rights; the States cannot be forced to sign or ratify
ICCPR and ICESCR are binding on nations treaties that are not in their national interest
that ratify them

Responsibility to Protect (R2P) Continued regional conflicts. E.g. Ukraine,

Syria

INTERNATIONAL INSTRUMENTS

COURTS AND TRIBUNALS

INTERNATIONAL COURT OF JUSTICE (ICJ)
The principle judicial organ of the UN located at the Peace Palace in The Hague, Netherlands.
Established in 1945 under the UNC and started operations in 1946 under the Statute of the
International Court of Justice. It has 15 judges who are elected by the UNSC and UNGA and serve
a nine-year term. It has jurisdiction to:

1. Hear and judge international disputes between states: the court produces a binding and
final ruling on matters that have been submitted to it by member states that have agreed to
be bound by the court’s rulings.
2. Issue advisory opinions: these are reasoned, but non-binding rulings on questions of
international law submitted to it by international organs or the UNGA.

Negatives
Positives
• Limited jurisdiction as only states
• Embarrass a state and can be parties to cases before the
encourage it to change its ICJ (not individuals or organisations)
behaviour and both states must consent to the
ICJ’s arbitration.
• In theory, the ICJ’s decisions (which
are determined by a majority) are
binding, final and without appeal, but
in practice the losing party may be
non-compliant with the ruling and the
UNSC may be reluctant to enforce it.
E.g., Nicaragua v United States of
America [1986]
• Advisory opinions can only be given
if international organs or the UNGA
request that opinion. This reduces
the ICJ’s ability to take initiative
INTERNATIONAL CRIMINAL COURT (ICC)
Whilst adhoc tribunals have been essential in achieving justice, they only cover a particular conflict
in a specific country or geographical region and their creation depends on the political will of the
international community of the day. Only a permanent, readily available, and truly international
criminal court can most effectively deter future crimes.

• Established in 2002, under the Rome Statute of the International Criminal Court, the ICC is
a legal entity independent of the UN, seated at The Hague in the Netherlands (TAC: Law
Reform).
• The international community has long aspired to the creation of a permanent international
criminal court – such a court was first proposed in 1948 when the Convention of the
Prevention and Punishment of the Crime of Genocide was adopted but the Cold War
prevented any action being taken.
• In 1998, 120 States adopted the Rome Statute and in 2002, it entered into force after
ratification by 60 countries.
• It prosecutes the most serious international crimes with jurisdiction over genocide, crimes
against humanity, war crimes and crimes of aggression where states are unwilling or
unable to prosecute domestically.
• Importantly, unlike the ICJ, the ICC can prosecute individual people which makes it a
powerful institution to end impunity and combat individuals who seek to use state
sovereignty as a defence for their abuses.
• 123 countries are members of the ICC - The United States is not one of them.

Complementarity
- Rome Statute does not envisage the ICC as the primary tribunal for prosecuting perpetrators of
crimes
- Responsibility for investigating and prosecuting within the ICC’s jurisdiction remains with the
domestic courts à ICC is complementary to national criminal jurisdictions
- 2011: Libya said it wanted to trial Said al-Islam (Gaddafi’s son) at home so they applied to the
ICC for Saif to be tried in a Libyan court and the ICC accepted, demonstrating that the ICC is a
court of last resort.
- Acts as an incentive for nations to incorporate those crimes into their domestic laws and so
become vigilant in investigating alleged violations
- If domestic courts do not adjudicate a matter within the ICC’s jurisdiction, the ICC itself will be
able to à ensures that serious crimes do not go unpunished and that a measure of retribution
sanctioned by the international community is meted out

- It allays fears that the ICC may encroach upon the sovereignty of nations

Transparency
- The Rome Statute contains various safe-guards, checks, and balances to ensure that the ICC
will act with transparency and openness.
- The judges of the ICC require for their election a two-thirds majority of the Assembly of State
Parties. This should ensure that they will be impartial and reflective of the judicial community
as it exists in most nations
- A Pre-Trial Chamber made up of three judges supervises the independent Prosecutor, and its
approval is required before any alleged crime may be investigated
- Even if the accused’s home country is not a party to the ICC, either the country or the accused
may challenge the Court’s jurisdiction

Procedural and substantive laws, rules and guidelines

- A single set of procedural and substantive laws applies to all parties and proceedings before
the ICC.
- Consistency and greater legal certainty
- ICC rules of evidence, witness protection, testimony, and trial have been specially tailored to fit
the crimes within the Court’s jurisdiction.
- The ICC’s punitive guidelines make provision for both restorative and compensatory measures,
and institutional support will be further provided through the Victims and Witnesses Unit.

- These schemes are expected to yield positive results for law enforcement, victims, and the
communities in which crimes are perpetrated.

Operations/referrals
- A case may be referred to the ICC by the UNSC (e.g. the referral of Libya through Resolution
1970) or a state that is a party to the Rome Statute.
- An investigation may be initiated by the ICC Prosecutor.
- The ICC is not then solely dependent on a Security Council referral and is therefore less
vulnerable to the political will of the Security Council’s Permanent Members.
- The UNSC cannot veto a state’s referral of a case to the ICC.
- The most that the Security Council can do to obstruct the Court’s operation is to instruct the
ICC to defer an investigation for a renewable period of twelve months.
- Whilst the referral mechanisms are broad, access to the court by non-members is limited to
referral by the UNSC or the ICC prosecutor.

Prosecution

- The ICC will be able to prosecute those who fall within its jurisdiction.
o Where the accused committed a crime in a state that is party to the ICC, or the accused
is a national of a state that is party to the ICC.
- Thomas Lubanga
- Even if neither state in such a scenario is a party to the ICC, either can specially submit to ICC
jurisdiction for the prosecution of the alleged perpetrator.
o In these cases, the ICC will not have the power to compel a non-party state to surrender
a suspect, but this is true of any tribunal in the absence of a prior agreement with the
surrendering state or the conferral of powers under Chapter VII of the UN Charter.

- Effectiveness of the ICC is limited by the fact that states that choose not to ratify the Rome
Statute—such as China, Russia, India and the United States —do not have to cooperate with
the ICC if it wants to investigate crimes within their sovereign territory (non-compliance issues).
Challenges of Terrorism
- Effectiveness of the ICC as a forum for the prosecution of acts of terrorism is hampered by the
fact that the crime of terrorism may only be included within the ICC’s jurisdiction by way of
amendment.
- If such an amendment is made to the Statute, it will only be binding on those State Parties that
accept it.

Active Opposition by the United States

- The US opposes the jurisdiction of the ICC. The American Service Member’s Protection Act
(“ASPA”) was passed in 2002 which includes the following provisions:

• The prohibition of cooperation with the ICC

• The prohibition of direct or indirect transfer of classified national security information to the
ICC
• The prohibition of United States military assistance to States Parties to the ICC;
• Pre-authorized executive authority to free members of the armed forces of the United
States and certain other persons detained or imprisoned by or on behalf of the ICC (the so-
called “Hague Invasion Clause”)

Conclusion
The analysis suggests that, if the ICC acts with efficiency and transparency and the international
community sufficiently supports its operations, it can be a very effective court. While it is likely
that most cases that could fall within the jurisdiction of the ICC will be excluded by individual
nations exercising their own jurisdiction, the ICC will nevertheless act as a safety net, ensuring
that important cases do not escape prosecution.

INTERGOVERNMENTAL ORGANISATIONS

- promote regional issues and global standards, with many having the promotion of human rights
as part of their stated goals.
- 1000 IGOs in the world, with the UN the most important of all.

African Union
- Established in 2002 and currently has 54 members.
- Aims to achieve peace and security in Africa, promote democratic institutions, good
governance and human rights.

European Union
- Established in 1995, today the EU has 27 members
- Created unprecedented wealth and security for its members.
- A strict membership criterion requires members to be democracies that uphold the rule of law
and respect human rights.
- Governed by a Charter of Fundamental Rights, adheres to the UN Charter regarding the use
of force.
- It has its own European Court of Justice which can override the sovereignty of the individual
state and its own law enforcement agency, Europol, which assists Member States in their fight
against serious international crime (drug and people trafficking, money laundering, terrorism,
piracy).

North Atlantic Treaty Organisation (NATO)

- Established in 1949 as a defence alliance between Northern American and European states to
counter the threat from the USSR-led communist bloc in Eastern Europe.
- It is governed by the NATO Charter and has 28 members which discuss and address security
issues of common concern.
NATO military forces have helped end conflicts in Sarajevo and Kosovo. .

NON-GOVERNMENT ORGANISATIONS

NGOs are independent, non-profit groups that are without representation or funding from any
government. This is essential because it means that their work is not influenced by nation states
and political regimes or ideologies.
- Approximately 40,000 NGOs operating internationally.
- Under the UNC, they are consulted with by the UN where relevant.
- Inform the global community of human rights violations and progress.
- Encourage compliance through investigating, researching, documenting and publicising cases
of human rights violations – naming and shaming can have a profound effect on governments.
- Shape public and political opinion, make submissions to various state governments or law
reform bodies on human rights and work directly with violators or victims to provide evidence to
international courts.

International Committee Of The Red Cross

- 1863.
- Since 1990 it has been permitted observer status at the UNGA.

International Crisis Group

- 1995.
- Monitoring approximately 60 conflict and potential conflict situations, its core business remains
the production of full-length reports and briefings (20-30 pages on average) providing highly
detailed analyses on policy issues, offering strategic thinking on intractable conflicts, and giving
early warning when a security issue is becoming a full crisis.
- Aim is to be an accurate source of information for governments, IGOs and other NGOs that are
working to respond directly to conflict situations.

AUSTRALIA’S FEDERAL GOVERNMENT

Australia has played a significant role in world order issues.
• Extradited war criminals to face justice (Captain Dragan).
• Participated in Peace Keeping missions in East Timor.
• Tensions with China.
• Current war crimes allegations
- support of international agreements/treaties, of which it has signed over 900 (majority are
bilateral).
o E.g. It is signatory to the Geneva Conventions, the Rome Statute, CROC, the UN
Convention on the Elimination of All Forms of Discrimination Against Women and the
UN Refugee Convention.
- Australia’s consistent involvement in UN peacekeeping missions, with contributions of
military or police personnel to 54 peace keeping forces, is another example of its commitment
to world order.
 o E.g. In 1999-2000 it played a leading role in establishing order in East Timor when
Indonesian backed militia went on a killing rampage after East Timorese people voted
for independence from Indonesia in a UN-sponsored referendum.
o In 2003 Australian Federal Police were sent to the Solomon Islands to help local
authorities maintain order after armed militia attempted to seize control of parts of the
country. Such missions have been an integral part of Australian foreign policy, which is
focused on the need to keep peace and good order within the Asia–Pacific region.
- The ratification of international agreements is important in protecting human rights in Australia
because it allows domestic laws to incorporate protections

THE MEDIA

A free and unbiased media is an essential feature of the rule of law and plays an important role in
society.
- It can raise awareness by drawing attention to events, disasters or political crises and can
influence leaders to take action.
- However, impartiality of media dissemination remains a significant issue of concern as the
media can be controlled by a few large and powerful TNCs or even the government.
- The media can also be used by waring groups to perpetuate their ideology, as was seen in the
Rwandan Genocide and by ISIS.
- Sometimes excessive media exposure can result in donor fatigue if viewers become de-
sensitised to conflict images.

ISIS and the Media

• The age of YouTube, Twitter and Facebook has had a major impact on conflicts and has
been used by terrorist groups such as ISIS to gather followers and disseminate messages.
• For example, British journalist John Cantlie, kidnapped in November 2012 by hard-line
rebels in Syria, appeared in an Islamic State propaganda video released on July 12.

POLITICAL NEGOTIATION, PERSUASION, AND THE USE OF FORCE

Case Study: The Balkans and Political Negotiation and Pressure

The Serbian government long resisted calls for peace and diplomatic pressure such as trade
embargoes had been ineffective. However, the violence in Bosnia eventually stopped with the
signing of a peace agreement in December 1995 (the Dayton Agreement). These accords put an
end to the three and a half-year long Bosnian War, however they did not mention the fate of
Kosovo which ultimately enabled Milosevic to conduct massacres in Kosovo.
- Use of Force: if political negotiation breaks down and diplomatic pressure has no impact, there
may be a need to resort to force.
- It should not be the norm as stated in Article 2(4) of the UN Charter, however, Article 51
states that force can be used in self-defence.
o E.g. the US invasion of Afghanistan in 2001 in response to the Sept 11 attacks by al-
Qaeda was accepted as self-defence.
- Article 42 also allows to UNSC to ‘take such action by air, sea or land forces as may be
necessary to maintain or restore international peace and security’.
 o As such, multilateral military intervention in response to threats to peace generally
has the backing of international law.
o E.g. Military intervention by NATO in Libya.
- However, approval by the UNSC to use force can be hard to obtain due to the use of the P5
veto powers.
o E.g. in 1998, the UNSC was unable to intervene in Kosovo because China and
Russia did not support the resolution to condemn Serbia’s actions and sanction the
use of force by the UN. Instead, NATO exercised the right of humanitarian
intervention and began airstrikes.
The success of global cooperation in achieving world order
- The role of the UN in East Timor
- Widespread ratification of international instruments
- Countries submitting to the jurisdiction of courts and tribunals
- The work of NATO in Kosovo and Libya, and NGOs in alleviating suffering.

- Success of global cooperation is limited when states are either unwilling to surrender some of
their sovereignty or if it is not in their national interest to commit resources as was seen in
Rwanda.
- Some conflicts have demonstrated the difficulty in achieving global cooperation such as Syria.
- A recent example of global cooperation has been seen in the summit between Trump and
Jong-un in Singapore in June 2018.
 WORLD ORDER HSC QUESTIONS
Evaluate the effectiveness of legal and non- legal measures in resolving conflict
and working towards world order
Red Cross
- Established in 1863, under the Geneva Convention
- Global humanitarian network, providing relief agency for victims of
war on a neutral, impartial, and independent basis
- Primary goal: “prevent and mitigate human suffering” – ICRC
Handbook
- Neutrality ensures state sovereignty is upheld and confidence is built
- RFL (Restoring Family Links): one million displaced in Ukraine,
RFL focused on those who have moved to neighbouring countries
- Yemen crisis: deployed to facilitate emergency care, such as food,
shelter and health-related relief – e.g., Cholera management is a
“top priority” (ICRC)
- State sovereignty and the principle of neutrality impedes upon Red
Cross ability to promote peace – e.g., Human Rights Watch:
“Yemen government and affiliated forces were severely
restricting the delivery of desperately needed humanitarian aid”
o “Millions are suffering in Yemen because of Yemeni
authorities denial of UN agencies unhindered access to
people in need”

ICC
(International - Established in 2002, under the Rome Statute
Criminal - Seeks to prosecute against serious international crimes: genocide,
Court) crime of aggression, crimes against humanity, war crimes
- Defends against individuals who seek to use state sovereignty as a
defence to their crimes
- Complementarity, ICC as a last resort places initial responsibility on
domestic courts – incentive to incorporate international standards of
law into domestic legislation (helping to encourage cooperation,
resolve conflict, maintain state sovereignty) (The case of Saif al-
Islam (2011) exemplifies the ICC as a last resort)

However:
- Prosecutes after the conflict, so its effectiveness in ‘resolving
conflict’ is limited
- Inefficiency: imprisoned 10 individuals in its 20 years compared to
the US $140 million/year it costs to run
- Limited jurisdiction – can only prosecute member states, lack of
major signatories (i.e., Russia, China, US): e.g., Putin’s
prosecution – would require special leave from the security council
which Russia holds a veto power

UN
Peacekeeping - Seek to maintain peace and security in countries effected by conflict
and facilitate the protection of civilians and a de-escalation of conflict,
whilst maintaining state sovereignty
 - Rwanda Genocide 1994: failing to suppress conflict due to a
fundamental lack of resources and international interest
o October 1993: UN passed Resolution 872, establishing the
United Nations Assistance for Rwanda (UNAMIR) –
mandate: peacekeeping, humanitarian assistance and
guidance in creating transitional government
o Lack of resources and funding led to a subsequent
deterioration of conditions and escalation of conflict, resulting
in Belgian’s withdrawal of troops and thus the western
nations “whisking their nations to safety and leaving
Rwandans to fend for themselves” (Time Magazine, May
1994)
o Force reduced to 270 troops – sufficient incapacity to protect
Rwandan Tutsi populations
o “Limited mandate” (The Conversation, 2015) – absence of
force unless in situations of self-defence: peacekeepers
unable to intervene in accordance with Rwanda’s state
sovereignty – soldiers “feeling a moral obligation to
intervene” of which they could not act upon
o 800,000 to one million Tutsi deaths – excessive attempts to
remain within state sovereignty, compromising the ability to
protect

NATO (North
Atlantic - Established in 1949 under NATO Charter
Treaty - Originally a security alliance established in opposition to the Soviet
Organisation) Union and now provides military force in times of humanitarian crises
- 28 members, discuss and address security issues of common
concern
- Resolves conflict by coming to the defence of nations impacted by
war: e.g., Sarajevo (Bosnia) – first use of force for humanitarian
purposes
o stated aim was to “establish long-term peace during and
after the Bosnian War” (NATO and European Security –
1998)
o 1995: Serb forces launched a mortar shell at the Sarajevo
marketplace killing 37 people - Admiral Leighton Smith, the
NATO commander recommended that NATO launch
retaliatory air strikes under Operation Deliberate Force
o 1995: launched Operation Deliberate Force with large-scale
bombing of Serb targets - 338 individual targets.
o Dayton Accords (a peace treaty) - NATO provided 60,000
peacekeepers for the region (Implementation Force (IFOR))
- Impeding state sovereignty
o R2P (fearing a massacre, the UN authorized NATO to
breach Libya's sovereignty to protect civilians from
Qaddafi's forces)
o Can fuel conflicts and result in escalation
- Intervening is dependent on political alliances
 o Ukraine conflict, NATO not intervening due to Russia’s veto
power and not wanting to escalate – as a result, Ukraine
civilians suffering (limiting effectiveness of NATO’s aim)

Examine the role of sovereignty in assisting and impeding the resolution of world
order issues
Red Cross
- Established in 1863, under the Geneva Convention
- Global humanitarian network, providing relief agency for victims of
war on a neutral, impartial, and independent basis
- Primary goal: “prevent and mitigate human suffering” – ICRC
Handbook
- Neutrality ensures state sovereignty is upheld and confidence is built
- RFL (Restoring Family Links): one million displaced in Ukraine,
RFL focused on those who have moved to neighbouring countries
- Yemen crisis: deployed to facilitate emergency care, such as food,
shelter and health-related relief – e.g., Cholera management is a “top
priority” (ICRC)
- State sovereignty and the principle of neutrality impedes upon Red
Cross ability to promote peace – e.g., Human Rights Watch:
“Yemen government and affiliated forces were severely
restricting the delivery of desperately needed humanitarian aid”

“Millions are suffering in Yemen because of Yemeni authorities

denial of UN agencies unhindered access to people in need”
ICC
- Established in 2002, under the Rome Statute
- Seeks to prosecute against serious international crimes: genocide,
crime of aggression, crimes against humanity, war crimes
- Defends against individuals who seek to use state sovereignty as a
defence to their crimes
- Complementarity, ICC as a last resort places initial responsibility on
domestic courts – incentive to incorporate international standards of
law into domestic legislation (helping to encourage cooperation,
resolve conflict, maintain state sovereignty) (The case of Saif al-
Islam (2011) exemplifies the ICC as a last resort)
- Inefficiency: imprisoned 10 individuals in its 20 years compared to the
US $140 million/year it costs to run
- Limited jurisdiction – can only prosecute member states, lack of major
signatories (i.e., Russia, China, US): e.g., Putin’s prosecution –
would require special leave from the security council which Russia
holds a veto power

ICJ
(International - Established in 1946, under the Statute of International Court of
Court of Justice
Justice) - Dual jurisdictions
o hear and judge international disputes between states (binding
and final)
 o issue advisory opinions on questions of international law
submitted to it by international organs or the UNGA
- encourages cooperation and resolution of conflicts by providing
binding decisions for states based on international law
- issues advisory opinions which maintain state sovereignty and
decrease the chance of ICJ assuming initiative
o Benin v Niger (2005) case, with an article by UN News
stating that the parties would “respect and implement the
judgment of the Court”.
- advisory opinions cannot be enforced – Kosovo V Siberia (Siberian
lawmakers refused to acknowledge Kosovo’s statehood despite ICJ
confirming it was not in violation of international law) – limits
effectiveness
- ICJ’s interstate jurisdiction not as relevant considering the changing
nature of conflict (intrastate)

NATO (North
Atlantic - Established in 1949 under NATO Charter
Treaty - Defence alliance between Northern American and European states to
Organisation) counter the threat from the USSR-led communist bloc in Eastern
Europe, now provides military force in times of humanitarian crises
- 28 members, discuss and address security issues of common
concern
- Resolves conflict by coming to the defence of nations impacted by
war: e.g., Sarajevo (Bosnia) – first use of force for humanitarian
purposes
o stated aim was to “establish long-term peace during and
after the Bosnian War” (NATO and European Security –
1998)
o 1995: Serb forces launched a mortar shell at the Sarajevo
marketplace killing 37 people - Admiral Leighton Smith, the
NATO commander recommended that NATO launch
retaliatory air strikes under Operation Deliberate Force
o 1995: launched Operation Deliberate Force with large-scale
bombing of Serb targets - 338 individual targets.
o Dayton Accords (a peace treaty) - NATO provided 60,000
peacekeepers for the region (Implementation Force (IFOR))
- Impeding state sovereignty
o R2P (fearing a massacre, the UN authorized NATO to
breach Libya's sovereignty in order to protect civilians from
Qaddafi's forces)
o Can fuel conflicts and result in escalation
- Intervening is dependent on political alliances
o Ukraine conflict, NATO not intervening due to Russia’s veto
power and not wanting to escalate – as a result, Ukraine
civilians suffering (limiting effectiveness of NATO’s aim)

Explain the implications of the nature of conflict on achieving world order

 ICJ
(International - Established in 1946, under the Statute of International Court of
Court of Justice
Justice) - Dual jurisdictions
o hear and judge international disputes between states (binding
and final)
o issue advisory opinions on questions of international law
submitted to it by international organs or the UNGA
- encourages cooperation and resolution of conflicts by providing
binding decisions for states based on international law
- issues advisory opinions which maintain state sovereignty and
decrease the chance of ICJ assuming initiative
o Benin v Niger (2005) case, with an article by UN News
stating that the parties would “respect and implement the
judgment of the Court”.
- advisory opinions cannot be enforced – Kosovo V Siberia (Siberian
lawmakers refused to acknowledge Kosovo’s statehood despite ICJ
confirming it was not in violation of international law) – limits
effectiveness

ICJ’s interstate jurisdiction not as relevant considering the changing

nature of conflict (intrastate)
ICC
(International - Established in 2002, under the Rome Statute
Criminal - Seeks to prosecute against serious international crimes: genocide,
Court) crime of aggression, crimes against humanity, war crimes
- Defends against individuals who seek to use state sovereignty as a
defence to their crimes
- Complementarity, ICC as a last resort places initial responsibility on
domestic courts – incentive to incorporate international standards of
law into domestic legislation (helping to encourage cooperation,
resolve conflict, maintain state sovereignty) (The case of Saif al-
Islam (2011) exemplifies the ICC as a last resort)

However:
- Internal conflict is harder to respond to – relies on the compliance of
states
- Inefficiency: imprisoned 10 individuals in its 20 years compared to the
US $140 million/year it costs to run
- Limited jurisdiction – can only prosecute member states, lack of
major signatories (i.e., Russia, China, US): e.g., Putin’s prosecution
– would require special leave from the security council which Russia
holds a veto power

NATO (North
Atlantic - Established in 1949 under NATO Charter
Treaty - Defence alliance between Northern American and European states to
Organisation) counter the threat from the USSR-led communist bloc in Eastern
Europe, now provides military force in times of humanitarian crises
 - 28 members, discuss and address security issues of common
concern
- Resolves conflict by coming to the defence of nations impacted by
war: e.g., Sarajevo (Bosnia) – first use of force for humanitarian
purposes
o stated aim was to “establish long-term peace during and
after the Bosnian War” (NATO and European Security –
1998)
o 1995: Serb forces launched a mortar shell at the Sarajevo
marketplace killing 37 people - Admiral Leighton Smith, the
NATO commander recommended that NATO launch
retaliatory air strikes under Operation Deliberate Force
o 1995: launched Operation Deliberate Force with large-scale
bombing of Serb targets - 338 individual targets.
o Dayton Accords (a peace treaty) - NATO provided 60,000
peacekeepers for the region (Implementation Force (IFOR))
- Impeding state sovereignty
o R2P (fearing a massacre, the UN authorized NATO to
breach Libya's sovereignty in order to protect civilians from
Qaddafi's forces)
o Can fuel conflicts and result in escalation
- Intervening is dependent on political alliances

Ukraine conflict, NATO not intervening due to Russia’s veto power and
not wanting to escalate – as a result, Ukraine civilians suffering (limiting
effectiveness of NATO’s aim)
UN
Peacekeeping - Seek to maintain peace and security in countries effected by conflict
and facilitate the protection of civilians and a de-escalation of conflict,
whilst maintaining state sovereignty
- Rwanda Genocide 1994: failing to suppress conflict due to a
fundamental lack of resources and international interest
o October 1993: UN passed Resolution 872, establishing the
United Nations Assistance for Rwanda (UNAMIR) –
mandate: peacekeeping, humanitarian assistance and
guidance in creating transitional government
o Lack of resources and funding led to a subsequent
deterioration of conditions and escalation of conflict, resulting
in Belgian’s withdrawal of troops and thus the western
nations “whisking their nations to safety and leaving
Rwandans to fend for themselves” (Time Magazine, May
1994)
o Force reduced to 270 troops – sufficient incapacity to protect
Rwandan Tutsi populations
o “Limited mandate” (The Conversation, 2015) – absence of
force unless in situations of self-defence: peacekeepers
unable to intervene in accordance with Rwanda’s state
 sovereignty – soldiers “feeling a moral obligation to
intervene” of which they could not act upon

800,000 to one million Tutsi deaths – excessive attempts to remain

within state sovereignty, compromising the ability to protect

Evaluate the effectiveness of legal responses to these issues.

The international community seeks to promote peace and security through legal
intervention, whilst not imposing upon a nation’s statehood. State sovereignty, which can
be defined as the ability for nation’s to govern themselves free from external intervention
or influence, can threaten world order despite its benefits of de-escalating conflict. Thus,
the effectiveness of legal response in encouraging cooperation depends on their ability to
strike a balance between statehood and the right to protect (R2P). This is demonstrated
through UN peacekeeping operations, the International Criminal Court (ICC) and domestic
courts.
UN Peacekeeping
(Rwanda) - Seek to maintain peace and security in countries effected by
conflict and facilitate the protection of civilians and a de-
escalation of conflict, whilst maintaining state sovereignty
- Rwanda Genocide 1994: failing to suppress conflict due to a
fundamental lack of resources and international interest
o October 1993: UN passed Resolution 872,
establishing the United Nations Assistance for
Rwanda (UNAMIR) – mandate: peacekeeping,
humanitarian assistance and guidance in creating
transitional government
o Lack of resources and funding led to a subsequent
deterioration of conditions and escalation of conflict,
resulting in Belgian’s withdrawal of troops and thus
the western nations “whisking their nations to
safety and leaving Rwandans to fend for
themselves” (Time Magazine, May 1994)
o Force reduced to 270 troops – sufficient incapacity to
protect Rwandan Tutsi populations
o “Limited mandate” (The Conversation, 2015) –
absence of force unless in situations of self-defence:
peacekeepers unable to intervene in accordance with
Rwanda’s state sovereignty – soldiers “feeling a
moral obligation to intervene” of which they could
not act upon

800,000 to one million Tutsi deaths – excessive attempts to

remain within state sovereignty, compromising the ability to
protect
Responsibility to R2P is significantly effective in promoting world order,
Protect (R2P) asserting the international community’s prioritisation of
human rights above state sovereignty.
- R2P was established after the Rwandan Genocide, when UN
Secretary General Kofi Annan questioned when does “the
international community intervene for the sake of protecting
populations?”
 o Opponents argued that this compromises state
sovereignty (as upheld in Article 2.7 of the UNC)
o However, author Gareth Evans: “state sovereignty
was a licence to kill”
- Considering debate, at the 2005 World Summit, the doctrine
of Responsibility to Protect (R2P) was unanimously accepted
o Confirms that the protection of human rights is an
integral responsibility of the sovereign state
o Places emphasis on prevention through measures
such as building a state’s capacity to safeguard
human rights and remedying grievances through
mediation (avoiding the impeding of state sovereignty
to ensure conflict is not escalated)
o Asserts that sovereignty is not a right, but a
responsibility à changing understanding of the
relationship between SS and human rights

However:
- 2009 report ‘Implementing the Responsibility to Protect’ raised
concerns
- R2P infringes SS
o However: R2P only applies when a state is either
allowing mass atrocity to occur, or committing them à
R2P actually reinforces state sovereignty
- UNSC, when deciding which crises R2P applies to, have been
selective and biased upon political alliance
o UNSC did not vote to intervene in Chechnya because
Russia opposed such action with her Veto Power
- Needs to be greater emphasis on building the capacity of
regional organisations (African Union and NATO) to support
R2P to promote prevention

R2P, although potentially bias in the UNSC’s decision

making, is highly successful in resolving conflict, asserting
an international intolerance for human rights abuses.
Domestic Yemen Domestic courts are effective in promoting peace and
Courts Military encouraging cooperation, eliminating issues of state
Court sovereignty within courts, and encouraging local authority
to hold their own accountable.
- Yemen Military Court: seeks to hold criminals accountable for
their involvement with the ongoing Yemen humanitarian crisis
- Arab News Article ‘Yemen Military Court’: the court is
prosecuted Houthi leaders for “carrying out military coups
against the republican system and committing military and
war crimes within Marib”
- During trial – revealed that the Houthi militia committed
“horrific humanitarian violations”, targeting the Marib civilians
with “landmines, grenades and explosives”
 - Court handed down a death sentence upon 147 Houthi
criminals, denouncing them as terrorist organisation and
requiring the removal of all weapons, ammunition, and military
equipment
- Court’s ruling protects civilians against terrorist acts, imposing
harsh punishment to set a standard and encourage the
resolution of conflict

However:
- Domestic authority can impose verdicts or punishments that
do not align with international standards of punishments, such
as the death penalty
- Jeopardise the cohesiveness and consistency of the
international community in the differing and somewhat
controversial ideas of punishment, leading to a lack of
cooperation and thus resolution of future conflicts
- Domestic action relies on the cooperation of the judiciary à in
times of conflict, the judiciary is not always guaranteed to act
in the best interests of the public:
o Yemen Prosecutor: “the war created a divided
spectrum in society that affects the performance of
the judiciary and its decisions”
- International action is always stronger due to its removed
position from the conflict
o Report on the ‘Impact of the War on Yemen’s Justice
System’: “the GCC Ministerial Council has demanded
the international community to intervene to stop the
group’s terrorist acts” à suggesting the limited nature
of domestic authority in comparison to international
authority

Therefore, domestic courts allow for a faster, and more cost-

efficient method of prosecution, resolving conflicts on a
local scale and thereby not threatening state sovereignty.
Gacaca The role of domestic courts, such as the Gacaca Court, in
Court resolving conflict can be deemed successful in terms of
(Rwanda) fastening the process when it comes to large scale atrocity,
such as the Rwandan Genocide. However, this can wrongly
take precedent, compromising fair and rigorous court
proceedings and the rights of the accused.

- Due to the large scale of crime during the genocide, Rwanda

did not have the resources to prosecute each perpetrator of
genocide
- In response, Rwanda implemented the Gacaca court system
in 2001 à method of transitional justice
o Official Rwandan government website, ‘National
Service of Gacaca Jurisdictions’: “the gacaca courts
aim to reconstruct what happened during the
genocide, speed up the legal proceedings by using as
 many courts as possible and reconcile all Rwandans
and build unity”

However:
Lack of legitimacy and rigorous legal processing
- Human Rights groups worry about fairness since trials are
held without lawyers à less protection for defendants than in
conventional courts
o Human Rights Watch advisor Alison Forges: “lack of
legal representation was a serious concern, with
considerable weight given to the official side which
eliminates a level playing field” – key notion of a ‘fair
trial’
- Acquittal rate has been 20% which suggests many trials were
not well-founded

However:
- Human Rights Watch advisor Alison Forges: “the problem of
delivering justice after the genocide is overwhelming, there
may not be any other alternative than the Gacaca Court
system”

Therefore, whilst the Gacaca Courts have been criticised for

their hastily approach towards achieving justice, domestic
courts are ultimately a successful means of resolving
conflict in that they fasten the process of justice and present
an internal focus on accountability which sets a standard for
future criminal attempts.

Assess the effectiveness of the United Nations in promoting and maintaining world
order.
Security The effectiveness of the Security Council in promoting and
Council maintaining world order is limited by the Veto power, affording its
(VETO) permanent members too much power to act in accordance with
their own national interests.
According to a Security Council Report, permanent members of the
UNSC including Russia, China, France, Britain and America, “use the
veto to defend their national interests, to uphold a tenet of their foreign
policy or, in some cases, to promote a single issue of particular
importance to a state”
However:
- The Council Of Foreign Relations: “veto gives undue deference to the
political interests of the P5, leading to inaction in the face of mass
atrocities”
- This questions the United Nations’ conflict-management capacity,
often citing 1990s peacekeeping crises in Somalia, the former
Yugoslavia, and Rwanda.”
 - Article by the Conversation: “the UN’s constitution requires the P5 to
agree or at least not object, rendering the UN powerless to intervene
in situations such as the Iraq War”

Reform:
- In response to invasion of Ukraine, which the Conversation states
“galvanised UN action to address the veto problem”, the General
Assembly will automatically review any use of the veto by any of the
P5.

However:
- The article continues to denounce the effectiveness of this reform,
noting that, “each time a veto has been cast in the past, the P5
member has issues an explanatory statement – demonstrating both
an ability to publicly defend their vetoes and a willingness to incur the
condemnation from others that has often follower”
- As such, “the new provision does not give the General Assembly any
power to censure the Security Council” and states that whilst the
reform is “a step in the right direction”, it is a “very small step”.

Therefore, the effectiveness of the Security Council in resolving

conflict is harshly limited by the Veto Power, with reforms
catalysed by the current Ukraine situation failing to remedy the
problem.
UN
Peacekeeping - Seek to maintain peace and security in countries effected by conflict
and facilitate the protection of civilians and a de-escalation of conflict,
whilst maintaining state sovereignty
- Rwanda Genocide 1994: failing to suppress conflict due to a
fundamental lack of resources and international interest
o October 1993: UN passed Resolution 872, establishing the
United Nations Assistance for Rwanda (UNAMIR) –
mandate: peacekeeping, humanitarian assistance and
guidance in creating transitional government
o Lack of resources and funding led to a subsequent
deterioration of conditions and escalation of conflict, resulting
in Belgian’s withdrawal of troops and thus the western
nations “whisking their nations to safety and leaving
Rwandans to fend for themselves” (Time Magazine, May
1994)
o Force reduced to 270 troops – sufficient incapacity to protect
Rwandan Tutsi populations
o “Limited mandate” (The Conversation, 2015) – absence of
force unless in situations of self-defence: peacekeepers
unable to intervene in accordance with Rwanda’s state
sovereignty – soldiers “feeling a moral obligation to
intervene” of which they could not act upon
 800,000 to one million Tutsi deaths – excessive attempts to remain
within state sovereignty, compromising the ability to protect
ICJ
- Established in 1946, under the Statute of International Court of
Justice
- Dual jurisdictions
o hear and judge international disputes between states (binding
and final)
o issue advisory opinions on questions of international law
submitted to it by international organs or the UNGA
- encourages cooperation and resolution of conflicts by providing
binding decisions for states based on international law
- issues advisory opinions which maintain state sovereignty and
decrease the chance of ICJ assuming initiative
o Benin v Niger (2005) case, with an article by UN News
stating that the parties would “respect and implement the
judgment of the Court”.
- advisory opinions cannot be enforced – Kosovo V Siberia (Siberian
lawmakers refused to acknowledge Kosovo’s statehood despite ICJ
confirming it was not in violation of international law) – limits
effectiveness

ICJ’s interstate jurisdiction not as relevant considering the changing

nature of conflict (intrastate)
NATO (R2P)
- Established in 1949 under NATO Charter
- Defence alliance between Northern American and European states to
counter the threat from the USSR-led communist bloc in Eastern
Europe, now provides military force in times of humanitarian crises
- 28 members, discuss and address security issues of common
concern
- Resolves conflict by coming to the defence of nations impacted by
war: e.g., Sarajevo (Bosnia) – first use of force for humanitarian
purposes
o stated aim was to “establish long-term peace during and
after the Bosnian War” (NATO and European Security –
1998)
o 1995: Serb forces launched a mortar shell at the Sarajevo
marketplace killing 37 people - Admiral Leighton Smith, the
NATO commander recommended that NATO launch
retaliatory air strikes under Operation Deliberate Force
o 1995: launched Operation Deliberate Force with large-scale
bombing of Serb targets - 338 individual targets.
o Dayton Accords (a peace treaty) - NATO provided 60,000
peacekeepers for the region (Implementation Force (IFOR))
- Impeding state sovereignty
o R2P (fearing a massacre, the UN authorized NATO to
breach Libya's sovereignty in order to protect civilians from
Qaddafi's forces)
 o Can fuel conflicts and result in escalation
- Intervening is dependent on political alliances

Ukraine conflict, NATO not intervening due to Russia’s veto power and
not wanting to escalate – as a result, Ukraine civilians suffering (limiting
effectiveness of NATO’s aim)

CORE PART III: FAMILY LAW

Key features

• the role of the law in encouraging cooperation and resolving conflict in regard to family
• issues of compliance and non-compliance
• changes to family law as a response to changing values in the community
• the role of law reform in achieving just outcomes for family members and society
• the effectiveness of legal and non-legal responses in achieving just outcomes for family
members.

The nature of family law

• the concept of family law

• legal requirements of marriage
• alternative family relationships
• legal rights and obligations of parents and children
• adoption

Responses to problems in family relationships

• divorce
• legal consequences of separation
o children
o property
• dealing with domestic violence
• the roles of:
o courts and dispute resolution
o methods
o non-government organisations
o the media

Contemporary issues concerning family law

• recognition of same-sex relationships

• the changing nature of parental responsibility
• surrogacy and birth technologies
• care and protection of children.
 THE NATURE OF FAMILY LAW

THE CONCEPT OF FAMILY LAW

The Australian Bureau of Statistics states a family is ‘a group of two or more people who are
related by blood, marriage, de facto arrangement, adoption, step or fostering, and who usually live
together in the same household’.
Family law governs behaviour in the context of the family including:
- Marriage
- Alternative family relationships (e.g., de facto relationships and more recently same-sex
relationships)
- Legal rights and responsibilities regarding children to ensure the best interests of the child are
secured
- Legal ways of dealing with domestic violence
- Divorce including its consequences: the disposition of property and arrangements for children.
- New developments such as surrogacy and birth technology

Family law focuses more on cooperation and encouraging compliance than on sanctions or
coercion.

LEGAL REQUIREMENTS OF MARRIAGE

Terms:
- If marriage is ‘valid’, it is legally recognised. If the legal requirements of marriage are not met, it
is void or invalid and can be nullified by the courts. Annulment is a declaration by a court that a
supposed marriage is in fact void; that is, it never happened! This is not the same as divorce.
However, children are still legally recognised (and get the same rights).

Key legislation
- Marriage Act 1961 (Cth) – established the legal requirements of a valid marriage
- Family Law Act 1975 (Cth) – sets out the legal duties and obligations that marriage creates,
governs the dissolution of marriage and property division and spousal maintenance

à Voluntary Union
No person can be forced to marry under duress (can’t be forced, coerced or tricked) or fraud. In
short, both parties must give their genuine consent to marriage.

à For life
The idea of a union ‘for life’ doesn’t apply in Australia anymore because the Family Law Act 1975
(Cth) allows for divorce ‘on the grounds of’ an irretrievable breakdown of marriage.

à Between 2 people
The Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) reformed the
definition of marriage (TAC: Law Reform). It “omitted “a man and a women” in the definition and
substituted it with “2 people”, allowing people of same-sex to marry.

à To the exclusion of all others

Monogamy is the only valid form of marriage in Australia under the Marriage Act 1961 (Cth).
Polygamy (more than one spouse at a time) is invalid and is also a crime in Australia, known as
bigamy, that can result in imprisonment for 5 years.
• Legally marriageable age (when can you legally get married?)
If you and your partner are both over 18, you can get married without having to get anybody’s
permission. If both you and your partner are under 18, you cannot get married. If you are 16 or 17
and your partner is 18, you will usually need permission from parents/guardians and must obtain
permission from a judge or magistrate and circumstances must be ‘so exceptional and usual’ to
justify making the order.

• Not being within a prohibited relationship, either by blood or marriage:

A person cannot marry a close family relative e.g. ancestor or descendent or sibling. It also
applied to adoptive relationships.

• Giving ‘Notice of Marriage’:

1 month minimum before the marriage. Parties must include proof of age and whether they have
been married previously.

• Having a legal marriage ceremony:

The ceremony can be anywhere but must be authorised by a marriage celebrant. There must also
be a marriage certificate (signed by the bride and groom and two witnesses over 18), a copy of
which must be lodged with ‘Births, Deaths, and Marriages’ within 14 days.

ALTERNATIVE FAMILY RELATIONSHIPS

Alternative Features Issues and Legal Responses/Reform

Family
Arrangement
- This is not any
ATSI Indigenous marriage but
customary those dictated by
marriages traditional and culture.
- Girls often marry before
18
- May involve Polygamy
(more than 2 people)
- May involve consanguity
(closely related)
- May not be entirely
voluntary as girls are
‘promised’ to men
- Marriage ceremony not
done by legal celebrant
- Aboriginal customary law
is an oral
tradition…records do not
Issues:
Practical challenges.
- Inheritance rights of a surviving spouse if one
dies intestate (without a will) are limited; difficult
for the couple to claim the same tax benefits as
those available to de facto couples
Clash of culture and laws.
- How do we ensure basic human rights and meet
international obligations?
- E.g enjoyment of culture under ICCPR (1966)
and UN Declaration on the Rights of Indigenous
People signed by Australia in 2009
Legal response / reform:
- ATSI customary law marriages are not
recognized as valid under law as they do not
comply with the requirements of the Marriage
 meet legal standards Act 1961 (Cth). Instead, the Australian Law
e.g., marriage certificate Reform Commission (ALRC Report 31) 1986
not kept. recommended customary marriages be given de
facto status. This was accepted and so parties
will have access to the Family Court if the
relationship breaks down and there is
recognition for adoption, inheritance, social
security, status of children etc. When making
decisions about parental responsibility, the
Family Court must consider any kinship
obligations and childrearing practices of the
child’s ATSI culture
- ‘Promised brides’ may be in breach of criminal
law where a girl is sexually involved/raped by her
adult husband: Jackie Pascoe case (2013): a
50-year-old tribal Aboriginal man, Jackie
Pascoe, was sentenced to 13 months’
imprisonment on a charge of having unlawful
intercourse with a minor. She was his 15-year-
old promised wife.
- One parent with at least Issues:
Single parent one child regardless of Single parent families face significant economic
families age who is usually disadvantage:
resident in the - nearly 25% of children living with a single parent
household. Could be due is below the poverty line, compared with 7.6% of
to death, those living with two parents (Single parent
separation/divorce, families struggling to survive: SMH, 12/6/13);
personal choice e.g. IVF they face difficulties in accessing affordable
- Due to changing social housing and legal services. They are also three
values leading to times more likely to be exposed to physical or
increases in divorce and threatened violence compared to the general
greater independence of population average.
women, single parent
families are the fastest Legal responses / reform:
growing type of family in Child Support Scheme:
Australia - The Child Support (Registration and Collection)
- 22% of families are Act 1988 (Cth) was introduced to enforce
headed by a lone parent maintenance orders on parents who do not
of which 81% were reside/live with their dependent child (under 18),
single mother families ensuring both parents fulfil their financial
(Australian Institute of responsibility for their children.
Family Studies (2013)
Shared parental responsibility:
- The Family Amendment (Shared Parental
Responsibility) Act 2006 amended the Family
Law Act 1975 (Cth) to introduce a presumption
of shared parental responsibility, meaning that
parents have a joint responsibility for the child.
 - These are families where Issue 1:
Blended a couple lives together Responsibility of a stepparent for his/her
Families (married or de facto) with stepchildren start and/or stop when the
children from previous relationship breaks down
relationships. I.e., Step
parents and Legal response:
stepchildren. A - There is no automatic requirement for a
stepparent is someone stepparent to pay child support.
who is or has been - However, the Family Court can make a
married to a parent of maintenance order, i.e., order a stepparent to
the child and who maintain a stepchild if it can be shown that the
accepted the child as step-parent has a duty to provide for the child.
part of the family. - A court will consider the nature, length and
- One-third of all circumstances of the relationship between the
registered marriages step-parent and the step-child.
involve individuals who - Duty of a step-parent to provide for a step-child
are marrying for the is of a secondary duty and efforts must first be
second time. (ABS) made to obtain maintenance from the child’s
natural parents.

Issue 2:
Child custody issues when parent dies

Legal response:
- A child may be adopted by a step-parent and will
then have the same legal rights as children born
into that parental relationship. Under the
Adoption Act 2000 (NSW), they must have lived
with the child’s natural/adoptive parent for at
least 2 years and the child must be at least 5.
- Polygamy is having more Issue:
Polygamous than one wife or husband Should polygamous marriage be recognised? In
Marriages - It is not legal in Australia other words, is a marriage valid in Australia when
HOWEVER, under the a person is married in a jurisdiction that allows
Family Law Act 1975 polygamy?
(Cth), a polygamous
marriage that was Legal responses:
entered into overseas is - Despite calls by the president of the Islamic
‘deemed’ to be a Association of Australia for polygamous
marriage for the marriages to be recognized in Australia, the Cth
PURPOSE of: Attorney General Robert McClelland, in 2008
o children’s firmly ruled this out. He said such relationships
matters are “unlawful and they will remain as such”
o property (25/6/2008) under the Marriage Act 1961 (Cth)
settlements - If a polygamous marriage that was entered in to
overseas break downs, the parties can seek
court orders as a de facto couple under the
 Family Law Act 1975 (Cth) for maintenance,
property division, and parenting plans
- Marrying a second person when you’re already
married is also crime: Bigamy max. 5 years in
jail (Bigamist admits forging divorce papers,
ABC News , 2010)

- Defined under Section Issues:

De facto 4AA of the Family Law - In the past, De facto relationships including
relationships Act 1975: two people same-sex relationships were viewed as immoral.
who have a relationship Even as social values (TAC) shifted, de facto
as a couple living couples faced difficulties in gaining recognition
together on a genuine of the relationship, accessing the same rights as
domestic basis married couples and dealing with issues such as
- 70% of people will live children and property division when the
together before they relationship breaks down.
marry, often in what
constitutes a de facto Legal responses:
relationship. - In NSW, de facto relationships were given legal
recognition under the Property Relationships)
Act 1984 (NSW) which gave them the same
legal protection as married couples in areas
such as property division, inheritance and
making decisions in times of illness and after
death. However, this caused problems for de
facto relationships breaking down as issues
such as property would be heard in the District
or Supreme Court but the issue of who the
child/ren would live in would be heard in the
Family Court. That is, they had to deal with two
courts! The Family Law Amendment (De Facto
Financial Matters and Other Measures) Act 2008
(Cth) addressed this, allowing for property and
maintenance matters for de facto couples who
are separating to be determined in the Family
Court or Federal Circuit Court. This means that
from 2009 the entire separation is resolved
through the FEDERAL system.
- Another issue de facto couples faced was
proving that they in fact were in such a
relationship. The Relationships Register Act
2010 (NSW) established a relationships register
making it easier for unmarried couples to prove
they are in a de facto relationship, so they can
more easily access legal entitlements. “Previous
laws made it difficult for couples who are in de-
facto or committed relationships to prove their
relationship for the purpose of accessing
 government services, entitlements or records.
The register ensures NSW is aligned with
Commonwealth Government moves to remove
discrimination against unmarried people in
heterosexual and same-sex relationships,” the
AG said. “Couples who choose to register their
relationship will now be provided with one
document that helps prove their relationship and
will be spared the frustration of constantly
having to supply agencies with large amounts of
paperwork.”

Same-sex relationships:
Same-sex relationships refer to two people of the same sex who live together as a de facto
couple.
International responses:
- Although the International Covenant on Civil and Political Rights 1966 (ICCPR) does not
specifically refer to sexual orientation, Article 2 prohibits discrimination, Article 26 sets out of
the principle of equality and Article 23 sets out the right to marry and start a family. The
ICCPR was ratified by Australia in 1980 and so it is obligated to adequately protect the rights
set out in the ICCPR. Same-sex marriage has been the focus of international and domestic
debate in recent years. 25 countries have legalised same-sex marriage including the
Netherlands (first country to do so in 2001), Canada, South Africa, Norway, Sweden, New
Zealand and the UK. Several courts around the world have ruled that schemes separate from
marriage cannot be equal to marriage. For example, the California Supreme Court ruled on
15 May 2008 that giving the unions of same-sex couples a name that was separate and
distinct from marriage reduced gays to “second-class citizens”.
Domestic responses:
- Before 1999, statute law failed to reflect the shift in societal values, and it was changes to the
common law that fostered the legal recognition of same-sex couples. For example, Hope &
Brown v NIB (1994) established the recognition of same-sex couples for family health
insurance. NIB Health Funds Ltd had refused to allow a male homosexual couple (and the child
of one of the men) to be covered as a family thereby paying the concessional family rate of
health insurance. This decision was challenged by the couple and the NSW Equal Opportunity
Tribunal found that NIB Health Funds Ltd had contravened the Anti- Discrimination Act 1977
(NSW) which prohibits discriminated on the grounds of homosexuality. NIB Health Funds Ltd
appealed this decision to the Supreme Court, however, Justice McInerney upheld the Equal
Opportunity Tribunal’s decision.
“An important change in social attitudes has been the increasing acceptance of homosexual
relationships. Whilst statute law has been slow to reflect this shift in societal values, it has been
changes to common law that has fostered the legal recognition of same-sex couples. Various
significant cases created law reform momentum, such as Hope and Brown v NIB Health Funds
(1994), in which a same-sex couple successfully argued that their health fund had discriminated
against them on the basis of sexual orientation, through denying them a ‘family’ status.”
Statute law:
1972 South Australia became the first Australian jurisdiction to decriminalise
homosexuality

1984 • New South Wales became the second last Australian jurisdiction to
decriminalise homosexuality

• Sex Discrimination Act 1984 (Cth): prohibited discrimination on the ground

of sex, marital status, pregnancy, potential pregnancy, breastfeeding, or
family responsibilities

• Property (Relationships) Act 1984 (NSW): recognised same-sex

relationships as having the same legal standing as heterosexual de facto
relationships, and provides the same protection in the areas of property
division,

inheritance and decision making in illness and after death

1997 Tasmania became the last Australian jurisdiction to decriminalise

homosexuality. Up until 1997, homosexuality was a criminal offence
punishable by up to 25 years in jail. However, in 1994, the Commonwealth
Government had passed a law overriding Tasmania’s criminalization of
homosexuality in response to Toonen v Australia: Toonen contacted the
Human Rights Committee arguing that the criminalisation of homosexual
sex violated Article 17 (right to privacy) and Article 26 (discrimination on the
basis of sexuality) of the ICCPR.

2004 Marriage Amendment Act 2004 (Cth): reaffirmed the traditional concept of
marriage as ‘the union of a man and women to the exclusion of all others,
voluntarily entered into for life’ by inserting these words into section 5(1) of the
Marriage Act 1961 (Cth). It also confirmed that unions solemnised overseas
between same-sex couples would not be recognised as marriages in Australia
(section 88EA).

2008 In response to the AHRC Report Same-Sex: Same Entitlements, the

Federal Government introduced the Same-Sex Relationships (Equal
Treatment in Commonwealth Laws – General Law Reform) Act 2008
(Cth) (‘The 2008 Same- Sex Law Reforms’) to amend 84 Commonwealth
Acts to remove discrimination against same-sex couples and their children in
a wide range of areas, including Medicare, tax, social security, family law,
superannuation, workers compensation and child support. For example, the
Health Insurance Act 1973 (Cth) now allows a same-sex couple and their
children to register as a family for Medicare.

The NSW government followed suit with a range of state legislation to

remove discrimination against same-sex couples. For example:
 • Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008
(NSW): granted equal parenting rights to lesbian couples who have children
born through ART, and both are listed as mothers on the child’s birth
certificate. This gives the child equal rights to inheritance from both parents.
Previously only the biological mother was listed on the birth certificate.
(Lesbian mothers gain legal rights, SMH, 2008)

• Succession Amendment (Family Provision) Act 2008 (NSW): ensured

that adequate provision is made to give rights to same-sex de facto couples if
a partner dies without mentioning the other in their will. An example of such a
situation was heard in VIC: a man who claimed he was in a secret same-sex
de facto relationship for 25 years has been awarded $300,000 by the
Victorian Supreme court from his late partner's estate even though he wasn’t
in the will.

2010 • Surrogacy Act 2010 (NSW) allows same sex couples to enter into altruistic
surrogacy arrangement

Adoption Amendment (Same Sex Couples) Act 2010 (NSW) allows same-
sex couples to adopt. However, there is the exception that religious adoption
agencies e.g. Anglicare and Catholic Care are still allowed to discriminate
against same-sex couples that want to adopt. Nonetheless, the reform is
significant as gay couples are now judged on their merits as prospective
parents. The first case was Re William and Jane (2010). Barnardos
welcomed the law, saying that it is in the best interests of the child to have two
legally recognised parents (Barnados welcomes same-sex adoption as
religious right vows to fight, SMH

The ACT passed the Marriage Equality (Same Sex) Act 2013 (ACT) arguing
2012 that this law could sit beside the federal legislation because it had defined a
different type of marriage between same-sex couples. The federal government
challenged this in the High Court of Australia. In Commonwealth of Australia v
Australian Capital Territory (2013), the High Court decided that the ACT law
conflicted with the Marriage Act 1961 (Cth) and was therefore invalid. According
to constitutional law expert Professor George Williams, marriage falls under the
''concurrent'' or shared powers of Section 51 but where federal and state laws
conflict, the Commonwealth law takes. Therefore, any laws relating to same-sex
marriage rested within the federal government’s jurisdiction.
Two Marriage Equality Amendment Bills failed in the federal parliament. The
Rudd/Gilliard government did not allow debate on the issue of gay marriage

2013 - The Marriage Equality Amendment Bill 2013 (Cth) which would recognise the
marriages of gay and lesbian Australians who wed overseas, failed to pass the
Senate. The bill, sponsored by the Greens, was defeated 45 votes to 28.

- The Sex Discrimination Sexual Orientation, Gender Identity, and Intersex

Status) Act 2013 (Cth) extends the protections from discrimination under the
Sex Discrimination Act to grounds of sexual orientation, gender identity and
intersex status

- NSW government ordered a Parliamentary Inquiry into Same Sex Marriage in

 NSW. It asked the public for their views

2014 - The Criminal Records Amendment (Historical Homosexual Offences) Act

2014 was passed to allow convictions for certain homosexual conduct offences
from before 1984 to become extinguished if the other party to the act was
consenting. The impact of having a criminal conviction has meant that many gay
people were prevented from working in certain occupations, travelling to certain
countries, and doing volunteer work

2017 - The Marriage Amendment (Definition and Religious Freedoms) Act

2017 (Cth) reformed the definition of marriage. It “omitted “a man and a
woman” in the definition and substituted it with “2 people”, allowing people of
same sex to marry. See section on Same-Sex Couples below for more
detail.

Same-Sex Marriage Reforms

In 2004, the Howard government passed the Marriage Amendment Act 2004 (Cth), which
amended the Marriage Act 1961 (Cth) to reaffirm the traditional definition of marriage as the
‘union of a man and a woman to the exclusion of all others, voluntarily entered in to for life’. “We’ve
decided to insert this into the Marriage Act to make it very plain that this is our view of a marriage
and to also make it very plain that the definition of marriage in something that should rest in the
hands ultimately of the parliament of the nation”, Mr Howard told reporters. “It should not over time
be subject to redefinition or change by the courts, it is something that should be expressed
through the elected representatives of the country” (PM Targets Gays in Marriage Laws, SMH,
2004). This amendment also barred recognition of same-sex marriages made overseas. However,
in the following years, the support in the community for ‘Marriage Equality’ grew and several states
expressed support for the legalisation of same-sex marriage. There were several attempts to do
so in 2012 and 2013 (see the table above). Eventually the campaigning culminated in a plebiscite
in 2017 which indicated that 57.8% of voters supporting same-sex marriage. PM Malcolm Turnbull
(who personally supports same-sex marriage) stated “If the majority of people voting in the
plebiscite vote in favour of it, then same-sex marriage will be legalised." Ture to this same-sex
marriage was legalised in Australia in 2017.
Non-legal responses
There have been a range of responses by NGOs and the media on both sides of the same-sex
recognition/marriage debate.
PRO same-sex recognition

• The 2007 report Same-Sex, Same Entitlements by the Australian Human Rights
Commission (AHRC) recommending amending federal laws that discriminated against
same-sex couples and their children (e.g. in relation to health and insurance), was very
effective, as it lead to a range of reforms at state and federal level between 2008 and 2010

• The Australian Marriage Equality and the Gay and Lesbian Rights Lobby actively
 campaigned and lobbied for the legal rights and social equality of gay couples. The
Australian Marriage Equality campaigns for same-sex marriage, arguing that a different
classification for homosexual couples send the message that these relationships are of a
lesser standard. They say that justice requires changing the law to make marriage available
to all Australians who choose it, not classifying same-sex couples as de factos or permitting
them to form ‘civil unions’

• Public personas such as former government minister, Senator Penny Wong and former
High Court judge Michael Kirby, celebrities such as Kath & Kim and actor Magda
Szubanski have used their public profiles/the media to mobilise public opinion and
pressure parliament to legalise same-sex marriage

• The media can create awareness, disseminate perspectives, and encourage action to be
taken. But it can also distort the truth. This article analyses the media’s manipulation of the
coverage of Ireland’s referendum which ignored the fact that 2/3 of the population didn’t
vote. It argues that the same-sex marriage debate shows contempt for the religious beliefs
of millions of people, by treating a millennium of cultural tradition as if it were suddenly a
discredited, narrow-minded blight on social justice.

• Some have argued that the media, as well as NGOs representing gay rights, have made
the issue that directly affects only a minority of the population a major issue for politicians to
deal with when they could be spending time and resources on more pressing human rights
issues such as the plight of refugees and domestic violence

ANTI same-sex marriage

It is important to remember that there are still many opponents to same-sex marriage. Most of the
powerful groups that oppose same-sex marriage have religious affiliations
• The Australian Christian Lobby: watch the Australian Marriage Forum advertisement
which aired on TV in March 2015
• The ACL had a powerful voice but it was often met with hostile opposition
• In 2013, former Liberal senator Guy Barnett stated that MPs have voted to preserve the
sanctity of marriage. "Marriage has been around for hundreds and thousands of years, it's an
institution," he said. "Same-sex marriage denies a child the right to both a mother and father,
and both mums and dads are important" (Tasmanian upper house rejects bid to revive
marriage debate, ABC, 2013)
 RESPONSES TO PROBLEMS IN FAMILY RELATIONSHIPS

DIVORCE

Divorce is the legal dissolution (termination) of a marriage.

Reforms:

From ‘Fault Divorce’ under Matrimonial Causes Act 1959 (Cth)

- Up until 1976 à married couples who wanted a divorce had to apply for divorce on the ground
of fault (one or both spouses admitted to acting in a way that undermined the marriage)
- Adultery, desertion, cruelty, habitual drunkenness, imprisonment, and insanity

To ‘No Fault Divorce’ under the Family law Act 1975 (Cth)

- The ONLY ground for divorce now is the ‘irretrievable breakdown of marriage, demonstrated
by 12 months of separation’

Statistics:

- 0.1 divorces per 1,000 population for each year between 1901 and 1910 à 0.8 divorces per
1,000 population each year between 1961 and 1970
- Following implementation of Family Law Act 1975 (Cth) in 1976 à number of divorces rose to
63,230 in 1976 from 13,000 in 1975
o Divorce became easier
o Backlog of people waiting for the passing of the new legislation
- Start of 21st century: divorce rate exceeded 2.0 (twenty times higher than what it was in 10th
century)

Process:

- Completing an application for divorce and filing it with the Federal Circuit Court of Australia
- Only one party needs to apply (costs $845)
- Application given a hearing date approx. 2 months after the date of filing
- Application must be served upon the other party at least 28 days before the hearing date or 42
days if the other party is overseas
- Couple needs to satisfy the court that they have lived separately for at least 12 months and
there is no reasonable likelihood of resuming married life
- Section 50 of the Act allows for one period of reconciliation of up to 3 months during the period
of separation (the ‘Kiss and Make Up’ clause).
- If the couple has been married for less than 2 years, they must attend family counselling.
- No application for divorce will be approved until the courts are satisfied that there are proper
arrangements in place for the care of any children under 18 and that agreements on property
division have been made.
- When the court has decided that an application for divorce is successful, it orders a decree
nisis, which begins the process of divorce.
- This is an interim order and about one month later, the decree nisi becomes a decree absolute,
at which time the marriage is legally dissolved.
LEGAL CONSEQUENCES OF SEPARATION

CHILDREN
Parenting Plans
• Any voluntary agreement between parents reached in relation to the care and responsibility of
children can be drafted into a Parenting Plan that can then be registered in court. Once the
court is satisfied the plan is in the child’s best interests, it will issue a Consent Order which is
legally binding and enforceable. 95% of separating couples make a Parenting Plan. As
Parenting Plans are voluntary, they increase rates of compliance (TAC).

Parenting Orders
• If parents cannot reach an agreement independently or with a mediator at FDR (about 5% of
couples), they can apply to the Federal Circuit Court/Family Court to make a Parenting Order,
but only when they have a certificate from an accredited FDR practitioner which states that the
couple have made a genuine effort to resolve the dispute through FDR. A Parenting Order is
a set of orders made by a court about parenting arrangements for a child and relates to things
such as residence, contact, specific issues or maintenance. They are legally binding and
cannot be changed without the consent of the Court. If a party is in contravention of the order
then the Court can enforce it through fines, community service or even up to 12 months
imprisonment (the latter is rare) (TAC: compliance/non-compliance).

Child Support
The passing of the Child Support (Assessment) Act 1989 (Cth) (TAC: law reform), established a
Child Support Agency within the Australian Taxation Office to ensure regular payments of child
support by the non-resident parent of a broken marriage or de facto relationship. It can arrange for
a party’s employer to deduct child support from his/her wages. Failure to pay child support can
result in penalties. Parents are encouraged to reach an agreement about child support. If parties
cannot agree, the courts determine child support. It is generally based on each parent's income,
the number of children and their living arrangements.
Positives:

• Enforcement: parents with unpaid maintenance have been refused overseas visas. The Child
Support Agency can garnishee wages, seize and sell property and intercept tax refunds
(‘Parents hit by travel bans in child support crackdown’, SMH, 5/12/2010).
• The amount of child support payments have increased.

Negatives:

• Lone Fathers Association says that child support unfairly places financial burdens on fathers
who do not enjoy permanent or regular time with their children.
• Enforcement is a problem: only 50% of child support payments are paid in full and on time.
20% do not pay anything at all and it is the children who suffer. A party can deliberately avoid
paying it by minimising incomes e.g. being self-employed (‘Self-employed dads avoid paying
high child support’ (The Age: 18/7/2014).
o In 2012, $1.2 billion was owed by parents in child support payments (‘Drive to collect
$1.2bn child support debt’, SMH, 26/3/2012).
• The money received may not always be used for the children’s benefit
PROPERTY
Process of property division
1. Parties try to reach an informal agreement about splitting up the property (‘property
allocation’) on their own terms (I.e. outside of court). Reaching a settlement out of court
saves time, stress and money.
2. If the separating couple reach an informal agreement but they want to make it legally
binding, they can apply to the Federal Circuit Court/Family Court for ‘Consent Orders’.
Parties must receive independent legal advice.
3. If no agreement can be reached, the court can order the disputing couple to attend a
conference (mediation) to try to get the parties to agree.
4. If the mediation process is unsuccessful, the separating couple can apply to the Federal
Circuit Court/ Family Court where a decision on the division of property can be made and
handed down in ‘Financial Orders’.

Anyone who does not comply (TAC) with Consent Orders or Financial Orders, risk serious
penalties including cost penalties demonstrating enforceability. For example, Mr Weirs refused to
follow a family court order to hand over $100,000 to his wife and was jailed for 9 months because
he spent the money on gambling and prostitutes ‘Super spend lands husband in jail’ (The Age,
2012)’
Law Reform in relation to division of property (TAC)

• The Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) recognises
superannuation as ‘property’ and the court now consider the financial and non-financial
contributions made by both parties to superannuation entitlements. This act enables
separating couples to claim superannuation that each spouse had accumulated during the
marriage, recognising that the money put away for retirement is of significant value and to
exclude it from the calculations would disadvantage the party with less superannuation. To
not include it may encourage people to ‘hide’ money in superannuation funds when they
separate
• The Family Law Amendment (De Facto Financial Matters and Other Measures) Act
2008 (Cth) provides for de facto couples, when they separate, to obtain property
settlements on the principles that apply under the Family Law Act 1975 to married couples

Binding Financial Agreements (BFA)

The separating couple may have a Binding Financial Agreement (previously called a ‘prenuptial
agreement’). These can be made before the marriage, during the marriage, or at the end of the
marriage/de facto. They can include guidelines as to what property is and is not to be included in
the settlement, how property and debt is to be divided if the relationship ends or include
provisions as to whether, how and by whom, spousal maintenance is to be paid. BFAs cannot
relate to arrangements for children. Amendments to the Family Law Act (1975) in 2000 allow the
Family Court to recognise them as binding financial agreements (previously they were not
binding). About 14% of couples sign BFAs. However, a BFA can be invalid if:
1. One of the partners didn’t get legal advice before signing.
2. One partner made the other sign (duress)
3. One party can prove that he/she didn’t fully understand the agreement

In addressing these issues, the family law system focuses more on encouraging parents to co-
operate with each other and voluntarily reach their own agreements outside of the court rather
than applying for court orders as this strengthens compliance (TAC: encouraging cooperation
and resolving conflict).
DEALING WITH DOMESTIC VIOLENCE

Criminal Charges

Domestic violence is dealt with through the Crimes (Domestic and Personal Violence) Act 2007. It
is not part of the Crimes Act 1900 (NSW) but a stand-alone law. This is positive as it shows that
the law has been responsive by explicitly dealing with the issue of domestic violence. The aim of
the Act is to ensure the safety of victims and witnesses of domestic violence and to reduce and
prevent domestic violence. This is consistent with the principles underlying the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) (1979) and the UN
Convention on the Rights of the Child (1989) that have both been adopted by Australia,
committing the nation to take all steps to eliminate violence against women and children.

Positives:

• An important measure in promoting enforceability

Negatives:

• Many argue the criminal penalties for domestic violence aren’t harsh enough and therefore
don’t balance the rights of the victim(s) in the family. For example, after a night of violent
assault, Angela Ivancevic was found by police after she had stumbled out on to the street.
Her husband, Stojanovski was convicted of assaulting Ms Ivancevic in April, 2013 and
received only a six-month suspended sentence.
• Comparison of Jill Meagher’s killer (life imprisonment with 25 years non-parole versus vs.
Saori Jone’s killer (5 years with 3 years non-parole).

ADVOs

• The most used legal tool against domestic violence/family violence are ADVOs. These are
a personal protection orders against the accused offender granted in the Local Court under
the Crimes (Domestic and Personal Violence) Act 2007 that aims to protect a person by
restricting or prohibiting another person from doing specified things. Previously an ADVO
could only be obtained by the victim if they could show on the balance of probabilities that
they reasonably apprehend (fear) violence or harassment by the defendant. Recent law
reform has removed this requirement (TAC).
• Having an ADVO taken out against you is NOT a criminal charge or conviction. However,
violation of an ADVO is a crime (TAC: non-compliance). The maximum penalty is
imprisonment for 2 years or a fine $5,500 or both (enforceability). The police have a duty to
make an application for an ADVO if they suspect domestic violence has been committed or
is about to be committed. In 2015, NSW Local Courts granted 27,699 final ADVOs for the
protection of victims and their families (BOCSAR, 2016); and 1 day a week at Blacktown
Local Court is given over entirely to DV cases.
• In 2014, reforms (TAC) to the Crimes (Domestic and Personal Violence) Act 2007
commenced to enable senior police officers to issue provisional (on the spot) ADVOs, direct
the alleged perpetrator to leave the family home and if necessary detain them to allow the
ADVO to be served. Previously a police officer would have to make an application to an
authorised Justice who would authorise the order. Eighty per cent of cases occurred
outside of normal business hours, resulting in delays while police contacted an authorised
Justice.
 Positives:

- ADVOs are a quick (can be obtained over the phone), inexpensive, and accessible form of
protection and are supported by the criminal law system if breached
- Provisional (‘on the spot’) ADVOs offer immediate protection to victims who can remain safely in
their home as the accused offender can be directed to leave the family home and be held for up
to 2 hours. This means the victim isn’t forced to seek emergency shelter and it reduces the risk
of the perpetrator fleeing
- For the vast majority of victims, ADVOs are effective in reducing, or even eliminating domestic
violence. Most ADVOs aren’t breached (or at least aren’t reported as being breached)
- In 2016, reforms (TAC) to the Crimes (Domestic and Personal Violence) Act 2007 to promote
consistency saw NSW become the first state to automatically recognise an ADVO issued in
another state so that a domestic violence victim can move across state and territory borders and
remain covered. As NSW Attorney-General stated: “We know that victims of domestic violence
across the country are too often forced to flee their homes, jobs and support networks to seek
protection from their perpetrator by concealing their whereabouts in another town or interstate. It
is for this reason that all Australian governments agreed to take urgent collective action to
ensure that those people affected by domestic violence can access the protection they need and
deserve, regardless of where they live in Australia. Just as importantly, there should be, and
there will be, no place for a perpetrator of domestic violence to hide (TAC: law reform, changing
values)

Negatives:

- It has been argued that only people who are normally law abiding will comply, and that these
orders do little to deter persistent offenders. In Rosie Batty’s words: ‘For a recidivist or
someone that’s going to reoffend it only is a piece of paper’ (TAC: issues of compliance and
non-compliance).
- It can be hard to identify the primary perpetrator, according to Domestic Violence NSW Project
Manager Moo Baulch who says police need more training ‘New Police powers allow on the
spot Avos in Domestic Violence, (ABC, 2014)’
- Police have been criticized for inaction in relation to breaches of ADVOS

Review of the Provocation Defence

In some jurisdictions of Australia (VIC, WA, TAS), provocation cannot be used as a defence. In
NSW up until 2014, the defence of provocation operated as a partial defence to murder, whereby
a person who kills another person as a result of a loss of control that was induced by the conduct
of the victim may be convicted of manslaughter rather than murder. This defence was successfully
used by long-term sufferers of domestic violence (‘battered wife’ victims) who kill in response to
long-term abuse e.g. Cherie Russell (2006). However, there was public outcry when the defence
of provocation was successfully used to downgrade murder charges to manslaughter in R v Singh
(2012) and R v Won (2012) where both men killed their partners in response to their infidelity. The
case promoted review and reform of the provocation defence. The 2012 NSW Parliamentary
Inquiry recommended retaining the defence to protect domestic violence victims such as Cherie
Russell. The Crimes Amendment (Provocation) Act 2014 (NSW) replaced ‘provocation’ with a new
defence of ‘extreme provocation’ (TAC: law reform). Extreme provocation requires that the
provocative conduct on the part of the victim must have been a serious indictable offence.

Positives:
- The reforms prevent those who take umbrage at a non-violent sexual advance or those who kill
their partners in a jealous rage caused by infidelity or verbal abuse by one partner. This was
demonstrated in R v Cullen (2015) were the Court rejected Cullen’s defence and sentenced
him to 30 years for the murder of his wife.

Negatives:

- The reforms have been criticised for restricting the defence to the point of redundancy. In
limiting the provocative conduct to serious indictable offences, Kate Fitz-Gibbon from Deakin
University says that this will present significant barriers for people such as ‘battered wives’ who
kill in response to prolonged domestic violence and are unable to raise a complete defence of
self-defence. For this reason, the law is unlikely to protect the very category of defendant for
whom the 2012 NSW Parliamentary Inquiry recommended retaining the defence.

Federal responses:
The Family Law Legislation (Family Violence and other Measures) Act 2011 reformed the FLA
1975 to improve the family law system’s response to family violence and abuse, particularly in
view of some of the problems created by the 2006 reforms. In particular, the 2011 reforms:
- Required the courts to prioritise the safety of children in all matters: the ‘protection from harm’
principle is more important than the child having a ‘meaningful relationship with both parents’
- Widened the definition of ‘abuse’ and added ‘being exposed to domestic violence as being
violent. Family abuse now includes stalking, verbal abuse, intentional destruction of property,
psychological abuse including restricting access to money and access to family and friends,
and harming the family (including pets). Therefore, both physical and emotional elements of
violence are recognised in the amended act.
- Repealed the friendly parent and false allegations provisions
- Are responsive to family violence and reflect a more contemporary understanding of abusive
behaviour (TAC: changing values)

Non-legal responses:

“….Caroline Counsel, a family law expert and president of the Law Institute of Victoria, says ''you
can't legislate lunacy out of the picture''. ''If people are going to act badly, impulsively and out of
anger, no legislation is going to stop them. We as a society raise people and educate people
about what we find acceptable and unacceptable behaviour, so I think it's ill-conceived to think
you can come up with legislation that will stop all bad behaviours forever,'' she says. ''It's cradle-
to-grave training, it's cradle-to-grave behaviours that need to be looked at and reviewed and
scrutinised by us all. But having said that, any piece of legislation that is going to make parents
think about what their children need and what their children can be exposed to, and any sort of
caution that is taken by the courts to minimise harm to children, has to be a good thing.'' Extract
from article ‘The Kids are not all right’ (SMH 17/8/2011).

To effectively tackle domestic violence, legal responses must be supported by non-legal

responses. Non-legal responses include NGOs that seek to support people with drug and alcohol
abuse and mental illness which are a significant cause of domestic violence. Non-legal responses
also include educational campaigns which have raised community awareness of domestic
violence as an issue that is of community concern, not an individual or isolated matter, and have
thereby led to changing social attitudes.

• Our Watch Campaign: ‘Let’s Change the Story: Violence against Women in Austalia’
 • Australian Government campaign: ‘Let’s Stop it at the Start’ Respect
• White Ribbon Day
• Women Everywhere Advocating Against Violence (WEAVE)
• Staying Home Leaving Violence government program

THE ROLES OF:

COURTS AND DISPUTE RESOLUTION

Family Courts:

Two federal courts deal with family law matters: the Family Court of Australia and the Federal
Circuit Court of Australia

Family Court:

- established 1975 by Family Law Act 1975

- specialised, superior court
- deals with the more complex matters (intention of a parents to move interstate or emigrate, the
validity of a marriage and serious allegations of family violence or child abuse (Magellan cases)
- deals with 20% of cases

Federal Circuit Court:

- established in 1999 by the Federal Circuit Court of Australia Act 1999

- deals with less complex matters that are likely to be decided quickly and relieves the case load
of the federal and family courts
- processes most divorce claims
- deals with 80% of cases

Positives of family courts:

- less adversarial
o Trials are less formal and more flexible so that it can meet the needs of your particular
situation, improving access of all parties including children
o Trials should be less costly compared to traditional trials
- Independent Children’s Lawyer
o Extra level of protection for kids
o Not all kids need an Independent Children’s Lawyer as a Family Consultant is good
enough. The High Court of Australia decided this in Garning (2012) concerning the 4
Vincenti sisters sent back to Italy.
- Counselling for Children and Family Reports
o The judge can ask for a Family Report to be written by a Family Consultant (an expert
hired by the court e.g. social worker).
o The Family Consultant interviews family members and collects information about child’s
relationships with significant people, child’s views, child’s personal history, family history
etc.
o this is done so the judge has as much relevant information about the child and their
family to make the best possible decision when making Parenting Orders.
- Magellan program
o AIFS found that the system is working – ‘Magellan’ cases are heard an average 4.6
months faster than the previous system.

Negatives of family courts:

- SMH ‘overhaul of family court system seeks to reduce delays and clear backlogs’ à It has been
regarded as ‘painstakingly slow and prohibitively costly, putting added strain on vulnerable
families going through breakdowns. There are significant delays of approximately 2 years and the
recent retirement of judges had exacerbated already long delays. There is a need for about 30%
more judges.
- SMH ‘family court reform must be driven by child-safety’ à The have been extensive criticism of
how the court deals with domestic violence cases. Domestic Violence NSW has been highly
critical of the Family Court for making orders for children to have contact with violent parents.
- It cannot investigate harm or abuse as these are state issues – it only conducts a risk assessment
when determining parenting orders
- The courts can only protect children in cases that actually come before the court. In cases like
Luke Batty (2014), there was no family court case as his parents had an informal agreement
- Magellan program
o There have been individual cases where the Family Court has been criticised for its
decisions e.g. a father of a five year old girl was banned from seeing her father until she
was 18 because the mother was determined to ignore court orders and destroy the
daughter's relationship with her father. ‘Dad banned from seeing child for 13 years’
(ABC 2012).

Dispute Resolutions:
If parents are unable to reach an agreement on their own, they need to attend Family Dispute
Resolution (FDR), a non-judicial process in which an independent practitioner helps people
affected by a separation or divorce to resolve some of their disputes with each other.

- Following parliamentary report ‘Every Picture Tells a Story (2003)’ which recommended a more
‘child-focussed system’, the Family Law Amendment (Shared Parenting Responsibility) Act 2006
(Cth) required separating couples to make a genuine effort to resolve their dispute, using FDR,
before applying to the Family Court for Adjudication, except in certain circumstances, including
where there are concerns about family violence and child abuse.
- To support the requirement, the Federal Government established 65 Family Relationship
Centres nation-wide between 2006 and 2008 to facilitate FDR

o provide information and advice and offer free or heavily subsidised counselling and
mediation to couples
o aim to reconcile family members or achieve amicable separation to help parents
manage the transition from parenting together to parenting apart in the aftermath of
separation.
o can assist parents in making a parenting plan
Positives:

• FDR is quicker and more resource efficient than going to court. See Mediation spares
divided couples court pain (The Age, 2009). According to Justice Watts, FDR results in
better outcomes, avoids a system that is strained and also expensive litigation costs.
• It is better for the family because it seeks to reduce conflict and promote reconciliation by
encouraging parents to jointly make decisions relating to the future parenting of the child
• The control it gives to couples can promote compliance
 • FDR is very effective as 90% of disputes are resolved at this stage through mediation with
no judge

Negatives:

• It is not appropriate where there is domestic violence

• Funding to FRCs varies from budget to budget which can have an impact on their ability to
deliver services with wait times likely to increase with any cut to funding. E.g. In 2011, 3
hours of free FDR has been reduced to 1 hour, reducing accessibility despite an increase in
demand hour. See ‘Overhaul of Family Court System Seeks to Reduce Delays’ (SMH,
29/5/18).

NON-GOVERNMENT ORGANISATIONS

Church Based Non-religious Groups Lobby groups

Organisations
• Relationships Australia: • Australian Christian Lobby
• Anglicare provides FDR • Lone Fathers’ Association: key
• Salvation Army • Bernados & Life without driver of the 2006 reforms
Barriers: provide early • Adopt Change
intervention services that • Women Everywhere Advocating
were outsourced from FACs Violence Elimination
in 2009 • Bravehearts
• Dads in Distress: support
group for single fathers
• Pyjama Angels: provides
support to foster carers

THE MEDIA

• Reporting through the media can raise awareness, shape public opinion and values and
provide public scrutiny through reporting current issues such as a family law trial outcomes.
• The media seeks to change existing laws in order to provide for the public good.
• For example, it has done much to change opinions about domestic violence and to bring
change in relation to family violence at a federal level.
• It has also exposed continuing problems in the area of the care and protection of children
and the negative publicity around the cases of Dean Shillingsworth and Ebony was
instrumental in bringing about the Wood Inquiry.
• The prolonged media coverage of the Darcey Freeman case contributed to the reforms in
2011.

Section 121 of the Family Law Act 1975 (Cth) bans the identification of the people involved in
Family Court cases. Sometimes the media can engage in irresponsible and harmful reporting. E.g.

• When the 60 minutes crew went to Lebanon to kidnap Sally Faulkner’s children
• When the Courier Mail in QLD published the details of the four Vincenti sisters whose mother
did not want them to go to Italy (Garning Case 2012). The newspaper pleaded guilty and
was fined $120,000 Reporters should be sensitive to family issues and not become active
participants in the issue.
 CONTEMPORARY ISSUES CONCERNING FAMILY LAW

RECOGNITION OF SAME-SEX RELATIONSHIPS

THE CHANGING NATURE OF PARENTAL RESPONSIBILITY

Legal Responses to the Changing Nature of Parental Responsibility

International Law

- The changing nature of parental responsibility has been largely influenced by the adoption of the
UN Convention on the Rights of the Child 1989 (‘CROC’).
- CROC is the most widely adopted treaty in the world. Covering a wide spectrum of economic,
social, civil and political rights to be enjoyed by children, CROC has four guiding principles:
1. Non-discrimination (Article 2)
2. Best interests of the child (Article 3)
3. Right to life, survival and development (Article 6)
4. Respect for the views of the child (Article 12)
- Australia ratified CROC in 1990.
- In 2011 the report Listen to Children from the NGO Child’s Rights recommended that CROC
should be more comprehensively incorporated in Australian law.
- Megan Mitchell, the Children’s Commissioner, emphasised CROC’s significance in 2014 when
she stated that CROC represents a shift from the thinking of children as property to a recognition
of children as “rights-bearers for the first time in international law” where the “best interests of
the child are paramount”.
- Whilst the Family Law Act 1975 (Cth) strongly espouses the ‘best interests’ principle established
in CROC, the Commonwealth has largely left the implementation of CROC to the states which
has raised consistency concerns.

Federal Legislation
Several reforms have been made to the Family Law Act 1975 (Cth) (FLA):

1. 1995 reforms to FLA

The Family Law Reform Act 1995 (Cth) was passed to reform the FLA in order to reflect the shift in
values from ‘parental rights’ (implying ownership of their children) to ‘parental responsibility’ made
clear in CROC. The changes centred largely on new terminology:

§ The ‘best interests’ of the child replaced ‘the welfare’ of the child
§ ‘Residence’ replaced ‘custody’
§ ‘Contact’ replaced ‘access’
§ The concept of parental responsibility’ and ‘parenting orders’ were introduced.

Positives:

- The change in terminology balances the rights of the child to a greater extent
- There is increased enforceability as parenting orders must be complied with

2. 2006 reforms to FLA

 The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) was passed to
reform the FLA. The reforms were in response to:

a) the parliamentary inquiry report ‘Every Picture Tells a Story’ (2003) that recommended a more
‘child-focused’ system designed to encourage and facilitate positive shared parenting after
separation

b) effective lobbying by fathers’ rights groups such as Dads in Distress and the Lone Father’s
Association (non-legal responses).

• These father’s groups believed there was an unspoken rule that, unless there was abuse or
neglect involved, judges applied an 80/20 rule in favour of the mother, so that the child/ren
would spend only about 20% of the time with their father e.g. every second weekend and half
of the holidays.
• The 2006 reforms introduced the notion of ‘SHARED parental responsibility’.
• It sought to ensure that both parents share responsibility more equally and that children have a
right to a meaningful relationship with BOTH parents
following parental separation. Specifically, the legislation introduced a ‘presumption in favour of
shared parental responsibility’ (both parents being involved in their children’s lives after
separation) which was considered in the best interests of the child.
• However, this presumption will NOT apply if there are reasonable grounds to believe that a
parent has engaged in abuse of the child or in family violence, upholding the ‘protection from
harm’ principle.
§ In this case, the court may order that the child’s contact with the offending parent is
restricted or that contact takes place in a controlled environment.
• Following the reforms, court orders for shared care dramatically increased from 4% to 33%
between 2006 and 2010 (AIFS Study).
• The 2006 reforms also introduced the following provisions into the FLA:
§ The ‘friendly parent’ provision in s.60CC (3) stated that BOTH parents were obligated to
facilitate a meaningful relationship with the other parent.
§ The ‘false allegation’ provision in s.117AB stated that if a party raised domestic violence
in court and could not prove it, the judge could make a ‘costs order’ against that person.
• The changes were introduced because there were genuine cases of a parent ‘poisoning’ their
children against the other parent, where children were brainwashed and manipulated into an
unfounded fear of the other parent (‘More Cases of Parents Alienating, Courts Find’ (SMH
5/2/12).
• However, there were cases where the child had legitimate reasons to be
afraid of a parent and these provisions tended to discourage victims of family violence (usually
mothers) from raising family violence concerns due to a fear that, if unable to prove their
allegations, they would be subjected to a cost order and the children that they were trying to
protect would be exposed to the perpetrator for longer periods (Chisholm Report, 2009).

Positives:

- The law and the wider community now recognise that both parents are responsible for their
children and that, in most situations, both parents should be involved in the major decision-
making that affects their child.
- The introduction of shared parental responsibility reflects equality between the sexes,
recognising that it is not solely the role of a mother to be the primary caregiver (‘Mothers find
relief in equal custody deals’, SMH: 28/8/2010).

Negatives:

- There was confusion by parents and even courts about the presumption of shared parental
responsibility. In many cases it was mistakenly believe that shared parental responsibility meant
equal time/shared care, i.e. parents were
entitled to 50/50 shared care of their children. This was not the intention of the reforms. Rather it
was about shared input into important parenting decisions and shared financial responsibility
- They don’t deal adequately with family violence. Numerous court decisions seemed to place the
child’s right to have a ‘meaningful relationship with both parents’ ABOVE the ‘protection from
harm’ principle in the FLA.
o The 2009 study by the Australian Institute of Family Studies (AIFS) found that the law
was failing a substantial minority of separating parents with high parental conflict and
concerns for their children’s safety or their own (about 20%). This was because in some
cases courts failed to distinguish between families for whom shared care is appropriate
and those for whom it is not.
o In short, the 2006 reforms did not bring balance to the system as the way the Act was
drafted “went too far in the other direction”. The Chisholm Report (2009) concluded that
there should be an emphasis on what works best for each child, rather than a ‘one size
fits all’ emphasis on equal time. There should be no preferred parenting arrangement
but rather a focus on the particular child’s best interests.
- There have been adverse impacts caused by the ‘unfriendly parent’ and ‘false allegation’
provisions

3. 2011 Amendments to the FLA

In 2011, the Family Law Legislation Amendment (Family Violence and other Measures) Act 2011
(Cth) (aka The Family Violence Act) reformed the FLA to ensure it dealt more adequately with
family violence. In particular, it was prompted by the murder of 4-year-old Darcey Freeman in 2009
when her father threw her off Melbourne’s West Gate Bridge (‘Jury Finds Arthur Freeman guilty of
murdering daughter by throwing her off bridge’, The Australian, 29/3/2009 and ‘Legal system failed
Darcey Freeman, lobbyist says’, Herald Sun 28/3/2011).

- Required the courts to prioritise the safety of children in family law disputes and take into
consideration domestic violence in determining parenting matters i.e. make the ‘protection from
harm’ principle under s.60CC(2) more important than the child having a ‘meaningful relationship
with both parents’
- Widened the definition of ‘abuse’ and added ‘being exposed’ to domestic violence as being
violence (e.g. seeing or hearing a parent being abused) to better capture harmful behaviour
- Repealed the ‘friendly parent’ and the ‘false allegation’ provision

Positives:

- The reforms improved the family law system’s responsiveness to domestic violence.
- The reforms retained shared parental responsibility but ensured that the safety of the child
became the most important thing for judges to consider (‘Net widens on Family Violence’, SMH
 2012). Courts have the power to restrict visiting rights to a parent who is violent. This re-
emphasis on the safety of children was seen in the case of Uysal & Mardine (2014) when
Mardine was given the right to take their young child to live overseas because her husband was
psychotic (‘Judge grants mum right to flee ‘terrorism’, Herald Sun 6/4/2014).

Negatives:

- The 2011 reforms have frustrated father’s groups. Barry Williams, president of the Lone Fathers'
Association and a key campaigner for the 2006 changes, is concerned that courts will now be
too quick to believe allegations of abuse (‘Justice is Blind to Fathers’, Sunday Telegraph,
9/6/2012). Fathers’ groups made submissions to the 2011 Senate Inquiry into the rollback of the
2006 shared parental responsibility reforms, refuting the statement that 95% of domestic
violence is done by men. They argued that media hype, such as that which was generated over
the Darcy Freeman case, ignores the fact that women kill their children too.

Non-legal responses to the Changing Nature of Parental Responsibility

• Community and church-based organisations tend to focus on providing information, support

and legal assistance to separating families. Lobby groups usually represent the interests of
certain groups (such as mums, dads or children), and focus on drawing attention to failures
in existing law and pressuring the government for change.
• Examples of NGOs include:
o the Braveheart’s,
o Life Without Barriers
o National Council of Women of Australia
o National Council for Children Post-Separation
o Dadslinks
o Fathers4Equality
o Dads4Kids
o Dads in Distress
o Lone Father’s Association.

SURROGACY AND BIRTH TECHNOLOGIES

CARE AND PROTECTION OF CHILDREN.

Legal Responses to the Care and Protection of Children:
There are five key legal responses to the care and protection of children. These are: criminal law,
the role of the courts in enforcing the law, the Keep them Safe Program, the Royal Commission
into Institutional Responses to Child Sexual Abuse and reforms to the Family Law Act 1975 (Cth).

i. Criminal Law

Neglect and Abuse

Failure to care and protect young people can be a crime. For example, neglect is a criminal
offence under the Children and Young Persons (Care and Protection) Act 1998 (NSW), which
carries fines of up to $22,000, and the Crimes Act 1900 (NSW) which carries a jail term of up to 5
years.
• It includes failing to provide basic things needed for proper development such as food, shelter,
hygiene, medical and dental care and adequate supervision.
• In R v Thomas Sam; R v Manju Sam (2009) (‘Parents failed Gloria, gaoled for ‘cruelty’, SMH,
29/9/09) the parents did not get adequate
medical treatment for their daughter’s eczema and she died. They were found guilty of
manslaughter due to gross criminal negligence. Mr Sam was sentenced to a minimum of 6
years and Mrs Manu, a minimum of 4 years.
• Prosecution of Kristi Abrahams in R v Abrahams 2013 who received 16 years for murdering
her 6-year-old daughter Keisha.
• Criminal law (and courts) are an important mechanism in ensuring the prosecution of parents
who fail to care and protect their children, however it does not address root causes.

Discipline
There has been growing discussion around a parent’s right to administer discipline and what
constitutes abuse.
• It has been established that parents have the right to administer moderate and reasonable
corporal punishment to children in their care by using physical force to correct the child’s
behaviour.
• Corporal punishment was once used in schools but in 1990 it was banned in all NSW schools
due to changing values however most schools had stopped using it years earlier (TAC).
• In 2002, NSW Government amended the Crimes Act 1900 (NSW) to outlaw certain actions
such as striking the head or neck, shaking, using a closed first or any force that could cause
pain "for more than a short period”.
• Smacking with an open hand is allowed and the United Nations has twice criticised Australia
for failing to prohibit corporal punishment in the home, in accordance with its obligations under
CROC.
• Sweden and New Zealand prohibit physical discipline.

ii. Courts

The Children’s Court

• The Children’s Court hears cases relating to the care and protection of Children under the
Children and Young Persons (Care and Protection) Act 1988 (NSW).
• These cases are usually brought by the Department of Family & Community Services (FACS),
the main body of NSW government that works to protect children from abuse or neglect within
the family.
• The Children’s Court is a closed court, proceedings are informal and heard before a specially
trained children’s magistrate.
• The standard of proof required is that it is ‘very highly probable’ that the child needs care. If the
court finds that a child needs care, it can make a variety of orders. FACS may be required to
supervise the parents to ensure that they fulfil their parental responsibilities.
• Alternatively, the child may be placed with a relative or foster family or another appropriate
adult.
• Contact visits may be permitted to allow the parent(s) and child to maintain a personal
relationship, but such visits are supervised and regulated.
• A variety of support services may be provided to both parents and children including
educational, psychological and welfare services.
Role of Courts in provision of Medical Treatment
Parents are responsible for ensuring appropriate medical and dental care are available for their
child.

• As seen in the case of R v Thomas Sam; R v Manju Sam (2009), failure to provide medical
treatment can be a crime.
• Consent requirements for medical treatment are detailed in Minors (Property and Contracts)
Act 1970 (NSW). If a child is under 14, parental permission is needed for any standard medical
treatment. If they are 14 or 15, either the child or the parent’s consent is needed. If they are 16
or 17, the consent of the young person must be obtained.
• In NSW, the law is based on the principles of the Gillick case (1985) (UK) that were adopted by
the High Court of Australia in Re: Marion’s
case (1992). In the Gillick case, a mother applied to the court for an order that a medical
practitioner not give contraceptive advice or treatment to a teenage child without parental
consent.
• The English House of Lords established the principle that children with the intellectual capacity
and emotional maturity to understand the nature and consequences of the treatment, should
be legally able to consent to that treatment on their own behalf.
• Such children have come to be regarded as ‘Gillick competent’.
o Factors such as the child’s age and maturity, beliefs (moral, social and religious) and
future consequences are relevant in determining whether a child is Gillick competent.
• Lord Scarman stated “Parental power endures only so long as it is needed for the protection of
the child. It yields to the right of the child to make their
own decision when a child is old enough to make wise choices”.
o parental authority diminishes as the child matures and so develops more autonomy.
• For certain major medical procedures to proceed, Family Court/Supreme Court permission is
needed.
o These include sterilisation, gender reassignment, termination of life support, organ
donation etc.
• The court can review and override the decisions of parents and children to ensure they are in
the young person’s best interest.
o State has an overriding ‘welfare’ power to act as guardian for those who are unable
to care for themselves such as children or disabled individuals (i.e., lack the mental
capacity to make proper decisions about their welfare or who are unconscious). This
is known as its parens patriae jurisdiction (Latin for ‘parent of his or her country’).
o In Australia, this jurisdiction is exercised by both the Supreme Court (NSW) and the
Family Court (Cth).
o In making this decision, the court is placed in the position of supreme parent and
must exercise that jurisdiction in the way a wise, affectionate, and careful parent
would act for the welfare of the child. In all cases, the courts must act in the ‘best
interests’ of the child.
o As the examples below illustrate, medical treatment that is not therapeutic or
reversible requires a court order and the Court may refuse a parental request for
sterilisation of their child or overturn parental refusal of a blood transfusion on
religious grounds.
Issue: Sterilisation of children
Marion (1992)
Marion, 13, was severely disabled. Her parents sought to sterilize her by removing her uterus and
ovaries (a hysterectomy) to manage menstruation and prevent pregnancy as Marion could not
attend to her own personal hygiene nor could she care for a child. The parents believed that less
intrusive forms of contraception were inappropriate.

The High Court held that parents DO have the authority to consent to medical treatment on behalf
of their children.
However, that authority is limited. Parents do NOT have the authority to consent to serious,
irreversible medical treatment like a hysterectomy unless it is for a “therapeutic purpose”. In
exercising its parens patriae jurisdiction, the court rejected the parents’ application, saying that a
hysterectomy was not a ‘therapeutic purpose’.

Issue: Refusal of life saving medical treatment

X v Sydney Children’s Hospital Network (2013)
X was approaching his 18th birthday and was being treated for a form of cancer that is very
aggressive called Hodgkin’s Disease. The chemotherapy he received resulted in the need for him
to have a blood transfusion as he became very
anaemic. Without the blood transfusion X would be unlikely to live. X refused to have the blood
transfusion as he and his family are Jehovah’s witnesses, and the religion forbids blood
transfusions. His family supported their son’s refusal
to have a blood transfusion. The hospital applied to NSW Supreme Court for an order authorising
the blood transfusion. His parents argued that X was a “mature minor”, an intelligent boy
approaching legal maturity who could make an informed decision. They relied on Gillick’s case
(1985) UK that was endorsed by the High court in

iii. Keep them Safe Program

Background:

• The NSW Ombudsman's annual report (2007) revealed that more than 100 children died at the
hands of their parents or carers in NSW in 2006 despite the fact they or their families had been
reported to FACs in the three years before their deaths.
• A lack of inter-agency cooperation (i.e. between FACs, the police and courts) was leading to a
lack of responsiveness by FACs.
• For example:
o Dean Shillingworth: was murdered in 2007 by his mother. The family had split and
the child reminded his mother of the estranged father. His mother was prosecuted in
R v Pfitzner (2009) and sentenced to 25 years. The child was known to FACS as the
grandmother was trying to gain custody over him.
o Shellay ‘Ebony’ Ward: was murdered in 2007 by her parents. Seven year old Ebony
died of starvation and neglect over a twenty month period. Her parents were
prosecuted in R v BW & SW (2009). Several doctors who gave evidence at the trial
testified that Ebony suffered from the most severe case of malnutrition they had ever
seen. After a five week trial, the girl’s mother SW was found guilty of her murder and
sentenced to life imprisonment (reduced on appeal to 40 years with a non-parole
period of 30 years) and the girl’s father BW was found guilty of manslaughter and
sentenced to 16 years with a non-parole period of 12 years. Justice Hulme in his
judgment was scathing of the parent’s in their complete lack of care, love and
attention towards their daughter and that their neglect was directly responsible for
 her slow and agonising death. Much was written in the media in response to this
tragic event as seen in ‘Agencies neglect fatal for Ebony’ (The Australian,
7/10/2009). An inadequate summary of Ebony's case made by a work-experience
student in July 2007 meant that FACs helpline workers failed to understand the
seriousness of her predicament. FACs workers assumed that, because the
circumstances of Ebony's older sisters had improved, hers had also, despite the fact
her father did not allow them to sight the girl. In fact, FACs itself had not sighted the
girl since 2002.

These cases and media attention acted as the catalyst for the NSW government initiating a
Special Commission of Inquiry, the Wood Inquiry into Child Protection Services in NSW to
determine why the system was failing so many children. The
resulting Wood Report (2008), recommended a range of reforms. The government was responsive
and passed the Children and Young Persons (Wood Inquiry Recommendations) Act 2009 (NSW)
to implement 106 of the Wood Report recommendations across a 5-year time frame through the
Keep them Safe program.

Changing the statutory reporting threshold for ‘mandatory reporters’ (e.g. teachers, police,
doctors, counsellors).

• From 2010, mandatory reporters need only report where they have reasonable grounds to
suspect a child is at risk of ‘significant’ harm. Prior to this, there was over reporting which
meant that FACs was inundated with reports reducing its effectiveness.
• Consequently, report rates to FACS decreased by 13% with only the most serious cases
referred to FACS enabling it to be more responsive.

Transferring many services provided by the government to NGOs:

• the Child Protection Legislation Amendment Act 2013 (NSW) amended the Children and
Young Persons (Care and Protection) Act 1998 (NSW) and transfers responsibility from
FACs to NGOs for early intervention programs to help prevent abuse/neglect which frees
government resources for FACs to deal with more serious matters.
• When FACs receives a ‘risk of harm’ report, a case worker makes an assessment as to the
extent of the risk.
• Almost 2/3 of reports are then referred to a Joint Investigative Response Team (JIRT)
which consists of police, NSW Health Reps, Community Service Reps and relevant NGOs,
for further assessment.
• This improves interagency collaboration for a faster response and better provision of
support.

However:

• In 2014, the NSW Ombudsman released a Review of the NSW Child Protection System – Are
Things Improving?
o The report found that the proportion of children receiving face-to-face assessment
was only 26% which means that almost three quarters of children that had been
reported as being at risk of harm didn’t get a face-to-face meeting with a caseworker.
o The report also found that thousands of cases were being closed because of
inadequate resources (often with the only action being taken as a phone call to
 someone (e.g. the child’s school) (‘Kids at risk with DoCS care failing’, SMH,
1/9/2013).
o Clearly FACs struggles to provide adequate protection and support for families and
victims of child abuse because of a lack of financial resources.
o $1b in funding cuts to community services across the country in the 2016 budget

iv. Royal Commission into Institutional Responses to Child Sexual Abuse

• A concern in relation to the care and protection of children is the growing number of complaints
about how institutions like churches, sports clubs and government organisations have
responded to allegations and instances of child sexual abuse.
• One of the main concerns are the growing number of allegations and convictions of child abuse
and misconduct by clergy.
• All major religious bodies have established internal procedures for investigating abuse claims
o for example, in 1996 the Catholic Church established the Melbourne Response to
investigate claims of abuse.
• However, there are concerns that some groups were not responding adequately to such
allegations and instances of child sexual abuse.
• In response to calls for an independent investigative scheme, the Royal Commission into
Institutional Responses to Child Sexual Abuse was launched in 2013. It is chaired by Justice
Peter McClelland.
• Job of the Royal Commission to uncover where systems have failed to
protect children and make recommendations on how to improve laws, policies and practices in
order to provide a just response for people who have been sexually abused and ensure
institutions achieve best practice in protecting children in the future.
• The Commission does not have any power to provide compensation or initiate prosecutions but
can refer individual cases to police with a view to their further investigation and prosecution.

v. The Family Law Act 1975 (Cth)

The 2011 reforms to the Family Law Act sought to improve the protection of
children in situations of domestic violence.

Non-legal Responses to the Care and Protection of Children

i. Increasing NGO involvement

In April 2014 the Child Protection Legislation Amendment Act 2013 (NSW) amended the Children
and Young Persons (Care and Protection) Act 1998 (NSW) and transfers responsibility from FACs
to NGOs for early intervention programs to help prevent abuse/neglect which frees government
resources for FACs to deal with more serious matters.

• For example, Life Without Barriers is one of the NGOs involved in management of foster care
transferred from FACs.
• Numerous lobby groups that also seek to promote the rights of children such as Braveheart’s
which is currently vigorously calling on the Australian Government for a Royal Commission into
 the Family Law Systems to fix the ongoing failures of the current systems to adequately protect
Australian children.

ii. Media

The media is easily accessible and can have a strong influence on public opinion so it an effective
mechanism in raising awareness and lobbying for change.

• It was the enormous media attention surrounding deaths of children such as Dean
Shillingworth and Ebony which led to public outrage and prompted the Wood Inquiry and
resulting reforms.
• In Victoria, the murder of Darcey Freeman by her father led the media to push for further
reform to child protection system and federal laws dealing with family violence when making
parenting orders (Freeman case sparks call for change, The Age, 2011).
 FAMILY LAW HSC QUESTIONS
2013: To what extent has law reform been effective in dealing with contemporary issues
concerning family members?

1. Care and protection of children

2. Same sex
3. Family court reforms
4. Surrogacy

2013: Evaluate how effectively the law resolves conflict in family relationships
1. Care and protection of children
2. Family court
3. Domestic violence

2014: To what extent has law reform achieved just outcome for those in same sex
relationships
1. Same sex

2014: Evaluate the roles of the law and the media in responding to issues affecting family
members
1. Care and protection of children
2. Same sex
3. Family court
4. Surrogacy
5. Domestic violence

2015: To what extent is law reform regarding alternative family relationships a reflection of
changing values
1. Same sex
2. Same sex
3. Family court
4. Same sex

2015: Assess the effectiveness of legal and non-legal responses in dealing with domestic
violence
1. Care and protection of children
2. Family court
3. Domestic violence
4. Domestic violence

2016: To what extent does the law encourage cooperation to resolve conflict in families?
1. Care and protection of children
2. Family court
3. Domestic violence

2016: Evaluate the effectiveness of the law in dealing with issues related to birth
technologies and surrogacy
1. Surrogacy
2017: ‘The legal system is constantly changing as it seeks to achieve justice’. Evaluate this
statement with respect to at least one contemporary issue concerning family law
1. Care and protection of children
2. Same sex
3. Family court
4. Surrogacy

2017: Assess the effectiveness of both legal and non-legal measures in achieving just
outcomes for family members
1. Care and protection of children
2. Same sex
3. Family court
4. Surrogacy
5. Domestic violence

2018: Evaluate how effective changes to family law have been in reflecting changing
community values
1. Care and protection of children
2. Same sex
3. Family court
4. Domestic violence

2018: To what extent are legal processes effective in dealing with issues in family
relationships?
1. Care and protection of children
2. Family court
3. Surrogacy
4. Domestic violence

2019: Evaluate the effectiveness of legal responses in achieving justice for parties involved
in relationship breakdowns
1. Care and protection of children
2. Family court

2019: Assess the role of law reform in achieving just outcomes for family members. In your
response, refer to at least ONE contemporary issues
1. Care and protection of children
2. Same sex
3. Family court
4. Surrogacy

2020: Evaluate the effectiveness of the legal system in addressing issues relating to the
care and protection of children
 1. Care and protection of children
2. Family court
3. Surrogacy
4. Domestic violence

2020: Compliance with the law can be difficult to achieve. To what extent is this statement
true in relation to family law?
1. Family court
2. Surrogacy
3. Domestic violence

2021: To what extent do courts and dispute resolution methods achieve justice for family
members
1. Care and protection of children
2. Family court
3. Domestic violence

2021: ‘Legal measures often fail to response to change’. Assess this statement with
reference to the need to protect family members.
1. Care and protection of children
2. Same sex
3. Family court
4. Domestic violence
5. Surrogacy

INTRO

SMH (2022): Under laws governing the new court, the overarching purpose of family law practice
and procedure provisions is to facilitate the just resolution of disputes ... according to law, and as
quickly, inexpensively, and efficiently as possible.

CARE AND PROTECTION OF CHILDREN

Children’s Court:

• To integrate the principles of the Conventions of the Rights of a Child (CROC), the Children’s
Court upholds the ‘paramountcy principle’ in which any action or decision concerning a
particular child, their safety, welfare, and well-being is paramount.
• As outlined in section 8 of the Children and Young Persons (Care and Protection) Act 1998
(NSW) à Children’s Court has objective to see ‘children and young people receive such care
and protection as is necessary for their safety, welfare and well-being’.
• The court has jurisdiction to deploy the Department of Communities and Justice (DCJ) to
supervise the parents to ensure that they fulfil their parental responsibilities.
• Can issue a Restoration Plan, made by the DCJ, which outlines a series of outcomes that
need to be met before the child can return home safely.
o Level of vigilance within the court process to ensure the ‘best interests of the child’ are
being met as per CROC principles.
 • ATSI children à the Children and Young Persons (Care and Protection) Act 1998 (NSW)
requires an acknowledgement that the cultural identity of an Aboriginal child is “intrinsic to
any assessment of what is in the child’s best interest” (The Secretary of the DCJ, Fiona
Farmer).
o Effectiveness in responding to matters relating to the child, inclusive of cultural
requirements.

However:

• Report by Law Society, ‘Intersection of the Family Law and Child Protection Systems’, states
that it can be “very difficult to secure arrangements for meaningful contact and cultural
connection through Children’s Court processes, leading to inadequate support for kinship
placements and maintaining cultural connection”.
o potentially problematic prioritisation of a child’s safety over the maintenance of familial
connection, rendering a probable heightening of future conflict and dispossession.

Ultimately, the Children’s Court is highly effective in addressing the care and protection of
children. Although, the displacement that can result from this can eventuate in problematic
situations for ATSI children.

Parental vs state responsibility:

The legal system aims to act in the ‘best interests of the child’, whilst appreciating the child’s
autonomy in decision making processes and the authority of their parents. The role of courts
in relation to medical treatment achieves this balance to a large extent, with the focus of a
child’s care and protection ultimately prevailing.

• The case of R v Thomas; R v Manju Sam (2009) à parents’ failure to provide medical
treatment for their child can be a crime, in which Thomas and Manju Sam were charged with
the act of manslaughter due to criminal negligence of their nine-month-old daughter.
o Legal system places onus on parents to ensure appropriate medical and dental care
are available for their child to ensure their care and protection.
• However, for certain major medical procedures, such as sterilisation and gender
reassignment surgery, Family Court/Supreme Court permission is required.
o This is because the state has overriding ‘welfare’ power to act as a guardian for those
who are unable to care for themselves such as children or disabled individuals, known
as parens patriare jurisdiction.
• This power was used in the Marion (1992) case in which Marion, a severely disabled
individual, was denied sterilisation treatment despite her parent’s wishes.
o legal system’s ability to limit the authority of the parent in an effort to act in the best
interests of the child. Moreover, the Minors (Property and Contracts) Act 1970 (NSW)
outlines the consent requirements for medical treatment, stating that if a child is under
14, parental permission is needed, and if they are 16 or 17, the consent of the young
person must be obtained.
• The latter requisite is founded on the principles of the Gillick case (1985) UK which
establishes that children with the ‘intellectual capacity and emotional maturity to understand
the nature and consequences of the treatment should be legally able to consent to that
treatment on their own behalf’, thereby recognising the independence of the child.
• This principle was rebutted by the NSW Court of Appeal in the X v Sydney Children’s Hospital
Network (2013) case, whereby a 17-year-old boy and his parents were denying a life-saving
blood transfusion due to their Jehovah’s Witness beliefs.
 • However, the court deemed that the minor’s rights to exercise their autonomous decision only
exists when such decision accords with what is deemed to be in their best interests.

Therefore, the legal system is vigilant in ensuring the care and protection of children is
prioritised in relation to medical treatment.

Wood inquiry:
The legal system aims to address issues facing children with respect to their care and
protection. It is highly effective in doing so, as revealed through the Keep Them Safe Program
which eventuated from the Wood Inquiry into Child Protection Services in NSW.

• In 2007, a NSW Ombudsman’s annual report (2007) revealed that more than 100 children
died at the hands of their parents in NSW during 2006.
• Lack of inter-agency cooperation between FACs, the police and the courts were leading to a
lack of responsiveness by FACs.
• The case of R v BW & SW (2009), in which seven-year-old Ebony Ward died of starvation
and neglect over a twenty-month period, attracted media attention, placing blame on FACs
for their failure to respond to Ebony’s situation (Agencies Neglect Fatal for Ebony – The
Australian, 2009).
• This catalysed the NSW government’s initiation of the Wood Inquiry into Child Protection
Services in NSW to determine the cause of these system’s failures.
• This concluded with 106 recommendations, of which the NSW government implemented all
106 in the Children and Young Persons (Wood Inquiry Recommendations) Act 2009 (NSW),
demonstrating the legal system’s responsiveness relating to issues concerning children.
• This established the Keep Them Safe program, with two main considerations. The report
found that the system was inundated with reports due to an increased prioritisation for the
care and protection of children, reducing its effectiveness.
• Consequently, statutory reporting thresholds were changed for ‘mandatory reporters’ which
required reasonable grounds to suspect a child is at risk of ‘significant harm’ before reporting
to FACs, decreasing report rates by 13% and thereby increasing the service’s
responsiveness.
• Secondly, many services were transferred to NGOs, in which the Child Protection Legislation
Amendment Act 2013 (NSW) shifted the responsibility from FACs to NGOs for early
intervention programs to help prevent abuse/neglect.
• This allowed FACs to deal with more serious matters and improves inter-agency collaboration
for a faster response and better provision of support.

Therefore, the legal system was significantly effective in addressing the abuse and neglect
of children, implementing law reform to consider the care and protection of children and
increase responsiveness.

NGOs:
NGOs have been pivotal in making the legal system more effective in relation to the care and
protection of children, enabling a more responsive and resource efficient process.

• After the Child Protection Legislation Amendment Act 2013 (NSW) amended the Children
and Young Persons (Care and Protection) Act 1998 (NSW) by transferring responsibility from
FACs to NGOs for early intervention programs, Life Without Barriers (LWB) was established
to manage foster care.
 • With 47,500 children and young people living in and out of home care in Australia, unable to
live with their parents for reasons of safety, LWB provides foster, kinship, residential and after
care for those unable to receive protection from their biological parents.
• As outlined in their website, LWB provides foster carers with “extensive training and 24/7
support to navigate their foster journey, puts the needs of the child and carers first to help
them thrive and values a child’s connection to culture.”
• As well as this, LWB runs Therapeutic Crisis Intervention (TCI) and Multisystemic Therapy
(MST) which aim to target the root issue of the child’s disturbed home life and help prevent it
from escalating.
• In addition, volunteered individuals, such as Rima Anagnostou, provide care for children who
have been removed from “awful circumstances at home - violence, addiction, abuse” (Fairy
Godmother’s changing life for carers, children, SMH (2014)).
o Anagnostou organises access visits with parents, monitors the relationship with the
foster family and ensures their medical, educational and development needs are met.
• Moreover, the government pays foster parents $500 per fortnight to help facilitate the care
and protection of children as well as incentivising carers to partake in the program to improve
children’s welfare.
o Demonstrates an effective collaboration between the government and NGOs in a
prioritisation of vulnerable youths and their wellbeing.
• Although, Anagnostou suggests that this collaboration is not always effective, stating that she
had to “wait nine months for FACs to pay for reading glasses for a long-term foster son”,
indicating a limitation in the NGOs effectiveness in its reliance on a relatively inundated
system.

Ultimately, NGOs are significantly effective in ensuring the maintenance of children’s care
and protection.

SAME SEX

Decriminalisation of homosexuality:
Whilst statute law has been limited in its effectiveness to achieve justice for same-sex
couples, the decriminalisation of homosexuality between 1972 and 1997 in Australia
represents the effectiveness of the common law system to reflect societies changing values.

• Beginning in 1972 when South Australia became the first Australian jurisdiction to
decriminalise homosexuality, society became more inclined towards achieving equality for
same-sex relationships.
• In response to this change in society sentiment, the Property (Relationships) Act 1984 (NSW)
was introduced, recognising same-sex relationships as having the same legal standing as
heterosexual de facto relationships, proving the effectiveness of the legal system in reflecting
community values.
• In 1997, Tasmania became the last jurisdiction to decriminalise homosexuality, catalysed by
the Toonen v Australia case where it was argued that the criminalisation of homosexual sex
violated Article 17 (right to privacy) and Article 26 (discrimination on the basis of sexuality) of
the ICCPR.
• In addition, the Hope & Brown v NIB (1994) case established the recognition of same sex
couples for family health insurance, finding NIB Health Funds in contravention of the Anti-
Discrimination Act 1997 (NSW) which prohibits discrimination on the grounds of
homosexuality.
Therefore, whilst changes to statute law have been slow to achieve justice, the common law
system has successfully adapted to reflect changes to society’s values.

Australian legislation has been less effective in its achieving of justice for same-sex
relationships, failing to represent the changing values of society.

• In 2004, the Howard government passed the Marriage Amendment Act 2004 (Cth), which
reaffirmed the traditional concept of marriage as ‘the union of a man and woman to the
exclusion of all others, voluntarily entered into for life’.
• This was justified by PM Howard, “I want to make it very plain that this is our view of a
marriage, and that the definition of marriage should not be subject to change by the courts…”
as outlined in an SMH article, PM Targets Gays in Marriage Laws (2004).
• As well as this, the amendment also confirmed that unions solemnised overseas between
same-sex couples would not be recognised as marriages in Australia (Section 88EA).

Therefore, statute law has been less effective in achieving justice, contradicting the opinions
of the broader community with traditional, Christian views, and therefore failing to reflect
society’s changing values.

The federal government was effective in achieving justice for same-sex couples with the
Same-Sex Relationships Act 2008 (Cth), amending 84 Commonwealth Acts to remove
discrimination against same-sex couples and their children in a wide range of areas.

• This included Medicare, tax, social security, family law, superannuation, workers
compensation and child support, aiding the rights of those in same-sex relationships and
thereby reflecting society’s values.
• This was catalysed by an AHRC report, Same-Sex: Same Entitlements, revealing the agility
of the legal system to adapt itself to remain in tune with public opinions.
• For example, the Health Insurance Act 1973 (Cth) now allows a same-sex couple and their
children to register as a family for Medicare.
o As a result, the NSW government followed suit with a range of state legislation to
remove discrimination against same-sex couples.
o This included the Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008
(NSW) which granted equal parenting rights to lesbian couples who have children by
listing them as equal parents on the child’s birth certificate.
o An SMH article, Lesbian mothers gain legal rights, outlines that this amendment “gives
children equal rights to inheritance”, thereby affording same-sex couples economic
advantage as well as legal recognition.
• As well as this, the Succession Amendment (Family Provision) Act 2008 (NSW) ensured that
adequate provision is made to give rights to same-sex de facto couples if a partner dies
without mentioning the other in their will.
o The advantage of this was showcased in the case of Juanito Estrella, a Victorian man
awarded $300,000 by the Victorian Supreme Court from his late partner’s estate even
though he wasn’t in the will.

Therefore, the federal system has been instrumental in affording same-sex couples’
recognition and equal rights as per society’s moral and ethical standards.

The legalisation of same-sex marriage in the Marriage Amendment (Definition and Religious
Freedoms) Act 2017 (Cth) showcases the success of the legal system to achieve justice for
same-sex couples and to effectively respond to changing community opinions.
 • The Gay and Lesbian Rights Lobby actively campaigned and lobbied for the legal rights and
social equality of gay couples, arguing that a “different classification for homosexual couples
sends the message that these relationships are of a lesser standard”.
• Moreover, they argue that justice “requires changing the law to make marriage available to
all Australians who choose it”, revealing the community sentiment around same-sex
relationships and the importance for the legal system to mirror this.
• As a result, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)
redefined marriage was being between a ‘man and a woman’ to between ‘two people’,
following a plebiscite that displayed 61.1% of Australians in favour of same-sex marriage.

Therefore, the legal system was able to effectively respond to the views of the community in
its legalisation of same-sex marriage, achieving justice for those in same-sex relationships.

DOMESTIC VIOLENCE
Provocation defence:
The law has been effective in responding to community concern surrounding the
provocation defence, excluding it from those who seek to use provocation as a justification
for extreme violence whilst still protecting those suffering from prolonged domestic abuse.

• In 2013, provocation operated as a partial defence to murder, in which a person who kills another
person because of a loss of control, induced by the victim, may have their murder charge reduced
to manslaughter.
• J Green states in a 2018 report, “the law must make concessions to the fact that a person may
be provoked to kill by the conduct of another, and that this is less blameworthy than pre-mediated
killings”.
• This is particularly reasonable in domestic violence cases, where the defence has been argued
as an “important halfway house between murder and self-defence for women who kill in response
to prolonged domestic violence” (ABC, 2013).
• However, a parliamentary inquiry into the defence was raised in response to public outrage
surrounding the case of Chamanjot Singh, who successfully raised provocation after he slit his
wife’s throat with a box cutter.
• Claiming that he had been provoked by suspicions of infidelity, the defence was exposed as
“vastly out of line with community expectations of acceptable and unacceptable lethal violence”,
and a “gender-biased excuse for jealous and controlling men” (SMH, 2013, ‘Time to Act’).
• Considered a defence which “places the victim on trial instead of the offender, by blaming them
for the lethal violence perpetrated against them.” (SMH 2013)
• Amongst this public outrage was a concern for the justice of domestic violence victims, who
would be unable to raise a complete defence of self-defence if provocation was abolished.
• As such, the Select Committee of the NSW Parliamentary Inquiry released a report
recommending keeping the defence, so it can still be used by long-term victims of domestic
violence but restricting it to cases where conduct has been “grossly provocative”.
• The NSW government were responsive to community concern by implementing The Crimes
Amendment (Provocation) Act 2014 (NSW), which made the defence no longer available to
people who kill their partners out of jealous rage.

Hence, the reform strikes an appropriate balance between restricting the defence and leaving
it available for victims of extreme provocation, such as domestic violence victims.

FAMILY COURT
Family Law Act 1975 (Cth)
- Introduced the concept of ‘no fault’ divorce as under s.48, the ONLY ground for divorce now is
the “irretrievable breakdown of marriage, demonstrated by 12 months separation”
o A 2003 SMH article, ‘Divorce is hell, but so is a bad marriage’, “under no-fault laws, a
wife can threaten to leave an abusive husband. Our theory is that the fear of divorce
creates a strong incentive for abusive partners to behave”
o However: Barry Maley, senior at Influential Centre for Independent Studies states that
“these laws are a factor in high divorce rates and have transformed marriage into little
more than an uncertain bond between partners”.
o This suggests that whilst the reform is beneficial for domestic violence victims, it
undermines the sacrament of marriage through an ‘easier’ and more instantaneous
divorce.
- Established the Federal Circuit Court and Family Court to hear divorces in a less formal, closed
court
o Back-log of courts
§ SMH (2022): Chief Justice William Alstergren, who heads both courts
conceded: “time and time again we find a lack of compliance interferes with the
effectiveness of the court”. He continued by stating, “where there has been a
lack of compliance, often it’s taken far too long to deal with them… some taking
between two months and eighteen months”
§ Efforts to make divorce less adversarial with the opening of a less intimidating
court has compromised the efficiency of the legal system when dealing with
family law matters
- The creation of specialist family courts to deal with matters in a closed court promotes
accessibility to the law à particularly for domestic violence victims who are afraid of escalating
their situation.

Therefore, the Family Law Act has been significantly effective in easing the process of
divorce, with the concept of ‘no fault’ as well as the creation of a less formal court, the
Federal Circuit Court. Although, the legislation has failed to improve the efficiency of the
courts, posing a potential risk for compliance.

Family Law Reform Act 1995 (Cth)

- Representative of a key shift away from the concept of parental rights and towards that of
parental responsibilities and obligations
- Policy foundations of the 1995 act:
o Ensure that children receive adequate and proper parenting to help them achieve their
full potential
o Principles underlying this are what is in the best interests of the child
o Children have the right to know and be cared for by both their parents regardless of the
relationship status of the parents.
- changed the terminology that is to be used when dealing with children’s matters:
o Custody à residence
o Access à contact
o Welfare à best interests of the child
o As stated by a 1996 report, ‘Family Law Reform Act’, “the intention is to bring Australian
domestic law into line with the language adopted in the UN Declaration on the Rights of
the Child”
- Balances the rights of the child to a greater extent
- Part 7 of the Family Law act 1975 gives the court power to make ‘parenting orders’ à residence
order (who the child will live with), contact order (contact between a child and another person)
and specific issue order (duties, powers, responsibilities, or authority in relation to a child)
o Improves enforceability as parenting orders must be complied with

Law was responsive to community concern around parental responsibility, effectively

integrating the principles of CROC to bring Australian domestic law into line with
international standards of the care and protection of children.

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) was effective
in dealing with community concerns over a balanced share of parental responsibility.
Although, the reform poses a potential threat to those in domestic violence situations, who
are unable to escape from the abuse.
- Introduced a presumption of shared parental responsibility à effective in responding to
changing social values in CROC through the recognition that for the “best development of the
child, a meaningful relationship with each parent is requires”, as outlined in the case of Mazorski
v Albright 2007.
- Established that any decisions regarding children must promote the best interests of the child
which, as per section 60CC, will be determined through:
o Primary considerations: the child’s right to maintain meaningful relationships with both
parents, and the need to protect the child from physical or psychological harm
§ The presumption that equals shared parental responsibility is in the best
interests of the child will NOT apply if there are reasonable grounds to believe
that a parent has engaged in abuse of the child or in family violence
§ The court may order that the child’s contact with the offending parent is
restricted or that contact takes places in a controlled environment
§ However, this is not always vigilant – ABC article, ‘Family Court is failing Kids’
states “children remain at risk of ongoing harm because of a strict approach
towards ‘shared parenting’, when it’s not always in the best interests of the
child”.
- Promotes equality between the sexes
- Created confusion over the meaning of shared parents’ responsibility: it does not mean equal
time/shared care.
o SMH 2010: Legislation led parents to mistakenly believe they were entitled to 50/50
shared care of their children. “The law needs to reform to distinguish between what is a
shared responsibility and what is a shared care”.

Although the law has been responsive in considering concerns raised by the public with
relation to equal parental responsibility by presuming a shared parental responsibility, it
has been deemed harmful to those wishing to escape abusive parents.

Family Law Legislation (Family Violence and other Measures) Act 2011 (Cth)
- Three major inquiries by the Australian Institute of Family Studies, Family Law Council and Family
Law Reform Professor Richard Chisholm were made into the ability of the family law system to
respond to family violence
 o Concluded that the previous Family Law Amendment (Shared Parental Responsibility)
Act 2006 was “undermining the legislation’s clear aim to protect children from child abuse,
neglect and exposure to domestic violence” (ABC, ‘Family Court is failing Kids’)
o The article highlights a case of a young boy who ended up in hospital after an assault
against him by his father, and when the father was charged and taken to the police, the
mother sought to review the parenting orders. But, the judge refused and stated that the
protection order would improve safety and ordered the mother to continue to facilitate
unsupervised contact.
- The Family Law Legislation (Family Violence and other Measures) Act 2011 (Cth) is a bid to
better protect children and other victims of DV
o defining child abuse more broadly to include exposure to violence, remove disincentives
to victims of violence reporting abuse and improve courts’ access to evidence of family
violence

Therefore, the reforms were responsive to community concerns around the law’s ability to
deal with domestic violence and increases the protection of the child.
SURROGACY / BIRTH TECHNOLOGIES

Commercial surrogacy
Commercial surrogacy, whereby the surrogate mother is compensated for her services
beyond reimbursement of medical expenses, requires the implementation of legal
frameworks to ensure its success.

• Commercial surrogacy is banned in all states of Australia, with the NSW’s Surrogacy Act
(2010) stating that the process “commodifies the child and the surrogate mother and risks the
exploitation of poor families for the benefit of rich ones”.
• The legal system’s unwillingness to legalise commercial surrogacy has led individuals to
international surrogacy arrangements, increasing the precariousness of the process.
• Thailand and India are common destination for intended parents seeking inexpensive
commercial surrogacy arrangements, with Families through Surrogacy estimating that the
cost of surrogacy in India is $47,000 compared to America’s $100,000 costs.
• This creates a breeding ground for the exploitation of women in desperate economic
situations, with Surrogate.com concluding that “Indian surrogacy agencies effectively ran
‘baby factories’, where Indian women were given no assistance for the family they had left
behind while pregnant and were awarded little compensation”.
• Moreover, the case of Baby Gammy, whereby twins born in an international commercial
surrogacy arrangement were separated after birth, highlights the damaging effects of
international surrogacy upon the mother and children involved - Justice Thackray of the
Family Court of WA noted that the case reveals “surrogate mothers are not baby growing
machines or ‘gestational carriers’, they can develop bonds with their unborn children”.
• Considering this, there is growing support for the legalisation of commercial surrogacy in
Australia, with the head of the Family Court, Chief Justice Bryant, stating that legalising the
process would help “counter the dark side of international trade”. Moreover, Surrogate.com
suggests that “intended parents should be able to pursue commercial surrogacy in an
environment where it is legal and well-regulated”.

Therefore, to counter the issues associated with commercial and international surrogacy,
the law must implement legal frameworks that consider the safety of the parties involved.

Altruistic surrogacy
The legal system’s approach towards altruistic surrogacy, in which the surrogate mother
voluntarily enters into an agreement to carry a pregnancy without receiving monetary
compensation, can be deemed unsatisfactory in failure to enforce compliance and protect
the parties involved.

• The Surrogacy Act 2010 legalises altruistic surrogacy in NSW, respecting the autonomy and
compassion of a woman whilst ensuring the arrangement is not transactional.
• However, the terms of this agreement are not enforceable by law, meaning that if the
surrogate does not relinquish the baby, or the intended parents do not accept the baby,
neither party can enforce the agreement.
• This can make altruistic surrogacy less popular, with the Australian Institute of Family Studies
publishing a study in 2012 that revealed half of the parents surveyed said that they “did not
even consider the possibility of uncompensated surrogacy due to the concern that the
surrogate may not give up the baby after birth”.
• Alongside this fear is the scarcity of willing volunteers, with Professor Chapman of UNSW
stating, “in 2011, only 80 women offered their bodies for altruistic surrogacy”.
• Moreover, the strict absence of ‘material payments’ that are outlined in Section 30 of the
Infertility (Medical Procedures) Act 1984 to distinguish altruistic surrogacy from commercial
surrogacy can result in a failure to protect and support the surrogate mother.
• This is showcased in the case of Diane in 2011 (name changed for legal reasons), who
offered to carry her friend’s pregnancy but ended up in a legal dispute due to the parent’s
unwillingness to care for Diane. An SMH article, When Altruistic Surrogacy Goes Wrong,
outlines Diane’s concerns for the system of altruistic surrogacy, claiming that it “offers little
protection for the surrogate” after the parents refused to pay for any material payments, such
as a house cleaner. She asserts that “there were disputes about $400 spent on maternity
clothes”, suggesting that the system’s ability to safeguard the surrogate mother relies on the
cooperation of the biological parents.

Therefore, the legal system is ineffective in protecting those involved in an altruistic

surrogacy arrangement, suggesting the need to implement enforceable legal frameworks.

Gender selection:
Gender selection, in which parents attempt to control the sex of the offspring to achieve a
desired sex, is an area of contention within the Australian public, raising concerns for the
welfare of children and the possibility for it to increase gender discrimination.

• The legal system has effectively responded to society’s changing values by prohibiting
scientifically administered sex selection techniques in 2004 after the National Health and
Medical Research Council (NHMRC) strongly advised against it on ethical grounds.
• Outlined in appendix 1 of the NHMRC document were the concerns that gender social
selection promotes the idea that parental love is not unconditional, stating “sex selection is
incompatible with the parent-child relationship being one that involved unconditional
acceptance”.
• Moreover, the document argues that sex selection may be an expression of “sexual prejudice,
in particular against girls”. This can be attested to in places like India, in which selective
abortion have resulted in “63 million fewer women since sex determination tests took off in
the 1970s” and “engrained societal sexism” (SMH, 2021).
• As well as this, “sex selection harms men in some cultural groups”, an idea echoed in an ABC
article, Gender Selection More Controversial, which states that in some parts of China, there
are 120 boys to every 100 girls because of gender selection.
 • As such, Australia assumes the position that sex selection is justified in cases where it’s in
the child’s best interests to be born of a specific sex, revealing the legal system’s capacity to
reflect CROC principles.
• In South Australia, the Assisted Reproductive Treatment Act 1988 permits the use of Pre-
Implantation Genetic Disorder (PGD) “if there appears to be a risk that a serious genetic
defect would be transmitted to a child conceived naturally”.
• The benefit of PGD is highlighted in the case of Greg and Quinta Turton, who used PGD to
conceive a healthy baby after their first daughter died from cystic fibrosis. Despite stating the
technology was a “huge relief”, the procedure cost up to $6,000 and was not funded by
Medicare, adding “extra stress to an already emotional time”.
• As such, the Medical Services Advisory Committee has recommended the federal
government fund the procedure that can screen for genetic abnormalities.

Therefore, the legal system has effectively responded to gender selection issues,
implementing legal frameworks that consider the best interests of the child.

IVF:
The process of IVF, in which the egg is fertilised outside the body and then implanted into
the uterus, is regulated by law in an attempt to balance the rights of the child, the parents
and the donor.

• Although, a report by the Australian Government on donor identification claimed that “the
history of donor insemination is one that has been shrouded in secrecy”. Article 8.1 of CROC
requires states to “respect the right of a child to preserve their identity”, rendering the
anonymity system that Australia use to follow regarding IVF procedures as in violation of this.
• The case of Turner and Coyle (2000) reveals the impacts of anonymity on a loss of identity
and belonging for the donor-offspring, in which the system sought to “protect their sense of
familial connection in encouraging parents to keep the use of a sperm donor a secret.” (The
Atlantic, 2017).
• As well as this, the lack of consistency across Australia regarding donor and donor-offspring
rights was resulting in further identity crises. Leonie and Warren Hewitt, parents of donor
conceived children, indicated that “the lack of consistent legislation across Australia enables
some donors to donate in a number of states”, with one of their children having 31 half
siblings.
• As a result, lobbying groups such as “We are Donor Conceived” pressured the government
for uniform legislation, which would help protect the rights of children to access information
about their genetic history.
• This eventuated in amendments to the Assisted Reproductive Treatment Act 2008 allowing
donor offspring to apply for identifying information about their donor.

Ultimately, through lobbying and public pressure, the legal system has effectively responded
to the concerns of the rights of the donor and the donor-offspring.
 CORE PART II: HUMAN RIGHTS
Key features

• the changing understanding of the relationship between state sovereignty and human rights
• issues of compliance and non-compliance in relation to human rights
• the development of human rights as a reflection of changing values and ethical standards
• the role of law reform in protecting human rights
• the effectiveness of legal and non-legal measures in protecting human rights.

The nature and development of human rights

• the definition of human rights

• developing recognition of human rights
o the abolition of slavery
o trade unionism and labour rights
o universal suffrage
o universal education
o self-determination
o environmental rights
o peace rights
• formal statements of human rights
o Universal Declaration of Human Rights
o International Covenant on Civil and Political Rights
o International Covenant on Economic, Social and Cultural Rights

Promoting and enforcing human rights

• In the international community:

o state sovereignty
o the roles of:
§ the United Nations
§ intergovernmental organisations
§ courts, tribunals, and independent statutory authorities
§ non-government organisations
§ the media
• In Australia:
o the incorporation of human rights into domestic law
o the roles of:
§ the Constitution, including division of powers and separation of powers
§ statute law
§ common law
§ courts and tribunals
§ non-government organisations
§ the media
§ a Charter of Rights (arguments for and against)

Investigate a contemporary issue which illustrates the promotion and/or enforcement of

human rights.

§ Human Trafficking and Slavery

 THE NATURE AND DEVELOPMENT OF HUMAN RIGHTS

THE DEFINITION OF HUMAN RIGHTS

- a right is something to which you are entitled

- there are moral rights, customary rights, legal rights, human rights, domestic rights and
international rights
- human rights are fundamental rights, they are things which every human being is entitled for
just being a human being

UNIVERSAL: To be enjoyed by all individuals regardless of their nationality, gender, race, or

status

INDIVISBLE: That is, all human rights are equally important

INHERENT: The birthright of all humans and are to be enjoyed by all people simply by reason of
their humanity

INALIENABLE: People cannot agree to give them up or have them taken away

^ This is recognised in the Charter of the United Nations 1945 and in the Universal
Declaration of Human Rights 1948

Civil and Political rights:

Civil and political rights are also called ‘first generation’ rights, because they were the first to be
recognised historically.

• Civil rights are entitlements belonging to all humans and are to do with being a free citizen
of a nation. (For example, freedom of thought and freedom of religion).
• Political rights are entitlements belonging to all humans and are to do with full participation
in government. (For example, the right to vote).
• Civil rights and political rights both protect the individual from the arbitrary exercise of power
by the state.
• These rights are set out in Article 3 to 21 of the Universal Declaration of Human Rights
1948 and in the International Covenant on Civil and Political Rights (ICCPR) 1966.

These rights are:

• The right of life, liberty, and security of person

• The right to freedom from slavery
• The right to freedom from torture or cruel, inhuman treatment
• The right to self-determination
• The right to recognition everywhere as person before the law
• The right to equality before the law

Economic, Social and Cultural Rights:

Known as second generation rights, they are concerned with the material and cultural wellbeing
of people. They usually require government action.

• Economic rights are the rights concerned with the production development and
management of material for the necessities of life.
 • Cultural rights are the rights which assist in preserving and enjoying one’s cultural heritage.
• Social rights are rights that give people security as they live and learn together, such as the
rights involving schools and other institutions.
• These rights are set out in Articles 23 to 27 of the Universal Declaration of Human
Rights 1948 and in the International Covenant on Economic, Social and Cultural
Rights (ICESCR) 1966.

These rights are:

• Social security (social right)

• Work, and just and favourable conditions of work
• Equal pay for equal work
• Join and form trade unions
• Rest and leisure
• Education
• An adequate standard of living
• Enjoyment of the highest sustainable standard of physical and mental health
• Participate in the cultural life of the community

Environmental rights, peace rights and the right to self-determination:

These collective rights are third generation rights which do not necessarily belong to the
individual, but rather to “the people”.

• The right to self-determination is the collective right of peoples to govern themselves.

• The status of third generation rights in international is not yet clear, although some have
been recognised at least partially in various international treaties and declarations.
• Examples: Kyoto Protocol 1992 & Declaration on the Rights of Indigenous Peoples 2007

DEVELOPING RECOGNITION OF HUMAN RIGHTS

- The termed emerged recently, around the 1940’s, however, has been a concept rooted in
ancient times through such things like the notion of natural law.

Natural law doctrine: The philosophy of natural law is based on the idea that there exist certain
‘natural’ laws which apply to all humanity, and which maintain the basic dignity of human beings.
Was developed in Ancient Greece by philosophers such as Plato and Socrates.

Historical constitutional documents: Human rights have been gradually recognised through
various documents which have become part of the constitutions of individual nations and
international agreements. The central ones are:

• The Magna Carta 1215: The Magna Carta included the principles that: every citizen has a
right to freedom, anyone accused of a crime must be brought before the courts, there must
be equality of all before the laws and the writ of habeas corpus (cannot be imprisoned
without good reason).
• English Bill of Rights: further limited the rights of the sovereign and sets out the rights of
parliament – freedom of speech, regular elections, right to petition monarch without fear of
retribution
 • Declaration of Rights 1689: Expressed clear the principles in the Magna Carta. Primary
purpose was to establish the supremacy of parliament over the king. Also established some
individual rights like freedom of speech.
• American Declaration of Independence 1776: (“we hold these truths to be self-evident,
that all men are created equal, that they are endowed by their Creator with certain
unalienable rights, that among these are life, liberty and the pursuit of happiness.”)
• French Declaration of the Rights of Man and the Citizen 1789: (“All men are born and
remain free and equal in rights.”)

THE ABOLITION OF SLAVERY

Right to freedom from slavery is recognised in Article 8 of the ICCPR. Its international
development is:

Contribution:

TRADE
UNIONISM AND LABOUR RIGHTS
A trade union is an association of wage earners which exist to maintain and improve the working
conditions of its members. They developed to fight for what are now recognised as fundamental
human rights, listed in the ICESCR 1966 such as:

• The right to enjoyment of just and favourable work conditions (Article 7)

• The right to form and join trade unions (Article 8)
• The right to an adequate standard of living (Article 11)
• Articles 23 and 24 of the UNHR 1948.
• The International Labour Organisation (ILO) was formed in 1919, an intergovernmental
agency of the League of Nations, to discuss social reforms and implement them – the ILO
still exists but now is an agency under the UN.
 Contribution:

• organised association of workers in a particular industry with the power to lobby government and
businesses for change
• protects labour rights through international recognition, such as its secured legal status in the
Trade Unions Act 1971 (UK) as well as Article 23 of the UDHR
• ability to improve working conditions through lobbying, labour rights are protected and
acknowledged as a necessary human right

UNIVERSAL SUFFRAGE
The right of all adults to vote in government elections. Recognised as the right to self-
determination in Article 1 of both the ICCPR and the ICESCR. This is a concept that has
undergone gradual development:

American Declaration of independence 1776 and Declaration of

the Rights of the Man 1789 (France) were the first documents that
established the right for people to choose their own government.

Representation of the People Act 1918 (UK) = whole male adult

population, extended 15th amendment in America in 1870, gave
all men the vote

NSW granted universal male suffrage (including Indigenous

people) in 1858. While being allowed to vore, the 1967
constitutional referendum gave Indigenous Australians equal
status as citizens, including the right to be counted in the census.

Female Suffrage: NZ: 1893, AUS: 1902, US: 1920, UK: 1928

Article 21 of the UDHR identifies Universal Suffrage. Article 1 of

the ICCPR and the ICESCR also do

Contribution:

• defined as the right for any person to vote in a democratic election

• ability for women to vote in elections has been contentious, with the presumption
that women do not obtain a rational or intelligent state of mind to have a say in their
government
• NZ was the first country to grant women the right to vote in 1893, and since, women have
gradually gained universal suffrage
• still need for change - with countries such as South Sudan which still prevent women from
the right to vote
• the right for Indigenous people to vote has developed, particularly in Australia, in which
Aboriginal people were granted equal citizen status and the right to vote in 1966
Universal suffrage is paramount within a democracy, allowing individuals a voice in the governing
of their country and thus a platform to express their concerns and struggles, which in turn seek to
aid lifestyles and ensure the law reflects community sentiments

UNIVERSAL EDUCATION
The right to free and compulsory education for all children. The right to education is enshrined in
Articles 13 and 14 of the ICESCR.

• Education Act 1870 (UK) by 1880 all children under the age of 15 were required to attend
school, with free and secular public instruction
• In NSW, Public Schools Act 1866 (NSW) was introduced to establish a system of state
elementary schools throughout the state
• Public Instruction Act 1880 (NSW) saw the government taking control of all the Church-
run schools (except the Catholic Church) and making education free, secular and
compulsory.
• Compulsory for all Australians to attend school from at least the ages of 6 to 15 (since 2010
in NSW 17), with 99% literacy rate
• Article 26 UDHR: “children’s elementary education should be compulsory and be made
widely available after that”
• Millennium Development Goals 2001 (all member states of the UN agreed): all children in
the world will have a minimum education up to the end of primary level by 2015 (however,
130 million children aged between 6 and 11 still do not have access to primary education)

Contribution:

The right to education is essential for the growth and functioning of society, allowing individuals
the strength to make autonomous decisions and have agency in their lives. By recognising this
human right, individuals are able to fulfill their potential and contribute to society in a beneficial and
productive way.

SELF-DETERMINATION
The right of peoples to decide their own political status and to choose their own form of
government.

• A collective human right, most clearly first established with the 1776 US Declaration of
Independence against British colonial rule
• Articles 1(1) and 55 of the Charter of the United Nations 1945
• Article 1 of ICCPR and ICESCR
• Article 15 of the UDHR (everyone has a right to a nationality, and no one should be
arbitrarily deprived of this or of the right to change nationality)
• The non-binding declaration of the Declaration of the Rights of Indigenous Peoples
2007 was adopted by the UN to address the controversial claim to self-determination rights
of indigenous people – four states rejected the declaration (including Australia) with many
more abstaining from the vote – in April 2009, however the Rudd Government formally
endorsed the declaration

Contribution:
If individuals are granted self-determination, they are able to run their lives free of external
influence and intervention, allowing them a lifestyle that caters for their specific needs. Without
self-determination, society becomes controlled and homogenous.

ENVIRONMENTAL RIGHTS
The right to a clean, healthy and sustainable environment.

• Article 23 of the African Charter on Human and Peoples Rights 1981 (adopted by 53
African states). the right to a satisfactory environment
• Protocol 2 of American Convention of Human Rights 1988 of the Organisation of
American States (North and South American) — right to a healthy environment and the
obligation of all states to protect, preserve and improve the environment
• Stockholm Declaration 1972 – natural resources of the earth, including the air, water,
land, flora and fauna must be safeguarded for future.
• Rio Declaration 1997 — States shall cooperate in a spirit of global partnership to
conserve, protect and restore the health and integrity of the Earth's ecosystem
• Kyoto Protocol 1997 — commits states to reduce greenhouse gases emissions, based on
the premise that (a) global warming exists and (b) man-made CO2 emissions have caused
it
• States fail to adequately commit to measures for the benefit of the global community when
they may be disadvantageous in the short-term for their national interest. The Copenhagen
UN Climate Change Conference 2009 exemplified this.

Contribution:

The right to a clean, healthy and stable environment is essential for society in terms of their ability
to appropriately profit from nature and be rewarded a sound quality of life.

PEACE RIGHTS
The right of citizens to expect their government will do all in its power to maintain peace and work
towards the elimination of war.

• The Paris Peace Conference 1919 lead to the creation of the League of Nations with an
aim to “to promote international co-operation and to achieve peace security”.
• The Charter of United Nations 1945 obliged nations to “settle their international disputes
by peaceful means” (article 2/3).
• The UN General Assembly adopted the Declaration of the Rights of Peoples to Peace
1984. Though non-binding, it aims that all “peoples of our planet have a sacred right to
peace/promoting the right as a fundamental obligation of states/government policies.”
• Article 51 of the UN Charter: states have an inherent right of individual or collective self-
defence if an armed attack occurs against them. Article 39 of the UN Charter: the UN
Security Council can authorize actions to maintain or restore peace if necessary.

Contribution:

Peace rights are essential in so far that they assert the need for peace and security within society,
avoiding corrupt governments to enter into war and leave their society’s collateral damage to the
violence.

FORMAL STATEMENTS OF HUMAN RIGHTS

UNIVERSAL DECLARATION OF HUMAN RIGHTS
This document lists the human rights to which every person is entitled. It is non-binding (SOFT-
LAW) but still influential and is a cornerstone for international human rights law.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Was created to give legal force to part of the UDHR. The ICCPR is a binding international treaty
creating obligations on states to respect civil and political rights of individuals. Came into force
in 1976 when ratified by the requisite number of countries: 35. Now have 165 state parties.

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Gave legal force to the second part of the UDHR. Is a binding international treaty creating
obligations on states to respect economic, social, and cultural rights of the individual. Have 160
state parties.
Treaties dealing with specific human rights:

• Convention on the Elimination of All Forms of Racial Discrimination 1965

• Convention on the Elimination of All Forms of Discrimination Against Women 1979
• Convention on the Prevention and Punishment of the Crime of Genocide 1948
• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment 1984
• Convention on the Rights of the Child 1989
• Declaration on the Right of Peoples to Peace 1984
• Declaration on the Rights of Indigenous Peoples 2006
 PROMOTING AND ENFORCING HUMAN RIGHTS

IN THE INTERNATIONAL COMMUNITY:

STATE SOVEREIGNTY
The ultimate law-making power of a state over its territory and population, including independence
and freedom from external influence.

• States can choose whether they will enforce human rights and the extent to which they will
protect them.
• State sovereignty may be used as a justification for the unfair abuse and exploitation of a
population by its government à not all governments equally accept the idea that their own
people have certain rights
o e.g., Child Brides in Pakistan highlights the violation of children’s rights but due to
state sovereignty other states cannot overrule that government.
• State sovereignty can impact negatively on the protection of human rights because
breaches of these rights cannot be controlled.
• The protection of human rights internationally undermines the idea of national sovereignty
because it means interfering with a nation’s domestic affairs

THE ROLES OF:

THE UNITED NATIONS

A vast organisation with 192 member states. There is:

• General Assembly (UNGA): representatives from all member states, equal voting power,
main forum for international discussions, deliberations, declarations and recommendations,
the UN Human Rights Council (UNHRC) is the UN’s principal human rights body and
reports directly to the UNGA. Aims to address human rights violations worldwide and make
recommendations, works closely with the OHCHR to perform its duties.
• Security Council (UNSC): maintenance of international peace and security, exercises power
through legally binding resolutions, can authorise military action, sanctions, or
peacekeeping operations.
• Economic and Social Council (ECOSOC): 54 rotating members meeting annually to assist
in promoting international economic and social cooperation and development - Secretariat:
the UN administrative body headed by the UN Secretary-General; contains the departments
and offices of the UN (e.g. Office of the High Commissioner for Human Rights)
• International Court of Justice (ICJ): principle judicial organ of the UN (empowered by the
UN Charter), has jurisdiction to hear disputes submitted by member states and issue
advisory options, cases only rarely relate to human rights

INTERGOVERNMENTAL ORGANISATIONS
European Union (EU):

• States must be democracies that uphold the rule of law, respect and uphold universal
human rights and adhere to the UN Charter on the use of force
North Atlantic Treaty Organisation (NATO):

• States must be democracies that uphold the rule of law, respect and uphold universal
human rights and adhere to the UN Charter on the use of force

Commonwealth of Nations:

• Abide by the principles of democracy and respect human rights

• Can be expelled from the Commonwealth due to non-compliance (e.g., Fiji, Nigeria,
Pakistan, and Zimbabwe have all been temporarily suspended)
• Promotion of democracy, the rule of law, human rights, individual liberty, and good
governance

Association of Southeast Asian Nations (ASEAN):

• ASEAN Charter 2008

• ASEAN Intergovernmental Commission on Human Rights: established in 2009, aims to
promote and protect human rights, no formal enforcement powers, members cannot be
punished for infringements

COURTS, TRIBUNALS, AND INDEPENDENT STATUTORY AUTHORITIES

International Court of Justice (ICJ):

• To hear and judge disputes between states, and to issue advisory opinions on matters of
international law
• Relatively few cases
• Strong criticism over the requirement of the consent of state parties to hear matters and
thus has limited jurisdiction
• Unable to hear cases brought by individuals or private organisations
• Limited powers of enforcement

International Criminal Court (ICC):

• Permanent international court that hears cases relating to the most serious international
crimes and gross human rights abuses (i.e. genocide, war crimes and crimes against
humanity)
• Individuals can be tried for crimes against humanity and human rights infringements
• Established by the Rome Statue (111 parties have agreed to the statute’s provisions and
the jurisdiction of the ICC)

Ad Hoc UN Tribunals:

• Set up by the UNSC under the rules of UN Charter

• Individuals could be prosecuted for crimes against humanity
• e.g. International Criminal Tribunal for the former Yugoslavia 1993 heard breeches of the
Geneva Conventions (i.e. war crimes)
• e.g. International Criminal Tribunal for Rwanda 1994 (cases of genocide)

European Court of Human Rights:

 • Member states are all bound by the European Convention on Human Rights
• Individuals can bring forward cases
• Jurisdiction over human rights issues in the EU
• Limited enforcement powers (states that do not comply to its ruling could be expelled from
the Council)
• Influential body: numerous laws in the UK have been revised following ECHR rulings.
However, has a backlog of 120 000 cases.

Statutory Authorities:
Human Rights Committee:

• Assesses member states compliance with the ICCPR and can hear petitions raised by the
states about each other’s compliance
• The First Optional Protocol to the ICCPR hives the Committee jurisdiction to hear personal
complains brought by individuals of member states about human rights violations in their
own country
• Toonen v Australia 1994 (UN Human Rights Committee)
o Tasmanian Nicholas Toonen complained about Tasmanian laws that criminalised
consensual sex between adult males; were a violation of his right to privacy
(protected under Article 12 of UDHR and 17 of ICCPR)
o Discrimination based on sexual activity and orientation breeched Articles 2 and 7 of
UDHR and Article 26 of ICCPR
o The Committee ordered Australia to repeal the law as it was in violation of Toonen’s
right to privacy
o Tasmania refused to repeal the law and thus the federal government was forced to
enact the Human Rights (Sexual Conduct) Act 1994 (Cth), which legalised
consenting sexual activity between adults throughout all of Australia

Human Rights Council:

• Universal Periodic Review of all member states

• However, it is up to the state to declare what action they will take if inadequacies present
themselves

Committee on Economic, Social and Cultural Rights (CESCR)

Committee on Elimination of Racial Discrimination (CERD)
Committee on the Elimination of Discrimination Against Women (CEDAW)
Committee on the Rights of the Child (CRC)

• Their role is to consider reports, individual complaints and communications and publishing
general comments and organising forums and discussions related to issues

NON-GOVERNMENT ORGANISATIONS
Independent and without any representation of government i.e., private voluntary organisations,
citizens associations and civil society organisations

‘Naming and shaming’ can pressure governments to act in the right way

• International Committee of the Red Cross

o Permanent observer status of UNGA
 o International humanitarian law: to protect the life and dignity of the victims of
international and internal armed conflicts (often overlapping with human rights
abuses)

Amnesty International:

• To conduct research and generate action to prevent and end grave abuses of human rights,
and to demand justice for those whose rights have been violated”

THE MEDIA

• ‘Naming and shaming’s governments and human rights violators by exposing instances of
human rights abuse/places pressure on governments to enact change
• Article 19 of UDHR 1948; right to a free and impartial media (important as it influences
public opinion significantly)
• Quickly mobile public action against human rights abuses e.g., Kony 2012 - ‘Compassion
fatigue’ can be a result of constant news coverage
• Tendency for media to have broad as opposed to deep coverage

IN AUSTRALIA:

THE INCORPORATION OF HUMAN RIGHTS INTO DOMESTIC LAW

Protection of human rights in Australia has been generally of a high standard; however, some
court action and statutes have place limitations on human rights. Australia incorporates human
rights into their legislation in a process of:

• The treaty is drafted

• States sign treaty (with intention to mirror it in their domestic law)
• It is when the treaty is then ratified that it becomes legally binding in the state’s legal
system. Australia requires domestic law incorporation.

THE ROLES OF:

THE CONSTITUTION, INCLUDING DIVISION OF POWERS AND SEPARATION OF POWERS

The Constitution:
Expressed Rights:

• s. 116 (freedom of religion i.e. Commonwealth not to legislation in respect of religion)

• s. 117 (right against discrimination on the basis of out-of-State residence i.e. no subjection
to any disability or discrimination on a state basis)
• s. 109 (inconsistency of laws i.e. legislature hierarchy – Commonwealth law shall always
prevail)
• s. 80 (trial by jury i.e. indictable offences against any law of the Commonwealth shall be by
jury in the state where the offence was committed)
• s. 51 (xxxi) (right to just compensation i.e. acquisition of property on just terms)
• s. 51 (xxxvii) (residual powers i.e. States can refer power back to Commonwealth)
 • s. 51 (legislative powers of the Parliament: “power to make laws for the peace, order, and
good government of Commonwealth”)

Implied Rights:

• s. 7 & s. 24 (implied HCA right to vote i.e. “composed of members directly chosen by the
people of the Commonwealth” — Roach v Electoral Commissioner 2007)
• s. 7 & s. 24 (implied HCA freedom of political communication — Lange v Australian
Broadcasting Corporation 1997)

Separation of Powers:
The prevention of one person or group from gaining total power by dividing power between the
executive, the legislature and the judiciary

• The Legislature: elected law-makers in Parliament

• The Executive: government ministers, the Governor-General and Prime Minister –
• The Judicature: the courts that interpret and apply the law
o Since the New South Wales v Commonwealth (Wheat Case) 1915, the HCA decided
that a strict separation of judicial power was a fundamental principle of the
Constitution — does not want to be politicized.
o The judiciary is able to strike down any legislation that is deemed incompatible with
the provisions of the Constitution

Division of Powers:
The arrangement of how the powers between the federal and state government are divided.

• Heads of Power: powers listed in s. 51 and s. 52 describe the area that the Commonwealth
can legislate on
o e.g. currency (s. 51 (xviii)), marriage (s. 51 (xxi)), external affairs (s. 51 (xxix) – ability
to legislate on treaties (ICCPR, ICESCR, CROC, CEDAW, UDHR) –
• Residual Powers: powers not listed (thus omitted) in the Constitution for the Commonwealth
to legislate on are deemed to remain the powers of states
o e.g. air navigation and terrorism regulation

STATUTE LAW
Commonwealth and state legislation has been adopted by successive parliaments to protect
human rights e.g.

• Racial Discrimination Act 1975 (Cth)

• Sex Discrimination Act 1984 (Cth)
• Australian Human Rights Commission Act 1986 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Age Discrimination Act 2004 (Cth)
• Anti-Discrimination Act 1977 (NSW)
• Social Security Act 1991 (Cth) à adequate standard of living for all

Creation of Bodies (e.g., Australian Human Rights Commission and NSW Anti-
Discrimination Board) administer federal human rights legislation, including anti-discrimination
and privacy legislation
The AHRC investigates and conciliates complaints about human rights abuses, but it does not
have the power to make legally binding decisions.
Parliamentary committees and law reform bodies investigate the protection of human rights in
Australia and make recommendations for reform e.g., Parliament’s Human Rights
Subcommittee.

COMMON LAW
The body of law passed down by judgements of the courts. Has evolved over the years
independent of government and carries the power to protect many human rights.
Common law cannot be relied upon to develop new rights as judgements will only define those
rights on a case-by-case basis e.g.

• ABC v Lenah Games Meats Pty Ltd 2001, the HCA suggested the possibility of a tort for
invasion of privacy
• Giller v Procopets 2008, the Supreme Court of Victoria recognised a person’s right to privacy
• Mabo and other v the State of Queensland 1992, decided ‘native title’ existed if the Indigenous
occupiers of the land could demonstrate an ongoing traditional connection with the land and
the title had not been extinguished by a valid government action.

COURTS AND TRIBUNALS

• The NSW Administrative Decisions Tribunal can hear complaints about discrimination and
make legally binding decisions about the matter (can award damages up to $40 000).
• The ACT and Victorian courts can also hear and make decisions about the abuse of human
rights contained in their legislative Charter of Rights.
• High Court of Australia: can set binding presents on other courts and overturn state of
Commonwealth legislation
o e.g., decriminalisation of homosexuality (Croome v Tasmania 1997), Constitution right to
freedom of political communication (Lange v Australian Broadcasting Corporation 1997),
possible common law right to privacy (ABC v Lenah Games Meats Pty Ltd 2001), all
peoples right to vote (Roach v Electoral Commissioner 2007), recognition of the
Australia’s indigenous peoples’ right to their traditional land i.e. ‘native title’ (Mabo v
Queensland 1992)
• International tribunals can also be effective in addressing human rights violations where there
is no domestic legislation enacting the provisions of signed treaties e.g., Toonen v Australia
1994 (Tasmanian homosexuality laws interfered with his right to privacy under Articles 17 and
26 of the ICCPR – lead to Human Rights (Sexual Conduct) Act 1994 (Cth)).

NON-GOVERNMENT ORGANISATIONS

• Amnesty International
• The Red Cross
• The Australian Human Rights Centre at UNSW (provides information about human rights and
publishes material about current developments that affect human rights law)
• The NSW Council for Civil Liberties (monitors and comments on developments that may affect
civil rights)
• Effective in cultivating public awareness, researching issues, making submissions to the
Commonwealth, prompting law reform, and exposing violations, however, have very limited on-
the-ground functionality

THE MEDIA
• Indispensable role in ‘naming and shaming’ governments and human rights violators e.g.,
‘Slaving Away’ by Four Corners expose s human rights violations in more depth
• Significant influence on public opinion and government action
• The rights of Australian reports to disseminate information and the right of the public to receive
information are not enshrined in law but the freedom of political communication is protected to
an extent by HCA interpretation.

A CHARTER OF RIGHTS (ARGUMENTS FOR AND AGAINST)

• Charter of Rights (aka Bill of Rights or Declaration of Rights) is a legal document which sets
out the basic rights (civil, political, and cultural) to which every human should be entitled.
• Entrenched Charter: Part of the Constitution therefore all citizens are protected no matter who
is in government (no government can pass a law which contradicts a right given by the
charter), however, difficult to amend as it requires a referendum and thus is not as fluidly
reflective of changing social values (e.g., the US’ right to bear arms sees mass shootings,
violence and murder as it is no longer relevant)
• Legislative Charter (aka Statutory Charter): an act passed by a parliament in the same way
as any other law is passed, the Human Rights Consultation Committee suggested that
Australia should pass a legislative charter as it can be continually reflective of community
values, however, it does not have the same level of protection as an Entrenched Charter as the
political party in power can change it (e.g., Britain, New Zealand, Victoria and the ACT)

Arguments for COR Arguments against COR

The common law has not protected
human rights adequately as seen in
McInnes vs The Queen.
A Charter of Rights would protect
minority groups who are not adequately
protected. (Aboriginals)
The common law is too slow to meet
contemporary needs such as
technological advances.
A Charter of Rights would protect
people from government inference in
basic human rights.
A Charter of Rights would adopt a major
recommendation of the National Human
Rights Consultation Committee and
bring Australia into line with other
countries.
Human rights are already adequately
protected through international agreements
and common/statute law.
A Charter of Rights can only protect people
within the limits of the rights it lists.
A Charter of Rights may mean the judiciary
would take on a political role because it
would have to decide whether laws
infringed the charter.
An entrenched Charter of Rights is difficult
to change and may become irrelevant over
time.
A legislative Charter of Rights is too easy
to change and can be amended according
to political policies of a party. Drafting a
Charter of Rights would also be extremely
costly.
 CONTEMPORARY ISSUE: PROMOTION AND/OR ENFORCEMENT OF HUMAN
RIGHTS.

HUMAN TRAFFICKING AND SLAVERY

The Nature and Extent of the Issue
What is the issue?
Human trafficking is a contemporary issue that violates human rights. It is defined as the illegal
movements of people, with the intended use to exploit them and can take place in the forms of;
forced labour debt bondage and sexual slavery. It involves an unwilling victim who is forced into
completing a task, with an unfair reward or repayment, or no compensation at all. The United
Nations 2009 Global Report on Trafficking in Persons, states that sexual exploitations is the most
commonly documented of all slavery, with an estimated 56% of victims being young girls and
women.

Where is it an Issue?
Human trafficking is an issue that affects nearly every country in the world, with people exiting,
entering, and moving across state borders, in order to commit this crime. The United Nations’
Office on Drugs and Crime has estimated that there are over 2.4 million victims of human
trafficking across borders in 2012. These victims are transported to destination countries, such as
Australia, the United States and Europe. Some of the main reported source countries are
Colombia, Brazil, Ghana, Russia and China.
How widely spread is it both internationally and In Australia?
Human trafficking is spread throughout almost every country in the world, affecting all 161 source,
transit, and destination countries. The UN Office on Drugs and Crime states that it is the fastest
growing international crime and one of the largest sources of income for organised crime. At least
20.9 million people are victims of forced labour worldwide with 1.2 million of those being children.
Australia is one of the main destinations for human trafficking, with most of its victims coming from
countries in East Asia, Southeast Asia and Eastern Europe. There are an estimate of 1000 people
being trafficked each year and a high demand for women, especially from Asian countries, to be
exploited in the sex trade. However, Australia has one of the lowest percentages of the population
enslaved with less than 0.04%.
Links to the Abolition of Slavery
Despite the legal abolition of slavery in the 19th Century, human trafficking still leads to the
existence of slavery in the 21st Century, undermining Article 4 of the Universal Declaration of
Human Rights (1948) as it states, “no one shall be held in slavery or servitude; slavery and the
slave trade shall be prohibited in in all their forms.” Today, every country has laws to officially
abolish human rights however statistics show that there is a greater number of slaveries around
the world than during the most notable times in history.
International Responses
Human trafficking and slavery are complex transnational and international problems, prompting an
equally complex web of responses from the global community.
International Legal Responses

International responses started with the abolition of slavery in the early 20th century, with the
establishment of the Slavery Convention 1926. It was further expanded in 1956 in the
Supplementary Convention on the Abolition of Slavery, the Slave Trade and Practices Similar to
Slavery. However, although these treaties provided for the official abolition of slavery worldwide,
they did not address the specific issues of slavery and human trafficking thus limiting it’s
effectiveness in the protection of human trafficking.
In 2003, the UN general assembly created the Protocol to Prevent, Supress and Punish Trafficking
in Persons, Especially Women and Children, also known as the Palermo Protocol, as part of a
larger treaty tackling transnational crimes. The Protocol was the first legally binding instrument
with an agreed definition of human trafficking, when it first came into force in 2003, and proved to
very effective in the protection, prosecution, and prevention of human trafficking as it promoted
greater conformity in international laws. There are a total of 147 parties who have signed up to the
treaty on the basis of, however there are still many countries that have not implemented the
protocol on the basis of state sovereignty, limiting its effectiveness to only the countries that have
signed the treaty.
Role of State Sovereignty
State sovereignty recognises that states have the right to govern themselves without the
interference from other states and international organisations. The UN GIFT Global Report on
Trafficking in Persons (2012), found that 85% of countries have passed laws that addresses the
major forms of trafficking. However, this means that there are still 39 countries that have not. In
this way, international treaties concerning human trafficking are only effective when countries
enact their own domestic legislation.
Intergovernmental Responses
International non-legal responses play a crucial role in raising awareness about human trafficking.
Intergovernmental responses, such as UN.GIFT, work with the media to get messages out to the
world about human trafficking. UN.GIFT aims to promote the issue, raise awareness, and join
forces with other non-government organisations to combat the issue. The international Labour
Organisation have implemented and reported on workers’ rights worldwide as well as campaigning
continuously against forced labour. In order to raise global awareness, a Special Action Program
on Forced Labour was established. The UN, and the ILO have been very successful at promoting
and protecting by raising awareness and gaining information to do with human trafficking.
However, like all non-governmental organisations, they are completely ineffective without the
support of groups with legal power.

Courts and Tribunals

International and regional courts and tribunals are another source of accountability and monitoring
human trafficking issues. The ad hoc international criminal tribunals such as the International
Criminal Tribunal for the former Yugoslavia has occasionally considered trafficking-related issues
and the inclusion of trafficking and related practises such as slavery and sexual slavery into the
Statute of the International Criminal Court will have future relevant to the issue of trafficking.
Human rights issues relating to trafficking, such as slavery and forcer labour have also been
considered by regional courts, including the European Court of Human Rights and the Inter-
American Court of Human Rights.

International Non-Legal Responses

Anti-slavery International is an NGO that aims to draw attention to the issue of slavery and
campaign for recognition in countries most affected today. The American Anti-Slavery Group also
aims to raise
awareness provides advocacy and aid focusing mainly on slavery in Sudan and Mauritania. These
are both quite effective in promoting the issue but are not effective in protecting or enforcing
slavery rights. In the case of the American Anti-Slavery group, it is even less effective in aiming for
global recognition, with a specific focus on only 2 countries.
Domestic Responses
Domestic Legal Responses
Domestic legal responses have been made in Australia to tackle the issue of human trafficking.
Governments have enacted aspects from international law to help enforce human rights in regards
to slavery in a moderately effective way.
AFP and Attorney General
The introduction to new measures under the Commonwealth Government Anti-Trafficking Strategy
increased specialist training and funding for the Australian Federal Police (AFP) to detect and
investigate human trafficking operation as well as giving them the jurisdiction to investigate cases
in regards to slavery through law enforcement. It also added additional funding and training for the
prosecution of human trafficking as well as a National Policy Strategy to combat trafficking in
women for sexual servitude. This was an effective strategy in protecting the rights of victims as the
government identified this as a national problem resulting in 112 investigations and 22 charges for
human trafficking since 2004. However the enforceability of the law may be limited as the
identification of cases are difficult.
Legislation and Law Reform
Australia first introduced sexual slavery laws with the Criminal Code (Slavery and Sexual
Servitude) Amendment Act 1999 (Cth), which made slavery illegal at a federal level. The
amendment in particular refined and added more specific human trafficking offences to the federal
Criminal Code in the Criminal Code Amendment (Trafficking in Persons Offences Act 2005 (Cth),
such as prohibiting the deceptive recruiting of a person for sexual servitude (Division 270) and
making the traffic of persons or children, internationally or domestically, an offence (Division 271).
Case Study – Wei Tang
The case of R v. Wei Tang [2008] was a landmark case in regards to human trafficking and
slavery. It was Australia’s first jury conviction under the slavery provisions of Division 270 of the
Commonwealth Criminal Code. Tang’s conviction was overturned for retrial (following her first trial
in 2006) on the basis that the judge had “misdirected the jury on the meaning of the term slavery”.
The prosecution then appealed to the High Court of Australia, where the original conviction was
upheld in 2008.
It was significant to common law as it instigated an update in terminology in the Crimes Legislation
Amendment (Slavery-like Conditions and People Trafficking) Act 2103 (Cth). The act broadened
the definitions of human trafficking by incorporating terms such as debt bondage and forced
labour. In addition, the High Court held that debt bondage is a form of slavery, illustrating the role
of common law in enforcing human rights.
Domestic non-legal responses
NGO’s
There are a number of NGO’s that make indispensable contributions to fighting all forms of
modern-day slavery such as Anti-Slavery Australia which focus’s on the abolition of slavery,
trafficking and extreme labour exploitation through research projects such as the Anti-Slavery
Project and the advocation of changes to laws and policies. These have been highly effective
responses in raising awareness of these issues but like most NGO’s, they don’t have the power to
enact and create legislation.
Media
The media plays a major role in promoting the crude reality of human trafficking and the effects it
can have on both the victim and the country making it very effective in raising awareness of the
issue. In July 2006, SBS aired ‘Trafficked”, a documentary about sex slavery, which influenced
victims of the crime to come forward and fight for compensation claims. According to the director
“The film made legal history and set precedent for suture victims.” Therefor the documentary was
a highly effective strategy in raising awareness of the issue. Additionally, the ‘4 Corners episode:
Sex Slavery’ was a catalyst for victim complaints as it increased awareness of the issue making it
a highly effective non-legal response in promoting human rights.
Conclusion
Although slavery was first abolished in 1926 with the Slavery Convention, there are still mass
numbers of people being trafficked around the world today. Australia has adopted some very
effective measures to combat this issue domestically, and the international responses to human
trafficking have also been largely effective in the protection, prosecution, and preventing of human
trafficking worldwide. However, limited resources and socio-political and economic factors
contribute the problem of modern-day slavery at an international level. Over time, improved
awareness, and monitoring of vulnerabilities, including locations, sectors, and businesses where
trafficking occurs, will help prevent trafficking in Australia on a wider scale.
 HUMAN RIGHTS HSC QUESTIONS
Evaluate the effectiveness of international responses in promoting and enforcing human
rights.
While the international legal system has been reasonably effective in promoting and publicising
protection of human rights, there have been limits to its success in providing protection. The limits
to the effectiveness of international law in protecting human rights are:
Reason Effect
Not all countries are party to As a result, the individuals in those countries are not
human rights treaties protected by such treaties. Thus, the concept of state
sovereignty comes in, however some argue that the UDHR
acts as customary law on everyone.
Lack of adequate The enforcement of the UNI bodies do not apply to all
enforcement mechanisms treaties and some are optional rather than compulsory.
Even if a nation agrees to a treaty, it doesn’t have to agree
to the UN’s enforcement mechanisms.
Enforcement by consensus Enforcement of any international law is problematic
because it relies on consensus, reciprocity and the notions
of legal responsibility.
Reliance on state reporting The Human Rights Council, with the Universal Periodic
Review program, relies on each member state to
accurately report its own human rights infringements.
States can choose not to report situations.
Lack of Security Council The SC has only used the powers of humanitarian
action intervention four times, and is extremely wary to intervene
in sovereign states. (Rwanda genocide 1994)
War crime tribunals War crime tribunals have often entrenched the conflict
rather than end it. ICC has had no major impact.
Lack of funding UN bodies all suffer from a chronic lack of funding which
limits their ability to function effectively.
Informal recognition of The reporting procedures of nations to UN bodies have
NGO’s been criticised as they do not consider NGO information
formally
Effectiveness of the media The media is effective in promoting issues and inspiring
public action to human rights. However, this can cause a
“compassion fatigue” in the public and also the media only
provides a broad, but not deep, coverage

Evaluate the effectiveness of Australian responses in promoting and enforcing human

rights.
Australia has generally had a good record on human rights, and also a prominent role in the
international arena in the promotion of human rights.

Advantages:
Active in drafting UDHR, ICCPR, ICESCR
and other international documents.
The Australian Constitution already contains
some core human rights protection, and a
separate charter is not needed. In addition,
entrenched charters can be inflexible and
lead to an infringement of the ‘separation of
powers’ doctrine.
Disadvantages:
The role of the AHRC has been criticized
as it does not have adequate power to
protect rights (not legally binding)
Unwillingness of the government to adopt
laws and practices to address human
rights issues. E.g. Anti-terrorism laws such
as the Anti-Terrorism Act 2005 which
introduced control orders and preventative
detention which breached human rights in
the ICCPR Case: Mohammed Haneef
2007
 Australia has a strong human rights body in Reluctance to sign international treaties.
the Australian Human Rights Commission E.g.: Delayed signing of Kyoto Protocol in
which is independent of government. 2007
Many human rights in Australia are Lack of Charter of Rights
protected through non-interference
The treatment and quality of life for Treatment of Aboriginal and Torres Strait
Aboriginal continues to improve and Islanders
previous discriminatory legislation has been
ceased.
N/A Mandatory detention of asylum seekers
and timeframes for processing claims for
refugee status
Outline how trade unionism can protect labour rights. (3 marks)
Trade unionism is the organised association of workers in a particular industry with the power to
lobby governments and businesses for change. It protects labour rights through international
recognition, such as its secured legal status in the Trade Unions Act 1871 (UK) as well as article
23 of the UDHR. Further, with the ability to improve working conditions through lobbying by those
in the industry, labour rights are protected and acknowledged as a necessary human right.
Outline how the right to universal suffrage has developed over time. (4 marks)
Universal suffrage, which can be defined as the right for any person to vote in a democratic
election, has evolved over time. The ability for women to vote in elections has been contentious,
with the presumption that women are too inferior to have a say in their government. New Zealand
was the first country to grant women the right to vote in 1893, and since, women have gradually
gained universal suffrage. Although, there is still a need for change, such as in South Sudan,
where women are still not granted this right. Moreover, the right for Indigenous peoples to vote has
developed particularly in Australia, in which Aboriginal people were finally granted equal citizen
status and the right to vote in 1966.